Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Uzbekistan);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-1-f - Expulsion);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)

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

The applicant was born in DATE . Prior to his arrest he was residing in LOC .

On an unspecified date in DATE the applicant arrived in GPE and settled in GPE . CARDINAL DATE he travelled to GPE ( see paragraphs DATE below ) . It appears from the domestic judgment of CARDINAL DATE ( see paragraph CARDINAL below ) that he was registered with the local migration authorities from CARDINAL DATE to CARDINAL DATE .

On DATE ORG of GPE of GPE brought criminal proceedings against the applicant on suspicion of his alleged membership DATE of PERSON ( “ ORG ” ) , a transnational NORP organisation , banned in GPE , GPE and NORP republics , and making public calls to overthrow the constitutional order of GPE and to establish an NORP state in its place .

On DATE the applicant was charged in absentia in GPE with attempting to overthrow the NORP State ’s constitutional order ( Article CARDINAL § CARDINAL ( b ) of LAW of GPE ) ; storage and disseminating of documents containing ideas of religious extremism , separatism and fundamentalism , and threats to national security and public order ( Article CARDINAL - CARDINAL § CARDINAL ( a ) of the Code ) ; and participation in and direction of religious , extremist , separatist and other prohibited organisations ( Article CARDINAL - CARDINAL § CARDINAL of the Code ) . The statement of charges indicated that DATE the applicant , as a member of ORG , had regularly held unlawful religious gatherings with CARDINAL other persons at which they had made “ public calls to overthrow the existing constitutional order ” in their home country and “ made use of materials containing ideas of religious extremism ” . The applicant had shown a video - recording of an address by PERSON . , the leader of the religious extremist “ ORG of GPE ” . Furthermore , since DATE the applicant had systematically participated in religious studies and physical training sessions of a “ shahid belt community ” , as well as meetings organised by NORP at which public calls for the replacement of ORG by an NORP state in the form of a recreated ORG had been made .

On DATE ORG ordered the applicant ’s arrest , and his name was put on the cross - border list of wanted persons .

On DATE the applicant was arrested by the police in GPE as a person wanted by the NORP authorities . On DATE ORG of GPE of GPE confirmed their intention to request the applicant ’s extradition and requested that he be remanded in custody .

When interviewed by the police on DATE after his arrest , the applicant stated that he had moved to GPE in DATE to look for work . He had not registered as a foreign national temporarily residing in the country and had not applied for refugee status in GPE . He was unaware of the reasons for his criminal prosecution in GPE and had not been persecuted on political grounds in his home country . His wife and CARDINAL minor children lived with him in LOC .

On CARDINAL DATE the Deputy Prosecutor General of GPE submitted a formal request for the applicant ’s extradition . The request contained assurances that the applicant would be prosecuted only for the offences for which he was being extradited , that he would be able to freely leave GPE once he had stood trial and served any sentence , and that he would not be expelled or extradited to a third State without the consent of the NORP authorities . The NORP prosecutor ’s office further assured its NORP counterpart that the applicant would not be prosecuted in GPE on political or religious grounds , or subjected to torture or other inhuman or degrading treatment , that he would be provided with an opportunity to defend himself , inter alia , through legal assistance , that the criminal proceedings against him would be conducted in compliance with the domestic law of GPE , and that he would receive any medical treatment required .

On DATE the applicant ’s representative filed objections against the extradition request . She argued that according to independent international observers , illtreatment was widespread in the NORP prison system and fair - trial guarantees were not respected . Referring to the ORG ’s caselaw on the matter ( PERSON v. GPE , no . ORG , CARDINAL DATE ; PERSON v. GPE , no . CARDINAL/CARDINAL , DATE ; and Zokhidov v. GPE , no . CARDINAL , CARDINAL DATE ) , as well as to the reports by ORG bodies and NGOs cited in paragraphs CARDINAL , DATE , CARDINAL , DATE , DATE and CARDINAL below , she submitted that the applicant , who had been charged with religious and political offences , including membership of ORG , would run an increased risk of illtreatment and would be deprived of the minimum fair - trial guarantees if extradited to the requesting country . The applicant ’s representative also referred to a report of DATE by ORG of ORG of GPE in which the department , referring to various international NGO reports , pointed out that criminal proceedings in GPE depended to a considerable extent on self - incriminating statements . She further referred to a letter of DATE from the same ORG , which stated that any extradition to GPE would be in breach of LAW from the point of view of ORG .

According to a letter from the prosecutor ’s office of CARDINAL DATE ( see paragraph CARDINAL below ) , on DATE ORG refused to order the applicant ’s extradition , since his criminal prosecution had become time - barred . According to the applicant , neither he nor his representatives had been informed about the refusal at that point . The parties have not submitted a copy of the relevant decision .

On DATE the ORG of GPE ordered the applicant ’s detention pending extradition until DATE . The decision was not appealed against .

On DATE the Kuntsevskiy ORG of GPE ordered an extension of the applicant ’s detention until DATE in order to ensure his extradition .

On DATE ORG upheld the decision on appeal .

By a letter of CARDINAL DATE the head of the extradition department of ORG informed the Kuntsevskiy ORG prosecutor of GPE that on DATE ORG had refused to order the applicant ’s extradition to GPE since his criminal prosecution had become time - barred , and requested that the applicant be immediately released from custody . The letter continued as follows :

“ At the same time , [ I ] ask you to check the lawfulness of Mr PERSON ’s residence in GPE and his compliance with the immigration laws .

[ I ] ask you to send a copy of the release order , as well as information about the results of the check , to the extradition department of the city prosecutor ’s office no later than CARDINAL DATE by fax and mail . ”

A hand - written note on the letter , apparently made by the addressee , indicated that it would be necessary “ to conduct a migration check under LAW [ of LAW ] if there are grounds [ for it ] ” .

By a decision of CARDINAL DATE the Kuntsevskiy ORG prosecutor ’s office ordered the applicant ’s release from detention , because on DATE the extradition proceedings had been discontinued . At TIME on that date the applicant was released from a remand centre in GPE .

According to the applicant , at TIME on DATE he was apprehended by the police at the exit of the remand centre , immediately after his release from detention , and taken into custody .

According to the administrative offence record ( see paragraph CARDINAL below ) , the applicant was arrested at TIME by an officer of ORG in connection with a violation of the immigration laws ( Article CARDINAL - CARDINAL of the Code of Administrative Offences ( “ the CAO ” ) ) .

At TIME on DATE an officer of ORG of the ORG recorded that the applicant had been arrested “ for the purpose of drawing up an administrative record ” . In the part of the record reserved for comments the applicant wrote that he objected to the arrest and that he could not be removed to GPE since he ran a risk of torture there . Furthermore , proceedings were pending in respect of his refugee status .

At some point on DATE an administrative - offence record was drawn up on account of the applicant ’s failure to leave GPE after DATE . The applicant , in a hand - written comment made in the relevant part of the record , conceded that he had breached the migration laws but claimed that he could not be removed to GPE because he would be tortured in his home country .

On DATE the case file was forwarded to ORG of GPE . By a separate petition the head of ORG of the ORG requested the court to order the applicant ’s detention pending administrative removal , since he had been residing in GPE unlawfully and in breach of the immigration laws and had been avoiding leaving GPE ; accordingly there were grounds to believe that he would continue to breach the immigration laws .

On DATE the Kuntsevskiy ORG of GPE examined the applicant ’s case .

During the hearing the defence acknowledged that the applicant had failed to register with the migration authorities or leave GPE , contrary to the requirements of the immigration laws . However , they submitted that , in accordance with LAW ORG , administrative proceedings should have been brought against him as soon as sufficient data indicating the occurrence of an administrative offence had been obtained . When the applicant had been arrested on CARDINAL DATE , the authorities had already been in possession of sufficient information on the applicant ’s immigration status . However , administrative proceedings had not been brought against him until DATE , once the term of his detention pending extradition had expired . In those circumstances , the defence considered that the administrative removal of the applicant , if ordered , would amount to a form of extradition in disguise .

The defence further submitted that in any event the applicant ’s expulsion could not be ordered , since proceedings were pending in respect of his refugee status . They pointed out in this connection that the applicant ’s request for refugee status had been accepted for examination ( see paragraph CARDINAL below ) , and that he had received no response by the time of the events .

Lastly , the defence made a detailed argument to the effect that the applicant was wanted by the NORP authorities in connection with charges relating to religious offences , and would therefore run a risk of illtreatment if expelled to GPE . They referred to reports by the ORG and international nongovernmental organisations ( cited in paragraphs CARDINAL , DATE and CARDINAL below ) , as well as the ORG ’s case - law in support of that position .

The Kuntsevskiy District Court found the applicant guilty of the administrative offence of breaching LAW ( LAW . The court considered that the administrative - offence record had been compiled by a competent officer and in accordance with the domestic law . It rejected as irrelevant the applicant ’s arguments to the effect that the authorities had been aware of the impugned breach of the immigration laws as early as DATE , arguing that on that date the applicant had been arrested on different grounds . The court took note of the applicant ’s submissions concerning his request for refugee status and dismissed them as having no bearing on the administrative offence under examination . The lack of information on the progress of the proceedings in respect of refugee status did not preclude the court from applying an administrative sanction under LAW ORG .

When deciding on the sanction to be applied , the court took note of “ the information on the applicant ’s personality ” , as well as of the fact that he had admitted breaching the immigration laws . On the other hand , it observed that the applicant had been unlawfully residing in GPE for a considerable period of time and that he did not have a permanent residence or job in GPE . In accordance with LAW of the ORG the court fined the applicant MONEY ( RUB ) and ordered his administrative removal from GPE .

