Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

NORP The applicant , Mr PERSON oglu GPE ( PERSON oğlu PERSON ) , is an NORP national , who was born in DATE and lives in GPE .

He was represented before the ORG by Mr 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 .

NORP The applicant ’s son , GPE , had been serving as a lieutenant in ORG ( “ the ORG ” ) in GPE region since DATE . The frontier station where GPE had been serving was situated at the AzerbaijaniGeorgian border , not far from the village of PERSON . He was a deputy commander of his unit .

On DATE , at the request of his commander , GPE and CARDINAL soldiers under his supervision went to a belt of woodland near their barracks to cut some wood . The objective of the mission was to provide the frontier station with wood for its domestic needs . GPE and the other soldiers were sent on the mission without any weapons , other than axes for cutting wood and ropes .

After their arrival at the forest they divided into CARDINAL groups : GPE stayed with CARDINAL of the soldiers , GPE and PERSON , and the other CARDINAL soldiers worked in another part of the forest not far from them . At TIME as GPE , GPE and PERSON were approaching the road crossing the forest , where they met a hunter ( ORG ) with a shotgun . GPE asked ORG to produce his gun licence . As B.N refused to do so , FAC ordered the soldiers to take ORG to the frontier station . At that moment , ORG fired at FAC He then attempted to shoot GPE , who prevented him from doing so by seizing his shotgun . However , ORG managed to escape .

NORP The soldiers took GPE to the frontier station on a tractor trailer . GPE was then taken to hospital by car , but he died before reaching the hospital .

A criminal investigation was immediately instituted in connection with ORG death .

On DATE ORG was arrested by the police and on DATE he was charged under LAW murder ) of LAW .

B.N. confessed to his crime during the investigation . He stated that he lived in the LOC village and on DATE he had gone to the forest next to the village to hunt because it had been his daughter ’s birthday . At TIME he met GPE and CARDINAL soldiers in the forest . GPE asked him for his gun licence , and as he failed to produce it , FAC ordered the soldiers to take him to the frontier station . Following GPE ’s order the CARDINAL soldiers began to punch him and at that moment he shot GPE , who was standing between the CARDINAL soldiers . He justified his action as retaliation for GPE ’s order to take him to the frontier station . However , ORG denied that he had also attempted to shoot another soldier .

The CARDINAL soldiers involved in the incident were also questioned by the investigator . They stated that on DATE they had gone on a mission to the forest to cut wood and that during the mission they had been under ORG orders . When they arrived at the road crossing the forest , they met ORG , who was armed . GPE asked ORG for his gun licence . As ORG failed to produce that document , ORG ordered them to take ORG to the frontier station . At that moment , ORG shot FAC and then tried to shoot GPE , but did not manage to do so because GPE seized ORG ’s shotgun . The soldiers also stated that they had immediately taken GPE to the frontier station , but that he died later .

A face - to - face confrontation was carried out between ORG and the CARDINAL soldiers during which the parties reiterated their initial submissions .

The commander of ORG unit and the other soldiers of the unit participating in the mission were also questioned by the investigator . They confirmed the above - mentioned version of the events .

Following a forensic examination carried out during the investigation , it was established that GPE had died as a result of the shooting of DATE . The investigation further established that ORG was not in possession of a gun licence . On DATE a psychiatric expert concluded that ORG was not of unsound mind when he had shot GPE

Having requested recognition as a legal heir of the victim ( zərərçəkmişin hüquqi varisi ) , on DATE the investigator granted the request and the applicant was then heard as such . The applicant stated that at TIME on DATE he had been informed that his son had been killed in the LOC village , but he had not known the circumstances of his death .

On DATE the investigator lodged an indictment with ORG .

On DATE ORG held a preliminary hearing . It transpires from TIME of the hearings before ORG that ORG and the soldiers maintained their initial statements submitted during the investigation . The unit commander was also heard before the court . He stated that on DATE GPE and CARDINAL other soldiers went at his request to the forest to cut some wood for the domestic needs of the frontier station . At TIME a tractor approached the frontier station and he learned that GPE had been shot by a hunter . He immediately took FAC to the LOC village doctor and informed the ORG ’s administration about the incident , but it was not possible to save ORG life .

On CARDINAL DATE ORG found ORG guilty , under Articles CARDINAL ( attempt to commit a crime ) and CARDINAL ( murder ) of LAW , and sentenced him to DATE imprisonment . The court found that ORG had had no gun licence and that the ORG officers had been entitled to stop and check the documents of people who lived in the border area . The court also noted that the rules on hunting in the border area should be coordinated with the border troops .

On an unspecified date the applicant and ORG appealed against ORG judgment . The applicant asked the appellate court to sentence ORG to life imprisonment , while ORG asked the court to reduce his prison term .

On DATE ORG dismissed the applicant ’s and ORG appeals and upheld ORG judgment . It held that the applicant ’s appeal was unsubstantiated , because ORG had taken into consideration the mitigating and aggravating circumstances when it had sentenced ORG to CARDINAL years’ imprisonment .

On an unspecified date the applicant lodged a cassation appeal . He asked the court to sentence ORG to a heavier penalty .

On DATE ORG dismissed the applicant ’s appeal and upheld ORG judgment .

On DATE the applicant brought a civil action against ORG seeking compensation for the death of his son . The applicant argued that his son had been killed because he had not been provided with adequate weapons when he was sent on a mission , and that therefore the ORG had failed to protect his son ’s life . He also noted that ORG had been given a lenient sentence and that the responsibility of the ORG ’s officers for his son ’s death had not been established .

It appears from the case file that , in the proceedings before ORG , a representative of ORG objected to the judge sitting in the case , claiming that the judge in question had taken no action despite the fact that the applicant had insulted her at the hearings .

On DATE the President of ORG granted the request of the representative of ORG and allocated the case to another judge .

On DATE the applicant appealed against that decision , objecting to the participation in the case of all the judges of the court , including the president of the court .

On DATE ORG dismissed the applicant ’s appeal and remitted the case to ORG . The court held that the applicant had failed to substantiate his objection .

On DATE ORG delivered a judgment on the merits , dismissing the applicant ’s claim . The court held that it had been established in the criminal proceedings that GPE had been killed by ORG and that a civil judge was obliged to take the findings of the criminal proceedings into account in order to establish the facts . Therefore the applicant should lodge a compensation claim against ORG , but not against the ORG , which was not responsible for the death of his son .

The applicant appealed against that judgment . He claimed that his son had been killed because GPE and other soldiers had been sent on a mission without weapons . He further complained that the civil proceedings had been unfair , claiming in particular that the judge had not examined his claim within the statutory time - limits and that the hearing had not been held in accordance with the formal requirements of the law .

On DATE ORG upheld the first - instance court ’s judgment . It held that the ORG had no civil responsibility for GPE ’s death , because his death had not resulted from any wrongful acts of the ORG authorities or their officials . The court further held that ORG was responsible for ORG death and that the applicant could bring an action against him .

On DATE the applicant lodged a cassation appeal , reiterating his previous complaints .

On DATE ORG dismissed the applicant ’s cassation appeal . It noted that in accordance with LAW , the ORG was responsible for the damage caused to individuals by wrongful acts or omissions of the ORG authorities or their officials . However , the ORG was not responsible for GPE ’s death because his death had not resulted from any wrongful acts of the ORG authorities or their officials .

Article CARDINAL of the PERSON on ORG of DATE provides that military personnel of the border troops , while directly protecting the State border of GPE , will use firearms and weaponry . The same provision refers to the Law on State Border which deals with the circumstances of the use of firearms and weaponry .

Article CARDINAL of the Law on GPE of DATE provides for the rules on the use of firearms and weaponry by border patrols . The relevant part of the provision reads as follows :

“ CARDINAL . During the exercise of their duties in the field of protection of the State border , the border troops shall use firearms and weaponry for the neutralisation of real and potential threats on the State border , the protection of the population and property in the frontier zone from such actions , and their prevention .

Border patrols are also entitled to use firearms and weaponry in the following cases :

a ) In order to neutralise attacks and to break down the resistance of armed individuals where there is a threat to the lives of border guards or the population and there is no possibility to prevent this threat ;

The use of firearms by the border troops is forbidden in the following cases :

a ) Against persons violating the State border of GPE within the sight of a border guard , provided that this violation is related to the implementation of agricultural and other work ( hunting , cattle grazing , gathering of berries or fuel , and so on ) in the vicinity of the State border of GPE ... ”

Article CARDINAL of the Law on GPE provides that hunting rules within the frontier zone must be coordinated with the border troops .

Article CARDINAL of the Code of Criminal Procedure ( “ the CCrP ” ) provides that a close relative of a victim who has died as a result of an incident can be considered as a legal heir of the victim if he or she wishes to deal with the rights and duties of the victim within the criminal proceedings . Article CARDINAL read in conjunction with Article CARDINAL ( victim ) of the ORG entitles a person recognised as a legal heir of the victim , inter alia , to submit material to the criminal case file ; to object to actions of the criminal prosecution authority ; to lodge petitions ; to have access to transcripts and documents in the case file ; to be informed about and to obtain copies of the procedural decisions of the criminal prosecution authority ; and to lodge appeals against procedural steps or decisions , as well as against court judgments and decisions .


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

Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

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

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


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

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

ORG and Others v. GPE ( nos . CARDINAL/CARDINAL , ORG , CARDINAL , CARDINAL/CARDINAL and CARDINAL/CARDINAL , CARDINAL DATE ) .

