No violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Egidijus Kūris;Iulia Motoc;Paulo Pinto De Albuquerque

The applicant was born in DATE and lives in GPE .

NORP In DATE the applicant asked the authorities to establish that her father had had QUANTITY of land in GPE before nationalisation . The applicant indicated that she and her sister were their father ’s heirs . It was indicated in her request that she and her sister would accept land in another location . A document proving that their father had owned QUANTITY of land was also attached to the request .

It appears that the applicant and her sister agreed that the applicant had a right to have her property rights to QUANTITY of their father ’s land restored .

On DATE the authorities issued a document containing a decision to return QUANTITY to the applicant in natura and to return the remaining QUANTITY to her by paying compensation .

On DATE ORG repeated the authorities’ decision of DATE ( see paragraph CARDINAL above ) .

NORP In DATE and DATE the authorities decided to give the applicant CARDINAL plots , each measuring QUANTITY .

In DATE ORG informed the applicant that she could , before DATE , declare or change her intentions regarding the method by which her property rights would be restored . She was informed that property rights to land that had been an urban area were to be restored by : giving plots of land to the citizens who had buildings on those plots – the maximum plot size was limited to a QUANTITY ; giving plots of land in cities and rural areas where a citizen did not have land , except for the cities of GPE , GPE , ORG , ORG , PERSON , GPE , GPE , NORP , GPE , GPE and GPE ; legally voiding a citizen ’s liabilities to the ORG ; and paying compensation in securities .

In DATE the applicant asked the authorities to pay her monetary compensation “ in a convertible currency at world market prices ” ( konvertuojama valiuta pasaulinėmis kainomis ) for the remaining QUANTITY of land .

NORP In DATE the applicant asked the authorities to pay her monetary compensation for the remaining QUANTITY of land or return a part of the land in natura . The applicant specified that monetary compensation should be paid in a “ convertible currency at market prices ” .

In DATE the authorities informed the applicant that they had addressed the GPE municipality regarding vacant plots of land in the area where her father had had the land , and had been told that the restitution process had to be carried out in accordance with the detailed plan for restitution approved in DATE .

NORP In DATE the applicant complained to the authorities that her previous requests ( see paragraphs CARDINAL and DATE above ) had gone missing .

In DATE the applicant asked the authorities not to give her any land burdened by any kind of easement .

In DATE the applicant wrote a letter to the authorities and stated that , in accordance with the LAW , not only did she have a right to receive fair compensation for the land , but a vacant plot of land situated in the same area where her father ’s land had been had to be returned to her . She stated that she had to be paid compensation at market prices and in accordance with the land value map for DATE . She also wrote that if the land returned to her was burdened by any kind of easement , the authorities would have to pay her compensation at full market value for her inability to use it . It appears from ORG decision that the authorities indicated in DATE that compensation at market prices was not possible ( see paragraph CARDINAL below ) . The value of QUANTITY of land was assessed at CARDINAL NORP litai ( LTL – MONEY ( ORG ) ) if the applicant preferred to acquire land in another area , and at LTL MONEY ( approximately ORG CARDINAL,CARDINAL ) if the applicant preferred compensation in securities ( see paragraph CARDINAL below ) .

On DATE the ORG changed the decision of DATE on the restoration of the applicant ’s property rights ( see paragraph CARDINAL above ) and decided that her property rights to the remaining QUANTITY of land would be restored at DATE . By that order , the applicant ’s property rights were restored by giving her CARDINAL plots of land measuring QUANTITY and QUANTITY respectively .

It appears from the courts’ decisions that in DATE the authorities asked the applicant to make a decision regarding the method of restitution in respect of the remaining plot of land ( see paragraphs CARDINAL and CARDINAL below ) .

In DATE the applicant asked the authorities to pay her monetary compensation for the remaining QUANTITY of land , plus PERCENT interest because she was the daughter of a military volunteer .

In DATE the applicant asked the authorities to remove all the underground telecommunications cables that were situated on one of the plots of land that had been returned to her .

On DATE the authorities informed the applicant that the remaining plot of land of QUANTITY was ORG redeemable , and she could be compensated for it by receiving securities or by a new plot of land of equal value in a rural area being transferred to her . The applicant was asked to inform the authorities about her decision before DATE . Should she fail to make a decision , the compensation would be paid in securities .

On DATE the applicant repeated her request to be paid monetary compensation plus PERCENT interest . Her letter also contained some other requests regarding increasing the size of CARDINAL plot , transferring a pond ( kūdra ) to her , and paying her compensation at market prices for another plot of land .

The authorities replied in DATE that , when deciding on issues of restitution , they were obliged to follow the requirements of domestic law . The applicant was asked to come to GPE on DATE to deal with the issue of restoring her rights to the remaining part of her father ’s land .

NORP In DATE ORG asked ORG to prepare a plan of vacant land in the area where the applicant ’s father ’s land had previously been situated . DATE , ORG replied that it was not possible to prepare additional plans of vacant land , because the schemes relating to vacant plots of land had already been approved , and a similar request submitted by the applicant ’s son had already been examined .

In DATE the authorities informed the applicant that as of DATE , LAW provided that a citizen who had already asked for his or her property rights to a plot of land to be restored could , by DATE , express or change his or her wish regarding the form in which the ownership rights to the real property were to be restored , and choose a plot of forest of equal value , provided that a final decision on restitution had not been taken or , if taken , had not yet been executed or had been executed in part .

The applicant started court proceedings , demanding compensation in respect of pecuniary damage from the GPE municipality . She alleged that the plot of land of QUANTITY which had been returned to her ( see paragraph CARDINAL above ) had electricity and gas equipment installed on it ( see paragraph CARDINAL above ) , and that she was prevented from using it . The applicant also asked the court to oblige the authorities to remove the underground telecommunications cables installed on her plot within DATE of the court decision becoming final .

On DATE ORG held that the applicant had not complained about the decision of the authorities of DATE by which her property rights to the specific plots of land had been restored ( see paragraph CARDINAL above ) . Moreover , the applicant had claimed that she was not able to use the land , more specifically , to construct buildings on it , but she needed to have a detailed plan of the land prepared in order to start any construction on the land , which she had not done . The court further held that the applicant ’s request that the authorities be obliged to remove the underground telecommunications cables was unfounded , because the cables had been installed in accordance with the provisions of domestic law . The applicant ’s claim was thus dismissed .

The applicant appealed , and on DATE ORG upheld the first - instance decision . The court held that the applicant had signed a document informing her about the borders of the land and restrictions regarding its use . There was no information indicating that either the applicant or her representative had been misled by the authorities regarding the status of the land . Moreover , the ORG was not obliged to restore her property rights to land with no restrictions regarding its use .

It appears that a plot of land measuring QUANTITY which had been situated in the area where the applicant ’s father had had his land was sold to ORG in DATE . In DATE ORG informed the applicant ’s son that the purchase contract regarding the plot of land sold to ORG in DATE had been concluded in breach of the requirements of domestic law , and that the issue would be referred to a prosecutor .

In DATE ORG of ORG informed the prosecutor that , in accordance with domestic law , CARDINAL family could purchase or rent only CARDINAL plot of land for construction of an individual home in the absence of an auction . If the family was provided with a plot of land before DATE , no other member of that family could acquire another plot of land for construction of an individual home without participating in an auction . ORG had been provided with a plot of land of QUANTITY for construction of an individual home in DATE . In DATE she had purchased that plot from the ORG . Moreover , in DATE R.N. had been allowed to purchase another plot of land of QUANTITY in the absence of an auction , which had not been allowed . In DATE R.N. had sold the plot of land to QUANTITY The prosecutor was thus asked to start court proceedings on the matter .

In DATE the prosecutor decided that ORG could start court proceedings , and referred the matter to it . Subsequently , ORG lodged a complaint with ORG , asking it to annul the relevant administrative acts by which the plot of land of QUANTITY had been provided to ORG and to annul the purchase agreements regarding that plot . The complaint was dismissed by ORG on DATE because the limitation period had expired ( see paragraphs DATE and CARDINAL below ) . That conclusion was upheld by ORG on DATE .