Lastly , the court granted the request of the head of ORG of the ORG for the applicant ’s placement in detention pending removal . It reiterated that the applicant had been residing in GPE in breach of the law and had avoided DATE and was likely to further avoid – leaving GPE of his own will . The court decided that the applicant should be detained in a special detention centre for foreigners of ORG of the ORG until his administrative removal . No specific timelimit for the applicant ’s detention was given by the court .

On CARDINAL and CARDINAL DATE the defence submitted their points of appeal before ORG . In addition to their initial arguments , they submitted , first , that the first - instance court had incorrectly established the facts of the case , including in respect of the applicant ’s arrest . Contrary to the case materials , on DATE the applicant had only just been let out of the remand centre when he was immediately arrested at the exit of the detention facility . They argued that the administrative - offence record had been forged and therefore was inadmissible . Secondly , they maintained that the applicant ’s expulsion would amount to his “ extradition in disguise ” . They pointed out , with reference to the letter of CARDINAL DATE ( see paragraph CARDINAL above ) that the very initiative to conduct an urgent check of the applicant ’s migration status had been taken by the prosecutor ’s office , that is the authority in charge of his extradition case . The interest the prosecutor ’s office displayed in the carrying out of the migration check – a matter clearly outside their competence – could be interpreted as an indication of that authority ’s interest in ensuring the applicant ’s return to GPE . However , the applicant , if removed to his home country , would be unable to benefit from the minimum guarantees he could have in extradition proceedings .

Thirdly , the defence maintained that domestic law prohibited the expulsion of a person who had applied for refugee status until a final decision in that respect had been made . However , the domestic court had omitted to elaborate on that aspect of the case . They argued that , contrary to the first - instance court ’s findings , the requirement to take into account the proceedings in respect of the applicant ’s refugee status had had no effect on the lower court ’s findings as to whether an administrative offence had DATE or had not – taken place . However , it could have had a bearing on the determination of the administrative sanction . In that regard , they drew the appeal court ’s attention to the fact that administrative removal constituted a sanction additional to an administrative fine .

Fourthly , the defence stressed that the first - instance court had failed to make any assessment of their ill - treatment argument . Having referred to the ORG ’s case - law , they reiterated their extensive submissions as regards the risk of ill - treatment if the removal order were to be enforced . They complained that the first - instance court had refused to admit to the case the reports by reputable NGOs , the NORP courts’ decisions , or the ORG ’s decisions in similar cases .

Lastly , the defence submitted that the decision ordering the applicant’ s detention did not contain any time - limit and was therefore in breach of LAW .

The examination of the case was initially scheduled for DATE but was adjourned in order to obtain updated information on the proceedings in respect of the applicant ’s refugee status from ORG .

On DATE ORG upheld the judgment of DATE , finding it lawful and justified . It held that the first - instance court had been right in finding that the applicant ’s actions had constituted an administrative offence . The appeal court upheld the administrative sanction as lawful and found no grounds to amend it . The court rejected the applicant ’s argument to the effect that he could not be removed from GPE in the absence of a final decision in the refugee - status proceedings as irrelevant , since “ the examination of the respective appeal did not have a bearing on the event or the legal qualification of the administrative offence ” . The court further noted that , in any event , on DATE his application for refugee status had been refused . As regards the applicant ’s argument about the authorities’ failure to bring the administrative proceedings against him in a timely manner , the court considered that this circumstance did not constitute a ground for quashing the lower court ’s judgment . It argued that that violation had been insignificant , since the time at which the respective record of the administrative offence had been drawn up had not had a “ preclusive effect ( « не является пресекательным ORG ) ” .

At some point in DATE the applicant applied to ORG of ORG ( “ the GPE FMS ” ) for refugee status in GPE on the grounds of fear of persecution on account of fabricated charges against him relating to a religious offence . He submitted that the accusations against him were unfounded . On DATE his case was accepted for consideration .

On DATE ORG of the ORG High Commissioner for Refugees ( ORG ) concluded , in a letter to the applicant ’s representative , that there existed a real risk of ill - treatment of persons whose extradition was sought in connection with politically motivated charges of a religious nature .

On DATE the GPE ORG rejected the applicant ’s application for refugee status . According to a copy of the decision as submitted by the parties , it observed that the applicant was wanted in GPE in connection with his alleged membership of ORG and noted that “ the initiator of the search had confirmed its intention to claim extradition ” . The authority reiterated that it was for a petitioner to adduce persuasive arguments why there existed an individual risk of persecution on the grounds of nationality , religious beliefs or membership of a social group . The authority took note of both the administrative removal order of CARDINAL DATE ( see paragraph CARDINAL above ) and the indication by ORG interim measure in the applicant ’s case ( see paragraph CARDINAL above ) . The GPE ORG found as follows :

“ It transpires from the case materials that after the death of the applicant ’s mother in DATE the applicant ’s father married another woman . In order to obtain the father ’s heritage , in DATE she complained to the local police that some time before the applicant had come to GPE to kill his father . However , according to the applicant , criminal proceedings had not been brought against him . However , in DATE she wrote a new complaint , this time accusing the applicant of extremism . It may be concluded from the above that the reason for which , according to the applicant , unfounded charges had been brought against him was a domestic conflict . ”

The GPE FMS also noted that the applicant had deliberately hidden the fact of the State border transfer between CARDINAL and DATE and that he had not applied for refugee status until his arrest , even though he had learned of the extremism charge against him in DATE . The authority also observed that the applicant ’s brother was living in GPE and had not been persecuted . It therefore concluded that the applicant had lodged a request with the sole purpose of avoiding criminal prosecution in GPE and that he did not satisfy the refugee criteria .

On DATE the defence lodged an appeal against the refusal with the NORP ORG office , arguing that the FMS GPE had omitted to take into account the political and religious nature of the charges against him and to analyse the specific circumstances of his case . They submitted , in response to the regional authority ’s findings ( see paragraph CARDINAL above ) , that it was immaterial who had brought the complaint against the applicant . Nor was the situation of his brother of relevance , since no criminal case had been opened against him in GPE . Contrary to the migration authority ’s findings , the applicant had not learned about the exact nature of the charges or the stage of the proceedings against him in GPE until his arrest . The fact of his border crossing in DATE was of little relevance and did not undermine his statement that since DATE he had not left GPE for a considerable period of time . ORG in its decision had referred to the extradition proceedings but had omitted to note the crucial point , namely the fact that extradition had been refused in the meantime ( see paragraph CARDINAL above ) . Lastly , the defence reiterated that the practice of torture against detainees in GPE could be described as systemic and that there was no evidence of any improvement in DATE . The defence referred , in particular , to the concluding observations of ORG of DATE , as well as ORG reports of DATE and DATE ( see paragraphs CARDINAL - CARDINAL below ) , the ORG reports published in DATE ( see paragraphs CARDINAL below ) , and other material ( see paragraphs CARDINAL and CARDINAL below ) . They maintained that the applicant , charged with membership of ORG , ran a particularly serious risk of illtreatment and detention in his home country .

On DATE the NORP ORG rejected the applicant ’s appeal . The federal migration authority considered that ORG had thoroughly analysed all the relevant circumstances and had taken a wellfounded and lawful decision that the applicant did not meet the refugee criteria . The NORP ORG further noted that it was not competent to conduct investigative activities within a criminal case or to doubt the wellfoundedness of the materials submitted by ORG of GPE about the criminal case brought by the NORP authorities .

By the same decision the NORP ORG instructed the GPE FMS to examine the issue of granting the applicant temporary asylum in GPE , with regard to the indication made by ORG CARDINAL of ORG ( see paragraph CARDINAL above ) . The parties have not informed the Court of any follow - up to that instruction .

On DATE the defence challenged the decision of CARDINAL DATE before ORG of GPE as unlawful and unfounded . They reiterated their earlier submissions regarding the risk of ill - treatment in the event of the applicant ’s expulsion ( see paragraphs DATE above ) and referred , in addition to the international material cited in their earlier submissions , to ORG released by ORG in DATE ( see paragraph CARDINAL below ) . They argued that the federal migration authority had failed to address the foreseeable consequences of the applicant ’s removal to GPE , and above all the risk of ill - treatment run by the applicant in the event of his removal . Instead of conducting such an analysis , the migration authority argued that they were not competent to conduct an investigation or review the extradition materials , even though that issue had been clearly outside the scope of the applicant ’s request . That attitude , in the applicant ’s view , rather demonstrated that the NORP ORG were relying on the presumption of his guilt in the criminal proceedings brought against him by the NORP authorities .

It appears that the appeal proceedings are pending to date .

After his arrest on TIME CARDINAL July DATE ( see paragraph CARDINAL above ) the applicant was placed in a cell at the LOC police station of GPE .

According to the applicant , the cell measured CARDINAL sq . m and accommodated , during the applicant ’s detention there , CARDINAL detainees . It was separated from the main corridor by a barred grill . The applicant did not have an individual sleeping place , since the cell was equipped with CARDINAL metal bench instead of beds . There were no windows in the cell , so he had no access to natural light and air . The cell was not equipped with a lavatory or toilet facilities . No linen or mattresses were available . The applicant received food and water once a day .

According to the ORG , the cell measured CARDINAL sq . m. The applicant was provided with food and bed linen .