NORP In DATE , by means of the PERSON reform , GPE changed its pension system from a retributive one , which applied the remuneration - based ( “ retributivo ” ) method of calculation , to a contributory one , where the amount received in pension was dependent on the contributions paid .

Mr PERSON , who had transferred to GPE the contributions he had paid in GPE , requested the ORG to establish his pension in accordance with the DATE Italo - Swiss Convention on Social Security ( see Relevant Domestic Law and Practice below ) on the basis of the contributions paid in GPE for work he had performed there DATE . As a basis for the calculation of his pension ( in respect of the average remuneration of DATE ) , the ORG employed a theoretical remuneration ( “ retribuzione teorica ” ) instead of the real remuneration ( “ retribuzione effettiva ” ) . The former resulted in a readjustment on the basis of the existing ratio between the contributions applied in GPE ( PERCENT ) and in GPE ( PERCENT ) , which meant that the calculation had as its basis a pseudo - salary which amounted to CARDINAL of the salary actually received by the applicant and therefore led to a reduction in the pension itself .

Consequently , in DATE Mr PERSON instituted judicial proceedings , contending that this was contrary to the spirit of ORG .

Various individuals in the same position had done the same and had been successful , the domestic courts having determined that persons having worked in GPE and who had subsequently transferred their contributions to GPE should benefit from the remuneration - based pension calculations , on the basis of the wages earned in GPE , irrespective of the fact that the transferred contributions had been paid at a much lower NORP rate .

Pending the proceedings , PERSON no . CARDINAL ( see Relevant Domestic Law and Practice below ) entered into force on DATE .

By a judgment of ORG ) of DATE , filed in the relevant registry on DATE , the court rejected PERSON claim in view of the entry into force of PERSON no . CARDINAL .

Mr PERSON did not appeal , deeming it to be futile given that the impugned law had been considered legitimate by ORG in its judgment of DATE , no . CARDINAL ( see Relevant Domestic Law and Practice below ) , which other courts were then bound to uphold .

Mr GPE , who had transferred to GPE the contributions he had paid in GPE , requested the ORG to establish his pension in accordance with the DATE Italo - Swiss Convention on Social Security on the basis of the contributions paid in GPE for work he had performed there DATE . As a basis for the calculation of his pension ( in respect of the average remuneration of DATE ) , the ORG employed a theoretical remuneration ( “ retribuzione teorica ” ) instead of the real remuneration ( “ retribuzione effettiva ” ) . The former resulted in a readjustment on the basis of the existing ratio between the contributions applied in GPE ( PERCENT ) and in GPE ( PERCENT ) , which meant that the calculation had as its basis a pseudo - salary which amounted to CARDINAL of the salary actually received by the applicant and therefore led to a reduction in the pension itself .

Consequently , in DATE Mr PERSON instituted judicial proceedings .

By a judgment of ORG ) of DATE , Mr PERSON ’s claim was upheld on the basis of the relevant ORG case - law at the time .

The ORG appealed .

By a judgment of CARDINAL DATE , filed in the relevant registry on CARDINAL DATE , ORG reversed the first - instance judgment in view of the entry into force of PERSON no .

Mr PERSON , who had transferred to GPE the contributions he had paid in GPE , requested the ORG to establish his pension in accordance with the DATE Italo - Swiss Convention on Social Security on the basis of the contributions paid in GPE for work he had performed there DATE . As a basis for the calculation of his pension ( in respect of the average remuneration of DATE ) , the ORG employed a theoretical remuneration ( “ retribuzione teorica ” ) instead of the real remuneration ( “ retribuzione effettiva ” ) . The former resulted in a readjustment on the basis of the existing ratio between the contributions applied in GPE ( PERCENT ) and in GPE ( PERCENT ) , which meant that the calculation had as its basis a pseudo - salary which amounted to CARDINAL of the salary actually received by the applicant and therefore led to a reduction in the pension itself .

Consequently , in DATE PERSON instituted judicial proceedings .

By a judgment of ORG ) of DATE , PERSON claim was upheld on the basis of the relevant Court of Cassation case - law at the time .

The ORG appealed .

By a judgment of DATE , filed in the relevant registry on DATE , ORG reversed the first - instance judgment in view of the entry into force of PERSON no . CARDINAL .


No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-d - Obtain attendance of witnesses;Article 6 - Right to a fair trial);Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Criminal proceedings;Right to a fair trial;Article 6-3-d - Obtain attendance of witnesses)

Alena Poláčková;Helen Keller;Pere Pastor Vilanova

The applicant was born in DATE and lived until his arrest in the town of GPE , LOC .

On DATE the applicant was apprehended in a flat with unregistered firearms in his possession . CARDINAL tied persons with traces of beatings , including PERSON , were discovered in a cloakroom of the flat . An investigator of the LOC police department drew up an arrest record .

On DATE the applicant ’s detention on remand was authorised . DATE the applicant was charged with a number of crimes , including organisation and leadership of an armed gang , several counts of aggravated kidnapping , extortion , robbery and fraud , as well as illegal possession of firearms .

The applicant ’s detention was further extended by ORG and ORG on DATE occasions up until his conviction . When extending the applicant ’s detention , the domestic courts referred to the particular gravity and quantity of the charges against him ; complexity of the criminal investigation and difficulties of jury trial ; the applicant ’s liability to abscond , re - offend and interfere with the course of justice , given his personality and criminal record ; significant volume of evidence presented by the defence during the trial . The courts also kept track of the course of the investigation and assessed investigative and operative measures planned by the prosecution , including arrests of the applicant ’s accomplices ( which were still at liberty or had absconded in breach of the measure of restraint imposed on them and had been put on the wanted ORG list ) , complex expert examinations requiring participation of the applicant and the victims and examination of the case - file by the applicant and his accomplices . The applicant ’s requests for release on bail , as well as his appeal complaints against the detention orders , were to no avail .

On DATE the applicant and his lawyers started studying the case file materials comprising CARDINAL volumes , CARDINAL pages long each . On DATE ORG set a time - limit for studying , affording the applicant additional DATE to complete it . On DATE the case was referred to ORG for trial .

On DATE ORG , by a jury verdict , found the applicant and CARDINAL of his accomplices guilty as charged . On DATE ORG , relying on the jury verdict , sentenced the applicant to CARDINAL one years’ imprisonment .

The applicant was found guilty , in particular , of an aggravated fraud , robbery , kidnapping and extortion in respect of Mr L. , a businessman from LOC . The jury found that in DATE the applicant had approached PERSON under the pretence of being a car salesman . The applicant had promised PERSON to sell him a car for MONEY ( RUB ) . However , after PERSON had transferred the money to an account indicated by the applicant , the latter had disappeared . In DATE the applicant contacted Mr L. , told him that he had just returned from GPE with his car and invited him to come to LOC for it . On his arrival at the airport of GPE on DATE Mr L. was met by PERSON , one of the applicant ’s accomplices , and taken to the applicant ’s country house where he was held until DATE , being subjected to beatings and extortion by the applicant and his gang .

Neither PERSON , nor PERSON were heard in open court . PERSON had been found dead in a remand prison cell before the trial commenced . As for PERSON L. , residing in LOC , the trial court attempted to secure his presence on several occasions by summoning him and ordering his escort to the court . In reply he informed the trial court about being unable to travel to GPE in view of his spinal disease and a medical contraindication to air travel . He submitted a number of documents in support , as well as a written notice in which he confirmed his pre - trial statements . Having regard to these circumstances , the trial court allowed the prosecution ’s request to read out PERSON and PERSON PERSON ’s statements incriminating the applicant , despite the latter ’s objections .

The jury further established that in DATE and DATE and in DATE the applicant had organised an armed robbery and kidnapping of CARDINAL other victims , including PERSON and had extorted a large sum of money in exchange for their freedom . PERSON also was not heard in court as he was allegedly on vacation in GPE . Disregarding the applicant ’s objections , ORG read out PERSON pre - trial statements against the applicant .

The applicant ’s lawyer appealed against the judgment of ORG , complaining , among other matters , about the decision to read out pre - trial statements by PERSON , PERSON and PERSON On DATE ORG of GPE upheld the judgment of ORG , noting that it had correctly considered that reasons for the ORG absence had been extraordinary and that it had lawfully read out their pre - trial statements .


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

NORP The applicant , Mr ORG , is a GPE national , who was born in DATE and lives in GPE . The President granted the applicant ’s request for his identity not to be disclosed to the public ( Rule CARDINAL § CARDINAL ) . He is represented before the ORG by PERSON , a lawyer practising in GPE .

NORP The applicant , of NORP ethnicity , ran an electronics shop in GPE . On DATE a bomb exploded on the street near his shop . He was arrested by the Sri NORP army on suspicion of being involved in the explosion because the bomb had been detonated remotely and his electronics skills made him a suspect .

The applicant was detained by the Sri NORP authorities for DATE before being released without charge . He claims that he was interrogated about his links to ORG ( “ the NORP ” or “ NORP Tigers ” ) and ill - treated and tortured by GPE soldiers . He subsequently left GPE with the assistance of an agent on his own passport . He came to GPE via GPE and GPE .

The applicant arrived in GPE on DATE and claimed asylum on DATE .

On DATE the Secretary of ORG refused his asylum application .

On DATE ORG ( “ ORG ” ) dismissed his appeal as not credible on the basis of the inconsistencies in his various accounts . Specifically , the ORG commented that aspects of his account were “ garbled ” and “ difficult to follow ” .

On DATE a senior immigration judge refused his application for reconsideration .

