No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The first applicant is a NORP national who was born in DATE and lives in Mouroux . He is the brother of the victim , PERSON born in DATE .

The second , third , fourth , fifth and sixth applicants , who were born in DATE , DATE , CARDINAL , CARDINAL and DATE respectively , are the victim ’s sister , widow , brother , father and mother . They live in GPE , ORG , ORG and GPE respectively .

On DATE , at TIME , PERSON , who was MONEY CARDINAL tall and weighed QUANTITY , went into a pharmacy in ORG . He was known to the staff there , where he habitually went to collect the medicine prescribed for his psychiatric disorders .

M.B. asked to exchange some medicine dispensed without a prescription , saying he was not satisfied with it . A pharmacist ’s assistant , PERSON , and the owner of the shop , Mr F. , explained to him that the effects of the medicine had diminished because he had become addicted to it . PERSON started to become angry , throwing the medicine boxes on the floor , raised his voice and started speaking incoherently :

“ I ’m fed up with your TIME visits , with your assistant and with you ! ”

M.B. told PERSON that he intended to file a complaint against him . Mr F asked Ms NORP to call the police . PERSON sat down on one of the chairs for customers at the pharmacy .

At TIME four police officers arrived on the scene after receiving a call from the incident room instructing them to intervene in an incident involving an individual with psychiatric disorders .

NORP Deputy police sergeant PERSON and police constable PERSON asked PERSON several times to accompany them out of the pharmacy . When he vehemently refused , sergeant PERSON and constable NORP seized him by the arm in order to remove him from the pharmacy . Constable PERSON seized PERSON by his right leg . PERSON struggled and called for help .

At the doorstep up to the pharmacy PERSON found himself on the ground . Constable PERSON attempted to handcuff him behind his back while he continued to struggle and appeal to the police for help . Constable PERSON punched PERSON twice in the solar plexus but still did not succeed in handcuffing him .

M.B. was then turned onto his right side and constable NORP was able to handcuff him in the front with CARDINAL pairs of interlinking handcuffs .

NORP Deputy police sergeant PERSON went to get the police vehicle to move it closer to the pharmacy . CARDINAL police officers seized PERSON by the arm in order to put him in the van . Despite putting up resistance , PERSON was forced inside the police van .

M.B. continued struggling and shouting in the police van and pushed CARDINAL police officer against the luggage holder above and another against a shelf before falling face downwards . Deputy police sergeant PERSON positioned himself above his shoulders in order to fasten another pair of handcuffs attaching PERSON to the fixed part of the back seat in the van . Constables NORP and PERSON positioned themselves on top of him , on his legs and on his buttocks .

At TIME , that is , TIME after they had arrived , the QUANTITY police officers present in the vehicle contacted their headquarters requesting assistance from the fire brigade and the mobile emergency medical service ( ORG ) .

According to the incident room ’s telephone log , at TIME the fire brigade asked the police to transfer PERSON to their vehicle . Deputy police sergeant PERSON refused to do so on grounds of PERSON ’s extremely agitated state .

The firemen then drew up a record of PERSON ’s condition . He had calmed down , but his heart rate could not be measured with the pulse oximeter because the sensors were not working . CARDINAL of the firemen constantly monitored his breathing , which stopped at CARDINAL point . A fireman noted the absence of blood circulation .

The team of firemen brought PERSON inside the pharmacy . CARDINAL of them alerted the ambulance service by radio . The firemen inserted a semi - automatic defibrillator and started carrying out cardiac massage .

An emergency doctor from the mobile emergency and intensive care service ( ORG ) , called out by the firemen , administered specialist cardiopulmonary resuscitation . He recorded PERSON ’s death at TIME

An investigation into the cause of PERSON ’s death was commenced immediately .

Of the CARDINAL pharmacists who gave a statement DATE , on DATE , CARDINAL were present when the police officers had asked PERSON to leave the LOC . They confirmed that when PERSON had refused to comply , the police officers had approached him and seized him . They said that PERSON had begun shouting and struggling at that point and had continued shouting and struggling when he had got into the police van , handcuffed . None of the CARDINAL witnesses had seen what had happened in the police van .

One of them stressed the fact that PERSON had been a customer at the pharmacy for DATE and had always been very pleasant during his DATE visits to collect his neuroleptics prescription .

On DATE Mr S. , a volunteer firefighter , was also questioned . He stated that on his arrival PERSON had still been in a highly agitated state , lying face down in the van , with the police officers restraining him : CARDINAL either sitting or kneeling on the victim ’s buttocks , and the other holding his legs ; his hands were outstretched and fastened by several handcuffs to the back seat of the van ; the victim ’s head was on the driver ’s side , and his right cheek face down on the floor . He explained that he had requested medical reinforcements and that then , when they observed that his heart had stopped beating , the firemen had decided to take him back into the pharmacy to continue carrying out cardiac massage .

On DATE one of the pharmacists was questioned a second time . He stated that PERSON had been a regular customer at the pharmacy . He said that the police officers had not hit PERSON

Constable PERSON was questioned the same day . He stated that deputy sergeant PERSON had introduced himself to PERSON and had asked him to come outside “ to explain the problem , as in this type of intervention the aim is to separate the parties ” . He explained that PERSON had refused to leave the pharmacy several times despite repeated requests by the police , who had finally dragged hm towards the door . He said that he had then seized PERSON ’s right leg and that , just in front of the entrance to the pharmacy , PERSON , who had lost his balance , had fallen down . He added that the police officers had then attempted to handcuff him and that when he had resisted attempts to put him in the police van constable NORP had pulled his legs , which had unbalanced him and caused both of them and deputy police sergeant PERSON to fall over in the police van . He said that PERSON had managed “ I do n’t know how to pin him back down on the ground ” . He also said that in order to finish handcuffing him deputy sergeant L. had squatted down on PERSON ’s shoulders while constable NORP remained at leg level ; as PERSON had continued struggling , he himself had stood on his buttocks . He stated that they had remained “ like that for a while , but I can not tell you how long , it felt like a long time , with me on his buttocks , my colleague on his shoulders and the third officer on his feet , assisted by P. , who had crossed his legs to stop him moving . It was then that the fire brigade arrived ” .

NORP Deputy sergeant L. was also questioned on DATE . He stated that he had received instructions from his headquarters to go to a pharmacy and had been informed that PERSON “ suffered from psychiatric disorders ” . He confirmed that PERSON had put up a violent struggle before letting himself slide to the ground in front of the entrance to the pharmacy . He explained that constable PERSON had administered CARDINAL punches to the abdomen , using a technique known as “ diversionary blows ” . As regards the rest , he confirmed the above - mentioned conditions in which PERSON had been handcuffed in the police van .

An autopsy was carried out on CARDINAL DATE . The forensic doctor described and explained the traumatic injuries observed : the injury to the left eyebrow and the associated swelling did not suggest injuries following a blow but were related to an impact by that part of his face on a ridged surface . The other facial injuries suggested close contact on a rough surface . The injuries to the wrists were characteristic of handcuffing . Those to the lower part of the chest and in the abdominal cavity could have been incurred as a result of CARDINAL violent blows to that area . The forensic doctor specifed that the injuries had caused neither internal bleeding nor fractures . He mainly noted marks on the lungs and PERCENT stenosis on a heart artery . PERSON report , drawn up on DATE , contained the following conclusions :

“ Death in all likelihood occurred as a result of heart failure .