On DATE and DATE the applicant brought a claim and an amended claim for LTL CARDINAL ( approximately ORG CARDINAL,CARDINAL ) in respect of non - pecuniary damage relating to the length of the restitution proceedings . She asked the court to oblige the authorities to restore her property rights within DATE of the court decision becoming final , or to pay her fair monetary compensation , calculated in accordance with the land value map for DATE . The applicant also stated that she had sustained pecuniary damage in the amount of LTL CARDINAL,CARDINAL,CARDINAL ( approximately ORG CARDINAL ) , but she was not asking for any award in this respect .

On DATE ORG held that there was no dispute that the applicant ’s rights to QUANTITY had not been restored . However , it also held that her request for damages could only be satisfied if the ORG had acted unlawfully . The court stated that the national authorities had taken various steps : they had provided data about unoccupied land and had asked the applicant to decide how she wished her property rights to be restored . The applicant ’s requests submitted to the authorities for compensation “ in a convertible currency at world market prices ” and for compensation at market prices in accordance with the land value map for DATE ( see paragraphs CARDINAL , DATE , DATE , DATE and DATE above ) could not constitute a proper way of expressing her decision , because such methods of compensation had not been defined in the domestic law . The court found that her property rights had not been restored because of her inactivity . As regards her request that the authorities be obliged to restore her property rights within DATE , the court noted that she had to use an out - of - court procedure , and left that complaint unexamined .

The applicant appealed and also asked to be awarded compensation in respect of pecuniary damage amounting to ORG CARDINAL,CARDINAL,CARDINAL . On DATE ORG held that the first - instance court had been obliged to examine the applicant ’s request to have her property rights restored , but it had not examined all the documents submitted . It therefore returned the case to ORG for fresh examination .

On DATE ORG held that on DATE the applicant had submitted a request to have her property rights to QUANTITY of her father ’s land restored ( see paragraph CARDINAL above ) . In DATE the applicant and her sister had agreed that the applicant had a right to have her property rights to QUANTITY of her father ’s land restored ( see paragraph CARDINAL above ) . The authorities had restored her property rights to QUANTITY of land on DATE ( see paragraphs CARDINAL and CARDINAL above ) , and on DATE her property rights to another QUANTITY of land had been restored ( see paragraph CARDINAL above ) . The latter decision indicated that the applicant ’s property rights to the remaining plot of QUANTITY would be restored at DATE , when the land reform project had been prepared . No land reform project had been prepared , because the land in question was in an area that had been within city boundaries before DATE , so the indication in the decision about the land reform project being prepared had been a mistake . In DATE the applicant had been asked to choose the form of compensation ( see paragraph CARDINAL above ) , but she had sent several letters submitting requests that were not possible under domestic law .

The court further held that the authorities had examined numerous complaints submitted by the applicant and her son . The court further referred to the administrative proceedings regarding the applicant ’s alleged inability to use CARDINAL plot of land that had been returned to her ( see paragraphs CARDINAL above ) , and the civil proceedings regarding the sale of the plot of land of QUANTITY to GPE , started by ORG ( see paragraphs DATE above ) . The court also noted that the applicant had been informed about the possibility of receiving a plot of forest of equal value ( see paragraph CARDINAL above ) . The court held that there was no dispute that the applicant ’s property rights to QUANTITY of land had not been restored . However , the applicant ’s claims for compensation could only be satisfied if unlawful actions by the authorities had been established . The restitution process was carried out by ORG and its territorial divisions . The court decided that , in the applicant ’s case , the authorities had carried out their functions by : sending information about the methods by which the applicant ’s rights could be restored ; providing information about vacant land ; and asking the applicant to express her choice as to the method of restitution . The relevant domestic law valid at the time the applicant had asked for compensation “ in a convertible currency at world market prices ” in DATE had provided that , before DATE , a citizen could declare or change the method of restitution . If no method was chosen , the authorities could choose for the citizen . The relevant domestic law valid at the time the applicant had asked for compensation at market prices and in accordance with the land value map for DATE had provided that , before DATE , a citizen could change the method of restitution and choose compensation in securities instead of monetary compensation . The relevant domestic law valid at the material time when the case had been examined had provided that , until DATE , citizens could change the method of restitution and ask to have their property rights restored by being provided with a plot of forest of equal value in a rural area . If no method was chosen , property rights were restored by means of monetary compensation . The court held that the authorities could only choose the method of restitution for a citizen if he or she had not expressed his or her decision before DATE .

In the applicant ’s situation , ORG had not issued any decision within the required DATE time - limit , and thus the applicant had a right to receive compensation in respect of non - pecuniary damage . The court held that the applicant ’s right to have her property rights to QUANTITY restored had not been denied , and decided to award her FAC in respect of non - pecuniary damage . The remaining part of the applicant ’s complaint was dismissed as unfounded .

The applicant , ORG and the ORG , represented by ORG , appealed . On DATE ORG held that it was clear from the case material that there was no more vacant land in the area where the applicant ’s father had had his land . For this reason , the applicant ’s demand that the authorities be obliged to return her father ’s land in natura within DATE of the court ’s decision becoming final ( see paragraph CARDINAL above ) was unfounded . As regards the applicant ’s argument that her father ’s plot of land of QUANTITY had been sold to ORG owing to unlawful actions by ORG , the court held that this argument had been rebutted by the decisions issued by the domestic courts in other proceedings ( see paragraph CARDINAL above ) . As regards the length of the restitution process , the court decided that there was no information indicating that the authorities had acted unlawfully , and thus the firstinstance decision to award the applicant compensation of EUR CARDINAL had been unfounded . In DATE the applicant had expressed her wish to have her father ’s land returned to her in natura ( see paragraph CARDINAL above ) . In DATE she had asked for compensation “ in a convertible currency at world market prices ” ( see paragraph CARDINAL above ) ; in DATE she had asked for compensation at market prices in accordance with the land value map for DATE ( see paragraph CARDINAL above ) ; in DATE she had asked for compensation at market prices plus PERCENT interest ( see paragraphs CARDINAL above ) ; and in DATE she had stated that her choice as to the method of restitution had been expressed in DATE , and she was not going to change her mind ( see paragraph CARDINAL below ) . The authorities had informed the applicant several times that her requested methods of compensation were not possible under domestic law . In DATE the applicant had been informed that if a citizen did not express a decision as to a method of restitution before DATE , the authorities had to issue decisions taking into account the method indicated in the citizen ’s last request ( see paragraph CARDINAL above ) . In DATE the authorities had indicated the method by which the compensation would be calculated and had stated that the value of the QUANTITY of land which had to be restored to the applicant would be LTL CARDINAL,CARDINAL ( approximately ORG CARDINAL,CARDINAL ) if the applicant preferred to acquire the land in another area , and LTL CARDINAL ( approximately ORG CARDINAL,CARDINAL ) if she preferred compensation in securities ( see paragraph QUANTITY above ) . In DATE the authorities had asked the applicant to choose the method of restitution : receiving either an area of land , forest or water of equal value ( see paragraph CARDINAL above ) . In DATE the authorities had repeatedly explained that the applicant could receive either a plot of land of equal value or compensation in securities , and should she fail to make a decision then she would be paid compensation in securities ( see paragraph QUANTITY above ) . In DATE the applicant had been asked to come to ORG of ORG to discuss the issue of restitution ( see paragraph CARDINAL above ) . In DATE the authorities had informed the applicant that it had become possible to have a plot of forest of equal value in a rural area ( see paragraph CARDINAL above ) . The court further held that the actions of ORG had been lawful , considering that the applicant ’s requests had not been possible under domestic law . Moreover , the authorities had stated that a decision to pay the applicant monetary compensation would be issued . The court therefore decided to change the first - instance decision and not award the applicant any compensation in respect of non - pecuniary damage .

In DATE the applicant sent a letter to the authorities stating that she had expressed her decision on the method of restitution in DATE when she had asked for the return of her father ’s land in natura . She also stated that she was not going to change her mind and would require her father ’s land to be returned to her . In DATE the authorities replied that the remaining part of the land to which the applicant ’s property rights had to be restored was ORG redeemable and could not be returned in natura . The authorities further stated that the applicant would be paid monetary compensation . The applicant replied to this letter in DATE and accused the authorities of unlawfully expropriating property . The authorities replied in DATE and repeated that it was not possible to return the applicant ’s father ’s land in natura . The applicant replied , stating that the authorities’ letter contained no substantive reasons and could not be taken into account . The applicant stated that the issue of restitution in her case would be considered in the courts , and asked the authorities not to bother her with letters containing no substantive reasons .