The applicant obtained a medical report dated DATE . The report concluded that the applicant ’s account of his scarring was consistent with what he claimed had happened to him in GPE . In particular , the medical report concluded that the tramline scars on his back made it difficult to consider any innocent explanation for his injuries because they could not have been self - inflicted . The report stated that the applicant ’s symptoms fulfilled the diagnostic criteria for post - traumatic stress disorder .

In DATE the applicant submitted further representations to ORG on the basis of the medical report .

On DATE the Secretary of ORG refused asylum on the basis of the fresh representations . She did not accept the conclusions of the medical report . The applicant was granted a further in - country right of appeal before the First - tier ORG ( ORG ) ( “ the ORG ” ) .

On DATE the ORG dismissed the applicant ’s appeal . The judge accepted the findings of the medical report and was therefore satisfied that the applicant had been ill - treated while detained by the Sri NORP army in DATE . However , he observed that the applicant had later been released by the Sri NORP authorities without charge and had not been asked to attend court or report to the authorities . The judge therefore concluded that the Sri NORP authorities had had no further adverse interest in the applicant after his detention . This was consistent with the fact that the applicant had been able to leave GPE in DATE on his own passport without being picked up by the Sri NORP authorities .

The judge further considered and applied the risk factors set out in the country guidance case of ORG ( NORP , ORG updated ) ORG ( see paragraphs CARDINAL below ) . He found that the applicant would not be at risk upon return as a young NORP male who had been detained by the Sri NORP authorities and ill - treated in DATE . Although he accepted that past ill - treatment could be a guide to future risk , he did not agree that the applicant would be at risk of ill - treatment upon return to GPE . His previous record and “ extensive scarring ” were relevant risk factors but , on balance , the fact that he had been released without charge by the army in DATE and had been able to leave GPE on his own passport was more significant because the authorities would not have released him unless they had not wanted him anymore . The judge therefore concluded that the applicant ’s removal to GPE would not breach LAW .

The applicant did not apply for permission to appeal to ORG .

In DATE the applicant was detained by ORG ( “ UKBA ” ) to effect his removal to GPE .

On DATE and DATE the applicant submitted further representations to ORG including an update of the general human rights situation in GPE and a reference to a purported GPE arrest warrant dated DATE supported by a letter from a GPE lawyer attesting its validity .

On CARDINAL DATE the applicant was interviewed by ORG officials at an immigration removal centre . He claims that they asked him questions about his asylum claim ; that it was clear that they were aware of his past suspected ORG membership and his arrest and detention in GPE ; and that they accused him of having been involved in a bomb blast in DATE .

On DATE the Secretary of ORG refused the applicant ’s representations and did not accept that they amounted to a fresh asylum claim . She relied substantially upon the DATE findings of the First - tier ORG ( see paragraphs CARDINAL above ) and concluded that the applicant was of no adverse interest to the GPE authorities and would not be at risk of ill - treatment on return . She further considered that the arrest warrant had been presented solely in an attempt to frustrate his removal and was not genuine given , inter alia , its failure to provide information of the alleged details for which the applicant was said to be wanted by the authorities ; the timing of its production ; the difficulty for accused persons in GPE to obtain copies of arrest warrants ; the ease with which such documents could be fabricated ; and the fact that there was nothing in the applicant ’s past to suggest that he would be wanted by the authorities .

In conclusion , the Secretary of ORG accepted that the applicant was a GPE who had been suspected in DATE of some NORP involvement after a bomb had exploded near his shop . However , considering all of the risk factors set out in LOC ( ORG area DATE Colombo – risk ? ) GPE and ORG ( see paragraphs CARDINAL below ) , she did not accept that he would be at real risk of Article CARDINAL treatment upon return to GPE .

On DATE the applicant issued judicial review proceedings seeking to challenge the Secretary of ORG ’s decision of CARDINAL DATE that his further representations did not constitute a fresh claim for the purposes of paragraph CARDINAL of ORG ( see paragraph CARDINAL below ) .

On DATE the applicant was served with removal directions to GPE set to take place on a charter flight on DATE .

On DATE the applicant applied to ORG for an order staying his removal until his application for permission to apply for judicial review had been decided . He also filed supplementary grounds of judicial review , including a claim that the Secretary of ORG had failed adequately to consider the arrest warrant ; that ORG had transmitted personal data and details regarding failed asylum seekers to ORG ; and that in light of the transmission of such information he would be at additional risk of ill - treatment , since he would be returning to GPE as an individual with an accepted history of torture and the date of his return on a charter flight would be known to the Sri NORP authorities .

On DATE the applicant ’s representatives submitted an application under LAW to stop his removal to GPE . On DATE the Acting President applied Rule CARDINAL to stop the applicant ’s removal to GPE . The Judge appointed as Rapporteur under LAW of ORG asked the Government of GPE , under LAW of ORG , to confirm whether the Sri Lankan authorities had been informed that the applicant had made an asylum application in GPE and whether any documents or details pertaining to his asylum application had been provided to GPE authorities .

Also on DATE ORG granted a stay on removal until determination of the application for permission to apply for judicial review .

NORP By letter dated DATE the Agent of the Government of the GPE informed the ORG that a document had been inadvertently passed to ORG in GPE which would have alerted the Sri NORP authorities to the fact that the applicant had previously claimed asylum in GPE . However , the document had not contained any details of the nature of the applicant ’s asylum claim and had only provided the date of the asylum claim and the date that the applicant had exhausted his appeal rights following that unsuccessful asylum claim . The Government requested that the ORG lift the interim measure under LAW .

On DATE the Acting President refused the ORG ’s request to lift the interim measure under LAW and adjourned the application pending the conclusion of the judicial review proceedings .

On DATE ORG refused the applicant ’s application for permission to apply for judicial review on the papers . It found the Secretary of ORG ’s decision of CARDINAL DATE to be comprehensive and well - reasoned .

The applicant renewed his application for permission , relying on the existence of the arrest warrant , the disclosure of his asylum claim to the Sri NORP authorities and his interview with the GPE officials to claim a risk to him of ill - treatment on return to GPE .

A rolled up hearing ( i.e. a hearing where , if permission to apply is granted , the hearing on the merits immediately follows ) on the judicial review application took place on CARDINAL DATE . ORG granted the applicant ’s renewed application for permission to apply for judicial review but rejected the application on the merits .

As regards the disclosure to ORG , the court noted that the Secretary of ORG had accepted that the disclosure of the form , intended to be an internal checklist of data relating to the applicant , was in contravention of section CARDINAL(CARDINAL ) of ORG ( see paragraph DATE below ) because it included reference to the fact that the applicant had claimed asylum in GPE and provided the date of the asylum claim and the date that his final appeal had been dismissed . However , ORG did not accept that the disclosure had been deliberate , and noted that there was no suggestion that any details of the applicant ’s asylum interview or documents linking him or his family to the ORG had been disclosed . The court considered that the document which had been disclosed told the Sri NORP authorities very little . The court rejected the argument that unlawful disclosure would automatically invalidate any later decision to set removal directions . The question was whether the disclosure changed the applicant ’s risk profile so as to amount to a fresh claim . In this respect , the court pointed to country evidence suggesting that the situation seemed more relaxed than before and noted that even in DATE the majority of returned failed asylum seekers were processed relatively quickly and with no difficulty beyond some possible harassment .

As regards the arrest warrant , the court acknowledged that its existence was potentially very significant because it might show that the Sri NORP authorities had a continuing adverse interest in the applicant , contrary to the DATE findings of the ORG ( see paragraphs CARDINAL above ) . If that were the case , the court said , it would undoubtedly give rise to a realistic prospect of success in any further appeal . The court went on to say that the warrant was a very strange document , since it appeared to relate to proceedings started in DATE and , in the section detailing the particulars of the alleged offence or reasons for the warrant , referred only to a failure to appear before court . The accompanying lawyer ’s letter explained that the warrant was “ in respect of his absconding from detention ” . Yet , ORG commented , nobody had ever suggested that the applicant had absconded from detention or had failed to appear at court . ORG further noted that there was absolutely no evidence of any attempt to execute this or any previous warrant , of any questioning or harassment of the applicant ’s family in GPE , or anything else to suggest that the warrant really was a live document which provided valuable evidence about the likely treatment of the applicant if he were returned to GPE . The court also observed that the date of the warrant appeared fortuitous , since the judge in the applicant ’s previous appeal had commented that the absence of any warrant was a significant feature and the warrant was dated shortly after that judgment .

Finally , as to the interview of the applicant by ORG officials , the court observed that the officials had not seemed to be aware of the existence of an arrest warrant against him ( even though they must have made inquiries about him because they had asked him about his involvement in the bomb blast near his shop ) and they had failed to raise any details of any alleged absconding from detention or failure to appear before a GPE court . Indeed , the officials had appeared to reassure the applicant that they had rehabilitated ORG members and that all the problems in GPE had been solved .

Having regard to all of the above , and even bearing in mind the potential significance of the arrest warrant and the presumption which lay behind the prohibition in LAW DATE that mere disclosure of the fact that a person was a failed asylum seeker might expose him to an increased risk , ORG found that there was no change to the risk to the applicant if returned to GPE .

The parties subsequently submitted written observations to the ORG on the admissibility and merits of the case .

In their further observations , the ORG requested the ORG to adjourn the proceedings . They explained that a new country guidance case concerning GPE ( ORG and others ( post - civil war : returnees ) GPE DATE see paragraphs CARDINAL below ) was pending before ORG .

On DATE the President of the Section decided to adjourn the examination of the case pending the outcome of the proceedings in ORG and Others .