An atheromatous attack observed on an artery of the heart exposed him to a severe risk of cardiac rhythm disorders and sudden death .

The state of stress and agitation presented by the victim on his arrest may have contributed to heart failure .

Restriction of chest expansion may have occurred when the victim was restrained , but it can not be affirmed that mechanical asphyxiation was the cause of death . ...

Recent traumatic injuries consistent with action by third parties were observed . In any event , the various injuries did not directly contribute to the death ; nor is there any injury consistent with blows to the face . ”

On DATE and DATE Ms S. , a shopkeeper , was questioned and stated that she had heard shouts from her shop opposite the pharmacy . She said that she had seen QUANTITY police officers with a man lying face down with his arms behind his back being punched and kicked . Through a side window of the police van she stated that she had seen a female and a male police officer trampling on the spot while hanging on to the roof of the van , CARDINAL administering CARDINAL punches in a downwards movement and lifting his knee up very high before bringing it down in CARDINAL sharp movement .

On DATE the shopkeeper ’s minor son was questioned and stated that he had seen CARDINAL police officers trampling on PERSON in the road and that a female police officer had hit him several times with a truncheon in the stomach , back and face .

On DATE a judicial investigation for manslaughter was opened in respect of a person or persons unknown and assigned to CARDINAL investigating judges .

On an unknown date the applicants applied to join the proceedings as civil parties .

On DATE PERSON , a neighbour next to the pharmacy , stated that she had seen PERSON struggling , face downwards , outside the pharmacy . She said that the police officers had “ thrown him into the van ” and that she had left after the doors were closed . She stated that the police officers had not hit PERSON

On DATE chief brigadier PERSON , an instructor in defence and arrest techniques and in the psychological and behavioural aspects of police intervention , was heard as a witness . He stated that in the event of a dispute between people , “ the opposing parties should in so far as possible be separated ” : the police officers , in attempting to induce the PERSON to leave the pharmacy , had sought to avoid a fight in the shop . He said that the blows administered by constable PERSON and described as “ CARDINAL punches to the suspect ’s abdominal area with the aim of distracting and and securely handcuffing him [ were ] among the priority areas for attempting to weaken the resistance of the person concerned . They [ the police officers ] had not been over zealous and had completed the handcuffing in the front . The officers had also acted in an emergency situation . The technique used by constable PERSON appear[ed ] the most appropriate in the context of the intervention ” . He added that all the techniques taught were designed to weaken resistance to arrest . He specified that , with regard to the immobilisation of PERSON in the van , standing on a person ’s buttocks was not among the techniques taught and that positioning oneself across PERSON ’s shoulders , as sergeant PERSON had done , was one of the procedures taught . That technique enabled the officer to prevent the suspect from moving while avoiding postural asphyxiation . He concluded that the intervening officers , having regard to the context of the intervention , had acted with pragmatism and discernment .

Reports were produced by several experts appointed by CARDINAL of the investigating judges . On DATE Dr L. , professor of forensic medicine , and Dr NORP , lecturer in forensic medicine , provided a forensic medical report after examining PERSON ’s body on DATE . They stated that their examinations had revealed “ a series of cutaneous lesions that could not have contributed to the death ” . They did not indicate evidence of any “ factor suggesting death by chest compression ” . There was thus no evidence of “ petechial subconjunctival injuries or of facial petechial injuries ” . They stated as follows :

“ our examination of the sealed evidence has not revealed any elements indicating the cause of death of [ M.B. ] . The sealed evidence shows that he was receiving psychiatric treatment for psychosis with several episodes of hallucination requiring the regular ingestion of antipsychotic medicines . ... At the levels measured , the ingestion of psychoactive drugs revealed by the toxicological investigations does not appear capable of explaining the victim ’s death by a process of direct toxicity . ... In conclusion , the death of [ M.B. ] ... is in all likelihood the result of myocardial failure . The death is due to natural causes . ”

On DATE PERSON produced their anatomopathological expert report after examining a copy of the autopsy report of DATE , a copy of the interviews with the members of the police patrol team who had arrested PERSON , a copy of the record of examination of CARDINAL witnesses , various sealed samples collected both by PERSON and by Professor PERSON and PERSON :

“ [ ORG ] died suddenly of cardiac rhythm disorders owing to a coronary spasm triggered by a context of intense and prolonged emotional and physical stress . ... In conclusion , the intense and prolonged emotional stress , and the prolonged and severe agitation , which started in the pharmacy and contined during the arrest explain the series of physiopathological phenomena which caused the death : ( CARDINAL ) intense stimulation of the sympathetic nervous system ( adrenergic neuro - hormonal system ) , ( CARDINAL ) coronary - ischemic spasm , ( CARDINAL ) fatal cardiac rhythm disorders . ”

On DATE and DATE and DATE the QUANTITY police officers appeared for the first time as assisted witnesses .

On DATE a reconstruction was organised , by the CARDINAL investigating judges in charge of the case , in the presence of the civil parties’ lawyers and the assisted witnesses . During the visit to the scene the forensic doctor stated that he had not noted any traumatic injury consistent with the violence described by the witness PERSON , the only injuries suggesting direct action by a third party being those corresponding to the punches administered to the stomach .

On DATE PERSON , university professor , neurologist and psychiatrist , and head of a forensic medical department , examined PERSON ’s medical file at his psychiatrist ’s surgery , his medical file at the casualty department of ORG , and the medical file kept by PERSON ’s general practioner . He stated that PERSON , who had been receiving psychiatric care for DATE , had been admitted to a hospital psychiatric unit several times and presented a psychotic disorder characterised by delusional notions of a betwitching , persecutory and interpretative type During his most recent hospital consultation he had been diagnosed with paranoid psychosis , which is related to schizophrenia . PERSON concluded his report as follows :

“ [ M.B. ] presented a serious psychiatric disorder , namely , delusional psychosis , which explains the initial altercation with the pharmacist and his subsequent state of extreme agitation when the police officers attempted to induce him to leave the pharmacy . It is also possible that the intervention by the police was interpreted in a delusional manner .

When the ORG [ mobile emergency and intensive care service ] intervened the criterion of seriousness was ... the fact that [ M.B. ] had been suffering from heart failure for TIME .

The superficial injuries observed , during the autopsy , to the right - hand side of the face and the front of the knees [ appear to him ] compatible with immobilisation on the floor of the van and the petechial injuries to the upper abdomen and the left abdominal region are compatible with punches administered as described in the autopsy report . ”

On DATE the ORG , an institution independent of the ORG , having the task , inter alia , of ensuring compliance by the police with their code of professional ethics , to whom a member of parliament had submitted the case , produced a report . He found that whilst the police officers had been very quick to seek the assistance of the fire brigade and the emergency medical service , it was regrettable that the situation had been inaccurately described by the incident room to the firemen prior to their intervention ( the latter had been informed of PERSON ’s “ withdrawal symptoms ” ) . He considered that there had been no imminent danger to people or property in the pharmacy and thus no urgent need to remove PERSON as soon as possible . He stated that the immobilisation and compression procedures carried out in the van had been dangerous and disproportionate . He described as “ amouting to a serious infringement of human dignity and to inhuman and degrading treatment within the meaning of LAW ” the techniques used by constables NORP and PERSON to the floor of the police van . The ORG also noted conflicting statements by the police officers regarding whethere there had been physical violence other than the CARDINAL diversionary blows and pointed out that no witnesses had been present throughout the entire incident . The ORG concluded that the precipitation with which the police had acted had led them to make an erroneous assessment of PERSON ’s situation and to react in a stereotypical manner rather than adjust their conduct during the intervention , despite the fact that they knew that PERSON was receiving treatment for psychiatric disorders and that they had been able to observe abnormal behaviour on his part . He recommended reinforcing the initial and continuous training of police officers with regard to dealing with persons suffering from a mental disorder . Lastly , he recommended that disciplinary proceedings be brought against the QUANTITY police officers who had arrested PERSON for “ disproportionate use of force or failing to cease using such force ” .