In DATE the authorities asked the applicant to come to a meeting on DATE and familiarise herself with the draft decision restoring her property rights .

On DATE ORG issued a decision to restore the applicant ’s property rights to QUANTITY of land by paying her monetary compensation of ORG CARDINAL,CARDINAL .

NORP In DATE the applicant asked the authorities to provide her with copies of plans of vacant land plots situated in the area in which her father had had his land , and to explain how and when her father ’s land had been used . The authorities replied in DATE that ORG provided information in map form about vacant land that was not ORG redeemable . The relevant GPE division had to mark the borders of land which an owner had owned DATE in accordance with the information received from ORG . In the applicant ’s case , ORG had provided the relevant GPE division with information about vacant land plots . The GPE land reform division had then asked ORG to prepare land plans . CARDINAL plots of land had been returned to the applicant in natura in DATE . In DATE the GPE land reform division had asked ORG to additionally examine whether there was vacant land in the area where the applicant ’s father had owned land DATE , but it had been established that there was no more vacant land .

The applicant lodged a claim with the domestic court , asking it to annul the decision of ORG of DATE by which her property rights to QUANTITY of land had been restored and it had been decided that she would receive monetary compensation of ORG CARDINAL ( see paragraph CARDINAL above ) . The applicant thought that the land that had not been returned to her had not been used for public use , and that ORG had not provided any information as to why all of her father ’s land had not been returned in natura .

On DATE ORG rejected the applicant ’s complaints . The court held that her father ’s land was not vacant , as it was occupied by cadastral areas with or without buildings , areas containing infrastructure that was relevant for roads , side roads , underground infrastructure and the protective zones surrounding them , and recreational areas . There was a public interest in using that land , thus the land was ORG redeemable and compensation had to be paid for it . The court further assessed the actions of ORG and held that the authorities’ actions had been lawful . This was because the applicant had not agreed with the information indicating that her father ’s land was not vacant , and because on one hand she had asked for her property rights to be restored in natura , and on the other hand had asked for compensation at “ market ” and “ world market ” prices , although there was no such possibility under domestic law . ORG compensation was also a way to restore property rights , as confirmed by ORG ( see paragraph CARDINAL below ) . The value of the land had been calculated in accordance with the method approved by the Government ( see paragraph CARDINAL below ) , and the amount calculated for the applicant had been in accordance with that method . Moreover , the court referred to the case - law of the Court , where it had been established that no right to receive a higher amount of compensation was guaranteed under the applicable domestic law or by a decision of the domestic court ( see paragraph CARDINAL below ) . The compensation calculated for the applicant was in line with domestic law and the practice of the ORG .

In DATE the authorities asked the applicant to provide them with her account number so they could pay her the monetary compensation of ORG CARDINAL,CARDINAL . In the event that the applicant failed to do that , the monetary compensation would be transferred to a notary ’s deposit account .

In DATE the applicant sent a letter to ORG stating that she would not give the authorities her account number . Should the compensation be transferred to her or the notary ’s account nevertheless , it would be transferred back to the authorities .


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

The applicants are NORP nationals . The applicant in the first case , Mr PERSON , was born in DATE and is represented before the ORG by Mr U. Sommer , a lawyer practising in GPE . The applicant in the second case , Mr PERSON , was born in DATE and is represented before the ORG by PERSON , a lawyer practising in ORG . Both applicants are currently serving a prison sentence in GPE .


CASE OF BEZBORODOV AND OTHERS v. UKRAINE

Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Criminal proceedings;Right to a fair trial;Article 6-1 - Reasonable time)

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

The applicants complained of the excessive length of criminal proceedings and of the lack of any effective remedy in domestic law .


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

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

The applicant was born in DATE and has been residing in the GPE since DATE .

The applicant entered the GPE on DATE and applied for a residence permit for the purpose of asylum as well as for reasons not related to asylum . In support of this application , he gave the following account in his interviews with immigration officials .

He had been a member of ORG of GPE ( “ PDPA ” ) since CARDINAL/CARDINAL , and had worked for the NORP security service ORG ( “ ORG - e Dowlati / PERSON GPE ) DATE . Upon the PDPA ’s advice the applicant had joined the ORG as an alternative to mandatory military service . He had been stationed in LOC from DATE , where he had initially performed administrative tasks for DATE within ORG ’s local ORG department , followed by preparing / compiling course materials for ORG ’s internal training within the same department . He had done this until DATE . He had also been involved in the organisation of cultural events for ORG ’s youth department .

In DATE the applicant had been sent to ORG ( “ GPE ” ) for DATE for training ( ORG ’s organisation and the functioning of a secret service ) . Upon completion of this training he had been promoted to the rank of third lieutenant . In DATE the applicant had participated in DATE of political training , also in the GPE .

DATE the applicant had worked for ORG ’s ORG department in GPE . DATE he had worked for ORG ’s “ FAC ” , located in GPE , where he had been given the task of internal control and research into the functioning of ORG staff . The applicant ’s highest attained military rank , through periodical promotions , was that of major .

The applicant had fled from GPE to GPE on CARDINAL DATE , DATE after DATE of the ORG regime . After the applicant ’s flight , his father was assaulted in GPE by mujahideen who had come to ask him about the applicant ’s whereabouts . The applicant ’s father had to have a kidney removed as a consequence of the battering he suffered at the hands of the mujahideen . The applicant ’s family had joined the applicant in GPE DATE after the applicant ’s departure from GPE , but they had lived separately for safety reasons . His family had lived with relatives in GPE , close to the NORP border . The applicant himself had stayed in GPE . On an unspecified date in DATE , unidentified mujahideen had come to the applicant ’s GPE home searching for the applicant . On that occasion , the applicant ’s youngest brother had been ill - treated and another brother had been taken away , tortured and killed by the mujahideen in their attempt to find the applicant .

On DATE , the Deputy Minister of Justice ( Staatssecretaris van Justitie ) rejected the applicant ’s asylum request , holding that the applicant had failed to establish personal circumstances warranting a decision to grant him asylum . The applicant had never been approached personally by the mujahideen in GPE ; he had only made vague declarations about the post he had held in the KhAD , and he had lived for DATE in GPE without experiencing problems and/or having been found by the mujahideen ( who were said to be active in GPE too ) . Although they might have known where the applicant ’s family were , it was considered implausible that the mujahideen would have been aware of the applicant ’s whereabouts in GPE . The Deputy Minister also held that the applicant ’s submissions regarding the assault on his father and killing of his brother were brief and vague .

The Deputy Minister of ORG did , however , grant the applicant a conditional residence permit ( voorwaardelijke vergunning tot verblijf ) , valid for DATE from DATE , on the basis of a temporary categorial protection policy ( “ categoriaal beschermingsbeleid ” ) in respect of GPE .

On DATE the applicant submitted an objection ( bezwaar ) to the Deputy Minister against the decision to reject his asylum request . On DATE , following a hearing held on DATE before an official board of enquiry ( ambtelijke commissie ) , the Deputy Minister rejected the applicant ’s objection . The Deputy Minister found , inter alia , that the applicant had failed to establish that he had held a position within ORG of sufficient importance to warrant the conclusion that he would run a real risk of persecution upon his return to GPE . The Deputy Minister further noted that the applicant had not experienced any problems with the mujahideen either , stressing that the applicant had easily crossed a mujahideen - controlled border crossing with GPE in DATE . The Deputy Minister further found that the applicant had failed to demonstrate that he ran a real risk of persecution by the ORG , who were in charge of most of GPE at the time the impugned decision was taken . The Deputy Minister underlined in this regard the unlikelihood of the ORG having been aware of the applicant ’s past activities for ORG , including the CARDINAL military training programmes he had allegedly attended in the GPE . The Deputy Minister also dismissed the applicant ’s argument that , in GPE , he would be exposed to a real risk of being subjected to treatment contrary to LAW .