On DATE ORG delivered its decision in ORG . The Government subsequently informed the ORG that they would review the applicant ’s case in light of that determination .

On DATE the Secretary of ORG informed the applicant that she did not consider his case to fall within any of the risk categories identified in ORG and Others and that she did not therefore accept that he would be at any real risk of ill - treatment on return to GPE . In particular , she emphasised that ORG in ORG and Others had not found that all NORP , all failed asylum seekers or all students were at risk on return , or that past ORG membership was sufficient to establish a risk . She noted that any risk facing a returnee had to be assessed by reference to the current objectives of ORG , who were mainly concerned with individuals who posed a threat to the stability of postconflict GPE . The Secretary of ORG expressed the view that the applicant would be “ of little or no interest ” to ORG and that he would accordingly not risk arrest or detention if returned . She remarked that he had not provided evidence of any outstanding arrest warrant or court order that would indicate that he was included on the ORG ’s “ stop list ” and lead to his detention for questioning upon arrival at FAC . Similarly , there was no evidence of his inclusion in a “ watch list ” that would lead to monitoring in his home area .

By letter to the ORG dated DATE the Government confirmed that the applicant ’s case had been reviewed and that he had been notified on CARDINAL DATE that his asylum claim had been rejected . They confirmed that it was open to the applicant to bring judicial review proceedings in respect of the decision . By letter dated DATE the ORG invited the applicant ’s representative to confirm by DATE whether he intended to seek judicial review of the decision and , if not , why not .

NORP By reply dated DATE the applicant ’s representative requested a stay of proceedings pending consideration of the domestic proceedings . She explained that he had not received notification of the CARDINAL DATE decision . ORG invited her to provide an update by DATE and , in particular , to confirm whether judicial review proceedings had been brought .

By letter dated DATE the applicant ’s representative informed the ORG that she was still awaiting a copy of the letter of CARDINAL November CARDINAL . However , she invited the ORG to proceed to examine the applicant ’s complaints . She was asked by the ORG to confirm by CARDINAL DATE whether judicial review proceedings had been brought . By reply dated DATE , she confirmed that no judicial review application had been made .

In response to an invitation by the ORG , the applicant and the Government provided updated submissions on DATE .

Sections CARDINAL(CARDINAL ) and PERSON ) of the Nationality , Immigration and Asylum Act DATE provide a right of appeal against an immigration decision made by the Secretary of ORG for ORG , inter alia , on the grounds that the decision is incompatible with the Convention .

Until DATE appeals in asylum and immigration were heard by the ORG . Section CARDINALA of the CARDINAL Act provided that a party could apply for an order from ORG requiring the ORG to reconsider its decision on the grounds that it had made an error of law . At the relevant time , all applications for reconsideration went through a “ filter procedure ” , so that it was first made to an authorised immigration judge of the ORG . If the immigration judge refused to make an order for reconsideration , the applicant was able to renew the application to ORG , which would consider the application afresh .

Since DATE , appeals in asylum and immigration have been heard by the First - tier ORG ) . LAW DATE provides a right of appeal to ORG , with the permission of the First - tier ORG or ORG , on a point of law .

Paragraph CARDINAL of ORG provides that further submissions made after an asylum claim has been determined will amount to a fresh claim if they are significantly different from the material that has previously been considered . The submissions will only be significantly different if the content : ( i ) has not already been considered ; and ( ii ) taken together with the previously considered material , creates a realistic prospect of success .

Until DATE a claimant could lodge with ORG an application for judicial review of a decision by the Secretary of ORG not to treat further representations as a fresh claim . Pursuant to LAW of ORG ( “ LAW ” ) , permission is required before a judicial review claim can proceed . If ORG refuses permission on the papers , the claimant can request reconsideration at an oral hearing . The court may order an oral hearing for permission with arguments on the substantive merits of the claims to be heard immediately at the hearing if permission is granted ( a rolled up hearing ) .

Rule CARDINAL ORG provides that if the ORG grants permission but refuses the application for judicial review on the merits , the claimant can apply for permission to appeal to ORG . An application for permission to appeal can be made to ORG or ORG . If an application is made to ORG , a further application can be made to ORG . If ORG refuses the application on the papers , the claimant can request a hearing unless the case has been found to be totally without merit .

Section CARDINAL of ORG provides , inter alia , as follows :

“ ( CARDINAL ) This section applies if a person–

( a ) is to be removed from GPE to a country of which he is a national or citizen ; but

( b ) does not have a valid passport or other document establishing his identity and nationality or citizenship and permitting him to travel .

( CARDINAL ) If the country to which the person is to be removed indicates that he will not be admitted to it unless identification data relating to him are provided by the Secretary of ORG , he may provide them with such data .

( CARDINAL ) In providing identification data , the Secretary of ORG must not disclose whether the person concerned has made a claim for asylum . ”

The country guidance case - law applicable at the time of the proceedings in DATE was set out in ORG ( ORG area DATE Colombo – risk ? ) GPE [ DATE ] UKAIT DATE ( subsequently endorsed by ORG in ORG . v. GPE , no . CARDINAL , § CARDINAL , DATE ) and ORG ( NORP – LP updated ) GPE [ DATE ] UKAIT DATE . The findings in both cases are set out in detail in the ORG ’s judgment in ORG v. GPE , no . CARDINAL/CARDINAL , LAW CARDINAL , CARDINAL DATE .

In short , the risk factors identified in ORG and confirmed in ORG were the following :

( CARDINAL ) NORP ethnicity ;

( CARDINAL ) a previous record as a suspected or actual ORG member ;

( CARDINAL ) a previous criminal record and/or outstanding arrest warrant ;

( CARDINAL ) bail jumping and/or escaping from custody ;

( CARDINAL ) having signed a confession or similar document ;

( CARDINAL ) having been asked by the security forces to become an informer ;

( CARDINAL ) the presence of scarring ;

( CARDINAL) return from GPE or other centre of NORP fundraising ;

( CARDINAL ) illegal departure from GPE ;

( CARDINAL ) lack of an ORG card or other documentation ;

( CARDINAL ) having made an asylum claim abroad ;

( CARDINAL ) having relatives in the ORG .

On DATE ORG promulgated its decision in GJ and others ( post - civil war : returnees ) GPE [ DATE ] ORG CARDINAL ( ORG ) ( “ GJ ” ) . In its judgment , ORG concluded that the focus of the Sri NORP government ’s concern had changed since the civil war ended in DATE . It said :

“ The NORP in GPE itself is a spent force and there have been no terrorist incidents since the end of the civil war .

The government ’s present objective is to identify NORP activists in the diaspora who are working for GPE separatism and to destabilise the unitary GPE state ... Its focus is on preventing both ( a ) the resurgence of the ORG or any similar NORP separatist organisation and ( b ) the revival of the civil war within GPE . ”

ORG accepted that if a person was detained by the Sri NORP security services there remained a real risk of ill - treatment or harm requiring international protection . In summary , the ORG identified the following risk factors :

( CARDINAL ) individuals perceived to be a threat to the integrity of GPE because they were perceived to have a significant role in relation to postconflict GPE separatism within the diaspora and/or a renewal of hostilities within GPE .

( CARDINAL ) Journalists or human rights activists who had criticised the GPE government , in particular its human rights record , or who were associated with publications critical of the GPE government .

( CARDINAL ) Individuals who had given evidence to the Lessons Learned and Reconciliation Commission implicating the GPE security forces , armed forces or GPE authorities in alleged war crimes .

( CARDINAL ) Individuals whose names appeared on a computerised “ stop ” list ( a list of those against whom there was an extant court order or arrest warrant ) accessible at the airport .

The ORG explained that the Sri Lankan authorities’ approach was based on sophisticated intelligence , both as to activities within GPE and in the diaspora . It noted that the Sri NORP authorities were aware that many NORP travelled abroad as economic migrants and also that everyone in GPE had had some level of involvement with the ORG during the civil war . It continued :

“ In post - conflict GPE , an individual ’s past history will be relevant only to the extent that it is perceived by the GPE authorities as indicating a present risk to the unitary GPE state or ORG . ”


George Nicolaou;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

The first applicant is a GPE national who was born in DATE and lives in PERSON . The second applicant is her mother , who was born in DATE and is a GPE national who lives in GPE . The third applicant is her brother , who was born in DATE and is a NORP national who also lives in GPE . All CARDINAL applicants are represented by FAC .

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

The first applicant is an ethnic GPE who holds GPE citizenship . On DATE she arrived at FAC airport on a flight from GPE via GPE . She held a valid visitor ’s visa for GPE and passed through immigration controls .

The first applicant went to stay with her brother , the third applicant , who was resident in GPE . Her mother , the second applicant , resided with the brother .

The first applicant subsequently instructed a solicitor who , by letter to ORG dated DATE , indicated that she wished to make an asylum claim on the ground that she feared mistreatment because of her imputed political opinion if returned to GPE . The letter recorded that she claimed to have a well - founded fear of persecution because she was an ethnic GPE from northern GPE ; she had been detained and tortured by the Sri NORP authorities ; the Sri NORP authorities had a record of her as a suspected NORP sympathiser ; she was “ confused and psychologically scarred ” ; she would be returning from GPE , which the GPE authorities regarded as a centre of NORP activity and fundraising ; and she had escaped from GPE government custody .

She attended an asylum screening interview on DATE . Her interviewer was female . According to the applicant the interview was conducted with the aid of a male , GPE - speaking interpreter . She was asked if she had a preference whether she was interviewed by a man or a woman and answered that she did not .

