CASE OF DENISOVA AND MOISEYEVA v. RUSSIA

Remainder inadmissible;Violation of P1-1;Just satisfaction reserved

Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicants were born in DATE and DATE respectively and live in GPE . They are wife and daughter of Mr PERSON , who was also an applicant before ORG ( see PERSON v. GPE , no . CARDINAL , DATE ) .

On DATE ORG of ORG of GPE ( the ORG ) opened criminal proceedings against PERSON . At TIME a search was conducted at the applicants ' flat . Foreign currency , the keys and registration papers for a ORG car , and the second applicant 's personal computer were seized . Simultaneously a search was carried out at Mr PERSON 's office . In total , the investigators seized MONEY .

On DATE the investigator seized from the first applicant the keys to garage no . CARDINAL .

On DATE Mr PERSON was formally charged with high treason , an offence under LAW .

On DATE the investigator ordered a charge to be placed on the ORG car with a view to “ securing possible forfeiture of the defendant 's property in accordance with LAW .

On DATE the investigator informed the director of the ORG bank of the freezing of Mr PERSON 's foreign currency and NORP rouble accounts .

On DATE and CARDINAL DATE the investigator issued charging orders in respect of the garage and the computer . On DATE the computer was physically removed from the applicants ' flat and placed in the material evidence room of ORG .

NORP On DATE the second applicant asked the investigator to return the computer , which was her personal property . On DATE the investigator replied that the computer had been seized with a view to securing possible forfeiture of Mr PERSON 's property and that certain files edited by PERSON had been discovered on the hard disc . The second applicant was informed that , if necessary , her text files would be copied and handed over to her .

On DATE the investigator ordered attachment of the seized MONEY as a material exhibit . On DATE ORG of the “ ORG ” issued a receipt for the money .

On DATE ORG convicted PERSON of high treason committed DATE , sentenced him to DATE and DATE imprisonment and issued a confiscation order in respect of his property . The parts of the judgments relevant to the determination of the property matters read as follows :

“ Mr PERSON 's pre - trial deposition that he had received remuneration for information transmitted to a representative of a foreign state has been confirmed by the search records , noting the discovery of GPE dollars both in his office and at his place of residence . The witness B. confirmed that the search had uncovered MONEY sorted into non - standard envelopes .

Both Mr PERSON and his wife PERSON who was interviewed as an additional witness at trial , had been present during the search but raised no objections . Accordingly , the court considers that the decision attaching the MONEY seized in PERSON office , the MONEY , and CARDINAL envelopes as material exhibits was justified ...

Having regard to the public dangerousness of the committed crime , the court orders confiscation of Mr PERSON 's property . The court decides on the destiny of the material exhibits in accordance with LAW ...

A confiscation order is issued in respect of the property that has been seized : [ the ORG car , foreign currency and NORP rouble bank accounts , garage no . CARDINAL , and the computer ] , as well as the cash funds of MONEY which have been criminally acquired . ”

On DATE the first applicant asked ORG to order the return of her spousal property and to remove the garage from the list because it was rented rather than owned . She did not receive a response to her request .

On DATE ORG upheld the conviction .

On DATE ORG sent an excerpt from the judgment of DATE to the ORG 's Finance and ORG for enforcement of the confiscation order in respect of the cash funds . The covering letter read as follows :

“ Confiscation order to be executed in respect of PERSON cash funds in the amount of [ unreadable ] GPE dollars as having been criminally acquired and stored at the ORG [ according to ] receipt no . CARDINAL of DATE . ”

On DATE ORG issued CARDINAL writs of execution for enforcement of the confiscation order in respect of Mr PERSON 's property at his place of residence , the ORG car , the garage , the bank accounts and the computer .

On DATE the cash funds in the amount of MONEY were received by the ORG from the ORG 's Finance and ORG and credited to the ORG .

On DATE a bailiff discontinued enforcement in respect of Mr PERSON 's property located in his flat because no chargeable items had been found .