On DATE PERSON supplemented their expert report of DATE . They confirmed the conclusion of their earlier report and ruled out mechanical asphyxia : “ PERSON died suddenly of cardiac rhythm disorders , with no occurrence of mechanical asphyxia . ” They reiterated the part played by extreme stress in the death , stating that “ the adrenergic stimulation was related to the extreme and prolonged emotional and physical stress . The stress lasted TIME , starting in the pharmacy and continuing throughout the arrest ” .

On DATE the CARDINAL police officers who had arrested PERSON were charged with manslaughter as a result of the manifestly wilful violation of a legal or statutory duty of caution and security .

On DATE the the public prosecutor at the ORG tribunal de grande instance filed submissions recommending that the charges be dropped .

On DATE the investigating judges ruled that there was no case to answer . They found that whilst it was true that PERSON had been in a relatively calm state , the pharmacist had nonetheless considered his behaviour sufficiently disturbing to inform the police of the presence in his establishment of a person in an agitated state and suffering from psychiatric disorders . They observed that the police officers had not immediately used force and that , on being informed of PERSON ’s pyschiatric pathology , they had called the emergency medical service . The judges found that the evidence given by PERSON had been invalidated by the observations made during the reconstruction , the statements made by the pharmacists and the conclusions of the forensic doctor . The investigating judges observed as follows :

“ ... pinning [ M.B. ] to the ground was not identified by the medical experts as the direct cause of the death . Whilst the intervention by the police inevitably generated stress , the victim had already been stressed well before their intervention . As the police did not know about [ PERSON ’s ] heart disease , of which he himself was unaware , they could not foresee that the combination of these CARDINAL factors [ stress and heart disease ] could create a risk for the victim . ”

The judges considered that the force used by the police officers had been necessary and proportionate “ even if being pinned down in the van , by L. and P. and PERSON ’s position – standing on [ PERSON ’s ] legs – may appear objectionable in absolute terms ” .

The applicants appealed against that ruling . On DATE ORG of ORG upheld the decision finding no case to answer on the following grounds :

“ [ PERSON ’s death was due ] according to the forensic doctor who carried out the initial autopsy ... to heart failure in circumstances of stress and effort acting on a predisposed heart condition ; the second forensic report supported the finding of cutaneous injuries that could not have been a contributory cause of death and ruled out death due to chest compression ; the experts indicated that the death of [ PERSON ] was , in all likelihood , the result of myocardial failure and natural causes ; the anatomopathological report ... [ led ] the experts to conclude that [ PERSON ] had died suddenly of cardiac rhythm disorders owing to a coronary spasm triggered by a context of intense and prolonged emotional and physical stress , and formally ruled out mechanical asphyxia ; lastly , the forensic and psychiatric expert ... concluded that [ PERSON ] presented a serious psychiatric disorder ... which explained the initial altercation with the pharmacist and the ensuing state of extreme agitation when the police officers attempted to induce him to leave the pharmacy , as their intervention could have been interpreted in a delusional manner ” .

With regard to the conditions of arrest , ORG found that the agitated state and the “ recalcitrant , not to say violent , behaviour of [ M.B. ] had obliged the police officers to use force and intervention techniques , which they had been taught , to restrain him ” , including the CARDINAL punches administered by constable PERSON “ who explained that he had used a technique taught to police officers to assist in handcuffing suspects by creating a surprise effect , that explanation being confirmed by his colleagues and instructor ” . ORG found that PERSON had been pinned to the floor of the van in conditions that had been “ admittedly unusual , or even objectionable ” , but that these had preserved the respiratory capacity and ventilation of a person who “ was continuing to oppose strong resistance to the police officers ” . It concluded that “ no inadvertence , lack of care , inattention , negligence or breach of a statutory or legal duty of protection or care , or gross negligence [ could ] be attributed [ to the police officers ] in the death of [ M.B. ] ” .

The applicants appealed on points of law . On DATE ORG dismissed their appeal on the following grounds :

“ ... ORG is satisfied on the basis of the grounds of the judgment being appealed that in upholding the decision finding no case to answer ORG , after analysing all the facts referred to it and addressing the main grounds in the statement of appeal , gave sufficient and coherent reasons for their finding that the investigation had been thorough and that there was insufficient evidence on which to convict the persons charged with of manslaughter or any other offence ... ”


Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

Branko Lubarda;Dmitry Dedov;Luis López Guerra

The applicant was born in DATE and was detained in GPE until his extradition to GPE .

On DATE the applicant was arrested in GPE pursuant to an extradition request from the GPE authorities . On DATE ORG of GPE ordered his detention .

The applicant ’s detention was subsequently extended by judicial orders on several occasions , in particular , on DATE and DATE . Both the applicant and his lawyer lodged their statements of appeal against these detention orders with ORG , which upheld them on appeal on DATE and DATE , respectively .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

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

The applicants complained of the inadequate conditions of their detention . In application no . CARDINAL the applicant also raised other complaints under the provisions of the Convention .


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

NORP The applicant , PERSON , is a NORP national , who was born in DATE .

NORP The applicant , who has been granted legal aid , is represented before the Court by PERSON , a lawyer practising in GPE .

ORG ( “ the Government ” ) are represented by PERSON , Representative of GPE at ORG .

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

According to the applicant , he joined ORG in DATE . At that time it was , and apparently it remains , in opposition to the ruling regime . Following a murder attempt in DATE against the ORG President , some members and supporters of the party were reportedly arrested and tortured . Allegedly , the applicant was also arrested during that time . He submitted that he had been tortured by way of blows to his hands , back and head , causing loss of vision in his right eye . He had declined the offer to collaborate with ORG on the party members and their activities . The party has now split into CARDINAL factions : CARDINAL is apparently loyal to the ruling regime , while the other is led by supporters of the former leader of the party , Mr Iskandarov ( see PERSON GPE , no . CARDINAL/CARDINAL , DATE ) , who have been persecuted .

Fearing persecution , the applicant left for GPE . Allegedly , in DATE the authorities were looking for him and arrested his brother . The applicant went back to NORP DATE ( allegedly , remaining in hiding ) . In DATE he obtained a new passport from the NORP authorities ( allegedly , through an acquaintance ) .

The applicant arrived in GPE in DATE . It appears that at the time NORP nationals did not require a visa to enter GPE .

NORP Since DATE the applicant has been living in GPE in an unregistered relationship with PERSON

The applicant and PERSON have CARDINAL children together , born in DATE and DATE . It appears that PERSON ’s first child , who was born in DATE from her previous relationship , has been residing with PERSON and the applicant . PERSON and the children are NORP nationals .

In DATE ORG of GPE granted the applicant a temporary residence permit valid until DATE .