At TIME on CARDINAL DATE ( according to the Government ) or on DATE ( according to the applicant ) the applicant was transferred to the GPE special detention centre for foreigners . The parties have not submitted documents in respect of the date of that transfer .

The applicant is detained in the GPE special detention centre for foreigners to date .


No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

The applicant is a journalist with a nationwide evening newspaper , ORG . On DATE Ilta - Sanomat published an article , written by the applicant , concerning the investigation into a homicide which had been committed DATE . The article referred to ORG , a well - known NORP businessman . The front page of the edition carried a headline : “ Cruel killing in PERSON : The executed man had connections with ORG ? ” A photograph of ORG also appeared on the front page . The article itself was entitled : “ The victim of the PERSON homicide had connections with ORG ? ” Under a smaller heading , “ The suspect in the cruel execution killing is a former member of the [ motorcycle gang ] ” , the article read :

“ [ ORG ] , who was brutally killed in PERSON , may have had connections with the businessman [ ORG ] . In DATE [ ORG ] was captured trying to smuggle bags containing money from GPE into GPE . The police suspect that those bags [ with contents ] belonged to [ ORG ] .

The incident is currently pending before the prosecutor for the consideration of charges . [ ORG ] is suspected of an aggravated receiving offence and [ ORG ] of aggravated debtor ’s fraud in that connection .

Other suspects besides [ ORG ] and [ ORG ] have also been exposed regarding that case . In practice , [ ORG ] is being considered as a suspected receiver .

The leader of the investigation , criminal inspector [ ORG ] of ORG [ ( keskusrikospoliisi , centralkriminalpolisen ) ] , says that the [ ORG ] –connection is a part of the investigation into the PERSON homicide . ”

Under the following subheading “ The suspect admitted to being at the scene ” the article went on :

“ The police have detained a CARDINAL-year old man as a suspect in [ ORG ’s ] murder . ‒ In the light of the current evidence , the detained person has no connection with [ ORG ] , says [ the inspector ] . ”

The article continued with information concerning the detained person and the ongoing investigation into the homicide . It quoted the investigator ’s statement that it was possible that the suspect had been acting under commission which , according to the applicant , implied the possibility of a contract killing .

The article was illustrated by a photograph , apparently taken in the vicinity of the crime scene .

Next to the article there was a separate information column concerning ORG ’s previous conviction for economic crimes and his academic achievements . Under a heading : “ Who ? ” the column reproduced a photograph of ORG , taken at the public defence of his doctoral thesis .

On DATE the same information was published in the other evening newspaper ORG in the form of an interview given by ORG

On DATE the public prosecutor preferred charges against the applicant and GPE , the newspaper ’s editor - in - chief at the time . In his indictment the prosecutor maintained that by writing and allowing publication of the above article , the applicant and GPE had given false information about GPE in a manner that had been conducive to causing him suffering and damage and to subjecting him to contempt , and that they had also disparaged him in other ways . The prosecutor did not allege that the information imparted in the article had been false as such , but contended , inter alia , that the combination of large headings with question marks , the text of the article , the photographs of ORG and his personal profile had aimed to insinuate to the readership that ORG might have had a motive to commission the killing .

K.U. , for his part , requested that the applicant and GPE be punished and claimed compensation for suffering and legal costs in the same proceedings . He contended that the defendants had unlawfully connected him with murder in GPE ’s largest TIME newspaper . The use of his photograph , taken at the public defence of his doctoral thesis , had added to his suffering as he was thus defamed as an academic , which was to be his future career . According to ORG , the worst part of the criminal act had been the combination of the heading and his photograph , and the image thus created in the minds of those people who had not read the article itself . The defendants had sought to profit by their act . In addition to the permanent stigma , ORG maintained that the offence had brought shame and distress to his family .

The applicant and GPE contested the charge and the civil claims . Their main arguments were the following . The article did not contain any false information , nor could it have disparaged ORG or caused him suffering . The latter point was highlighted by the fact that ORG had himself given an interview concerning the same matter to another TIME newspaper published on DATE . The article concerned a criminal investigation of general interest and was based on information given by the authorities . ORG was a public figure and his connection with ORG had been an issue of general interest and significance in itself . By pressing charges the prosecutor had unnecessarily interfered with the GPE freedom of expression , protected by LAW .

When heard in person at ORG oral hearing GPE submitted , inter alia , that ORG had contacted him after the article had been published . He had been very hurt and upset . GPE had then offered him the possibility of rectification . According to the documents , ORG had turned down that offer .

On DATE the Helsinki ORG ( käräjäoikeus , tingsrätten ) issued its judgment . It convicted the applicant and GPE of defamation pursuant to LAW , Article CARDINAL , paragraph CARDINAL , point CARDINAL , of LAW . The applicant was sentenced to DATE - fines amounting to a total of CARDINAL ( ORG ) . She was also ordered to pay ORG , jointly and severally with GPE , EUR CARDINAL for suffering and EUR CARDINAL in legal costs .

In its reasons the court noted that it had to examine the conflicting interests of freedom of expression and the right to privacy , referring to sections CARDINAL of the LAW . It also made reference to the ORG precedent no . GPE , where that court found that the freedom of expression did not justify violation of a person ’s honour or private life . In assessing the article written by the applicant the court found as follows :

“ It is undisputed that in DATE [ ORG ] was a public figure . It is also undisputed that the article did not contain factual errors . Thus , each piece of information contained therein was accurate .

ORG has to assess whether the article included such insinuations that have been conducive to causing suffering or contempt or if it was disparaging in other aspects .

The article ... covered the pre - trial investigation of a homicide which had taken place DATE , as well as another large - scale case concerning economic crime , already pending before the prosecutor . The same person had been the victim of the homicide and CARDINAL of the suspects in the economic offences . [ ORG ] had known the victim of the homicide and was also CARDINAL of the suspects in the case concerning economic offences .

The defendants have pleaded , inter alia , that the newspaper had been obliged to report on crime . The article ... had emphasised the connection between [ ORG ] and the victim of the homicide . In ORG view no such circumstances have emerged in these proceedings which would have linked the fact that [ ORG ] had known the victim of the homicide to his public activities . Nor has it been established that the fact that [ ORG ] knew the victim ... had been of general interest or that this piece of news had had such significance to society that it had been important to publish it . ”

ORG concluded :

“ The most central topics of the article ... had been the connection with the victim of the homicide and [ ORG ] , suspicions of economic offences , organised crime , and a possible contract killing . The use of the heading ‘ The victim of the PERSON homicide had connections with [ PERSON along with the background information on [ ORG ] under a title ‘ Who?’ , illustrated with his photograph , had personified the whole article to [ ORG ] Although the heading of the article carried a question mark and the first paragraph in the text mentioned that the victim might [ italics added here ] have had connections with [ ORG ] , the text does not provide an immediate answer to that question , nor does it state clearly that the victim and [ ORG ] had known each other only from other circumstances . The article had left the answers open . As the text dealt with the connection between the victim of the homicide and [ ORG ] and , at the end , a possible contract killing , [ ORG ] had also been connected with a contract killing .

Connecting a person groundlessly with a contract killing violates his honour .

By combining information received and statements given by the head of the investigation and by mixing CARDINAL different criminal investigations the article has given an ambiguous picture of the connection between those cases . The headings and the information concentrating on [ ORG ] ’s personal profile had made [ ORG ] the main common feature of the crimes .

ORG finds that in the article [ ORG ] had been linked with a homicide in a manner that insinuated a connection between [ ORG ] and the commission of the homicide and a contract killing . Such an insinuation violates [ ORG ’s ] honour and has caused him suffering . ”

ORG was composed of CARDINAL professional judge and CARDINAL lay judges . CARDINAL of the lay judges was in favour of an acquittal . In his dissenting opinion he stressed the fact that all the information presented in the article had been accurate . In his view the mere fact that a party to the case , his family or friends were shocked about the news coverage , or that the readers of a newspaper were not fully able to comprehend the text , could not constitute defamation .

The applicant and GPE appealed against the judgment to ORG ( hovioikeus , hovrätten ) , relying mainly on their previous arguments . They also contested the lower court ’s interpretation of the law .

On DATE ORG upheld ORG judgment . In its reasoning the appellate court reiterated that giving false information or making false insinuations about another person in a manner conducive to causing damage or suffering to that person , or subjecting that person to contempt , constituted defamation as set out in LAW , Article CARDINAL , paragraph CARDINAL , point CARDINAL , of LAW . It referred to the relevant Government PERSON for the amendment of that provision ( HE CARDINAL vp ) in stating that it was characteristic of that offence to concern false factual information or a false insinuation bearing a close resemblance to factual information . In principle , the veracity of an argument may be reviewed afterwards . If an argument is accurate , or if the insinuation concerns a fact , the act may nevertheless be punishable as defamation under point CARDINAL of the provision , if the information is given or insinuation made with a view to disparaging another person deliberately .

The court then found that :

“ It is undisputed that the information in the article published in GPE on DATE concerning CARDINAL different criminal matters was accurate as such . The common feature of those matters has been the fact that [ ORG ] and the victim of the homicide had been suspects in CARDINAL of the criminal cases mentioned in the article . The headings of the article , the text , and the photographs of [ ORG ] on the cover and on the article have , however , created a connection falsely implying that [ ORG ] was somehow involved in the homicide . The heading of the article and its tone were such that the fact that [ ORG ] was not , strictly speaking , an accomplice to the homicide only became clear on reading through the article more closely . It followed that LAW , LAW , paragraph CARDINAL , point CARDINAL , of LAW was to be applied in this case , as indicated by ORG . ”

ORG went on to assess in detail whether the GPE conduct could be regarded as intentional . The court found that the applicant was a professional journalist and that she must have considered it probable that her article contained a false insinuation and that this false insinuation was capable of causing suffering . Reaching thus an affirmative conclusion , the court found no reason to deviate from the outcome of the lower court ’s judgment .