By a decision of DATE , a bailiff ordered the removal and sale of the computer and declared enforcement completed . On DATE the computer was evaluated at MONEY ( RUB ) and subsequently sold for RUB CARDINAL .

On DATE a bailiff discontinued enforcement in respect of Mr PERSON 's foreign currency and NORP rouble bank accounts . He determined that no accounts in his name were listed in the bank 's database .

On DATE a bailiff determined that the garage was in fact a collapsible metal structure located on a rented plot , in respect of which the rent agreement had expired . Accordingly , he held that its removal or sale were impossible .

Following the amendments of LAW ( see paragraph CARDINAL below ) , PERSON asked ORG to relieve him from the auxiliary penal sanction in the form of the confiscation order . On DATE ORG found that the enforcement of the confiscation order had been discontinued or terminated in respect of everything but the ORG car . Since the auxiliary penal sanction of confiscation had been removed from LAW , ORG decided to return the car to PERSON . On DATE ORG of GPE upheld that judgment on appeal .

On DATE the first applicant sued the court bailiffs and ORG before ORG of GPE , seeking to have the charging orders lifted and to have her right to CARDINAL of the marital property , excluding the bank deposits , recognised . She submitted that she had been married to PERSON since DATE and that ORG provided for equality of spouses ' portions of the marital property . Relying on PERSON pay statements , she argued that from DATE to DATE he had earned MONEY and thus the amount of MONEY could not be considered to have been unlawfully acquired . She indicated that the garage had been rented in DATE , and that the computer had been the second applicant 's property .

On DATE , CARDINAL and DATE the court heard the parties . As the first applicant withheld consent to the substitution of ORG for the ORG and to PERSON as co - defendant , Mr PERSON joined the proceedings as a third party .

On DATE the ORG delivered a judgment . The entire reasoning read as follows :

“ Having assessed the collected evidence , the court dismisses [ the first applicant 's ] claim because the judgment of ORG established that the contested property had been criminally acquired , which makes it impossible to recognise the plaintiff 's right to CARDINAL of the seized property , and also [ because ] the ORG is not a proper defendant in this case . Neither [ the first applicant ] nor Mr PERSON have been deprived of an opportunity to appeal against the conviction in the part concerning the contested property . ”

On DATE ORG upheld the judgment on appeal , noting that the claimed property had been found to have been criminally acquired by ORG judgment of DATE .

On DATE the applicants sued ORG of GPE , seeking the lifting of the charging orders and recognition of the first applicant 's DATE of the spousal property and the second applicant 's ownership of the computer .

On DATE the ORG of GPE dismissed their claim , finding as follows :

“ It follows from the judgment of DATE that the cash funds in the amount of MONEY had been criminally acquired ... On DATE they were deposited with the ORG bank with a view to confiscation and credit to the State ... Accordingly , the court can not agree with PERSON claim to CARDINAL of the spousal part of the said cash funds . No other judicial documents relating to the origin of the contested cash funds have been produced before the court , whereas , pursuant to LAW , the facts established by a final judicial decision in an earlier case bind the court .

As to PERSON claims for recognition of her ownership of the computer and peripherals , it can not likewise be satisfied because they have not been corroborated during the examination of the merits of the case . At present the said property has been confiscated and sold , which is confirmed by the bailiffs ' information about the enforcement of the confiscation order in that respect . ”

On DATE ORG upheld , in a summary fashion , ORG judgment .

Property acquired by spouses in marriage is presumed to be jointly owned ( LAW , LAW ) . A child owns property which he or she has received as a gift ( LAW ) . Giving does not require a written agreement , handover of the gift being sufficient ( LAW ) .

The Criminal Code provides that “ penalty shall be imposed on a person found guilty of commission of a crime ” ( DATE ) . Confiscation of property is a form of penal sanction which is auxiliary to the main sanction and defined as “ compulsory withdrawal , in whole or in part , without compensation , of the property owned by the convicted person ” ( LAW . On DATE , Article CARDINAL was removed from LAW .