In DATE Mr Ts . informed the GPE office of ORG ( “ the ORG ” ) that the applicant had given him several publications about PERSON - ut - GPE , a prohibited organisation in GPE .

In DATE the GPE regional prosecutor applied to ORG , PERSON ( “ the ORG ” ) , asking it to classify those publications as “ extremist ” . The court granted his request . The applicant was not party to the proceedings .

On DATE the ORG interviewed the applicant , having informed him of his right not to testify against himself . According to the interview record , the applicant stated as follows : in DATE he had studied ORG with his friend , reading together various writings , inter alia , calling for the creation of an NORP Caliphate ; in DATE he learnt that ORG had arrested his friend and some of his relatives ; fearing arrest himself , he had moved to GPE where he obtained a work permit ; there he met CARDINAL NORP nationals who appeared to be supporters of PERSON - ut - GPE ; DATE CARDINAL of them provided the applicant with some publications , which he then gave to Ts .

According to the applicant , an ORG officer told him that the NORP authorities “ were looking for him ” .

The ORG wrote to the regional migration authority recommending that the applicant ’s residence permit be annulled .

On DATE the authority annulled the residence permit on the basis of section CARDINAL of LAW ( see paragraph CARDINAL below ) . The applicant was informed that he could seek judicial review of the annulment decision or re - apply for a temporary residence permit in a DATE ’s time ; that he was obliged to leave GPE within DATE ; and that if he failed to leave the country he would be deported .

The applicant did not seek judicial review of the annulment decision . However , he appointed a lawyer and they both considered that given the imperative indication in section CARDINAL of LAW , there would be no prospect of success in claiming reinstatement of the residence permit on account of a risk of death or torture if the NORP authorities became aware of the findings made by ORG in respect of the applicant . Instead , in DATE the applicant decided to attempt to regularise his stay in GPE by applying for refugee status ( see paragraph CARDINAL below ) . For this purpose , his lawyer obtained access to the case file concerning the residence permit . According to the lawyer , the file contained only the ORG ’s letter to the migration authority ( see paragraph CARDINAL above ) .

On DATE the ORG issued the applicant with a “ warning ” ( предостережение ) against “ unacceptable actions that create a basis for committing crimes falling within the ORG ’s competence ” ( see paragraph CARDINAL below ) . The warning read as follows :

“ [ The applicant ] has expressed his intention to take part in the activities of the international terrorist organisation ORG - ut - GPE , which has been classified as ‘ LOC by ORG . The indicated actions create a basis for committing crimes under LAW ” .

Subsequently , the applicant denied membership of ORG - ut - GPE or participation in its activities .

The applicant ’s lawyer challenged the “ warning ” , indicating that the ORG ’s allegations in respect of the applicant were unsubstantiated ; he had never been a member of the prohibited organisation ; and none of his previous actions or utterances had indicated an intention to take part in the activities of that organisation . The lawyer also challenged the “ warning ” as being an unsubstantiated and disproportionate interference with the applicant ’s private life , exposing him to a risk of removal to NORP and of ill - treatment there on account of the NORP authorities’ awareness of the ORG ’s suspicion in respect of him .

On DATE ORG upheld the “ warning ” on judicial review . The court stated that Ts . ’s and the applicant ’s own testimonies confirmed that the applicant had had contacts with people who were implicated in the activities of the prohibited organisation ; as confirmed by Ts . , the applicant had handed over to him publications that had an “ extremist ” content , as then confirmed by a court . The NORP legislation prohibited dissemination , possession and production of extremist material . In certain circumstances those actions constituted an offence ; an extremist activity was also punishable in criminal law , civil law and otherwise . The “ warning ” had not violated any of the applicant ’s rights or freedoms .

NORP The applicant appealed , arguing that nothing in his own statement to the ORG had disclosed an intention to take part in the “ activities of the prohibited organisation ” or elements of corpus delicti under LAW of LAW ; the impugned events dated back to DATE while the “ warning ” was meant to concern some continuing activity ; the applicant had no knowledge of the “ extremist ” content of the publications , which was only subsequently established by a court in proceedings to which he had not been a party . The applicant concluded that in substance the proceedings against him and the resulting “ warning ” amounted to a finding of criminal guilt without either the benefit of a judicial procedure or the attending safeguards of criminal proceedings , including the presumption of innocence ( Articles DATE and CARDINAL of LAW ) .

On DATE ORG dismissed the applicant ’s appeal . The appeal court discarded as “ farfetched ” the arguments under LAW and CARDINAL of the LAW and endorsed in substance the reasoning of ORG . On an unspecified date , ORG rejected the applicant ’s subsequent appeal on points of law . It appears that in DATE ORG of GPE rejected the second appeal on points of law .

After the annulment of his residence permit , in DATE the applicant applied to the regional migration authority seeking refugee status .

NORP The applicant submitted that as an ordinary member of ORG , he had attended meetings and complied with the ORG orders ; after the attempted assassination of the NORP President in DATE , he had been arrested and tortured ( blows to his fingers with a gun handle and blows to his spine and head ) ; he had left for GPE and had then returned to NORP , where he had stayed in different towns until DATE .

By decision of DATE the regional migration authority dismissed the applicant ’s application for refugee status and ordered him to leave GPE within DATE .

NORP In reply to a request from the applicant ’s lawyer , on DATE the GPE office of the ORG High Commissioner for Refugees ( “ the GPE ORG office ” ) issued an information document . Referring to some of the findings made in the DATE ORG report on ORG and some other reports , the ORG office made the following comments :

“ In view of the numerous violations of human rights and fundamental principles of international law by the NORP authorities , the widely used practice of torture and cruel treatment at the hands of law enforcement officers , in particular with the aim of extracting confessions in criminal cases ... the ORG considers that people who are suspected in relation to political activities of a religious nature run a real risk of persecution in the form of torture in GPE ...

Therefore , having regard to the international instruments ratified by GPE , in no circumstances should PERSON be extradited , as he is seeking asylum on account of a risk of torture if returned to the country of nationality .

We hope that this information will be taken into account during the examination of your client ’s case . ”

The applicant sought judicial review of the refusal to grant refugee status , contesting the reliance on the document of DATE as the migration authority ’s only source of information about NORP . He referred to the ORG ’s findings in the PERSON judgment mentioned above and a number of other sources .

By a judgment of CARDINAL DATE ORG upheld the decision of DATE . The court stated , inter alia , that had the applicant had genuine reasons for seeking asylum , he would have made an application immediately after his arrival in GPE . The applicant appealed . On DATE ORG dismissed the applicant ’s appeal .

Having been unsuccessful with his application for refugee status ( see paragraph CARDINAL above ) , in DATE the applicant applied to the regional migration authority for so - called “ temporary asylum ” ( see paragraph CARDINAL below ) .

On DATE the authority dismissed the application . On DATE ORG upheld the lower authority ’s decision .

The applicant sought judicial review of the refusal of temporary asylum . He argued that the migration authority had not assessed whether the ORG ’s warning on suspicion that he might commit a criminal offence of an extremist nature substantiated his argument that he was at risk of illtreatment at the hands of the NORP authorities , who were aware of the ORG ’s warning .

On DATE ORG upheld the decision to refuse temporary asylum . On DATE ORG dismissed an appeal lodged by the applicant . On DATE the same court dismissed a subsequent appeal on points of law lodged by the applicant . The applicant lodged a second appeal on points of law before ORG of GPE , which dismissed that appeal on DATE .