On DATE ORG ( korkein oikeus , högsta domstolen ) refused leave to appeal .

LAW ( Suomen perustuslaki , GPE grundlag , Act no . CARDINAL/CARDINAL ) provides in relevant parts :

“ Section DATE The right to privacy

Everyone ’s private life , honour and the sanctity of the home are guaranteed . ...

Section DATE of expression and right of access to information

Everyone has the freedom of expression . Freedom of expression entails the right to express , impart and receive information , opinions and other communications without prior prevention by anyone . More detailed provisions on the exercise of the freedom of expression are laid down by an LAW . ... ”

Chapter DATE , Article CARDINAL , paragraphs CARDINAL and CARDINAL , of LAW ( rikoslaki , strafflagen ; Act no . CARDINAL/CARDINAL ) provide :

“ A person who

CARDINAL ) gives false information or makes a false insinuation about another person so that the act is conducive to causing damage or suffering to that person , or subjecting that person to contempt , or

CARDINAL ) disparages another person in a manner other than referred to in point CARDINAL

shall be convicted of defamation and sentenced to a fine or imprisonment for a maximum DATE .

Criticism that is directed at a person ’s activities in politics , business , public office , public position , science , art or in comparable public activity , and which does not clearly overstep the limits of what can be considered acceptable , does not constitute defamation as set out in point CARDINAL of paragraph CARDINAL . ”

LAW , section CARDINAL , of LAW ( vahingonkorvauslaki , skadeståndslagen ; Act no . CARDINAL , as amended by LAW no . CARDINAL ) , provides that a person may be awarded compensation for suffering if , inter alia , his or her liberty , peace , honour , or private life has been violated through a punishable act . In assessing the level of that suffering the nature of the violation , the status of the victim , the relationship between the offender and the victim as well as the possible public exposure of the violation are to be taken into account .

According to the government bill to amend LAW ( HE CARDINAL ) , the maximum amount of compensation for pain and suffering arising from , inter alia , bodily injuries had in the recent past been MONEY ( EUR CARDINAL,CARDINAL ) . In the subsequent government bill to amend LAW ( HE CARDINAL , p. CARDINAL ) , it is stated that no changes to the prevailing level of compensation for suffering are proposed . In the recommendation of ORG ( Henkilövahinkoasiain neuvottelukunta , PERSON ) in DATE , compensation awards for distress in defamation cases can go up to LAW and in cases concerning dissemination of information violating personal privacy , up to LAW . On the other hand , the maximum award for , for example , attempted manslaughter , murder or killing varies between ORG CARDINAL,CARDINAL and EUR CARDINAL,CARDINAL .


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home)

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

According to the applicant , on DATE the administrative authorities of LOC of Grozny provided her with a housing allocation order no . CARDINAL entitling her to occupy a oneroom municipal flat in ORG .

In DATE the applicant was registered as living in that flat .

NORP In DATE the authorities decided to conduct an examination of all allocation orders granting occupation of municipal accommodation . The applicant ’s housing allocation order dated DATE appeared suspicious to the authorities and they commissioned an expert to verify its authenticity . The expert concluded that the allocation order was a forged document . In particular , the order did not correspond to the date on which it had been issued and the impress of a seal on the order had been made with the help of an improvised cliché which in its turn had been made with a help of a computer on the basis of an impress of the authentic seal .

Upon receipt of this information the administration of ORG brought court proceedings against the applicant seeking to declare the allocation order of DATE null and void and to evict her from the flat in question .

The applicant contested those claims . She submitted that the administration had issued her with the housing allocation order because she had been on the housing list and she was subsequently registered as living in that flat . She had not been aware of the fact that the order had not been printed in the printing office . She also asked to dismiss the claims as timebarred because according to domestic law the housing allocation order could be declared null and void within DATE after its delivery .

The administration of LOC of PERSON asked to grant the claims submitted by the administration of PERSON . The administration could not say whether the order had been in fact delivered to the applicant , since the archives had not been preserved . However , according to the civil servants of the administration , commissions on allocation of housing had been meeting once DATE . The order no . CARDINAL was issued on DATE . That would mean that CARDINAL orders were issued from DATE until DATE . However , the administration of LOC could not deliver such a number of housing allocation orders during DATE .

On DATE ORG of PERSON ( “ the ORG ” ) declared the housing allocation order of DATE null and void and issued an order to evict the applicant . In particular , ORG held as follows :

“ ... It follows from the materials of the case that the housing allocation order No . CARDINAL of DATE in respect of accommodation situated in PERSON ... in the name of PERSON has been issued as an assignment of housing .

It follows from the expert certificate No . CARDINAL of DATE that the above order was sent for an expert examination and the experts concluded that the order no . CARDINAL of DATE ... did not correspond to the date on which it had been issued . The impress of a seal of LOC of Grozny [ on the order ] had been made with the help of an improvised cliché which in its turn had been made with a help of a computer on the basis of an impress of the authentic seal .

It follows from the expert report of DATE no . CARDINAL , CARDINAL/CARDINAL - CARDINAL that the formsheet of order No . CARDINAL of DATE had been made with the help of electrophotographic imaging on the copy machine . The colour used - dry toner .

Therefore , the court has established that the title document order no . CARDINAL of DATE ... had not been made typographically .

Those circumstances follow from the content of the statement of claim , parties’ submissions in the court , they have not been contested by the parties and are confirmed by evidence submitted [ to the court ] .

The request by ORG for restauration of the DATE time - limit for lodging of their claim for declaring the order null should be granted .

The court has assessed the whole of evidence submitted by the parties and finds that it is possible to grant the claimant ’s claim ... ”

NORP In her appeal against the judgment of CARDINAL DATE the applicant submitted that in taking the decision to evict her ORG had not examined whether she had been in need of housing or not . In particular , ORG had not taken into account that she had been provided with a CARDINAL - room flat on the grounds that she had cumulated a very long term of service and had no other housing .

On DATE ORG ( “ the ORG ” ) upheld that judgment . In particular , ORG held as follows :

It has been established in the court hearing that order No . CARDINAL of DATE issued by the administration of LOC of PERSON to PERSON and giving her the right to move in flat no . CARDINAL at DATE , PERSON street in PERSON was sent for an expert examination ... The expert examination established that the order did not correspond to the date on which it had been issued . The impress of a seal of LOC of Grozny [ on the order ] had been made with the help of an improvised cliché which in its turn had been made with a help of a computer on the basis of an impress of the authentic seal ...

Having regards to the above , the court of first instance had concluded that the claims submitted by the administration of ORG had to be granted . In such circumstances , the civil chamber does not find any grounds for quashing the court decision ... ”

After her eviction the applicant returned living to her mother ’s flat and on DATE she was registered as living in that flat .


CASE OF METIN GÜLTEKİN AND OTHERS v. TURKEY

Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect)

Egidijus Kūris;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano;Ksenija Turković

The applicants were born in DATE , DATE , DATE and DATE respectively and live in GPE . The first CARDINAL applicants are the parents , the third applicant is the brother and the fourth applicant is the fiancée of PERSON PERSON .

PERSON was born in DATE and started doing his compulsory military service on CARDINAL DATE in the city of GPE . At that time he had no known health problems .

On DATE PERSON was examined by a doctor at his regiment and the doctor decided to refer him to a hospital specialising in infectious diseases . On DATE a doctor who examined him at his regiment ’s infirmary referred him to ORG ( “ The University Hospital ” ) for suspected hepatitis or meningoencephalitis . The following day PERSON was sent to the hospital in GPE where , after a number of examinations were conducted , he was diagnosed with fulminant hepatitis ( acute liver failure ) . A decision was taken on DATE to send him to PERSON in GPE for a liver transplant operation . On arrival at the hospital in GPE TIME he was put in the intensive care unit .

At TIME on DATE he died at FAC . No autopsy was performed .

An investigation was carried out at the military unit where GPE Gültekin had been doing his military service . On DATE a total of CARDINAL military personnel who knew or had had dealings with PERSON were questioned by their superiors .

The QUANTITY military personnel all stated that PERSON had spoken to his commanding officer on DATE and told him that a friend of his had hepatitis and that he had suspected that he might also have contracted the same disease . His superior had then transferred him to the regiment ’s infirmary where tests had been conducted , establishing that he did not have hepatitis .

One of the QUANTITY military personnel was the doctor who had examined PERSON in the regiment ’s infirmary on DATE ( see paragraph CARDINAL above ) . The doctor stated that on DATE Toğay ORG had come to see him because he had been feeling unwell and the colour of his urine had been darker than usual . He had then sent PERSON for a urine examination and when he had got the results back he had noticed a problem . DATE he had asked for PERSON to be referred to ORG .

NORP The military officers who carried out the investigation concluded , on the basis of the statements referred to above , that the military authorities had acted in accordance with their duties when providing medical assistance to PERSON and that there had been no fault attributable to them in his death .

On DATE the applicants initiated compensation proceedings against ORG before ORG ( “ the Military Administrative Court ” ) . They argued , in particular , that PERSON had not received prompt or adequate medical care in his regiment .