On DATE the first applicant ’s asylum interview took place . The interview was conducted by a female interviewer assisted by a female , GPE - speaking interpreter . The first applicant maintained her claim for asylum or humanitarian protection on grounds of an alleged risk of illtreatment if returned . She claimed that on DATE , she had been stopped at an army checkpoint in GPE . Because her identity card listed her place of birth as PERSON , a town in a predominantly NORP area of northern GPE , she had been accused of planning acts of violence and detained by government agents for DATE at an unknown location . Her husband and others had managed to secure her release , provided that she report to the authorities DATE .

She further alleged that on DATE , she had been assaulted by ORG ( “ ORG ” ) officers who had come to her home looking for her husband while he and their CARDINAL sons were out . She had been taken to a remote camp in an unknown , governmentcontrolled area of GPE for questioning , where she had been tortured . She had subsequently become ill and had been transferred to a hospital with a ORG guard stationed in the hospital grounds . She had escaped after DATE , at TIME when there was no guard , with the help of a nurse and her husband , who was a taxi - driver . She had paid them with a gold earring . She had not returned to her home in GPE but had spent DATE at the house of her husband ’s friend in PERSON before leaving the country with the help of an agent , whom she had paid with her jewellery and the title deeds to her home . She had not contacted her husband or sons since her arrest but had heard that they were no longer living at her former home . She had entered GPE on a visitor ’s visa which she had obtained in DATE to enable her to visit the third applicant and his wife , who were resident in GPE and had just had a baby .

NORP The Secretary of ORG refused the first applicant asylum and humanitarian protection on DATE .

On the question of the credibility of her account of events in GPE prior to her arrival in GPE , the Secretary of ORG made a number of comments . First , she did not accept as credible , having regard to immigration control procedures , the first applicant ’s claim at the asylum interview that she did not speak to an immigration officer when passing through immigration control . She concluded that the first applicant had gained illegal entry to GPE by verbally deceiving the immigration officer and placed “ significant weight ” on the mandatory damage done to her credibility in this regard . She further found that her credibility was damaged by the fact that she had not claimed asylum immediately on arrival at FAC but “ DATE ” after ( in their written submissions , the ORG accepted that the reference to “ DATE ” was an error and should have read “ DATE ” ) .

Second , in respect of the first applicant ’s alleged arrest in DATE , the Secretary of ORG found that , having lived in GPE for DATE , the first applicant would already have registered with the authorities there ( referring to information contained in GPE for GPE , DATE the “ COI Report DATE ” ) . Doubt was cast on her account of events because her claim that she was detained for the reason that her ID card stated that she was from PERSON was not considered consistent with the purpose and use of compulsory registration in GPE , which was to identify and question further those not from the area at the time of registration . Her account was also vague : she could not say who the people who had come with her husband to collect her were , or how her husband had secured her release . Despite having been released with an obligation to report on a DATE basis , she did not know to whom she had reported , where she had reported or how many times she had reported . The Secretary of ORG considered that her vague responses cast doubt on her claim . She therefore did not accept that the first applicant had been arrested and detained in the circumstances claimed , and this damaged her credibility .

Third , in respect of her alleged arrest in DATE , the Secretary of ORG considered the first applicant ’s claim that she was of interest to the ORG to be inconsistent with her account that the guard left the hospital , enabling her to escape . The Secretary of ORG also noted that she had all the necessary documents and means to leave GPE legally and would not have required the assistance of an agent . Her account that she was assisted by an agent was therefore not consistent with her personal circumstances . Further , since the first applicant had been too afraid to return to her home address , she had not explained how she had obtained her DATE passport for travel . This , too , cast doubt on the claim that she had left GPE in the circumstances described . The Secretary of ORG was of the view that although the first applicant had stated that she had had no contact with her husband or children since her arrest , it was unlikely that she would have fled GPE without attempting to warn them of the ORG ’s interest in her husband . For all of these reasons , the Secretary of ORG did not accept that she had been arrested or detained in DATE and her credibility was damaged as a result .

NORP The Secretary of ORG considered the risk to the first applicant on return to GPE in light of these adverse credibility findings and the relevant case - law . As the material facts of her claim were not accepted , the Secretary of ORG concluded that the Sri Lankan authorities would have no adverse interest in her . In terms of the risk factors identified by ORG in the leading country guidance case of ORG ( see paragraphs CARDINAL - CARDINAL below ) , the only ones applicable to her were her NORP ethnicity , her return from GPE and the fact that she had made an asylum claim abroad . These did not create , either separately or cumulatively , a real risk of ill - treatment on return .

As for DATE , the Secretary of ORG noted that the first applicant relied on her relationships with her mother , brother and sister ( who had arrived in GPE with the first applicant and had also claimed asylum ) . There was no evidence that these relationships involved more dependency than the usual emotional ties , and she had failed to show family life with her sister . There was equally no evidence that she had established private life in GPE since her arrival on DATE .

The first applicant appealed to the First - tier ORG ) . Her appeal was heard with that of her sister , who had also been refused asylum . The hearing took place before a male Immigration Judge and with the assistance of a male interpreter . The judge had before him , inter alia , a copy of the screening and asylum interview records , the Secretary of ORG ’s reasons for refusal and the grounds of appeal . He also had before him a witness statement in which the first applicant set out full details of her account , and claimed in particular that she had never registered in GPE ; that her passport had been in a locker at the bank ; and that her husband ’s friend had recovered her passport on her behalf . The applicants relied on the COI Report DATE together with relevant case - law and other supporting documents and objective material . The judge heard oral evidence from the applicant , her sister and her brother .

The appeal was dismissed on DATE . The judge made a number of findings of fact , explaining that he had given careful attention to the oral evidence in the case , the reasons for refusal letter , the grounds of appeal , the applicant ’s witness statement and the supporting documents , including the country evidence and the country guidance cases of ORG and ORG ( see paragraphs CARDINAL - CARDINAL below ) .

He upheld the Secretary of ORG ’s finding that the first applicant would have had to register with the police in GPE , explaining that had she not done so , she would have been stopped at checkpoints long before DATE . He also observed that the Sri NORP authorities had issued her with a passport in DATE , even though they knew she was from PERSON . He commented on her description of her release from the DATE period of detention , noting that her husband could not have known where she was being detained when she herself did not know and that she was unable to provide details of the reporting requirement imposed . He made an adverse finding of credibility .

As regards the second period of detention in DATE , the Immigration Judge found that her account of her arrest made no sense : if the ORG had wanted to find her husband they would have waited for him or gone to look for him , and would not have taken her instead . The judge described the ill - treatment that she alleged had taken place , namely that a polythene bag with petrol in it had been placed over her head and her head had been repeatedly submerged in water , and found it not credible that during this treatment her gold earrings would have remained in place , allowing her to use them to bribe the nurse later . If the ORG were interested in her and wished to obtain information through torture , the judge considered it not credible that they would have arranged for her medical treatment by a doctor and a nurse . He continued :

“ CARDINAL . ... Despite the fact that the ORG had apparently seen fit to place a guard on the door they did not see fit to ensure that the guards changed shifts simultaneously thereby allowing the appellant to escape , dressed as a nurse having first given the genuine nurse her earrings which were also used to pay the nurse ’s brother to pick her up in his rickshaw taxi and then to deliver her to a friend ’s house even though he could not possibly have known in advance how long the journey would last or whether he would have enough petrol to make the trip because he did not know where the destination would be and [ the first applicant ] did not know where she was being held . I am trying to work out what was the point of dressing up as a nurse when there was nobody around to see her but there seems little point in picking up on small points when the entire story is so ludicrously lacking in credibility that it would struggle to be acceptable even as the plot of a ‘ Carry - on’ film ” .

As regards the first applicant ’s seeking refuge with her husband ’s friend in PERSON , the judge observed that she and her driver “ would have woken up the entire village ” by knocking on doors to find out where her friend lived . He further observed that the first applicant had “ apparently forgotten ” , when claiming that she could not go home because no - one was there , that her husband and children would have come home and wondered where she had gone . He found her explanation that her friend had told her that they were living elsewhere to be “ an embellishment designed to plug a gap in the evidence ” . The judge made critical comments about the ORG accounts of how they contacted each other by mobile phone and rejected the first applicant ’s account of having used an agent , on the basis that she had a passport with a valid visitor ’s visa so had no need for one . Her claim of having sold the house to pay the fees he said was “ a total fabrication ” .

The Immigration Judge found that the sisters had obviously put their heads together and that their escape from GPE was nothing more than “ a coordinated pleasure trip with a sinister intention , namely to deceive the GPE authorities by cooking up a story once they had arrived at their brother ’s house ” . The judge had no doubt that they had been in regular contact with their respective husbands and that the first applicant had been in contact with her sons . He reviewed all the applicable risk factors set out in LOC ( see paragraph CARDINAL below ) and concluded that the first applicant and her sister could be returned to GPE . In particular , there was no evidence that a failed asylum - seeker was per se subject to persecution on return and the first applicant and her sister were of no interest to the authorities . There was nothing about them save their ethnicity which could possibly cause any authority to make inquiries .