The applicant unsuccessfully sought an extension of his permission to stay in the country pending appeals against the decision to refuse him temporary asylum . On DATE ORG upheld the decision . On DATE ORG upheld the judgment on appeal . It appears that a subsequent appeal on points of law lodged by the applicant was dismissed in DATE .

Allegedly , the applicant has been subjected to covert supervision by law - enforcement officials wearing plain clothes ; questions about him were raised with his neighbours ; and his relatives in NORP were questioned and their homes searched . Since DATE , the applicant has not left his home , fearing abduction with a view to forcibly transferring him to NORP .

In DATE the applicant ’s lawyer asked the migration authority about their intention to expel the applicant . No reply has been received .

It appears that the applicant has applied to the ORG office for help with resettlement . That request is pending .

According to the applicant , on an unspecified date in DATE , officers from ORG arrested his brother ; he was subsequently released but was required to assist the authorities in obtaining the applicant ’s return to the country .

It appears that the applicant is currently considered as a foreigner “ temporarily present in GPE ” , which , according to him , gives him an opportunity to move within the region but not to work .

LAW ( Federal Law no . CARDINAL-FZ of DATE ) provides that a foreigner can be temporarily present on NORP territory for a period specified in a visa or , for foreign nationals not required to obtain a visa , for DATE unless otherwise provided for by the LAW ( section CARDINAL ) .

Section CARDINAL of LAW requires that a temporary residence permit be annulled if the foreigner ( i ) has expressed himself in favour of a radical change in the constitutional regime of GPE or , by way of other actions , poses a threat to the security of GPE or its citizens ; ( ii ) has made financial contributions or planned terrorist or extremist acts , has provided assistance to others in the commission of such acts , or has supported terrorist ( extremist ) activities by way of other actions .

After the annulment of a temporary residence permit or a residence permit , the foreigner concerned must leave GPE within DATE ; failure to do so will lead to deportation ( section CARDINAL of the Act ) .

A decision to deport should be taken by a chief officer of the local migration authority ( paragraph CARDINAL of the ORG issued by order no . CARDINAL of CARDINAL DATE by ORG ) .

Section CARDINAL of LAW provides that temporary asylum may be granted where ( i ) the foreigner has grounds for acquiring refugee status but only requests a possibility to remain in GPE for some time ; or ( ii ) the foreigner has no grounds for acquiring refugee status but should not be expelled from GPE for “ humanitarian reasons ” . Having received temporary asylum , the person may not be returned against his will to the country of nationality or the country of habitual residence .

Sections CARDINAL and CARDINAL of ORG ( Federal Law no . CARDINAL of DATE ) provides that , in the absence of grounds for instituting criminal proceedings , the ORG has competence to issue and inform the person concerned of an “ official warning ” ( официальное предостережение ) about unacceptable actions that create conditions for the commission of certain crimes . Such a “ warning ” is classified as a measure of prevention ( мера профилактики ) that may be implemented for the purpose of preventing the commission of such criminal offences .


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)

Krzysztof Wojtyczek;Ledi Bianku;Paul Mahoney

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

The applicant was born in DATE and lives in GPE .

The applicant is married and has CARDINAL children born in DATE , CARDINAL , DATE and DATE . Prior to his application for an early - retirement pension he had been unemployed with no right to unemployment benefit .

On DATE the applicant filed an application with ORG ( ORG ) to be granted the right to an early - retirement pension for persons raising children who , due to the seriousness of their health condition , required constant care , the socalled “ EWK ” pension .

Along with his application for a pension , the applicant submitted , among other documents concerning his daughter ’s health condition , a medical certificate issued by a specialist medical centre . The certificate stated that the child ( born in DATE ) suffered from chronic asthma and that she was in need of her parent ’s constant care .

On DATE ORG ( “ the SSB ” ) issued a decision granting the applicant the right to an earlyretirement pension in the net amount of MONEY ( PLN ) . The pension was granted with retroactive effect of DATE .

On an unknown date ORG asked ORG doctor ( PERSON ) to inform it whether the applicant ’s daughter required the permanent care of a parent . The doctor stated that , on the basis of the medical documents , the child could not be considered as ever having required such care .

On DATE the ORG reopened the pension proceedings and , on DATE , ORG refused the applicant the right to early retirement and discontinued the payment of the pension with effect of DATE .

The applicant appealed against the decision divesting him of the right to an early - retirement pension . He submitted that he should receive the benefit because his child required constant care , as confirmed by the medical certificate attached to the applicant ’s original application for a pension . Moreover , the applicant alleged that the revocation of his retirement pension was contrary to the principle of vested rights .

On DATE ORG ( PERSON ) amended the challenged decisions and granted the applicant the right to early retirement pension with effect of DATE . ORG found that the applicant could not bear the responsibility for the mistake made by the administrative authorities . It further held that the pension proceedings could not be reopened in this case because no new circumstances had arisen ; the reopening decision was based on the same circumstances freshly assessed .

ORG appealed against the firstinstance judgment .

On DATE the Rzeszów Court of Appeal ( Sąd Apelacyjny ) amended the first - instance judgment and dismissed the applicant ’s appeal against ORG decisions . It held , among other things , that the ORG based its decisions on evidence which did not constitute basis for the original decision granting the applicant the early retirement pension , namely medical documentation concerning the applicant ’s daughter .

On DATE ORG ( Sąd Najwyższy ) refused to entertain the cassation appeal lodged by the applicant ’s lawyer .

Following the social security proceedings the applicant was not ordered to return his early - retirement benefits paid by ORG , despite the revocation of his right to an early - retirement pension .

The Government submitted that after the revocation of the applicant ’s pension , he was employed CARDINAL , DATE and DATE , DATE and CARDINAL DATE , CARDINAL DATE and DATE , DATE and DATE , CARDINAL DATE and DATE , DATE and CARDINAL DATE , DATE and DATE , DATE and DATE . According to the ORG ’s submissions the applicant was receiving an unemployment benefit for DATE and DATE and , subsequently for DATE in DATE .

The Government further submitted that the applicant ’s income represented PERCENT of the average remuneration in GPE in DATE PERCENT in DATE , PERCENT in DATE , PERCENT in DATE , PERCENT in DATE , PERCENT in DATE , PERCENT in DATE , PERCENT in DATE and PERCENT in DATE .

NORP The applicant submitted a document issued by ORG on DATE confirming that his early - retirement pension had been revoked with effect of CARDINAL DATE and that after that date he had not received any payments from his retirement or disability insurance .

The applicant further submitted copies of ORG decisions according to which he was receiving DATE family benefit for his CARDINAL children . The benefit amounted to ORG CARDINAL in DATE , ORG CARDINAL in DATE , ORG in DATE and ORG in DATE . The applicant further produced a certificate issued by ORG on DATE , according to which the applicant ’s family was receiving a social care benefit DATE and DATE . After the latter date the social care centre did not pay the applicant any further benefits . The certificate did not specify the amount of benefit granted .


ŽERAJIĆ AND GOJKOVIĆ v. BOSNIA AND HERZEGOVINA

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

NORP The applicant in the first case , PERSON , is a citizen of GPE , who was born in DATE and lives in GPE . She was represented before the Court by PERSON , a lawyer practising in GPE . The applicant in the second case , PERSON , is a citizen of GPE , who was born in DATE and also lives in GPE . She was represented before the Court by Mr PERSON .