The applicant lodged an appeal against this decision with ORG ( rechtbank ) of GPE . Pending these appeal proceedings , the applicant was informed that the Deputy Minister had decided , in view of the applicant ’s involvement with the ORG , to examine the possible applicability of LAW DATE LAW ( “ the DATE Refugee Convention ) to his case and that for this reason the impugned decision of CARDINAL DATE was withdrawn . Thereupon , the applicant withdrew his appeal .

Meanwhile in DATE , the situation in GPE not having sufficiently improved , the applicant ’s conditional residence permit was converted ex lege into an indefinite residence permit after he had held it for a period of DATE . Subsequently , with the entry into force of LAW ( Vreemdelingenwet CARDINAL ) on DATE , the permit held by the applicant came to be named an indefinite residence permit for the purpose of asylum .

On DATE and DATE , the applicant was interviewed by the immigration authorities about the nature of his activities for the ORG .

On DATE the Minister for ORG ( Minister PERSON ) notified the applicant of her intention ( voornemen ) to revoke his residence permit and to hold LAW against him . The applicant ’s asylum claim had been considered in the light of an official report ( ambtsbericht ) , drawn up on DATE by ORG on “ ORG in NORP GPE ( DATE ) , AGSA , ORG , ORG and ORG ( “ PERSON in communistisch GPE ( DATE ) , AGSA , ORG , ORG en WAD ” ) and concerning in particular the question whether , and if so which , former employees of those services should be regarded as implicated in human rights violations . On the basis of this report , the GPE immigration authorities had adopted the position that LAW could be held against virtually every NORP asylum seeker who , holding the rank of third lieutenant or higher , had worked during the communist regime for the ORG or its successor the ORG .

NORP The Minister found it established that the applicant had worked as a commissioned officer in the ORG ’s LAW DATE and considered that , in his account to the GPE authorities , he had sought to trivialise his activities for the ORG . She rejected the applicant ’s argument that the applicability of LAW ought to have been examined at an earlier stage , holding that at the relevant time ( DATE ) considerably less information had been available to the GPE asylum authorities about the full extent of the human rights violations committed by the LAW , notwithstanding that to a certain extent there had been a general awareness of the nature of the former communist regime in GPE .

NORP The Minister then proceeded to an analysis of the applicant ’s individual responsibility under LAW , based on the prescribed and so - called “ knowing and personal participation ” test . Noting , inter alia , the applicant ’s steady career path in the ORG , the Minister excluded the possibility of the applicant not having known or not having been involved in human rights violations committed by the ORG . Relying on the official report of DATE , the Minister underlined the widely known cruel character of ORG , its lawless methods , the grave crimes it had committed such as torture and other human rights violations as well as the climate of terror which it had spread throughout the whole of NORP society . The Minister lastly emphasised that the applicant had done nothing to distance himself from ORG during DATE he had made a career there , referring to the applicant ’s own statement to the effect that he had consciously chosen to stay with ORG in order to avoid being sent to the war front . The Minister considered that the consequences of that choice were for the applicant to bear .

On DATE , the applicant submitted written comments ( zienswijze ) on the Minister ’s intended decision and , on DATE , he was once more heard before an official board of enquiry .

On DATE the applicant was served with an additional notice of intent in which the Minister examined whether the applicant ’s expulsion to GPE would be compatible with his rights under LAW , as required in expulsion cases according to the case - law of ORG ( Afdeling Bestuursrechtspraak ) of ORG . The Minister noted that , according to an official report on GPE issued by ORG in DATE , the position of ex - communists and persons associated with the former communist regime was not yet entirely clear . Members of the ORG possibly ran a risk of becoming a victim of human rights violations from the side of the authorities ( except for the government ) but more so from the side of the population ( GPE relatives ) as they were identified with human rights violations during the communist regime . However , there were no indications that persons in GPE should fear persecution merely because of their ties with the former communist regime . The Minister , therefore , held that the applicant had to demonstrate personal facts or circumstances warranting the conclusion that his return to GPE would be in breach of LAW , and found that the applicant had not done so . In reaching this finding , the Minister noted that the applicant ’s fear of being subjected to treatment proscribed by LAW had remained unsubstantiated in any concrete manner and was only based on assumptions . The applicant had not specified which particular faction of the mujahideen had been looking for him shortly after he left GPE , nor whether that faction was currently holding any position of power in GPE . The Minister further took into account the applicant ’s statement made at the hearing of DATE that in the meantime his parents and brother had returned to GPE . Although the applicant ’s father had allegedly been approached in DATE by individuals asking for the applicant , the Minister held that it had not been demonstrated that the applicant ’s parents and brother had experienced serious difficulties from the authorities or any groups . The Minister further considered that the mere fact that LAW was being held against the applicant did not in itself warrant the conclusion that , if expelled to GPE , he would have to fear treatment contrary to LAW . The Minister also rejected as still unsubstantiated the applicant ’s claims that he risked treatment contrary to LAW because he would be considered an infidel as his family was not professing ORG , as he drank alcohol and had studied , and also because of his ethnicity .

The applicant submitted additional written comments on DATE and , on DATE , was heard once more before an official board of enquiry .

NORP In her decision of DATE , the Minister revoked the applicant ’s residence permit . The notices of intent of CARDINAL DATE and DATE were added to the decisions and formed part of them . The Minister did not deviate , in the relevant part , from her earlier conclusions in the notices of intent and went on to confirm them on all points . The applicant ’s rebuttals were dismissed as not raising any new grounds . Moreover , in a letter of the same date the Minister informed ORG ( Openbaar Ministerie ) that LAW had been held against the applicant and asked ORG to consider prosecuting the applicant under criminal law . No further information on any follow - up to this letter has been submitted .

On DATE , the Minister notified the applicant of her intention also to impose an exclusion order ( ongewenstverklaring ) on him . The applicant submitted written comments on this intended decision on DATE and on DATE was heard before an official board of enquiry .

An appeal by the applicant against the Minister ’s decision of DATE was rejected on DATE by ORG of The Hague , sitting in ‘ s - Hertogenbosch . It accepted the Minister ’s impugned decision to hold LAW against the applicant as well as the underlying reasoning . It further upheld the Minister ’s decision and underlying reasoning that the applicant ’s removal would not be contrary to his rights under LAW .

On DATE , ORG rejected a further appeal by the applicant on summary grounds , holding :

“ What has been raised in the grievances ... does not provide grounds for quashing the impugned ruling . Having regard to section CARDINAL § CARDINAL of LAW , no further reasoning is called for , since the arguments submitted do not raise questions which require determination in the interest of legal uniformity , legal development or legal protection in the general sense . ”

No further appeal lay against this ruling .

On DATE , the Deputy Minister of ORG imposed an exclusion order on the applicant . An objection by the applicant to this decision was rejected by the Minister on DATE . On DATE , the applicant appealed to ORG of GPE . No further information about these appeal proceedings has been submitted .


Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

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

The applicant was born in DATE and lives in GPE .

At TIME on DATE , the applicant ’s motorcycle collided with a car driven by ORG in a residential area of GPE . ORG was not injured , but the applicant suffered multiple spinal fractures and serious damage to his spinal cord . As a result of the accident , he lost the ability to walk and became disabled .

On DATE of the accident , DATE , ORG opened a pre - trial investigation concerning a possible violation of road traffic safety regulations resulting in an accident that caused nonsevere impairment to another person ’s health ( LAW ) . The pre - trial investigation was supervised by ORG ( hereinafter “ the district prosecutor ” ) .

On DATE ORG was questioned as a witness . He stated that before the collision he had been driving at a speed of QUANTITY had decided to overtake the car in front of him . The road had CARDINAL lanes . He checked that there were no cars in the left - hand lane , coming either from in front or from behind , indicated left and overtook the car . He then indicated right and began returning to the right - hand lane . At that moment he felt a blow to the back of his car but did not understand what had happened . He drove for QUANTITY and stopped the car . Then he noticed that a motorcycle and its rider were lying on the ground , and called the police and the ambulance service . He had not seen the motorcycle before the collision .

On DATE the police investigator examined the scene of the accident . The investigator ’s report indicated that the accident had occurred on DATE , on a straight paved road which had been dry . It described the location of the applicant ’s motorcycle and ORG ’s car as they had been found after the accident , as well as the presence of skid marks and fragments of glass and plastic on the road . All those elements were also indicated in a sketch drawn by the investigator . The sketch included a column for drivers to sign if they agreed that the scene of the accident had been depicted accurately , but it was not signed by either the applicant or ORG

On DATE the investigator examined the applicant ’s motorcycle and ORG ’s car . The investigator ’s report described the damage to the front , back and both sides of the motorcycle , and to the back of the car . It also stated that before the accident both the motorcycle and the car had been in good technical condition and working properly .