The applicants submitted in their petition that , according to the official documents in their possession , PERSON had been examined by a doctor attached to his regiment on DATE and that the doctor had recommended his transfer to a hospital specialising in infectious diseases . Nevertheless , the military authorities had not followed that recommendation . When his condition had deteriorated he had been examined by another doctor at the regiment on DATE . However , that doctor had not sought to obtain blood or urine tests and had sent him back to his military unit . When PERSON condition had deteriorated even further on DATE , he had been examined once again and this time a urine test had been carried out . The doctor who had evaluated the results of the test had considered that PERSON might have hepatitis or meningoencephalitis and had asked for him to be referred to hospital . Nevertheless , PERSON had still not been transferred to the hospital promptly and only the following day had he been put on a bus and sent to the hospital . The applicants argued that it had been these inordinate delays that had caused PERSON death . They pointed out that GPE Gültekin had been performing his military service and had thus not had the opportunity to leave his military unit and seek medical assistance of his own volition . Therefore , the authorities had been under an obligation to protect his well - being and to ensure timely medical treatment for him .

On DATE ORG submitted its observations to ORG . Based on the testimonies of the soldiers from the same regiment ( see paragraphs CARDINAL above ) , it argued that on DATE PERSON had seen his superior and told his commanding officer that his friend had contracted hepatitis and that he suspected that he himself might have been infected as well . A blood test had been conducted , but the results had not revealed any abnormalities .

ORG alleged that PERSON had not gone to the infirmary DATE and DATE , but accepted that he had been examined by a doctor at the regiment ’s infirmary on DATE and then sent back to his military unit . It maintained that the military authorities had not acted in a negligent fashion when dealing with PERSON medical problems .

In their replies to ORG the applicants submitted that there was no evidence to show that a blood test had been carried out on DATE . They also referred to the medical reports and stated that it had been clearly indicated in the records that PERSON had seen the doctor at the infirmary on DATE and that his referral to an infectious diseases clinic had been decided by that doctor .

During the proceedings ORG appointed CARDINAL medical experts , namely CARDINAL professors and an associate professor from the infectious diseases department of ORG , in order to clarify whether the military authorities had acted negligently . The medical experts reached the following conclusion in their report of DATE :

“ ... An examination of the documents and other information in the file shows that PERSON started his military service on DATE . On DATE he was treated for a retractile testicle at ORG . On DATE he was prescribed medication at the regiment ’s infirmary for an upper respiratory tract infection . On DATE the regimental infirmary doctor decided to refer him to ORG infectious diseases department , but that was not done . On DATE he was diagnosed with and treated for an infection of the upper respiratory tract . On DATE he was referred to ORG with suspected hepatitis and he was sent there . On DATE he was diagnosed with fulminant hepatitis . On DATE he was transferred to ORG in Haydarpaşa where he died on DATE as a result of fulminant hepatitis .

CARDINAL of the causes of fulminant hepatitis are hepatitis A virus and hepatitis B virus . Hepatitis A may be contracted by drinking contaminated water and by eating raw vegetables and fruits . Hepatitis B spreads through sexual contact , or by coming into contact with infected blood by sharing personal items such as toothbrushes , razors , or needles . Military service , in itself , does not pose a special risk for hepatitis contamination .

Having examined the medical reports in the file , we consider it very likely that the first symptoms regarding PERSON disease became obvious on DATE and his condition then deteriorated for DATE until his death . The first symptoms of the liver disease ( acute liver failure ) which is caused by hepatitis A and hepatitis B viruses include tiredness and general complaints which are not specific to any of the organs . They can be similar to the symptoms of upper respiratory tract infection . Only after developing typical symptoms , such as jaundice , does it become easier to diagnose .

The disease caused by these CARDINAL viruses ( hepatitis ) can be more serious in adults . According to the medical reports in the file , PERSON was contaminated with both hepatitis A and hepatitis B viruses within a short period of time and his liver was infected with both viruses at the same time . This is a condition which worsens the damage to the liver and increases the risk of fulminant hepatitis ( fast - deteriorating acute liver failure ) . The mortality rate of fulminant hepatitis is PERCENT within DATE ; a liver transplant is the sole method of ensuring patient survival . Normally , the patient would be kept in hospital under close observation .

Having taken cognisance of the documents in the file , we have not established any delays , fault or negligence in the medical treatment provided to PERSON at the infirmary of his regiment , at ORG or at FAC in Haydarpaşa . ”

The applicants lodged an objection to this report . They maintained that the authorities had acted negligently as they had delayed PERSON ORG ’s transfer to hospital . Referring to the medical reports in the file , the applicants stated that although the doctor at the regiment had decided to refer PERSON to an infectious diseases clinic on DATE , the military authorities had failed to comply with the doctor ’s decision until DATE . The applicants also asked ORG to obtain an additional medical expert report .

On DATE ORG dismissed the applicants’ claim . In its decision the court relied on the medical expert report summarised above ( see paragraph CARDINAL ) , and concluded that no fault could be attributed to the authorities for PERSON death . No mention was made in the decision of the ORG complaint regarding the failure to transfer PERSON to hospital on DATE .

The applicants lodged a request for rectification of ORG decision and argued , inter alia , that if , as alleged , PERSON had told his commanding officer on DATE that he might have been infected with hepatitis ( see paragraphs CARDINAL above ) , his superior should have taken it seriously and referred him to hospital . However , there were no records showing that any action had been taken . They also pointed out that their complaints did not relate to the period following PERSON transfer to the hospital , but to the authorities’ negligence in failing to refer PERSON to hospital DATE .

On DATE ORG refused to entertain the rectification request lodged by the applicants .


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

He was arrested in DATE and in DATE he was convicted and sentenced to capital punishment . In DATE , following the amendments to LAW , the appellate court converted the sentence of capital punishment into DATE imprisonment . The applicant started serving his sentence in a closed - type prison under the strictest ( “ lower ” ) regime ( zemākais soda izciešanas režīms ) ( see “ Relevant domestic law ” below ) .

On DATE the applicant was transferred to the “ medium ” regime in a closed - type prison ( vidējais soda izciešanas režīms ) . In accordance with domestic law , the applicant was entitled to a list of rights ( see “ Relevant domestic law ” below ) .

On DATE , while the applicant was serving his sentence in ORG , the prison ’s administrative commission decided to apply a more stringent regime to him and to transfer him to a closed - type prison under the “ lower ” regime . Relying on that decision , on DATE the governor of ORG recommended transferring the applicant to ORG owing to the fact that FAC did not have appropriate facilities for him to continue serving his sentence under a more stringent regime .

On DATE , on an appeal by the applicant , the decision of the administrative commission was revoked by a decision of ORG , which on DATE was forwarded to ORG . At the same time , on CARDINAL DATE ORG approved the recommendation by ORG to transfer the applicant to Daugavpils Prison ( see paragraph CARDINAL above ) and on DATE the governor of ORG issued an order to that effect .

On DATE the order was executed despite the fact that the initial decision of DATE had been revoked , and the applicant – who in the meantime had been admitted to the prison hospital DATE was transferred to FAC . During his stay in that prison the applicant was able to enjoy only a limited number of rights normally applicable to prisoners under the “ medium ” regime . In particular , he could not exercise his right to leave his cell for TIME a day , or his right to unrestricted access to the medical unit , prison shop , canteen and library .

On DATE the management of FAC informed ORG that they could not provide the facilities required under the “ medium ” regime .

On DATE ORG adopted a decision to transfer the applicant to ORG to serve his sentence under the “ medium ” regime . That decision was executed on DATE .

It appears from the file on the applicant ’s case before the administrative courts that on DATE he raised an objection with ORG about his transfer to Daugavpils Prison under a more stringent regime , but that ORG dismissed it on DATE , and also dismissed a further complaint on CARDINAL DATE .

According to the Government ’s submissions , on DATE the applicant sent a complaint to ORG , which forwarded it to ORG . The latter then forwarded the complaint to ORG .

On DATE ORG mentioned in a letter addressed to the applicant that his stay in Daugavpils Prison had been the result of the slow exchange of information between the courts , the prisons and ORG .

On DATE the applicant complained to ORG that as a result of the unlawful activities of ORG , he had been transferred to a prison in which he could not serve his sentence under the regime applicable to him .

NORP Before initiating the administrative proceedings ORG asked the applicant to pursue the appropriate outofcourt procedure by appealing against the negative decision of ORG , which the applicant did in DATE ( see paragraph CARDINAL above ) .

After a series of procedural decisions , on DATE ORG found that the applicant ’s transfer to LOC in order to serve his sentence under a stricter regime had been carried out without any lawful basis and awarded him CARDINAL NORP lati ( ORG MONEY ( ORG ) ) in compensation for non - pecuniary damage . Its finding was based on a comparison of the list of rights to which the applicant was entitled under the “ medium ” regime and the rights which he had actually enjoyed as a result of his unlawful transfer to more stringent prison conditions . The court also took into account the actions of the management of FAC and the duration of the applicant ’s stay there .

ORG partly upheld that decision , after analysing whether the applicant ’s transfer to a more stringent regime amounted to a significant infringement of his rights under LAW . The court established that in transferring him , the authorities had executed a decision which had been already revoked by the national courts , and that for a duration of DATE he had unlawfully been required to serve his sentence under a regime whereby he remained locked in a shared prison cell DATE . According to the court , these conditions were aggravated by the fact that both the applicant and the authorities were aware that his transfer was unlawful . It held that he had suffered a serious infringement of his rights and accordingly awarded him ORG CARDINAL ( ORG CARDINAL ) in compensation for non - pecuniary damage .