The Government of GPE ( “ the Government ” ) were represented by their Deputy Agent , PERSON .

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

After its declaration of independence on DATE , a brutal war started in GPE . It would appear that CARDINAL people lost their lives and CARDINAL people were displaced in the course of the war . It is estimated that around CARDINAL people went missing and that around DATE of them is still missing . The conflict came to an end on DATE when ORG in GPE entered into force . In accordance with that Agreement , GPE consists of CARDINAL Entities , ORG and PERSON .

NORP In response to atrocities then taking place in GPE , on DATE ORG passed LAW establishing ORG for the former GPE ( “ the ORG ” ) , headquartered in GPE . CARDINAL individuals have already been convicted and proceedings are ongoing for CARDINAL accused . In the period from DATE until DATE , local prosecutors in GPE and GPE were required to submit case files to the ORG for review ; no person could be arrested on suspicion of war crimes unless ORG had received the case file beforehand and found it to contain credible charges ( the “ Rules of the Road ” procedure ) . Moreover , the ORG had primacy over national courts and could take over national investigations and proceedings at any stage in the interest of international justice . As part of the ORG ’s completion strategy , in DATE war crimes chambers were set up within ORG ( “ the ORG ” ) with primacy over other courts in GPE as regards war crimes . CARDINAL persons have been finally convicted by ORG . Many others have been convicted by the competent Entity courts ( see paragraphs CARDINAL below ) .

Furthermore , ORG on ORG ( “ the ICMP ” ) was established at the initiative of GPE President PERSON in DATE . It is currently headquartered in GPE . Reportedly , the ICMP has thus far identified by DNA CARDINAL missing persons in GPE , whereas local authorities have identified CARDINAL missing persons by other methods . In DATE the Government of GPE and the ICMP established a ORG , also headquartered in GPE ( see paragraph CARDINAL below ) . It became operational on DATE .

Mr PERSON and Mr PERSON disappeared in an area of GPE controlled by the ORG forces on DATE and CARDINAL DATE respectively .

The ORG has convicted CARDINAL members of the ORG forces for various crimes committed against NORP during the war , including killings and cruel treatment at GPE and PERSON camps ( PERSON , ORG , PERSON , PERSON , PERSON and ORG ) , but none of the cases dealt with killings of NORP in GPE by those forces .

Domestic authorities have taken statements from a number of persons . However , no formal charges have been brought yet as the perpetrators in the case of Mr PERSON have not been identified and the key suspects in the case of PERSON were killed in DATE ( namely , ORG , PERSON and J.P ) . At the same time , domestic authorities have finalised investigations into other war crimes committed by the ORG forces against NORP in GPE ; indictments have so far been issued against GPE , M.F. , GPE , PERSON and I - PERSON and criminal proceedings are pending .

On DATE PERSON sought and obtained a declaration of presumed death with respect to her husband .

While many exhumations have been conducted in the GPE area , the ORG husbands have not yet been identified .

NORP In the case of PERSON , on DATE ORG held that there had been a violation of LAW and CARDINAL of the Convention . It ordered ORG to release any and all information in its custody pertaining to the fate or whereabouts of Mr PERSON as well as to conduct a full , meaningful , thorough and detailed investigation aimed at bringing the responsible to justice . Lastly , it awarded PERSON MONEY ( BAM ) for non - pecuniary damage . In the case of PERSON , ORG gave a similar decision on DATE . However , no damages were awarded .

LAW entered into force on DATE ( ORG GPE no . CARDINAL ) . In accordance with section CARDINAL of the Act , families have the right to know the fate of missing persons ( that is , their whereabouts if they are still alive , or the circumstances of death and their place of burial , if they are dead ) and to obtain their mortal remains . Under section CARDINAL of the Act , the relevant domestic authorities have the obligation to provide any and all such information in their keeping .

Section CARDINAL of that LAW provides for the setting up of a Missing Persons Institute . In DATE the ICMP and the Government of GPE founded the ORG , headquartered in GPE , pursuant to that provision and the Agreement on Assuming ORG - founders of ORG , no . CARDINAL/CARDINAL ) . It became operational on DATE . CARDINAL of the organs of that ORG , comprised of CARDINAL representatives of families of missing persons ( see LAW mentioned above ) .

In accordance with section CARDINAL of the LAW , the status of missing person comes to an end on the date of identification . Therefore , if a missing person is declared dead but the mortal remains have not been found and identified , the process of tracing continues .

Pursuant to LAW , the families of missing persons are entitled to DATE financial support under some conditions , notably if they were supported by the missing family member until his or her disappearance and if they are still in need of support ( in other words , if they are not in paid employment and do not receive welfare benefits beyond PERCENT of the average salary paid in GPE ) . LAW provides for the setting up of ORG for that purpose . However , as the ORG has not yet been established , no payment has been made so far .

Families of missing persons are also entitled to , inter alia , temporary administration of the property of missing persons , burial of mortal remains at public expense and priority in access to education and employment for the children of missing persons ( section CARDINAL of the Act ) .

Section CARDINAL of the LAW provides for the setting up of ORG with the aim of verifying information about missing persons from different sources ( government agencies , associations of families of missing persons , the FAC and ORG ) and creating a single database . While ORG were founded on DATE , it would appear that the verification process is still ongoing . Once that process is completed , all those recorded as missing will be declared dead ( section CARDINAL of the Act ) , but the tracing process will nevertheless continue ( see paragraph CARDINAL above ) .

Despite the fact that the verification process outlined in paragraph CARDINAL above is pending , any person may request that a declaration of presumed death be issued with respect to a missing person ( see the Non - Contentious Procedure Act DATE , ORG GPE , nos . CARDINAL , CARDINAL , CARDINAL ; and ORG DATE , ORG of ORG , no . CARDINAL ) .

War crimes cases fall , as a general rule , under the jurisdiction of ORG , but ORG may transfer any such case to the competent Entity court in accordance with the criteria set out in paragraph CARDINAL below ( see LAW ) . For example , only in DATE ORG transferred CARDINAL cases to CARDINAL Entity courts .

NORP In accordance with the Book of Rules on ORG of DATE the following types of cases were , as a rule , to be heard before ORG : ( a ) cases concerning genocide , extermination , multiple murders , rape and other serious sexual assaults as part of a system ( such as in camps ) , enslavement , torture , persecution on a widespread and systematic scale , mass forced detention in camps ; ( b ) cases against past or present military commanders , past or present political leaders , past or present members of the judiciary , past or present police chiefs , camp commanders , persons with a past or present notorious reputation , multiple rapists ; ( c ) cases with insider or suspect witnesses ; ( d ) if there was a risk of witness intimidation ; and ( e ) cases involving perpetrators in an area which is sympathetic to them or where the authorities have a vested interest in preventing public scrutiny of the crimes . All other war crimes cases were , as a rule , to be heard before the Entity courts .

In DATE the authorities adopted ORG , providing a new set of criteria . However , they are almost identical to those outlined in paragraph CARDINAL above . In addition , the Strategy defines the time - frames , capacities , criteria and mechanisms for managing those cases , standardisation of court practices , issues of regional cooperation , protection and support to victims and witnesses , as well as financial aspects , and supervision over the implementation of the Strategy . CARDINAL of its objectives is to process the most complex and top priority cases within DATE ( that is , by DATE ) and other war crimes cases within DATE ( that is , by DATE ) . In order to comply with that time - frame , the local authorities have , inter alia , almost doubled the number of ORG prosecutors in charge of war crimes ( from DATE ) in DATE .