On DATE a court medical expert took blood samples from the applicant and ORG in order to determine whether they had been sober . The examination detected no traces of alcohol in the blood of either of them .

On DATE the applicant was granted victim status in the investigation and questioned about the details of the accident . He stated that before the collision he had been driving at QUANTITY and had decided to overtake a bus and CARDINAL cars . Seeing that the left - hand lane was free , he began overtaking the bus and the cars and accelerated to QUANTITY . After overtaking them , while still in the left - hand lane , he slowed down to QUANTITY , but as that lane was free , he decided to also overtake CARDINAL more cars and a truck . He began to accelerate again , but then CARDINAL of the CARDINAL cars , which at that moment was QUANTITY in front of him , suddenly pulled out into the left - hand lane without indicating . The applicant applied the brakes but started losing control of the motorcycle , so he released the brakes before applying them again . The front wheel of the motorcycle hit the back of the car . The applicant fell off the motorcycle and landed on the road . He did not see what happened to the motorcycle after the collision . He lay on the ground until the ambulance arrived and took him to hospital .

On DATE a court medical expert concluded that the applicant ’s injuries corresponded to severe health impairment .

On an unspecified date the legal ground for the pre - trial investigation was changed to LAW traffic safety regulations , which resulted in an accident causing severe impairment to another person ’s health .

From DATE the police investigator questioned the applicant ’s mother and CARDINAL eyewitnesses to the accident . It appears that the eyewitnesses provided contradictory testimonies as to the location and speed of the CARDINAL vehicles immediately before the collision , the distance between them and the exact account of the events leading up to the collision .

On CARDINAL DATE the investigator examined the scene of the accident together with ORG The latter indicated the trajectory of his car before the collision and the exact location of the collision .

On DATE the applicant was informed that a forensic expert would be instructed to examine the circumstances of the accident and establish an account of the events . The applicant ’s lawyer submitted additional questions to be forwarded to the expert . The relevant order adopted on DATE by the Vilnius City Second District Court and forwarded to the expert on DATE does not appear to have included the questions submitted by the applicant ’s lawyer .

The examination was carried out by an expert from ORG ( NORP teismo ekspertizės centras ) , a governmental institution responsible for carrying out forensic examinations required by courts and other pre - trial investigation bodies . The expert was provided with the sketch of the accident ( see paragraph CARDINAL above ) and photographs of the CARDINAL vehicles , and asked to determine the location of the collision , to estimate the speed of the motorcycle before the collision , and to establish who had been responsible for the accident . The expert report , delivered on DATE ( hereinafter “ the first expert report ” ) , stated that the description of the skid marks and the fragments of glass and plastic on the road indicated that the collision had occurred in the right - hand lane . The expert estimated the speed of the motorcycle immediately before the collision as QUANTITY / h and , assuming that the speed limit on that road was QUANTITY , noted that the applicant had exceeded that limit . The expert concluded that the accident had been caused by the applicant because he had been exceeding the speed limit and had started applying his brakes too late to avoid the collision .

On DATE the district prosecutor instructed the police investigator to carry out a number of additional investigative actions , including :

− interviewing the officer who had sketched the accident scene ( see paragraph CARDINAL above ) in order to determine whether the sketch was accurate and why it had not been signed by the applicant and ORG ;

− examining the scene of the accident together with the applicant in order to verify his account of the events leading to the collision ;

− finding out whether , at the time of the accident , there were any traffic signs on the road indicating the speed limit , or any restrictions on overtaking ;

− additionally questioning an eyewitness who had claimed that following the collision the applicant ’s motorcycle had risen up in the air and landed in the right - hand lane , in order to clarify the details of that testimony ; and

− questioning another eyewitness identified by the applicant ’s mother .

On DATE the applicant ’s mother , PERSON , whom the applicant had authorised to act on his behalf , complained to the district prosecutor that the pre - trial investigation was being carried out slowly and ineffectively . She claimed that the sketch of the accident was inaccurate , as proven by the absence of the ORG signatures . She also complained that the investigators had not questioned all the eyewitnesses to the accident and had not eliminated the contradictions between different testimonies . PERSON further complained that the questions of the applicant ’s lawyer had not been forwarded to the expert examining the circumstances of the accident ( see paragraph CARDINAL above ) . Lastly , she complained that the prosecutor had sent that expert ’s report to the wrong address , so she and the applicant had not received it . PERSON asked the court to change the investigator in charge of the pre - trial investigation and to ensure that essential investigative measures were carried out .

On DATE the district prosecutor upheld PERSON ’s complaint . The pre - trial investigation was transferred to a different investigator within ORG and the investigator was instructed to carry out the investigative measures requested by PERSON As to the forensic expert ’s report , the prosecutor informed PERSON that the questions to be submitted to the expert had been approved by a court decision , which the applicant had not challenged .

On DATE the district prosecutor notified ORG that the newly appointed investigator was conducting the pre - trial investigation “ in a sluggish manner ” ( vangiai ) , contrary to the requirement to complete it in the shortest possible time .

In DATE and DATE the police investigator carried out the additional investigative measures ordered by the district prosecutor ( see paragraph CARDINAL above ) .

On DATE , in response to PERSON ’s complaint , the district prosecutor informed her that the police officer who had drawn up the sketch of the accident had been questioned and confirmed its accuracy , so there were no grounds to suspect that the sketch had been falsified . The prosecutor also noted that an internal inquiry had been opened concerning the absence of the ORG signatures on the sketch of the accident .

Subsequently , in his order to ORG the district prosecutor pointed out that the absence of the ORG signatures on the sketch had given PERSON legitimate doubts as to its accuracy , and asked the police to look into the ORG actions when drawing up the sketch . On CARDINAL DATE the inquiry found that the police investigator who had carried out the initial investigative measures and who had been responsible for ensuring that the drivers signed the sketch had not performed her duties properly . However , the investigator was not given a disciplinary penalty because DATE had passed since the breach and she was no longer working in the interior affairs system .

On DATE CARDINAL PERSON complained to ORG that the district prosecutor was not properly supervising the pre - trial investigation , which was slow and ineffective . She raised similar complaints to those she had raised before ( see paragraph CARDINAL above ) and asked for the removal of the prosecutor who had been in charge of supervising the investigation . On DATE ORG dismissed PERSON ’s complaint , finding no serious breaches in the prosecutor ’s actions . ORG also held that although the prosecutor had sent some documents to an incorrect address , those same documents had also been sent to the applicant ’s lawyer , so the applicant had in fact received them .

On DATE the FAC ordered an additional forensic examination of the circumstances of the accident . The examination was carried out by the same expert from ORG as before ( see paragraph CARDINAL above ) . The expert report , delivered on DATE ( hereinafter “ the second expert report ” ) , did not make a fresh estimate of the speed of the applicant ’s motorcycle but relied on the findings of the first expert report and considered that the applicant had been travelling at a speed of QUANTITY . It found that the speed limit at the location of the accident had been QUANTITY / h and not QUANTITY / h , as assumed in the first expert report , which nonetheless meant that the applicant had exceeded the speed limit . Having examined the sketch of the accident and the damage to both vehicles , the second report confirmed the conclusion of the first report that the collision had occurred in the righthand lane , while the motorcycle was moving into it from the left - hand lane . It found no data indicating that ORG had been driving at speeds in excess of the speed limit or that he had done anything which might have caused the accident . The report concluded that the accident had been caused by the applicant : the main cause had not been the speed of the motorcycle but the difference between the speed of the CARDINAL vehicles , and the fact that the applicant had not started to brake in time to avoid the collision .