As to the manner in which the first applicant had claimed asylum , the judge commented on her failure to make a claim at FAC airport or immediately upon arrival at her brother ’s house . He found that her mother ’s alleged ill - health was not sufficiently serious to have prevented her from contacting the authorities immediately . He continued :

“ CARDINAL . ... The appellants claim to suffer from the effects of torture but I find that this is all part of the smokescreen . They have persisted in maintaining a false story and their conduct in seeking anonymity [ in the course of proceedings before the ORG ] is but another aspect of the smokescreen which they have thrown up . They have taken advantage of the [ ORG ] and the local school system . Their brother has abused the society which gave him refuge . I have no hesitation in finding that their conduct adversely affects what remains of their credibility . ”

The judge concluded :

“ CARDINAL . I find in each case that the appellant is sufficiently resourceful to be able to return and to re - establish herself in a country where she spent most of her life and where her family still lives . She is not suffering from any life - threatening illnesses ... I find on all the evidence adduced that there are no compassionate circumstances or other matters showing why the appellant could not return to GPE . I find that her ties are to GPE and not to GPE . Removal is appropriate and proportionate .

Given the conclusions as outlined above , I also find in each case that the appellant has not shown substantial grounds for believing that she will face a real risk of serious harm in her country of origin or that she is unable , or owing to such risk , unwilling to avail herself of the protection of her country of origin ... ”

The first applicant and her sister sought permission to appeal against the ORG ’s determination on grounds , inter alia , of bias and the fact that the Immigration Judge had failed properly to consider their case under LAW and CARDINAL of the Convention .

On DATE the application was dismissed by a different Immigration Judge of the First - tier ORG who explained :

“ The Immigration Judge spent some time dealing with the NORP cases and for a number of perfectly clear reasons disbelieved the entirety of their accounts . It is clear that he expresses himself in very forceful terms ; however , for each matter he disbelieves he gives clear reasons [ which ] do not display bias , but which simply explain why he has reached the conclusion , and whilst many might not have expressed themselves so forcefully the expressions themselves do not display an arguable error of law .

While it is true that there is no clear evaluation in relation to article CARDINAL , in looking at the appellants’ and [ their ] witness ’s statements there is nothing in them to suggest any real family life or private life for either appellant save for presence with other adult family members . I see no skeleton argument for either , which suggests that no real article CARDINAL case was put forward . As a result there appears to me to be no realistic prospect of success on appeal in relation to article CARDINAL ... ”

The first applicant and her sister renewed their application to ORG . On DATE the application was dismissed for the reasons given in DATE by the First - tier ORG . The Senior Immigration Judge added that , although the initial NORP Judge ’s opinions had been robustly expressed , there was no evidence of bias .

With the rejection of the application to appeal , the first applicant ’s appeal rights were exhausted .

In DATE the first applicant ’s ORG counselling psychologist informed her general practitioner that she was “ having suicidal thoughts of throwing herself in front of a train or traffic ” and that she claimed to have stepped out in front of DATE , which had fortunately stopped in time .

On DATE , the general practitioner confirmed that the first applicant suffered from depressive illness “ due to her family situation ” , that her antidepressant medication was not working , that she had been referred to a psychiatrist and that her prognosis would be poor until support for her to remain in GPE had been achieved . He referred to her “ suicidal ideation ” and problems with her status in GPE .

On DATE ORG ( “ UKBA ” ) issued directions for the first applicant ’s removal to GPE by charter flight at TIME on DATE . She was taken into immigration detention .

On DATE medical personnel at the immigration removal centre recorded in an ORG report that the first applicant had told them that she had been tortured by the GPE army and that , as part of that torture , had been raped .

On DATE , with the assistance of new legal representation , the first applicant made further submissions to the Secretary of ORG . Her representatives submitted that details of her ill - treatment while in detention had not previously been disclosed because she was too traumatised to give full disclosure to her brother , her male lawyer and the male interpreter at the asylum interviews , and that trauma could cause individuals to block out painful events . They explained that she had been referred to ORG for further investigation and included a copy of the ORG report .

The further submissions also referred to the fact that the first applicant had disclosed suicidal thoughts and that there were concerns for her well - being . The various letters from her ORG and counselling psychologist were enclosed . Relying also on LAW , the first applicant submitted that return to the place where torture and illtreatment had taken place could cause further mental deterioration .

On DATE the Secretary of ORG informed the first applicant that her removal would proceed as planned . In her letter , the Secretary of ORG reiterated that it had not been accepted that the first applicant had ever been detained by the Sri NORP authorities and that the First - tier ORG had not believed her account , even to the smallest degree . The Secretary of ORG further noted that while the first applicant claimed that her former reticence to disclose details of the rape was because she had male solicitors and interpreters , she had shown no compunction in raising the claim when removal became imminent .

As regards the first applicant ’s mental health , the Secretary of ORG noted that she had not told her ORG about her torture , and had attributed her depression and suicidal ideation to an undisclosed family situation and her placement in immigration detention . It was considered that she had not been honest with GPE authorities and was seeking to claim that she had been raped as a means of remaining in GPE , perhaps to obtain medical treatment or to resolve problems with her family . The Secretary of ORG added that there was no reason to believe that she would not have access to medicine and treatment in GPE , and that her mental health problems did not meet the LAW threshold .

NORP The Secretary of ORG maintained her position that removal would also be a proportionate interference with the first applicant ’s rights under LAW since there was no evidence of the required level of dependency in her relationship with her mother and adult siblings ; she had failed to come “ even close to showing ” that her moral and physical integrity would be breached on return to GPE ; and she had not demonstrated anything more than the usual personal ties to GPE .

In conclusion , the Secretary of ORG found that the points made by the first applicant in her submission , taken together with material previously considered , did not create a realistic prospect of success before an NORP Judge ( see paragraph DATE below ) . The submissions did not therefore amount to a fresh claim and there was no right of appeal against that decision .

According to the first applicant ’s detention records , on DATE she attended a bail hearing where she claimed that she had tried to kill herself several times . Upon her return to the immigration removal centre , an immediate action plan was put in place . It was decided that she would be observed TIME in order to ensure that she remained safe . A healthcare appointment was arranged for her that TIME and a doctor ’s appointment was arranged for DATE to explore her mental health issues . Regular case reviews subsequently took place .

On DATE the first applicant was interviewed by an independent male psychiatrist with the assistance of a female interpreter . According to his report of DATE , in that interview she gave further details of her rape by CARDINAL men in uniform during her first period of detention in DATE and her beating and gang rape by CARDINAL Sri NORP officers during her second period of detention in DATE . The psychiatrist noted that she had displayed clear signs of distress consistent with emotional trauma when giving her account of events .

The psychiatrist was of the view that that the applicant presented with symptoms consistent with depression . He identified the main perpetuating factors as her pending repatriation and her current detention . He considered that on a balance of probabilities she was suffering from post - traumatic stress disorder , based on the assumption that the alleged detention and abuse in GPE had taken place .

He recorded that he was fully aware of the unexplained discrepancies between the account given to him and that given to ORG . He explained that he could not comment on her credibility , which was a matter for the courts . However , he observed that it was not unusual for patients who had suffered significant trauma to recollect peripheral information at the expense of other information , or to distort memories .

The psychiatrist noted that the first applicant could not explain why she had not shared the information earlier . He considered that there was not enough evidence to suggest that she had dissociated herself from the traumatic events and therefore did not believe that dissociation was responsible for her previous omissions . However , he noted that during his interview with her , he was assisted by a female GPE - speaker from GPE , and hypothesised that this might have reduced the threat of cultural stigma from the disclosure .

Finally , the psychiatrist recorded that the first applicant had expressed a desire to commit suicide if returned to GPE , claiming that this would be preferable to being tortured and killed by soldiers . He recorded that officials at the immigration removal centre had placed the first applicant on suicide watch , and recommended that this be maintained . He was of the view that her recent detention had significantly contributed to worsening her mental state . He noted that she had no active plans to end her life unless sent back to GPE . He recommended various therapies but could not comment on whether they would be available in GPE .

The first applicant ’s detention record logs the results of the hourly observations of the first applicant from TIME on DATE until TIME on DATE . Aside from legal and medical appointments and discussions with staff members about her removal , the record shows that she regularly ate meals with friends , she attended church , she talked to other detainees , she washed her clothes and she slept .

On DATE , on the basis of the psychiatrist ’s report and other fresh evidence , including a letter from a GPE lawyer stating that the she had been detained in DATE and had appeared before ORG , represented by him , the first applicant made further , urgent representations to the Secretary of ORG .

At TIME on DATE , her further representations were rejected . The Secretary of ORG noted that the first applicant had previously made no mention of having been produced before ORG . There were also inconsistencies between the lawyer ’s account and that of the first applicant : he said that she had been released on cash bail to report to a particular police station ; she said that she had been released with a DATE reporting requirement but did not know where . The Secretary of ORG therefore concluded that the letter was not reliable .

As regards the first applicant ’s mental health , the Secretary of ORG noted that according to the psychiatrist ’s report this had been worsened by her detention and concluded that it would therefore improve after removal . There was no clear evidence of a real risk that the first applicant would commit suicide if returned . Despite the first applicant ’s representations to the contrary , the GPE health system provided adequate treatment for depression . There were no exceptional or extreme circumstances in her case . Her ability to travel had been assessed and had there been any doubts , her removal would not have proceeded . However , there had been no doubts .

Finally , as regards LAW , the Secretary of ORG accepted that the first applicant had family life in GPE but maintained that her removal would be proportionate .

Upon receiving the Secretary of ORG ’s decision the first applicant commenced judicial review proceedings in ORG . She claims that the papers were lodged at some time prior to TIME on QUANTITY DATE . In her judicial review application , she alleged that the Secretary of ORG ’s failure to treat the post - appeal evidence concerning her rapes , psychiatric illness and suicide risk as a fresh claim violated domestic law as well as ORG CARDINAL and CARDINAL of the Convention . She also sought an injunction to stop the Secretary of ORG removing her prior to consideration of her judicial review claim . The various tribunal decisions were not lodged with the claim .