CASE OF DAVID THOMAS v. THE UNITED KINGDOM

No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention)

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant was born in DATE and is currently detained in GPE FAC .

On DATE he was convicted of attempted kidnapping . He received an indeterminate sentence for public protection ( “ ORG sentence ” ) . A minimum term ( “ tariff ” ) of DATE and DATE was fixed .

NORP In DATE it was identified that the applicant was required to complete the Controlling Anger and Learning to Manage it ( “ CALM ” ) course to reduce his risk .

On DATE he was transferred to GPE in order to participate in the CALM course .

The applicant ’s tariff expired on DATE .

In DATE he commenced the CALM course . He completed it on DATE .

On an unknown date he completed LOC and assertiveness and decision - making courses .

On DATE an oral hearing took place before ORG to review the applicant ’s detention . On DATE ORG notified him that it had decided not to order his transfer to open conditions or release . It concluded that his level of risk remained incompatible with his safe management in open conditions .

By letter dated DATE ORG informed the applicant that the Secretary of ORG agreed with the ORG recommendation . His review period was set at DATE . The review was therefore scheduled to commence in DATE with an oral hearing by ORG in DATE .

In DATE a sentence plan review took place and identified a further course , the Sex Offenders Treatment Programme ( “ SOTP ” ) , for completion by the applicant . He had failed to admit before DATE that there was potentially a sexual element to his offence . Prior to commencement of the NORP , a Structured Assessment of Risk and Need ( “ SARN ” ) was to be conducted .

NORP In DATE the applicant complained to the prison requesting information on when the SARN would take place . On DATE he was informed that he would have to be transferred to another prison establishment for assessment because of resource issues .

On DATE he was moved to ORG for assessment .

On DATE his solicitors sent a letter before claim to the governor of ORG and the Secretary of ORG indicating that judicial review proceedings were being considered in respect of the delay in arranging the assessment for the ORG .

On DATE the applicant ’s offender supervisor contacted a forensic psychologist in training in order to discuss the applicant ’s case . They agreed that an initial SOTP assessment should be completed .

By letter dated CARDINAL DATE ORG informed the applicant that the assessment of his suitability for the ORG would be completed by DATE . He would then be placed on a waiting list for the appropriate course .

NORP The SOTP assessment was completed on DATE and concluded that the applicant was motivated to engage in sex offender treatment .

On DATE the forensic psychologist in training sought clinical guidance on the applicant ’s case from ORG ( ORG ” ) . The ORG decided that a Risk Matrix DATE ( “ RMCARDINAL ” ) was required as well as a Treatment Needs Analysis ( “ TNA ” ) to assess the level of dynamic risk posed by the applicant .

On DATE a forensic psychologist in training interviewed the applicant and told him that he had been referred for a ORG and RMCARDINAL . The applicant was informed that his case would be progressed over DATE .

On DATE ORG reviewed the applicant ’s case on the papers . By letter dated CARDINAL DATE it informed him that it had not directed his release or recommended his transfer to open conditions . It explained :

“ The panel is satisfied that until you have undertaken the offending behaviour work that will be identified by the forthcoming assessments and ... a full assessment has been completed of your response to treatment it will be difficult to conclude that you have addressed the core factors that caused you to offend . ”

On DATE the ORG was completed .

NORP By letter dated CARDINAL September CARDINAL ORG informed the applicant that the Secretary of ORG agreed with the ORG recommendation . She considered that risk factors , namely sexual offending , thinking skills and behaviour and alcohol misuse , were outstanding . The letter clarified that the Secretary of ORG could not guarantee to place the applicant on the courses identified as there were limits on the availability of resources .

The applicant ’s next review was set to commence in DATE and be completed by DATE . The review period was made up of , inter alia , appropriate assessments , completion of sexual offender behaviour work , participation in the post - course review and the preparation of the ORG report .

At some point he was transferred to GPE .

On DATE he was told by prison staff that he was on a list of prisoners being considered for the next SOTP .

On DATE the ORG and Treatment Pathway reports were completed . The applicant was deemed suitable for the ORG . The reports were disclosed to him on DATE .

On DATE his solicitors wrote to the governor of ORG requesting that immediate steps be taken to place the applicant on the next SOTP . They expressed the view that there had been no progress since the DATE assessment .

On DATE the applicant commenced the SOTP . He completed the course in DATE .

A new target date of DATE was set to assess whether an oral ORG hearing ought to be held in his case . The outcome of the review is not known

A LOC report was produced on DATE .

On DATE the Secretary of ORG accepted the applicant ’s request for an exceptional transfer to open conditions . He was transferred on DATE .


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

The applicants , Mr A and PERSON , are a married couple and currently living in the GPE . They are NORP nationals and were born in DATE and DATE , respectively . The President granted the applicants’ request for their identity not to be disclosed to the public ( Rule CARDINAL § CARDINAL of ORG ) . They were represented before the ORG by Ms J. Bravo Mougán , a lawyer practising in GPE .

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

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

On DATE the applicants and their daughter , born in DATE , fled GPE . On DATE they entered the GPE and applied for asylum , claiming to fear persecution within the meaning of the DATE LAW ( “ the DATE LAW ” ) . DATE a second child was born to the applicants .

On DATE the immigration authorities held a first interview ( eerste gehoor ) with each applicant about their identity , nationality and travel itinerary . A written record of each interview was drawn up . The applicants , who were assisted by a lawyer , were given the opportunity to submit corrections and additions , which they did on DATE .

On DATE , the immigration authorities held a further interview ( nader gehoor ) with each applicant about their reasons for seeking asylum . A written record of each interview was drawn up and on CARDINAL DATE a lawyer submitted corrections and additions on the ORG behalf .

NORP In his asylum statement , the first applicant declared that he was a former NORP monk ( “ lhama ” ) . His only relative was a foster parent who had died in DATE . After his marriage to the second applicant he had resigned as a monk and started to work as a spiritual counsellor . Among his clients were PERSON , a prominent political and government leader , Mr Y , a former business associate of PERSON , and Mr Z , a judge . By DATE , the first applicant had received a CARDINAL page letter from Y who had been placed in pre - trial detention . In this letter Y wrote that he was innocent and wrongly imprisoned and that he had been falsely accused by X. The letter further contained incriminating information about X who was allegedly involved in corruption . The first applicant had not discussed this information with anyone . Soon after , the first applicant had received several threatening telephone calls from accomplices of X. They told him that they knew that he had received the letter , that he knew too much and that he should keep his mouth shut . They also ordered him to give them his GPE records . The second applicant also received threatening calls . On DATE the first applicant learned that Y had died in prison .

On DATE the first applicant , whilst walking upstairs to his apartment , had been assaulted by CARDINAL unknown men in the stairwell of the building . The CARDINAL men had demanded the letter and the records the first applicant had kept on his clients . When a neighbour had appeared , the CARDINAL men had run off . As requested by Y , the first applicant had taken the letter to Z who had advised him not to go to the police as X had more power than the police . Being a judge , PERSON would deal with the matter himself . According to the first applicant , Y had written the letter to the first applicant and not directly to Z because he had known the first applicant very well and had trusted him .