On DATE the district prosecutor discontinued the pre - trial investigation on the grounds that ORG ’s actions had not amounted to a crime as provided for by LAW . PERSON appealed against that decision before a senior prosecutor , arguing that the investigation had been biased and incomplete . She stressed in particular that the sketch of the accident had been inaccurate , as proven by the absence of the ORG signatures ( see paragraph CARDINAL above ) . She also submitted that the prosecutor had disregarded the testimonies of some eyewitnesses that the collision had occurred in the left - hand lane and that it had caused the applicant ’s motorcycle to rise up in the air and land in the other lane ( see paragraph CARDINAL above ) . Her appeal , however , was dismissed . The senior prosecutor pointed out that CARDINAL expert reports had concluded that the accident had been caused not by ORG but by the applicant himself , and that the testimonies of several eyewitnesses had confirmed that conclusion .

PERSON appealed before LAW . She again argued that the sketch of the accident was inaccurate , as proven by the absence of the LAW signatures . She also submitted an opinion by a specialist in the field of road traffic accidents , issued at GPE ’s request on DATE ( hereinafter “ the specialist ’s opinion ” ) , which had concluded that although both the applicant and ORG had exceeded the speed limit , that fact had not been the cause of the accident . The specialist considered that the accident had occurred in the left - hand lane and that it had been caused by ORG suddenly entering that lane – despite the applicant ’s attempts to brake and slow down , it had not been objectively possible for him to avoid the collision .

On DATE the Vilnius City ORG upheld PERSON ’s appeal and reopened the pre - trial investigation . The court noted the contradictory findings of the expert reports on CARDINAL hand and the specialist ’s opinion on the other hand , and considered that it was necessary to conduct a fresh forensic examination by a different expert in order to eliminate those contradictions .

On DATE the police investigator ordered a fresh examination of the circumstances of the accident . The examination was carried out by a different expert from ORG . In his report , delivered on CARDINAL DATE ( hereinafter “ the third expert report ” ) , the expert examined the sketch of the accident and photographs of the CARDINAL vehicles , and estimated that immediately before the collision the applicant had been travelling at a speed of QUANTITY , and that it was not possible to determine the speed at which ORG had been driving . The report also stated that the motorcycle had hit the right side of the car , so even if , as claimed by the applicant , the car had entered the left - hand lane suddenly and unexpectedly , that would not have caused the collision , which had occurred in the right - hand lane . The report concluded that the accident had been caused by the applicant , who had exceeded the speed limit and had not slowed down in time to avoid the collision .

On DATE the district prosecutor discontinued the pre - trial investigation on the grounds that ORG ’s actions had not amounted to the crime stipulated in LAW . On DATE a senior prosecutor upheld that decision , noting that the third expert report had confirmed that the accident had been caused by the actions of the applicant and not of ORG

PERSON lodged an appeal with LAW , submitting that the third expert report was inaccurate , in particular because it concluded that the collision had occurred in the right - hand lane , which was contrary to the material in the case file . She also submitted that the third expert report had not refuted the conclusions of the specialist ’s opinion . PERSON further argued that the testimonies of some eyewitnesses had clearly demonstrated that the accident had been caused by ORG ( see paragraph CARDINAL above ) , but they had not been properly considered by the prosecutor .

On DATE the GPE City ORG upheld the appeal and reopened the pre - trial investigation . The court held that it was necessary to address the arguments presented in GPE ’s appeal and that the third expert report had to be assessed together with the other available evidence , such as reports concerning the location of the accident and eyewitness testimonies .

On DATE the GPE City ORG ordered a fresh expert examination of the circumstances of the accident . The order was forwarded to ORG on DATE , together with the specialist ’s opinion . The examination was carried out by a different expert from ORG . The expert report , delivered on DATE ( hereinafter “ the fourth expert report ” ) , examined the sketch of the accident and photographs of the CARDINAL vehicles , and estimated that immediately before the collision the applicant had been travelling at a speed of QUANTITY . It found that although it was not possible to estimate the speed at which ORG had been driving , the fact that the motorcycle had hit the back of the car meant that the car had been going slower than the motorcycle . The expert considered that it was not possible to determine the trajectory of the CARDINAL vehicles before the collision . However , even if the applicant ’s version was to be believed and ORG ’s car had suddenly entered the left - hand lane at a distance of QUANTITY from the applicant ’s motorcycle ( see paragraph QUANTITY above ) , the applicant could have slowed down and avoided the collision . The fourth expert report concluded that the accident had occurred in the right - hand lane and that it had been caused by the applicant who had exceeded the speed limit and had not slowed down in time to avoid the collision .

In DATE and DATE the police investigator again questioned the applicant , ORG and some of the eyewitnesses questioned previously .

PERSON was informed about the findings of the fourth expert report on DATE . She complained to the district prosecutor that she had not been given the opportunity to submit additional questions to the expert , in particular , whether having collided with the car , the motorcycle could have risen up in the air and landed in a different lane , as claimed by some eyewitnesses ( see paragraph CARDINAL above ) . PERSON also complained that the expert had relied on low - quality photographs of the motorcycle but had not examined the motorcycle itself , and that the report ’s findings had been incorrect . On DATE the district prosecutor upheld PERSON ’s complaint and ordered the police investigator to examine the applicant ’s motorcycle and to forward PERSON ’s questions to the expert who had conducted the fourth examination . On DATE the expert responded that the description of the location of the accident showed that during the collision the motorcycle had not risen up into the air .

On DATE the district prosecutor again discontinued the pre - trial investigation on the grounds that ORG ’s actions had not amounted to the crime stipulated in LAW . On DATE a senior prosecutor upheld that decision , considering that the fourth expert report had assessed all the material collected during the pre - trial investigation , including the specialist ’s opinion , and that PERSON had been given sufficient opportunity to present her questions to the expert .

On DATE the GPE City Second ORG dismissed an appeal lodged by PERSON and upheld the prosecutor ’s decision . The court considered that expert reports and eyewitness testimonies demonstrated that ORG had entered the left - hand lane within a safe distance from the applicant ’s motorcycle , and thus had not violated road traffic safety regulations . Although there had been contradictory eyewitness testimonies as to the exact distance between ORG ’s car and the applicant ’s motorcycle , the court considered that any doubts had to be interpreted in ORG ’s favour . The court also held that the conclusions of the specialist ’s opinion that the collision had occurred in the left - hand lane had been contrary to the description of the location of the accident as provided in the sketch ( see paragraph CARDINAL above ) .

NORP On DATE the ORG quashed the lower court ’s decision and reopened the pre - trial investigation . It held that the decision to discontinue the investigation had not been based on a comprehensive assessment of all the collected material but had relied exclusively on evidence favourable to ORG , disregarding the applicant ’s statements , eyewitness testimonies , and the specialist ’s opinion . The court disagreed with the conclusion that ORG had started overtaking within a safe distance from the applicant ’s motorcycle , and noted that ORG had also had an obligation to make sure that none of the drivers behind him had started overtaking , so it was possible that he had committed the crime stipulated in LAW . The court observed that the question of ORG ’s criminal responsibility would be best determined by a court examining the case on the merits .

On DATE , at GPE ’s request , another expert from ORG submitted an opinion that , judging from the damage to both vehicles , there were no grounds to believe that the motorcycle had risen up in the air when it had collided with ORG ’s car .

On DATE the district prosecutor discontinued the pre - trial investigation as time - barred , while also observing that the investigation had not identified any grounds to believe that a crime may have been committed ( the prosecutor did not refer to ORG decision of DATE see paragraph CARDINAL above ) . The prosecutor ’s decision does not appear to have been appealed against .

On DATE the applicant submitted a civil claim for damages against ORG He stated that the accident and the resulting injuries and disability had caused him significant distress , inconvenience and emotional trauma . The applicant claimed CARDINAL NORP litai ( LTL − approximately MONEY ( ORG ) ) in non - pecuniary damages and LTL MONEY ( ORG CARDINAL,CARDINAL ) in pecuniary damages for medical expenses and rehabilitation .