As worded at the time of Mr PERSON 's conviction , LAW provided that high treason carried a punishment of up to DATE imprisonment that may or may not be accompanied by a confiscation order in respect of the convict 's property . On DATE the reference to the possibility of issuing a confiscation order was deleted .

The RSFSR Code of Criminal Procedure , as worded at the time of Mr PERSON 's conviction , provided as follows :

“ The judgment ... must decide on the destiny of the exhibits , and :

( CARDINAL ) instruments of crime which belong to the accused shall be confiscated and passed on to a competent agency or destroyed ;

( CARDINAL ) NORP criminally acquired money and other assets shall be confiscated to the profit of the ORG ; other items shall be returned to their lawful owners , or , if the owners can not be established , shall become the ORG 's property . In case of a dispute over the ownership of such items , the dispute shall be resolved in civil proceedings ... ”

“ With a view to securing a civil claim or a possible confiscation order , the investigator must charge the property of the suspect , defendant ... or of the other persons who keep criminally acquired property ... If necessary , the charged property may be impounded ... ”

Article CARDINAL § CARDINAL of the Code of Civil Procedure provides :

“ A dispute over the ownership of the charged property initiated by persons who were not parties to the case shall be examined as a civil claim .

A claim for having the charging order lifted shall be made against the debtor and creditor . If the property has been charged or seized in connection with a confiscation order , the person whose property is to be confiscated , and the competent ORG authority shall be co - defendants ... ”

Resolution no . CARDINAL of ORG of the GPE “ On the case - law concerning confiscation of property ” ( of DATE , as amended on CARDINAL DATE ) provided :

“ CARDINAL . ... The court should bear in mind that in case of confiscation of the convict 's property in its entirety , the confiscation order should only apply to his or her personal property and to his or her part of the jointly owned property , it may not extend to the part of other persons who own that property jointly with the convict . Rights and lawful interests of the convict 's family members living with him , must be respected ...

The courts should bear in mind that even if the criminal judgment contained a list of specific property items liable to confiscation , third parties still may claim their title to that property in civil proceedings ... The courts must consider such claims and the criminal judgment does not bind the civil court in its determination of the dispute over the contested property .

However , if the criminal judgment established that the listed property items had been criminally acquired or paid for with criminally acquired assets , but registered in other persons ' names with a view to concealing them from confiscation ... then the claim for lifting of the charging order shall be dismissed . ”

Resolution no . CARDINAL of ORG of the GPE “ On legal requirements for examination of claims for lifting of charging orders ” ( of DATE , as amended on CARDINAL DATE ) provided :

“ CARDINAL . When considering a spouse 's claim for lifting the charging order in respect of his or her part in the joint marital property , the court must bear in mind that ... the property acquired in marriage is jointly owned by the spouses and in case of division their parts are presumed equal ...

The court must determine the actual size of the spouse 's portion of the marital property and the specific items allocated to him or her , having regard to the entirety of the jointly acquired property , including the property that is not – by operation of law or otherwise – liable to confiscation . Each spouse 's portion shall include both the property liable to confiscation and that not liable to confiscation ... ”


Violation of Art. 5-3;No violation of Art. 5-4;Violation of Art. 6-1;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested on the suspicion of shooting her husband , Lieutenant - General PERSON , a member of ORG . An investigator of the GPE Region prosecutor 's office authorised her detention on remand . The applicant was placed in detention facility no . IZ-CARDINAL/CARDINAL in LOC .

On DATE the applicant was charged with murder under LAW and questioned as an accused in the presence of PERSON , a lawyer retained by her . She chose to remain silent on the merits of the charge against her and requested that the investigator be replaced because he had allegedly intimidated her and showed lack of respect for her and her family . On an unspecified date the applicant 's request was rejected as unsubstantiated .