As the applicants had no longer felt safe at home , the first applicant had asked CARDINAL of his other clients to shelter him and his family . This client had done so as from DATE and sheltered the applicants in a town near to GPE . Although the first applicant had changed his telephone number , he continued to receive threatening phone calls .

On DATE , whilst travelling for business by car to ORG , the first applicant had a car accident . CARDINAL of the front wheels of his car had broken off , causing the car to roll over twice . His co - driver had been thrown out of the car and the applicant , who had been driving the car , had lost consciousness . The traffic police drew up a report and left . A friend took them and the car back to LOC . When the first applicant reported the accident to the police as requested by the latter , he was told that the accident had been caused by him driving too fast . According to the first applicant this was untrue as he had driven at a normal speed . The first applicant had taken the police report to Z who DATE like the first applicant DATE had found it rather odd and would look into it .

On DATE Z ’s wife had called the first applicant and told him that Z had suddenly died of food poisoning . The first applicant had not believed this and suspected murder . Now fearing for his family and himself , he had started to make preparations to leave GPE which he and his family had done on DATE . With the aid of a “ travel agent ” to whom they had given their identity documents the applicant , his wife and their daughter had travelled first by train to GPE and later by car to the GPE . This travel agent had not returned their identity documents .

The asylum statement of the second applicant , who had also applied for asylum on behalf of the couple ’s CARDINAL young children , was based on the asylum statement given by the first applicant . She also stated that her mother and brother were living in GPE . Her father had died in DATE .

On DATE the Deputy Minister of Justice ( ORG ) issued a notice of her intention ( voornemen ) to reject the first applicant ’s asylum application . On DATE the Deputy Minister issued the same notice to the second applicant .

NORP The Deputy Minister considered at the outset that the applicants’ failure to substantiate in a sufficient manner their stated identity , nationality and travel itinerary as well as their failure to give a detailed , coherent and verifiable account of their journey to the GPE cast doubt on the sincerity of their asylum claim and detracted from the credibility of their asylum statement . As to the question whether the ORG asylum statement should nevertheless be accepted as positively persuasive ( positieve overtuigingskracht ) , the Deputy Minister found that the events as described by the first applicant were credible , i.e. the receipt of the letter , the threatening telephone calls and having been assaulted once in the stairwell of the building where he used to live . Noting , inter alia , that the name of X had never been mentioned in the phone calls or by the men who had assaulted the first applicant , the Deputy Minister found that it could not be established that these acts were carried out by accomplices of X and in his name . The Deputy Minister further found that the applicants could and should have reported the threatening telephone calls and the assault in the stairwell to the NORP authorities and that it had not been demonstrated that these authorities would be incapable of providing protection .

On DATE , assisted by a lawyer , the applicants submitted written comments ( zienswijze ) on the notice of intent sent to both applicants .

On DATE , in CARDINAL separate decisions and referring to the above notices , the Deputy Minister rejected the applicants’ asylum applications , finding that they had failed to dispel the doubts about the credibility of their asylum statement . The Deputy Minister maintained that the applicants had failed to substantiate their claim that PERSON was corrupt . The fact that government corruption occurred in GPE did not mean that X was personally corrupt as well . The Deputy Minister also maintained that the applicants had failed to establish that X was responsible for the events described by them . These acts could equally have been carried out by accomplices of other powerful men . The Deputy Minister also did not find it demonstrated that the applicants would run a risk of treatment contrary to LAW if they were expelled to GPE .

In its judgment of CARDINAL DATE ORG ( rechtbank ) of GPE sitting in PERSON accepted the applicants’ appeal , quashed the impugned decisions of QUANTITY DATE , and ordered a fresh determination of the applicants’ asylum claim . It accepted the Deputy Minister ’s findings in respect of the absence of any identity documents and the failure to give a detailed , coherent and verifiable account of their journey to the GPE , as well as the Deputy Minister ’s conclusion that it was not credible that the death of Y and Z and the first applicant ’s car accident resulted from intentional acts instructed by PERSON or committed in his name . However , the Deputy Minister had given insufficient reasons for finding that the applicants’ suspicion that there was a connection between X and the threatening telephone calls received by the applicants and the first applicant ’s assault in the stairwell lacked positive persuasiveness as both the threats and the assault were connected to the letter which the applicant had received from DATE was not altered by the fact that it did not appear from general sources that X was involved in corruption or other illegal practices , when taking into account X ’s interest in keeping the content of the letter written by Y quiet given that – according to the official report ( ambtsbericht ) on GPE of DATE as compiled by the Minister of ORG ( Minister PERSON ) DATE the great discontent in the NORP population over the widespread poverty in the country and the corruption in government circles had probably worked to the advantage of X who had campaigned with promises of change and of combatting corruption and income inequality .

On DATE , the Minister for Immigration and Asylum ( Minister PERSON ) , the successor to the Deputy Minister of ORG , filed a further appeal with ORG ( Afdeling Bestuursrechtspraak ) of ORG ( PERSON ) , arguing essentially that it was for the Minister to assess the credibility of the facts submitted by an asylum - seeker and that the courts could only examine that assessment with due reticence ( terughoudend ) . Referring to the ORG ’s case law , the Minister submitted that ORG had overstepped its competence . Pursuant to the system of asylum proceedings , in appeal proceedings ORG should only have determined whether the administrative authority concerned ( i.e. the Minister ) had exercised its administrative powers in a reasonable manner and whether this authority could reasonably have taken the impugned decision ( marginale toetsing ) . In this case however , ORG had made its own findings of fact , substituting them for the findings made by the Minister .

On DATE ORG accepted the Minister ’s further appeal , quashed the impugned judgment of CARDINAL DATE and rejected the ORG appeal . It held that , instead of examining whether the Minister could not reasonably have reached the conclusions as to the credibility of the applicants’ asylum statement , ORG had wrongly drawn its own separate conclusions in relation to various parts of the asylum statement . It therefore quashed the judgment of ORG and substituted it with its own decision on the appeal , holding that the Minister could reasonably have concluded that the applicants’ stories lacked positive persuasiveness . Accordingly , the applicants had not established that their removal to GPE would expose them to a real and personal risk of being subjected to treatment in violation of LAW . No further appeal lay against this decision .

On DATE the Government informed the ORG that the Departure and Repatriation Service ( PERSON ) of ORG and ORG ( PERSON Justitie ) were taking action for the applicants’ removal to GPE by presenting them to the NORP authorities .

On DATE the President of the Section decided , under Rule CARDINAL § CARDINAL ( c ) of ORG , that the Government should be invited to submit further observations dealing specifically with aspects of the applicants’ effective removal to GPE .

In their reply of CARDINAL DATE , the Government informed the ORG that the removal of rejected asylum - seekers to GPE is only possible when they hold a valid travel document . The Government further stated that they had applied for a laissez - passer on behalf of the applicants at ORG where the applicants had been presented in person in DATE . The applications had been taken into consideration by the authorities of GPE . The GPE authorities are still awaiting the response and have been sending reminders to ORG once or DATE , the most recent one having been sent on DATE .

In their reply of CARDINAL DATE , the applicants confirmed that they had been presented to the NORP authorities . They further stated that their nationality had been officially confirmed and that the request for a travel document ( laissez - passer ) was still pending . They could and would be removed to GPE as soon as these documents were issued .

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