On DATE ORG dismissed the applicant ’s claim . It relied on the expert reports delivered during the pretrial investigation and noted that all of them had established that the accident had been caused not by ORG but by the applicant himself . Although the specialist ’s opinion , delivered at the request of the applicant ’s mother , had reached a different conclusion , the court considered that the fourth expert report had taken its findings into consideration , and that it was thus unnecessary for the court to discuss the specialist ’s findings separately . It also observed that the judgment of ORG of DATE ( see paragraph DATE above ) could not be interpreted as affirming ORG ’s responsibility for the accident . As a result , the court concluded that it had not been established that ORG had breached any legal requirements , which was a pre - condition for his civil liability to arise . The court also noted that the applicant had bought the motorcycle DATE before the accident , that he had not had any prior experience in driving that kind of vehicle , and that the motorcycle had not undergone a technical examination before the accident . Accordingly , the court found that the applicant himself may have breached road traffic safety regulations . The civil claim was dismissed and the applicant was ordered to pay LTL CARDINAL ( ORG CARDINAL.CARDINAL ) in legal expenses to ORG and the ORG .

On DATE ORG upheld the judgment of the lower court in its entirety .


Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Speediness of review);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in DATE and currently lives in GPE .

On DATE the ORG convicted the applicant of having deliberately caused severe bodily harm and sentenced him to six years’ imprisonment . The court found that the applicant had beaten his CARDINALyear - old mother by kicking and punching her face , head and thorax , which resulted in a severe and lasting infirmity . The applicant had been convicted on CARDINAL previous occasions , CARDINAL of which involved similar offences of violence . Relying on a report by a psychiatric expert , the court found that even though the applicant was responsible for his acts , he was suffering from a grave mental disorder , was dangerous to the public and was likely to re - offend . For these reasons , the court ordered the applicant ’s detention in an institution for mentally ill offenders in accordance with section CARDINAL § CARDINAL of LAW , in addition to the term of imprisonment . Given the time the applicant had served in detention on remand , the ORG stated that the applicant ’s detention pursuant to the prison sentence was likely to end on DATE .

On DATE ORG ( “ the Court of Appeal ” ) dismissed the applicant ’s appeal against his sentence . On DATE the applicant was placed in GPE detention centre , an institution for mentally ill offenders .

On DATE , in a first set of proceedings in which the applicant requested his conditional release from the institution , ORG ( “ the Regional Court ” ) ordered that the applicant remain in the institution . ORG dismissed the applicant ’s appeal against this decision on DATE .

On DATE the applicant applied for the lifting of the order to detain him at ORG detention centre ( under LAW ) in order to serve his sentence in an ordinary prison .

On DATE ORG asked the ORG prison administration and its psychiatric and psychological service to transmit further information on the applicant , which it received on CARDINAL DATE . On DATE it ordered a fresh psychiatric expert report and instructed the expert to submit the report before DATE .

On DATE the applicant filed an application with ORG for the setting of a time - limit ( Fristsetzungsantrag ) under LAW of LAW ( PERSON ) for ORG to decide on his application , as the last determination of the continuing need to detain him had taken place on DATE , and he had not yet received a decision concerning his application of DATE .

On an unspecified date , the applicant was transferred to a psychiatric institution in GPE . It appears , however , that this transfer was only temporary , and on an unspecified date , the applicant was transferred back to ORG detention centre .

After having been urged by ORG to deliver her report , the expert replied on DATE that she would submit it as soon as possible . She did so on DATE and explained that the applicant had meanwhile been transferred to an institution in GPE , for which reason she had not been able to examine him earlier . She found that the applicant , even though he had started to respond positively to his therapy , was still suffering from a serious mental disorder and that there was still the risk that the applicant would commit dangerous acts of violence .

On DATE ORG granted the applicant ’s application under LAW of LAW and ordered ORG to take a decision by DATE at the latest . It held that in the light of the chronology of events in this case , ORG had not fulfilled its duty to take a decision within a reasonable amount of time .

On DATE , after having held an oral hearing with the applicant present , ORG ordered the continuation of his detention in an institution for mentally ill offenders . On the basis of the expert opinion obtained , the court found that the applicant was still dangerous and likely to re - offend . It dismissed the applicant ’s request for the hearing of CARDINAL prison officers as witnesses , since these persons could not make a relevant assessment in this respect and that therefore the applicant ’s request lacked a relevant issue on which evidence should be taken ( relevantes GPE ) .

On DATE the applicant appealed against this decision to ORG maintaining his view that the placement in a psychiatric institution was no longer justified . He maintained , furthermore , that the length of the proceedings for the determination of this issue was in breach of Articles CARDINAL and CARDINAL of the Convention .

On DATE ORG dismissed the applicant ’s appeal . On the basis of the evidence obtained , the expert report of a psychiatrist , reports by the head of GPE detention centre and its psychiatric and psychological service , it found that despite progress in the applicant ’s therapy he still suffered from a grave mental disorder and was likely to commit acts of violence in the future . ORG also considered that ORG had correctly dismissed the applicant ’s request for the taking of further evidence . As to the applicant ’s argument that the proceedings related to his request had lasted an unreasonably long time , ORG found that , according to the relevant caselaw , the condition under section CARDINAL of LAW for DATE review of the further necessity of detention in an institution was complied with if such a review had been started by the competent court within the DATE period , whereas it was not necessary that the decision following the review be taken within that time - limit .

On DATE the applicant again applied for the order for psychiatric detention to be lifted , and to be transferred to an ordinary prison . After a further application by the applicant under LAW of LAW , the application was finally examined on DATE , when ORG ordered the termination of the applicant ’s psychiatric detention , suspended DATE of his prison sentence and released him subject to a number of conditions .


Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Luis López Guerra

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

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

On DATE the applicant arrived at FAC and reported at the asylum application centre ( aanmeldcentrum ) in GPE . On DATE he had a first interview ( eerste gehoor ) with officials from ORG ( Immigratie- en ORG ; hereafter “ IND ” ) and requested asylum . He had another interview with the officials of the ORG on DATE . During these interviews the applicant explained that he had come to GPE via FAC in GPE .

On DATE the ORG informed the applicant that it considered his case to fall within the scope of ORG Lodged in one of LAW that had been concluded in GPE on DATE ( hereafter “ the FAC ” ; see paragraphs CARDINAL below ) because he had travelled through GPE .

Additionally , the applicant was informed that he would not be provided with any reception facilities . At the material time , the GPE had a policy in place according to which asylum seekers in the applicant ’s position ( so - called “ GPE claimants ” ) had no access to ORG - sponsored reception and care facilities for asylum seekers ( see paragraphs CARDINAL - CARDINAL below ) . Accordingly , the applicant ’s request for assistance in the form of food , shelter and medical care was denied . It appears that on DATE the police issued to the applicant a card entailing the obligation to report ( meldingsregistratiekaart ) . The card notes CARDINAL dates , CARDINAL DATE and CARDINAL DATE respectively .

On DATE , DATE , the applicant was informed by ORG in GPE ( PERSON Asiel GPE - GPE , hereafter “ the ORG ” ) , a non - governmental organisation engaged in assisting asylum seekers , that his asylum request would probably be declared inadmissible because pursuant to LAW another State was responsible for the examination of that request . He was further informed that in the opinion of the ORG it would be without avail to institute proceedings against the decision that would probably be taken by ORG ( PERSON ) . This opinion was confirmed in writing in a letter given to the applicant by the ORG on DATE . This letter also noted :

“ The GPE authorities have decided not to provide you with reception facilities because there will be a [ GPE ] claim in your case . We regret that you are not provided with any reception facilities but , unfortunately , we can not change this . Proceedings previously instituted against this governmental decision ( overheidsbesluit ) have been lost . ”

The applicant left the application centre and went to GPE .

The “ transfer report ” drawn up at the Zevenaar application centre on DATE notes that the applicant waited at the centre ’s front gate for “ several days ” before he was admitted into the application centre on DATE at TIME

On DATE the applicant was granted a provisional residence permit valid from DATE until DATE . He was later granted a residence permit for the purpose of asylum for an indefinite period ( verblijfsvergunning asiel voor onbepaalde tijd ) . The document informing him of this last decision was dated DATE .