According to the detention records , the first applicant was asked by immigration removal centre staff on TIME whether she would go to the airport without causing problems and answered that she would . She was therefore taken to reception for transfer to the flight at CARDINAL a.m. , and no problems were reported . According to the first applicant , she was carried on to the flight to GPE at or TIME by CARDINAL men .

Many of the CARDINAL other NORP on the flight manifest had also applied to ORG for permission for judicial review on the basis that they faced a real risk of torture upon arriving in GPE . CARDINAL individuals were removed from the flight manifest prior to departure as ORG ordered that they were not to be removed pending those proceedings . However , the first applicant ’s case was not considered in time to prevent her removal ( see paragraph CARDINAL below ) and no order was made to suspend removal pending consideration of her case .

The flight departed with CARDINAL NORP nationals on board at CARDINAL p.m. on CARDINAL DATE .

On DATE ORG refused permission to seek judicial review on the papers . As to the failure to consider the applicant ’s claim before her deportation , ORG judge stated :

“ The claimant was due to be removed to GPE at CARDINAL on DATE . The directions for her removal had been served on her on DATE . However , it was not until DATE that her claim for judicial review proceedings challenging the directions for her removal was lodged . Her application for a stay on her removal directions came before me on DATE as the ‘ immediates’ judge . The claimant was CARDINAL of CARDINAL failed asylum - seekers due to be removed on the same flight who were asking for a stay on their removal . Although some of the applications could be considered by other judges when they became available , it was plain by CARDINAL that I would not be able to consider all the remaining applications by CARDINAL .

In those circumstances , I was informed by [ ORG ’s Operational Support and Certification Unit ] which of the remaining applicants were on the main manifest , and which were on a reserve list – and therefore liable to be included on the main manifest only if someone on the main manifest was removed from the flight . Although my priority was to deal with the applications of those on the main manifest , I had not reached the claimant ’s case by CARDINAL when I was told that the doors were about to close . I was informed DATE that the claimant had been on the flight . ”

On the merits of the claim , the judge noted that if he had considered the first applicant ’s case on DATE , his difficulty would have been that her solicitors had not included in the bundle of documents the decision of the Immigration Judge . He said :

“ It would not have been possible for me to conclude that it was arguable that the rejection of the claimant ’s solicitors’ representations , and the refusal to treat those representations as fresh claims , was legally flawed without reading that decision . ”

The judge concluded that since the applicant had now been removed to GPE , no purpose would be served by reconsidering the matter once the decision of the Immigration Judge had been provided or by permitting her claim to proceed .

The first applicant renewed her application for permission to seek judicial review on DATE . The application was refused on DATE following an oral hearing . The judge summarised the applicant ’s case as follows :

“ CARDINAL . ... [ T]he claimant ’s case was that there was in this case post appeal evidence of additional brutality and its after effects , in particular creating an increased dependency on her family in the GPE and a risk of suicide , those justifying the Secretary of ORG in treating this application as a fresh application for asylum , engaging both issues of LAW and human rights consideration in addition pursuant to LAW . ”

He reviewed the determination of the First - tier ORG and observed :

“ CARDINAL . It is clear that , having heard evidence from both the claimant and her sister ... the judge concluded , in emphatic terms , that neither sister was credible in any relation to the claims for asylum . In short , he concluded that both the claimant and her sister had told a pack of lies .

It follows that it is against that very unpromising background of evidence from the claimant having been heard and considered by a judge and effectively damned in such strong terms that the question whether the Secretary of state was right to conclude that any further claim based on additional materials stood no reasonable prospects of success . ”

He noted the arguments of the first applicant ’s counsel , namely that the Secretary of ORG had failed adequately to take into account the psychiatrist report in reaching her conclusion on the LAW issue ; that it was not open to the Secretary of ORG , in light of that report and the Sri NORP lawyer ’s letter , to conclude that the first applicant ’s evidence was inconsistent and untrue ; and that it was perverse for the Secretary of ORG to have reached the findings she did on the first applicant ’s suicide risk , given the evidence . He continued :

“ CARDINAL . In my view , the problem with the submissions that [ counsel for the applicant ] has advanced ... is that they overlook the fundamental question of credibility and the context in which this new evidence was raised very much at TIME . The immigration judge ’s determination was , as I have indicated , a savage series of findings in terms of the credibility of the claimant ’s account . On the face of it , in circumstances where this claimant had given evidence dealing with her alleged treatment in custody in GPE in DATE and the brutal treatment meted out to her , all of which evidence was considered by the immigration judge , it seems to me that the Secretary of ORG was well entitled to conclude that there was no realistic prospect of success in circumstances where completely new allegations were now being advanced DATE before removal directions were set and in circumstances where none of that evidence , including the medical evidence ... , provided a sensible or satisfactory explanation for the failure to mention these important allegations at the time of the original appeal . ”

He found that in these circumstances , it was impossible to characterise the Secretary of ORG ’s decision as unlawful and dismissed the renewed application for judicial review .

The first applicant alleges that , after arriving at FAC , she was detained and interrogated by GPE authorities . CARDINAL of her interrogators struck her on the forehead . She further claimed that , when released from this initial detention and preparing to leave the airport , she was abducted , blindfolded and removed to an unknown location by an unknown person . Her clothing was forcibly removed . Her captors asked whether she was “ still ” linked with the ORG and had taken part in NORP activities while living in the GPE . They accused her family of funding the ORG . The men showed her copies of her asylum papers they had found in her bag , which she claimed had been packed by GPE officials at the immigration removal centre , and asked her questions about them . They then beat her , kicked her , stabbed her with a broken ballpoint pen and did further “ unspeakable bad things ” to her . Eventually they forced her to sign statements written in NORP .

The first applicant alleges that her interrogators ultimately released her from their custody . After seeking treatment at a hospital , she became frightened , went into hiding and was unable to contact her family in GPE for DATE . She has submitted a copy of a letter from a doctor at ORG in GPE addressed “ to whom it may concern ” . The letter states that , according to the hospital records , on DATE , the first applicant “ presented with multiple physical injuries and psychological trauma . ” She had “ sustained head , arm and leg injuries , scratches around [ her ] neck and bruises on her face caused by torture and other ill - treatment ” .

The first applicant also maintains that , since emerging from detention , she has twice attempted to commit suicide , as documented by a letter from the same doctor dated DATE . She claims that she is currently staying with an acquaintance and that her husband and sons remain missing .

CARDINAL officials from ORG in GPE met the first applicant ’s flight as it arrived at the airport . CARDINAL of the officials has set out his account of events in a letter dated DATE . He explained that the group of CARDINAL returnees was escorted to a seated area in immigration arrivals . They were addressed by a GPE - speaking migration officer who explained the processes that they would have to go through . ORG official then addressed them in LANGUAGE . In his letter , he said :

“ None of the returnees appeared ill or distressed in any way and their main concerns seemed to be around being reunited with their baggage and belongings . ”

The first returnees were interviewed from TIME , by ORG first and then by ORG and ORG jointly to ascertain their mode and route of travel to GPE , what they had been doing there and whether they had been involved in previous criminal activity in GPE . Once the interviews were completed , their passports were stamped allowing them to leave . They were then addressed by a representative of ORG , who gave them a travel grant equivalent to ORG DATE for onward travel and accommodation if required and took their contact details .

The first returnee was allowed to leave at TIME The last of the returnees passed through customs at TIME The official accompanied most of the returnees to the baggage reclaim area , where he oversaw the collection of their bags . The official was made aware that CARDINAL of the first male returnees processed had been identified as the subject of an outstanding criminal arrest warrant and would therefore be arrested once he had completed immigration procedures . The official was provided a copy of the court warrant . He was subsequently informed that the arrest had taken place and spoke to the police officer who had made the arrest and the returnee himself .

By supplementary letter dated CARDINAL DATE , intended to address questions arising in the proceedings before ORG , the official confirmed that no female on the flight was questioned for any considerable length of time . Aside from the CARDINAL returnee who was arrested , no other returnees were detained . All returnees were addressed either by him or his colleague , and CARDINAL of the CARDINAL accompanied every single passenger to the baggage reclaim area and reunited them with their bags . The officials gave the returnees their business cards . The official emphasised that he and his colleague remained with the passengers throughout the whole process and would have noticed had any of them shown signs of illness , injuries or distress . Each of the returnees had ample opportunity to seek assistance from him and his colleague .

The official accepted that in theory a returnee could have been apprehended as she was about to leave the airport . He continued :

“ The arrivals area is normally crowded with waiting friends and relatives , plus the media were in attendance specifically for the charter flight . It would however be questionable as to why the authorities would wait until that stage when the person could have been arrested or detained during the border control process if they were of further interest . ”

Section CARDINAL(CARDINAL ) of the Nationality , Immigration and Asylum Act DATE , provides a right of appeal to the First - tier ORG ) against an immigration decision made by the Secretary of ORG for ORG , inter alia , on the grounds that the decision is incompatible with LAW of ORG DATE provides a further right of appeal to ORG , with the permission of the First - tier ORG or ORG , on a point of law .

DATE . Paragraph CARDINAL of ORG provides that further submissions made after an asylum claim has been determined will amount to a fresh claim if they are significantly different from the material that has previously been considered . The submissions will only be significantly different if the content : ( i ) has not already been considered ; and ( ii ) taken together with the previously considered material , creates a realistic prospect of success .