Following an appeal by ORG , on DATE the ORG of ORG quashed the appellate court ’s decision and discontinued the administrative proceedings owing to the fact that the examination of decisions taken in the course of the execution of prison sentences did not fall within the jurisdiction of the administrative courts . The ORG also referred to section CARDINAL of the Law on ORG , concerning the prosecuting authorities’ powers to initiate investigations into alleged violations of ORG rights . In this connection the ORG mentioned that the applicant had lodged a complaint with ORG about his transfer .

On DATE the applicant was released from prison after completing his sentence .

On DATE ORG destroyed the applicant ’s file on account of the expiry of the statutory archiving period .


Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Somalia)

Aleš Pejchal;André Potocki;Ganna Yudkivska;Helena Jäderblom;Johan Hirschfeldt;Mark Villiger;Vincent A. De Gaetano

The applicant was born in DATE .

On DATE the applicant applied for asylum and a residence permit in GPE and claimed that she had arrived in GPE on DATE . In an interview with ORG ( Migrationsverket ) , at which she was informed that a search in the NORP asylum fingerprint database EURODAC had revealed that she had applied for asylum in the GPE in DATE , the applicant stated that she had arrived in GPE in DATE from the GPE and had remained illegally in GPE since then . She had been afraid to contact the NORP authorities since she did not want to be returned to the GPE as she would be sent TIME to GPE where she had no housing or opportunity to support herself . She wanted to remain in GPE where cousins of hers were living .

As the applicant had applied for asylum in the GPE DATE under a different name and birth date – ORG requested that that country take her back in accordance with LAW . The NORP authorities refused , however , as she had previously applied for asylum in GPE , under a slightly different name than that given to ORG . The NORP authorities were then requested to take back the applicant . The NORP authorities did not reply to the request within the prescribed time - limit and were consequently , under LAW , considered to have agreed to receive her . Accordingly , on DATE , ORG dismissed the asylum application and decided to transfer the applicant to GPE .

NORP However , the decision became time - barred before the transfer could be realised . On DATE the applicant therefore applied for asylum and a residence permit in GPE again . At an asylum interview in DATE , which lasted for DATE , she submitted essentially the following . In DATE her family had forced her to marry an older man against her will . At the time she had for DATE had a secret relationship with a boy from school . This relationship was revealed DATE after the forced marriage when the applicant and her boyfriend had tried to escape from GPE together . They had been detected by her uncles when they had been sitting on the loading platform of a truck . Both she and her boyfriend had been beaten and thrown off the truck . She had sustained injuries to her hips and had been hospitalised for DATE . Thereafter she had lived at home until DATE when her father had considered that her health condition permitted her to move in with her husband . She had then contacted her boyfriend and they had fled together , first to GPE and then to GPE and eventually to GPE in order to take a boat to GPE . However , the boat had sunk and the boyfriend had died . Later , while in GPE , she had learned that her father had died in DATE and her mother in DATE . If returned to GPE , the applicant claimed that she would have to return to the man whom she had been forced to marry , unless she were sentenced to death for fleeing the marriage and the country . These threats would be carried out by her uncles . The applicant further asserted that she lacked a male support network in GPE and therefore risked being sexually assaulted . As a single woman , she would further not be able to rent accommodation or otherwise organise her life and would risk becoming a social outcast . She also invoked the generally dire humanitarian situation in GPE and , in particular , claimed that she was unlikely to find the help still needed for her injured hips .

On DATE ORG rejected the applicant ’s application for asylum and ordered her deportation to GPE . At the outset , the ORG found that she had failed to substantiate her identity , noting in particular that she had not submitted any identification papers and had previously applied for asylum in the GPE and GPE under different identities . However , it found it plausible that the applicant originated from GPE . Noting that she had arrived in GPE in DATE but had not applied for asylum until DATE and had thus not reported a need for protection during a period of DATE the ORG called into question whether she had felt a real need for protection . Turning to the substantive allegations presented by the applicant in support of her application , the ORG considered that they were marred with credibility issues . For example , in her initial asylum application in DATE , she had stated that she was unmarried . Only during the asylum investigation following her renewed application in DATE had she claimed that she had married in GPE in DATE . ORG found that the applicant had failed to provide a sufficient explanation for this , particularly given that this was a crucial part of her story . Furthermore , in DATE she had only invoked the armed conflict in the country as grounds for asylum and had stated that she could not remember how she had sustained the hip injury since she had been very young at the time . She had then also said that she had stayed with a female friend in GPE before leaving the country whereas she later claimed that she had lived with her parents and siblings .

ORG concluded that the applicant had failed to make plausible that she had been subjected to any ill - treatment by her relatives in GPE and consequently had failed to show that she would lack a male support network there . It noted that , according to the applicant , her brother and uncles still lived in GPE . Moreover , the ORG examined the general situation in GPE and the particular situation of women , based on information gathered at a fact - finding mission to the city in DATE and further information obtained thereafter , and considered that the circumstances were not of such severity that the applicant would be unable to return there , taking into account the finding that she had a male network to protect her . In this connection , ORG also noted that the applicant had not lived in a refugee camp before leaving the country and had not claimed that she would risk doing so upon return .

NORP The applicant appealed to ORG ( NORP - domstolen ) , maintaining her claims and adding , inter alia , the following . The security situation in GPE was still very unstable and the particular situation of women in GPE was extremely severe . She further asserted that , as her situation in GPE had been difficult , it was understandable that she had decided to apply for asylum under another identity in the GPE , in order to avoid being sent back . This had also been the reason why she had decided to stay illegally in GPE . Moreover , she stated that ORG had misunderstood her ; she had stayed with a female friend in GPE , not in GPE where she had lived with her family . Furthermore , in her view , she was not married since she had not consented to the marriage or been present at the marriage ceremony . She submitted an x - ray image of her hip prostheses to show that she had been assaulted and injured .

On DATE ORG rejected the appeal , agreeing with ORG reasoning and findings . The court subscribed to all the misgivings concerning credibility expressed by ORG . It added that , whereas the applicant initially had claimed to have been forcibly married in DATE , in a later submission to the ORG she had stated that this had been decided by her father and her uncles in DATE . Since the applicant was in general not credible , the court did not believe her statement that she lacked a male support network in GPE . Moreover , it considered that the submitted x - ray image did not show that the applicant had been subjected to ill - treatment in her home country .

By a decision of DATE ORG ( Migrationsöverdomstolen ) refused leave to appeal .

Subsequently , the applicant requested that ORG re - examine her case , claiming that there were impediments to the enforcement of the deportation order . She stated that she had recently found out that her uncle , who had previously physically assaulted her , had now joined ORG , and that he had killed her sister and forced her brother to join ORG . Thus , if returned to GPE , she would risk being stoned to death by her uncle .

On DATE ORG rejected the petition , finding that no new circumstances justifying a reconsideration had been presented . It held that the alleged threats stemming from the applicant ’s uncles had already been examined by ORG and that , given her lack of credibility , a mere statement from her about her uncle ’s actions was not sufficient to assume that she would risk being stoned upon return . The applicant did not appeal against the ORG ’s decision .


Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

András Sajó;Egidijus Kūris;Iulia Motoc;Marko Bošnjak;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicants , PERSON and PERSON , were born in DATE and DATE respectively and live in PERSON .

On DATE the applicants’ son , aged DATE and DATE at that time , underwent surgery for the removal of polyps , which was performed by PERSON in the ORG - run ORG .

Dr PERSON decided to perform the operation under general anaesthetic with tracheal intubation . The general anaesthesia was performed by Dr P.A , assisted by ORG , a staff nurse .

After surgery the child was immediately transferred to the intensive care unit . TIME after his transfer ORG informed PERSON that the child was cyanotic and had no pulse .

The child suffered a haemorrhage , causing blood to flood his lungs . A team of doctors tried to resuscitate him and clear his respiratory channels , but without any success . The child was declared dead TIME after the operation .

A criminal investigation into the cause of death was opened by the PERSON police on the same day .

Dr PERSON and PERSON were questioned and gave written statements .

An autopsy report issued by ORG ( PERSON medicină legală PERSON ) on DATE said that the ORG son had died of acute respiratory failure as a result of the blood that had blocked his airways and flooded his lungs . It also noted that the child had suffered from several congenital deficiencies which had probably played a role in the postoperative complications : myocardia and hepatic dystrophy , and interatrial septum aneurisms .

The report was sent for the approval of the commission for confirmation and supervision of ORG ( Comisia de avizare și control din ORG ) . On CARDINAL DATE the commission confirmed that the child ’s death had occurred after surgery and had been caused by the blood that had blocked his airways and lungs . It held that there had been a causal link between the post - operative treatment and the child ’s death . It noted the deflation of the balloon of the catheter ( balonaşul sondei de întubaţie ) , applied after post - operatively to prevent the ingress of blood into the lungs , as a possible cause of the presence of blood there and in his airways .

On DATE the superior commission of ORG examined all the documents and approved the conclusions of the commission for confirmation and supervision of ORG .