On DATE , the applicant requested ORG ( arrondissementsparket ) of GPE to institute criminal proceedings against ORG because of the denial to him of reception facilities from DATE until DATE . In his letter the applicant stated that on DATE he had been told by the ORG that he would be sent to GPE within DATE and that in the meantime he would have no right to reception facilities ; he had been given the advice to go to a big city such as GPE where there were “ many NORP people ” who would be willing to “ help him ” . The applicant further stated that on DATE he had spent TIME at GPE central train station and that he had returned to the application centre on DATE . When he had been denied access to the application centre , he had remained waiting at the centre ’s front gate without any food or water . After having stood there the entire day he had fallen down during TIME and had been taken into the application centre by security guards . DATE he had been told by application centre officials that he would have to leave the centre or face deportation to his country of origin . In view of this threat he had decided to leave the centre and he had spent DATE living on the streets , trying to survive by all possible means . He had spent most of his nights in underground stations where he had been harassed a number of times by police who had handcuffed and beaten him and on CARDINAL occasion he had met a man who , after listening to his story , had offered him accommodation . When the applicant had taken this man up on his offer he had been sexually abused by the man under threat of what the applicant believed to be a gun . He had managed to escape and had gone back to the asylum application centre in GPE where he had again been denied admission . He had remained at the front gate DATE . On TIME CARDINAL April CARDINAL he had gone towards the nearby railway tracks with the intention to commit suicide but had been prevented from doing so by the police who had taken him into the application centre .

The acting chief public prosecutor ( fungerend hoofdofficier van justitie ) responded to the applicant ’s request to institute criminal proceedings against ORG by letter of CARDINAL DATE stating that there were no indications of any criminal offences ( strafbare feiten ) having been committed and that he had therefore forwarded the applicant ’s complaint to the director of the ORG . By letter of DATE , the ORG notified the applicant that there had not been any irregularities in the processing of his asylum application and that neither the ORG nor the Minister for ORG ( Minister PERSON ) could be held responsible for whatever hardship he had suffered . Furthermore , the applicant was informed that in DATE , persons whose request of asylum was subject to LAW had been refused shelter and food unless there were “ reasons ( i.e. medical situation ) ” which would have necessitated proper accommodation and care . In the applicant ’s case , no such reasons had been mentioned by him during his interview .

NORP Until DATE , the admission , residence and expulsion of aliens were regulated by LAW DATE ( Vreemdelingenwet DATE ) . Further rules were laid down in LAW ( Vreemdelingenbesluit ) , the Regulation on Aliens ( Voorschrift Vreemdelingen ) and LAW ( Vreemdelingencirculaire ) .

At the relevant time , the provision of reception facilities was laid down in ORG and Other Categories of Aliens ( Provisions ) Regulations CARDINAL ( PERSON verstrekkingen asielzoekers en andere categorieën vreemdelingen DATE , hereafter “ Rva CARDINAL ” ) . The DATE granted asylum seekers , in principle , a right to reception facilities . On CARDINAL DATE a new provision added to ORG entered into force ( see ORG ) DATE , no . CARDINAL ) , which read as follows :

These Regulations do not apply to asylum seekers in respect of whom the Minister has requested , or will request , [ transfer ] to another ORG , party to ORG Lodged in one of LAW ( GPE , DATE ) , until such time as this request is rejected by the other ORG . ”

This amendment of DATE was repeated and further clarified in LAW DATE , which clarification included the following :

If , in the ORG ’s view , GPE claimants find themselves in very acute humanitarian need , the ORG will notify ORG for ORG ( Centraal Orgaan opvang asielzoekers , hereafter “ ORG ” ) hereof and advise the ORG to provide reception facilities despite the GPE claim . ”

On DATE section CARDINAL of the Rva DATE ceased to apply ( see Official Gazette CARDINAL , no . CARDINAL ) .

LAW provided for measures to ensure that asylum seekers had their applications examined by CARDINAL of GPE and that they were not referred successively from CARDINAL Member ORG to another . Articles CARDINAL to CARDINAL set out the criteria for determining the single Member ORG responsible for examining an application for asylum . The GPE and GPE were both signatory GPE .

Article CARDINAL of LAW , in its relevant part , read as follows :

NORP The responsibility for examining an application for asylum shall be incumbent upon the Member State responsible for controlling the entry of the alien into the territory of GPE , except where , after legally entering a Member ORG in which the need for him or her to have a visa is waived , the alien lodges his or her application for asylum in another Member ORG in which the need for him or her to have a visa for entry into the territory is also waived . In this case , the latter State shall be responsible for examining the application for asylum . ”

LAW has been superseded by ORG ( ORG ) No CARDINAL/CARDINAL of DATE establishing the criteria and mechanisms for determining the Member ORG responsible for examining an asylum application lodged in one of GPE by a third - country national ( “ FAC ” ) , which , in its turn , has been superseded by LAW ) No CARDINAL/CARDINAL of ORG and of ORG .

Directive CARDINAL of DATE , laying down minimum standards for the reception of asylum seekers in the Member States ( “ the Reception Directive ” ) requires that Member GPE ensure a dignified standard of living to all asylum seekers , paying specific attention to the situation of applicants with special needs or who are detained . It regulates matters such as the provision of information , documentation , freedom of movement , healthcare , accommodation , schooling of minors , access to the labour market and to vocational training . It also covers standards for persons with special needs , minors , unaccompanied children and victims of torture .

The deadline for transposition of the Reception Directive by the GPE expired on DATE .


Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicants , PERSON ( the first applicant ) and Mr PERSON ( the second applicant ) , are respectively a stateless person and a NORP national . They were born in DATE and DATE and live in GPE in the NORP district of LOC . They were represented before the ORG by PERSON , a lawyer practising in PERSON .

ORG ( “ the Government ” ) were represented by PERSON , Representative of GPE to ORG .

ORG were invited to intervene in the written procedure ( Article CARDINAL § CARDINAL of LAW CARDINAL § CARDINAL ( a ) ) .

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

The applicants are a married couple with CARDINAL adult sons . Prior to moving to GPE they lived in GPE with CARDINAL of their sons , Mr PERSON , who was born in DATE , and Mr PERSON , who was born in DATE .

NORP In DATE PERSON and PERSON moved to GPE . In DATE , the first applicant moved to GPE to join them , using her GPE passport . According to the applicants , on an unspecified date shortly afterwards she underwent a complex kidney operation and had to stay with her sons , who provided her with the necessary care after her surgery . Sometime in DATE she lost her passport and became stateless . At DATE the first applicant had another kidney operation , meaning she required constant care , which was provided by her family .

In DATE the second applicant arrived in GPE on a visa with his NORP passport and joined his sons and the first applicant . He later left again and re - entered GPE in DATE or DATE on another visa .

NORP In DATE PERSON obtained NORP nationality . According to the applicants , DATE he and his commonlaw partner , a NORP national , PERSON . , had QUANTITY children .

On DATE the second applicant was fined for a breach of LAW for failing to regularise his stay in GPE .

According to the applicants , they live with their son LOC and his family in the same dwelling in GPE . They are fully dependent on him and they take care of his CARDINAL children . The applicants’ fourth son , PERSON PERSON , has also become a resident of GPE .

It appears that the applicants’ third son , PERSON , has continued to reside in GPE . In DATE PERSON also obtained NORP nationality .

Between the date of their arrival in GPE and DATE neither of the applicants applied for a temporary residence permit or took any other steps to regularise their stay in the country .

On DATE ORG in LOC fined the applicants MONEY ( RUB ) ( MONEY ( ORG ) ) each and ordered their administrative removal ( expulsion ) from GPE . The court stated that the applicants , residing in GPE since DATE and DATE respectively , had not taken any steps to regularise their presence in the country , in breach of LAW . The court further stated that both applicants had admitted they had failed to regularise their stay and noted in respect of the second applicant that he had already committed a similar violation in DATE .

The applicants appealed against the expulsion order to ORG . They pointed out that they were long - term migrants and that their sons and other members of their family lived in GPE . They stated that their expulsion would have an adverse effect on their family life as they had been residing with their sons , were fully dependent on them , taking care of their grandchildren , Mr PERSON children , and that they were not dependent on the NORP social welfare system .

On DATE ORG upheld the expulsion order on appeal . It did not examine the applicants’ complaint concerning the alleged violation of their right to family life . The order became final and enforceable .

According to the ORG ’s submission , the expulsion order has not been enforced to date and will not be so as under the domestic legislation it could only be carried out within DATE of its entering into force .

According to the applicants , in DATE , upon receipt of ORG correspondence concerning their application , they decided to take steps to regularise their stay in GPE . No relevant documents were enclosed . The applicants continue to reside in GPE .

For a summary of the relevant domestic law see GPE v. GPE , no . CARDINAL , § § DATE , DATE .