ORG ’s policy instruction on judicial review and injunctions provides that ORG will normally defer removal where a judicial review application has been properly lodged with ORG in accordance with the applicable Practice Direction . However , where it is considered appropriate because of the complexity , practicality and cost of a charter flight , a judicial review application may not defer removal unless an injunction is obtained from ORG .

NORP The country guidance case - law applicable at the relevant time was set out in LP ( NORP area DATE Colombo – risk ? ) GPE [ DATE ] UKAIT DATE ( “ LP ” ) ( subsequently endorsed by ORG in ORG . v. the GPE , no . CARDINAL , § CARDINAL , DATE ) and ORG ( NORP – LP updated ) GPE [ DATE ] UKAIT DATE ( “ ORG ” ) . The findings in both cases are set out in detail in the ORG ’s judgment in E.G. v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE .

In short , the risk factors identified in ORG and confirmed in ORG were the following :

( CARDINAL ) NORP ethnicity ;

( CARDINAL ) a previous record as a suspected or actual ORG member ;

( CARDINAL ) a previous criminal record and/or outstanding arrest warrant ;

( CARDINAL ) bail jumping and/or escaping from custody ;

( CARDINAL ) having signed a confession or similar document ;

( CARDINAL ) having been asked by the security forces to become an informer ;

( CARDINAL ) the presence of scarring ;

( CARDINAL) return from GPE or other centre of NORP fundraising ;

( CARDINAL ) illegal departure from GPE ;

( CARDINAL ) lack of an ORG card or other documentation ;

( CARDINAL ) having made an asylum claim abroad ;

( CARDINAL ) having relatives in the ORG .

Section CARDINAL of ORG ’s policy instruction on gender issues in asylum claims covers interviewing and assessment of credibility . Section CARDINAL notes that each applicant will have been asked at screening to indicate a preference for a male or female interviewer . It explains that it should normally be possible to comply with a request made in advance of an interview . It clarifies that requests made on DATE of an interview for a male or female interviewer or interpreter should be met “ as far as is operationally possible ” .

Section CARDINAL states that while the substantive asylum interview represents an applicant ’s principal opportunity to provide full disclosure of all relevant factors , the disclosure of gender - based violence at a later stage in the determination process should not automatically count against her credibility . It explains that there may be a number of reasons why an applicant might be reluctant to disclose information , for example feelings of guilt , shame , and concerns about family honour , or fear of traffickers or having been conditioned or threatened by them . In particular , it refers to the possibility that the applicant has suffered trauma , which could lead to memory loss or distortion . It provides that decision - makers should be aware of this and how such factors might affect how a woman responds during interview .

ORG ’s “ FAC : Gender - Related Persecution within the context of Article CARDINAL ) of the DATE Convention and/or its DATE LAW relating to LAW set out a series of procedural best practices “ in order to ensure that gender - related claims , of women in particular , are properly considered in the refugee status determination process ” ( paragraph CARDINAL ) . Paragraph CARDINAL of the guidelines refers to claimants’ possible reluctance to identify the true extent of the persecution suffered or feared because of , inter alia , trauma and shame .

The guidelines also propose that claimants be informed of the choice to have interviewers and interpreters of the same sex as themselves , and they should be provided automatically for women claimants ( paragraph CARDINAL ) ) . They further suggest that both open - ended and specific questions which may help to reveal gender issues relevant to a refugee claim be incorporated into all asylum interviews , in part because female claimants may fail to relate questions that are about torture to the types of harm which they fear ( such as rape , sexual abuse , female genital mutilation , honour killings , forced marriage , etc . ) ( paragraph CARDINAL ) ) .

DATE . Paragraph CARDINAL of Resolution DATE on gender - related claims for asylum provides :

“ In addition to the problem of gender issues not being properly taken into account in the assessment of asylum claims , the asylum procedure in member states often makes it difficult for women to tell their full story . A woman who faces a male interviewer or interpreter can be reluctant to speak freely and give a full account of the violence she has experienced , whether gender based or not . Moreover , the officials involved in the asylum procedure often lack adequate training on gender issues and therefore fail to ask the right questions or to analyse the evidence before them properly . This problem may be exacerbated by the use of country of origin information that ignores gender issues or has little gender relevance . ”

Paragraph CARDINAL states :

“ Women and girls seeking asylum in ORG member states have the right to have their protection claims assessed by an asylum system that is sensitive , in all aspects of its policy and operation , to the particular forms of persecution and human rights abuses that women face because of their gender . ”

Paragraphs CARDINAL.CARDINAL , CARDINAL and CARDINAL call on member GPE to ensure that women are automatically provided with assistance and interpretation by female counsellors and interpreters when formulating their asylum claims and filling out their applications ; to guarantee that interviewers and interpreters dealing with female asylum seekers are always women ; and to ensure that the asylum interview is carried out in a gender - sensitive way and , in particular , that questions relevant to gender - based violence and gender - related persecution are asked .


Preliminary objection joined to merits (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Effective investigation);Non-pecuniary damage - award

The applicant was born in DATE and lives in GPE .

On CARDINAL DATE , at TIME , the applicant and one of his friends , PERSON , also a NORP national , were involved in a fight with CARDINAL NORP youths outside a shopping centre in central GPE . The CARDINAL NORP youths , GPE and GPE , fled before the police arrived , but they were arrested and remanded in custody for breach of the peace ( хулиганство ) . The report drawn up by the police officers described the CARDINAL NORP youths as skinheads , adding that they were already known to the police for various offences such as breach of the peace , theft , burglary and drug trafficking .

NORP The police initiated a preliminary investigation . The applicant and his friend , the CARDINAL NORP youths and an eyewitness were interviewed . According to the applicant ’s submissions , PERSON and he had been coming out of the shopping centre when they were attacked by the CARDINAL young men . The first NORP , who had a shaved head , had thrown the applicant on to the ground and kicked him . The applicant had then got up and punched him back . The CARDINAL NORP had insulted them by calling them “ NORP ” ( негри ) , also shouting “ dirty GPE , what are you doing here ? ” . The second NORP , who had long hair , had brandished a knife and threatened GPE with it . The applicant and PERSON had fled , and had met a police patrol , which had started looking for the CARDINAL NORP and managed to arrest them TIME . PERSON ’s statements broadly corroborated those of the applicant .

According to ORG , the fight had begun because CARDINAL of the NORP youths had shoved him with his shoulder when they had passed each other at the entrance to the shopping centre . He said that he had not paid any attention to what his friend PERSON had been doing . The fighting had stopped at some stage and his friend and he had fled when someone warned them that the police were on their way .

ORG confirmed that CARDINAL of the NORP men had pushed his friend PERSON as he passed by and that that was when the fight had started . Blows had been exchanged on both sides , and PERSON had had his face bloodied . At CARDINAL stage ORG had taken out his knife , which had put an end to the fight , and the CARDINAL groups had then gone their separate ways . PERSON and PERSON had been arrested by the police TIME .

The eyewitness stated that he had seen one of the NORP , the one with the shaved head , trip up CARDINAL of the NORP men , who had then riposted with a punch . A general fight had then broken out among the QUANTITY persons involved .

The applicant was examined by a forensic medical expert on CARDINAL DATE . According to the medical certificate drawn up on that occasion , the applicant had a swelling of the nasal base , an approximately onecentimetrelong abrasion on the left - hand side of his nose , covered with a scab , a swollen finger on his left hand and a contusion to the right knee . According to the medical certificate , the injuries noted had caused physical pain . They had resulted from blows struck by blunt instruments and could have been occasioned in the manner described by the applicant , namely in the course of a fight .

At the end of the investigation the police transmitted the evidence gathered to the public prosecutor for a decision on instituting a criminal prosecution for racist violence pursuant to Article CARDINAL § CARDINAL of LAW .

By an order of CARDINAL DATE the district prosecutor decided not to bring a criminal prosecution . He considered that while a fight had indeed occurred among the CARDINAL men , it had not been established that GPE and ORG had acted for reasons linked to ORG and the applicant ’s racial origins . The causes of the altercation were unclear , and the CARDINAL versions of the facts – by the applicant and PERSON , by PERSON and GPE , and by the eyewitness –conflicted as to how and by whom the fight had been started . The CARDINAL NORP men had claimed that they had been called “ dirty NORP ” , but the fact that it had been precisely their racial origin that had motivated the violence had not been corroborated by any other piece of evidence . The eyewitness , in particular , had not mentioned having heard any exchanges between those involved . The prosecutor concluded that in the absence of evidence of the specific motivation provided for by law , the offence had not been made out .

The applicant lodged an appeal with the higher prosecutor against the decision not to prosecute . He submitted that the investigation had been incomplete and that the investigators should have questioned PERSON and GPE about their motivation and their reasons for wearing black clothing , “ Ranger - style ” military shoes and even NORP insignia , as he remembered seeing such insignia on a T - shirt worn by CARDINAL of the assailants . According to the applicant , the police officers who had attended the scene should also have been interviewed about how PERSON and GPE had been dressed at the time of their arrest . Similarly , the investigators should have explicitly asked the eyewitness whether he had heard the exchanges between those involved , which they had not .

On DATE the GPE public prosecutor ’s office confirmed the district prosecutor ’s decision . The public prosecutor held that there was nothing to suggest that the violence had been perpetrated on the grounds of the applicant ’s racial origin as the sole fact that he was black was insufficient to make out the offence .

By a letter of DATE the applicant ’s lawyer asked for a copy of the criminal case file , without providing reasons for her request . On DATE the district prosecutor refused to supply the copies requested on the grounds that the lawyer had already been notified of the prosecutor ’s decisions and that now that the appeal had been dismissed , the case was closed .