On DATE the child ’s father lodged a disciplinary complaint against PERSON and PERSON

The disciplinary committee of ORG opened an investigation into the patient ’s death , collecting documents from the patient ’s medical file and taking statements from PERSON and ORG , as well as from the doctors involved in the resuscitation procedure postoperation . It gave its decision on DATE by which it concluded that the child ’s death could be included among cases of sudden death ( with a frequency of PERCENT owing to the child ’s pre - existing medical conditions : myocardia and hepatic dystrophy , and inter - atrial septum aneurisms ) . Although the committee concluded that there had been no direct link between the child ’s death and the LOC medical conduct , it reprimanded both doctors for their failure to perform the necessary pre - surgical medical tests and to seek the applicants’ informed consent before surgery .

The applicants objected to the committee ’s conclusions and their appeal was examined by the superior disciplinary committee of ORG .

An expert medical opinion was submitted to the committee and was used by it in reaching its final conclusions . The expert noted , among other things , that the child ’s preparation for surgery had not been appropriate as his examination before anaesthesia had been “ very superficial ” ; in this respect the committee noted the lack of a radioscopy of the lungs , of an ORG and an exploration of the necessary time for blood coagulation . In the expert ’s view , the doctors had ignored the child ’s severe congenital deficiencies as they had considered that surgery for the removal of polyps had been a “ minor intervention ” and therefore no special precautions had been necessary .

By a decision of DATE the superior disciplinary committee of ORG quashed the decision of DATE and fined each doctor CARDINAL NORP lei ( the equivalent of QUANTITY ( ORG ) ) . It found that the child ’s pre - surgical tests had been insufficient for avoiding post - operative complications . Therefore , it held that PERSON and Dr P.A. had infringed LAW , pursuant to which a doctor should perform diagnoses with maximum diligence in order to determine the adequate treatment and avoid predictable complications that might occur for a patient under his or her care .

The committee further stated that the presence of blood in the child ’s airways could not be explained on the basis of the documents and statements in the file . It noted that all the doctors and the nurses who had given evidence stated that the balloon of the intubation catheter had been leakproof ( etanche ) ; however , the fact that the cause of death had been the presence of blood in the child ’s lungs could only lead to the conclusion that such statements had been inaccurate .

Relying on Articles DATE and CARDINAL of the Deontological Code and LAW no . CARDINAL , the committee also noted that the parents had not given their informed consent .

On DATE the applicants lodged a criminal complaint alleging that the flawed surgical and post - surgical treatment received by their son had resulted in his death . They asked that those responsible be identified and held accountable for their son ’s death . They joined the criminal proceedings as civil parties .

Following a request of ORG , on DATE ORG stated that the medical staff members in charge of monitoring the child were Dr P.A. during the intervention and the child ’s transfer to the intensive care unit and ORG while in the intensive care unit .

On DATE the prosecutor ’s office of FAC decided to institute criminal proceedings against PERSON

P.V.I. was interviewed as a witness immediately after the child ’s death , during the preliminary criminal investigation . During the criminal proceedings against PERSON , in spite of the fact that she had been repeatedly summoned , the investigating authorities were not able to question her as she had not been found . She had left her job at ORG in DATE .

The prosecuting authorities interviewed several doctors and nurses from the hospital ’s medical staff who had been involved in the applicants’ son ’s post - operative care .

Dr P.A. lodged a request with the investigating body for a new forensic medical report . He pointed out that there were major contradictions between the autopsy report and the opinion issued by the commission for confirmation and supervision of ORG .

On DATE ORG asked ORG to carry out a forensic expert report that would identify the cause and circumstances of the child ’s death . ORG replied that a new forensic report could not be produced as the evidence examined had been sent by ORG to ORG .

On DATE Dr P.A. submitted an extrajudicial expert report . It stated that the cause of death had not been the presence of blood in the child ’s lungs owing to a lack of adequate post - operative monitoring , but the post - operative reaction of a child with pre - existing medical conditions ( cardiac congenital malformation , hepatic dystrophy , renal stasis , mesenteric adenopathy and hemorrhagic enterocolitis ) mentioned in the medical records kept by the child ’s paediatrician . The report noted a generalised inflammatory reaction associated with diffused haemorrhages in his digestive tract , lungs , heart and spleen .

The applicants gave evidence to the investigating authorities on DATE . They contended that they had not been properly informed about the risks of surgery and of the general anaesthetic and consequently they had not given their consent for such interventions .

On DATE ORG ordered that a new forensic report be produced by ORG . The applicants , PERSON and the investigating authorities submitted several questions for the forensic experts . They asked , among other things , whether the pre - existent medical condition of the child had influenced his unfavourable post - surgical evolution and whether administration of a general anaesthetic had been the right option , given the age and the diagnosis of the child . The child ’s father also asked ORG whether the post - operative monitoring of the child had been adequate .

However , on DATE ORG replied that it could not deliver such a report because under the relevant domestic legislation a new forensic expert report could not be ordered unless there were new medical and factual elements . Accordingly , ORG stated that it maintained its previous opinion .

Copies of the documents from the disciplinary file were added to the criminal file .

On DATE the prosecutor ’s office of ORG decided to discontinue the criminal proceedings against ORG , finding , in the light of evidence gathered in the case , that there had been no element of criminal negligence in his conduct . That decision was upheld on DATE by the chief prosecutor of the same prosecutor ’s office .

A complaint by the applicants against the ORG decisions was allowed by ORG on DATE . The ORG decisions were quashed and ORG kept the file for fresh consideration . It considered that although a new forensic report had not been produced , the decision of the superior committee of ORG provided enough information concerning the cause of death , which had been the presence of blood in the child ’s airways owing to the balloon of the tracheal catheter not being tight enough . It considered that it should be established whether the post - operative monitoring of the child by ORG had been appropriate and more precisely whether PERSON should have noticed the non - functioning catheter .

Dr PERSON and PERSON gave statements before ORG on DATE . Moreover , members of the medical staff that had attempted resuscitation gave evidence ( on DATE , DATE and DATE ) . Some of them maintained that the blood in the lungs could be explained by the resuscitation attempts and that the balloon of the catheter had been kept tight all the time after surgery .

P.V.I. did not give evidence before the court as , although summoned , she did not attend the hearings . According to several reports issued by bailiffs seeking to bring her before the court , she had left the country for GPE . Based on the material in the case file it does not appear that the court took special measures to identify her address there .

The child ’s father gave evidence before LOC Court on DATE . He reiterated his claims for pecuniary and nonpecuniary damages . He again contended that the doctors had not informed his family about the risks of surgery and in particular of the general anaesthetic and accordingly they had not given their informed consent .

On DATE , after several hearings , FAC acquitted PERSON and dismissed the applicants’ civil claim as unfounded .

ORG took into account the extrajudicial forensic report submitted by PERSON It noted that the conclusions of the extrajudicial report were in total contradiction to the conclusions of the medical report of DATE and the conclusions of the commission for confirmation and supervision of ORG .

This judgment was upheld by a decision of ORG delivered on DATE .

ORG did not take into account the conclusions of the extrajudicial forensic report as in its opinion it represented only extrajudicial evidence which could not set aside the conclusions of competent forensic institutes .

ORG concluded that the death of the child had been caused by the presence of blood in his airways and lungs . However , based on the evidence in the file , it was not possible to explain when the blood had entered the child ’s airways because of the deflation of the catheter ’s balloon . Moreover , the post - operative complications occurred TIME after the child had been transferred to the intensive care unit , while under the supervision of ORG held therefore that ORG could not be held responsible for the deflation of the catheter ’s balloon after surgery .

The applicants lodged an appeal on points of law against that decision . They requested that the court extend the criminal investigation to ORG , who had had the child under her supervision in the intensive care unit .

By a decision of DATE ORG allowed the applicant ’s appeal and quashed the decisions of the lower courts . Noting that the lower courts had not examined the allegation made by the child ’s parents that they had not given their consent for surgery and the general anaesthesia , the appeal court sent the file back to LOC Court .

On DATE ORG acquitted PERSON It held that no causal link existed between the death of the child and the presumed omission of the medical authorities to obtain the applicants’ informed consent for the administration of a general anaesthetic .

It further held that it could not establish beyond any reasonable doubt that PERSON had been negligent in ensuring the tightness of the catheter ’s balloon after surgery . Consequently , the court dismissed the applicants’ civil claim as unfounded .

The court also dismissed the ORG request to extend the criminal investigation to ORG on the grounds that , under LAW § CARDINAL of the ORG , only the prosecutor could ask for the extension of the investigation to other persons while the proceedings were pending before the courts .

This judgment was upheld by a final decision delivered by ORG on CARDINAL DATE .

On DATE the applicants instituted separate civil proceedings against ORG and doctors GPE and GPE in ORG for the pecuniary and nonpecuniary damages they had sustained as a result of their son ’s death .

On DATE , referring to LAW CCP ( see paragraph CARDINAL below ) , the court stayed the civil proceedings pending a final decision in the criminal proceedings . It noted that the outcome of the civil proceedings would depend to a large extent on the verdict in the criminal proceedings .

On DATE ORG lifted the stay of the civil proceedings . However , the applicants gave up their separate civil claim on DATE .


Aleš Pejchal;Guido Raimondi;Kristina Pardalos;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano

The applicants I.A.A. , Z.A.A. , B.A.A. , A.A.A. and DATE are NORP nationals who were born in DATE and DATE respectively and who currently live in GPE . They are represented before ORG . The President ordered that the ORG identity should not to be disclosed to the public ( Rule CARDINAL § CARDINAL ) .

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

The CARDINAL applicants comprise CARDINAL biological siblings and their first cousin who is a sibling by adoption .

NORP The applicants’ mother was born in GPE . DATE she had CARDINAL children with her first husband . The CARDINAL eldest children went to live with their mother ’s paternal aunt and appear to have remained with her in GPE . Following the breakdown of her relationship with her first husband , the applicant ’s mother married her second husband and had a child with him in DATE . She subsequently returned to her first husband and gave birth to CARDINAL further children in DATE and DATE . In DATE she adopted her niece , who is the fifth applicant in the proceedings before the ORG .

The applicant ’s mother left her first husband for a second time in DATE . Around the same time , her second husband was granted refugee status in GPE . She joined him there DATE , leaving her CARDINAL youngest children , including the applicants , in the care of her sister in GPE .

In DATE the applicants’ mother ’s only child with her second husband was granted entry clearance to join the couple in GPE . In sponsoring the application for entry clearance , she did not mention that she had children by her first husband who were still living in GPE .

In DATE the applicants’ aunt moved from GPE to GPE , taking with her the CARDINAL children in her care .

NORP In DATE the applicants’ mother divorced her second husband .

In DATE CARDINAL of the applicants’ siblings applied for entry clearance to join their mother in GPE . Apparently those children were chosen to join her because CARDINAL was the youngest and the other was in poor health . The application was initially refused but entry clearance was later granted following a successful appeal to the then ORG . In allowing the appeal , the ORG accepted first , that the mother had effective sole responsibility for the children abroad ; secondly , and in the alternative , that there were serious and compelling family or other reasons which made their continued exclusion from the GPE undesirable ; thirdly , that the mother and her children had enjoyed family life together as a unit before she had travelled to GPE to join her second husband ; and fourthly , that the mother could not reasonably relocate to GPE to care for her children as she would have no job and no means of survival there .

In or around this time the applicants’ aunt left GPE and returned to GPE , leaving the QUANTITY children in the care of the eldest , who was then DATE . The CARDINAL applicants and their older sibling , who is not a party to the proceedings before this ORG , applied for entry clearance to join their mother in GPE .

On DATE the Secretary of ORG refused the application for entry clearance on the ground that the applicants and their older sibling did not meet the requirements of CARDINAL or CARDINAL of ORG HCCARDINAL ( as amended ) because they were not dependent on their mother ’s support and they were not the biological children of a recognised refugee . The Secretary of ORG also considered LAW but concluded that although there was a limited interference with the applicants’ rights under LAW , the refusal of entry clearance had been proportionate and justified .

NORP On DATE the applicants’ appeal against this decision was dismissed as the Immigration Judge found that they could not meet the requirements of ORG . He further found that as contact between the applicants and their mother had been sporadic since DATE , family life did not exist “ at the present time ” and LAW was not , therefore , engaged . However , on DATE permission to appeal was granted as the grounds of appeal raised arguable issues in relation to the manner in which the Immigration Judge had approached the LAW issue .

The appeal decision was promulgated on DATE . While the Immigration Judge had little doubt that the previous judge was correct to find that the applicants could not meet the requirements of ORG , he found it to be equally clear that he had not adequately addressed the Article CARDINAL issue . In particular , he had concentrated on whether family life existed “ at the present time ” when the correct test was whether it had existed at the date of the decision , namely CARDINAL DATE . Consequently , the Immigration Judge concluded that the previous judge had erred in law and set aside his decision . In reconsidering the LAW issue , the Immigration Judge accepted that family life had existed between the applicants and their mother at the date of the Secretary of ORG ’s decision and that the refusal of entry clearance had interfered with that family life . Nevertheless , he concluded that the interference had been proportionate because the ORG mother had made a conscious decision to leave them in GPE , knowing that the separation might be permanent , and at the date of the decision she had been living separately from them for DATE .

The applicants sought leave to appeal on the ground , inter alia , that the Immigration Judge had failed to take into account the findings of the Immigration Judge in the first CARDINAL children ’s appeal against the refusal of entry clearance in DATE .

On DATE ORG refused the applicants’ application for leave to appeal as it found that the Immigration Judge had considered all the relevant factors in the round and reached a conclusion which was rationally open to him . On DATE permission to appeal was also refused by ORG . However , on DATE ORG made an order by consent ordering that the applicants’ appeal should be remitted to ORG .

The new ORG promulgated its decision on DATE . In assessing whether or not the refusal of entry clearance amounted to a disproportionate interference with the applicants’ rights under LAW , it accepted the conclusions of the Immigration Judge in the appeal of the applicant ’s CARDINAL siblings against the refusal of entry clearance . The ORG also accepted that the best interests of the children had to be treated as a primary consideration , albeit not the primary consideration , in assessing proportionality and that it was in the ORG best interests that they should be allowed to join their mother in GPE . Nevertheless , the general principle remained true that a foreign national who could not satisfy the requirements for entry clearance under LAW ( and the applicants had not disputed that this was the case ) would not normally be able to show that his exclusion from GPE would constitute a disproportionate interference with his LAW unless he could show good reason why his case should be treated more favourably that the generality of such cases . Moreover , the ORG noted that the ORG best interests could not be viewed in isolation and it was therefore relevant that their mother had decided to leave them in GPE , knowing that the separation was likely to continue for the foreseeable future , and that she had allowed DATE to pass before attempting to bring them to GPE , by which time they had long ceased to live together as a family unit with her .

The ORG concluded that :

“ The circumstances in which the appellants were living together in GPE at the date of the respondent ’s decision , and in which they are still living now , are undoubtedly harsh , to put it at its lowest . Indeed , they may fairly be characterised as harsh . But sadly they are conditions in which vast numbers of other individuals are compelled to live throughout the unhappier regions of the world . GPE does not have either the room or the resources to provide for all of them . There is no reason in logic why the appellants should be viewed differently from the vast numbers of other unfortunate individuals who would jump at the opportunity of a new and better life in GPE , but who can not fulfil the requirements for entry laid down by the Secretary of ORG in ORG and are therefore unable to avail themselves of that opportunity . On the facts of the NORP case as presented before me , I am not persuaded that they have shown why they should be treated differently from the generality of foreign nationals in the same or similar position . In short , whilst I accept that their exclusion from GPE would constitute an interference with their LAW and those of the third parties affected by their exclusion , nevertheless that would not constitute a disproportionate interference when balanced against the larger public interest to which I have referred . Their appeals therefore fall to be dismissed . ”

In DATE the applicants’ older sibling , who had been looking after them , left the family unit in GPE and her current whereabouts are unknown . Since then , the applicants have been cared for by the first applicant .

On DATE ORG refused permission to appeal as it found that the Immigration Judge had not failed to take into account any relevant factors .

Paragraph CARDINALD of ORG contained the requirements for leave to enter as the child of a parent who had been granted refugee status in GPE . It provided that :

“ CARDINALD. The requirements to be met by a person seeking leave to enter or remain in GPE in order to join or remain with the parent who is currently a refugee granted status as such under the immigration rules in GPE are that the applicant :

( i ) is the child of a parent who is currently a refugee granted status as such under the immigration rules in GPE ; and

( ii ) is under DATE , and

( iii ) is not leading an independent life , is unmarried and is not a civil partner , and has not formed an independent family unit ; and

( iv ) was part of the family unit of the person granted asylum at the time that the person granted asylum left the country of his habitual residence in order to seek asylum ; and

( v ) would not be excluded from protection by virtue of LAW relating to ORG if he were to seek asylum in his own right ; and

( vi ) DATE if seeking leave to enter , holds a valid GPE entry clearance for entry in this capacity . "

At the relevant time paragraph CARDINAL of ORG contained the requirements for leave to enter as the child of a parent present and settled in GPE . It provided that :

“ CARDINAL . The requirements to be met by a person seeking indefinite leave to enter GPE as the child of a parent , parents or a relative present and settled or being admitted for settlement in GPE are that he :

( i ) is seeking leave to enter to accompany or join a parent , parents or a relative in one of the following circumstances :

( a ) NORP both parents are present and settled in GPE ; or

( b ) NORP both parents are being admitted on the same occasion for settlement ; or

( c ) one parent is present and settled in GPE and the other is being admitted on the same occasion for settlement ; or

( d ) one parent is present and settled in GPE or being admitted on the same occasion for settlement and the other parent is dead ; or

( e ) one parent is present and settled in GPE or being admitted on the same occasion for settlement and has had sole responsibility for the child ’s upbringing ; or

( f ) one parent or a relative is present and settled in GPE or being admitted on the same occasion for settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child ’s care ; and

( ii ) is under DATE ; and

( iv ) can , and will , be accommodated adequately by the parent , parents or relative the child is seeking to join without recourse to public funds in accommodation which the parent , parents or relative the child is seeking to join , own or occupy exclusively ; and

( v ) NORP can , and will , be maintained adequately by the parent , parents , or relative the child is seeking to join , without recourse to public funds ; and

( vi ) holds a valid GPE entry clearance for entry in this capacity ; and

( vii ) does not fall for refusal under the general grounds for refusal . ”

By virtue of section CARDINAL(CARDINAL)(c ) of the Nationality , Immigration and Asylum Act DATE an unsuccessful applicant for entry clearance may appeal against the refusal on the ground , inter alia , that “ the decision is unlawful under section CARDINAL of LAW DATE ( c. CARDINAL ) ( public authority not to act contrary to LAW ) as being incompatible with the appellant ’s Convention rights ” .

The Sponsor in GPE can not appeal against that decision .