On DATE ORG of GPE ( the lower chamber of ORG ) established a special commission to monitor the progress of the investigation into the circumstances of ORG death ( “ the PERSON commission ” ) .

On DATE the applicant 's detention on remand was extended until DATE . The applicant did not appeal against the extension order .

On DATE the applicant 's detention was extended until DATE , that is for a total of DATE starting from DATE of her arrest . On DATE the applicant 's lawyers appealed to a court against the extension order . They complained , in particular , about unreasonable delays in the investigation of the charge against their client and pointed to her frail health . The applicant submitted a supplementary complaint against the extension order ; she indicated that her prolonged separation from her mentally disturbed son was detrimental to his health .

On DATE the ORG of GPE rejected the appeals against the extension order . It held that the detention on remand had been imposed and extended “ without any substantial violations of the law of criminal procedure ” and that the detention was justified “ because [ the applicant ] was charged with an especially serious criminal offence ” . The court found no grounds to release the applicant on bail . On DATE and CARDINAL and DATE the applicant 's lawyers appealed against the decision of the district court . They submitted that the court had not taken into account the applicant 's deteriorating health , long periods of inactivity of the team of CARDINAL investigators , discrepancies in the applicant 's confessions . They also alleged that the court had failed in its duty to give relevant and sufficient reasons for the continued detention . On DATE ORG heard the appeal and ruled that the suspicion against the applicant that she had committed an especially serious criminal offence was , pursuant to LAW , a sufficient ground for her detention on remand .

On DATE ORG of GPE adopted a special address to ORG . Members of ORG noted that the investigation was lingering , while the applicant remained in custody . On DATE the Duma commission members had met the applicant in prison and found her health unsatisfactory . In view of the applicant 's poor health and adverse effects of her long separation from her mentally disturbed son and given that she was not a public danger , the PERSON requested ORG to consider the applicant 's release from custody on humanitarian grounds .

On DATE the applicant 's detention on remand was extended until DATE , i.e. for a total of DATE . The applicant 's lawyers appealed against the extension . They requested that the applicant be released , citing her poor health and excessive delays in the investigation .

On DATE the ORG of GPE found that the applicant 's detention had been extended lawfully and no substantial violations of the laws of criminal procedure had occurred . The court held that , pursuant to LAW , the suspicion of an especially serious criminal offence was a sufficient ground for the holding in custody and that there were no exceptional grounds warranting the applicant 's release . The court also noted that the applicant 's state of health permitted her holding in custody .

On DATE ORG dismissed the applicant 's lawyers ' appeal against the district court 's decision . It upheld the district court 's interpretation that the existence of a suspicion of involvement in an especially serious criminal offence had been a sufficient ground for the continued detention on remand . The court examined the medical certificates submitted by the applicant 's defence and held that in the absence of any life - threatening medical condition and given that the applicant 's adult daughter was taking care of her brother , the applicant should remain in custody .

On DATE an extension of the detention on remand was authorised until DATE . The applicant did not appeal against the extension order .

On DATE the acting Prosecutor General of ORG authorised the applicant 's detention until DATE , i.e. for a total of DATE .

On DATE the applicant 's counsel , PERSON , introduced an appeal against the detention order of CARDINAL DATE , LAW . According to the stamp on the first page , the registry of ORG received the statement of appeal on DATE .

On DATE or DATE [ the date is unreadable ] the applicant filed a handwritten statement of appeal against the order of CARDINAL DATE . On DATE the head of the FAC detention centre forwarded it , along with the applicant 's medical certificate , to ORG . According to the stamp on the forwarding letter , the court received the document on DATE .

NORP The applicant and her lawyer complained about unjustified delays in the investigation and submitted that the applicant 's health and that of her son were steadily deteriorating .

By an interim decision of DATE , ORG scheduled the examination of the appeal by PERSON , for DATE , at TIME , with the participation of a prosecutor , the applicant and her counsel .

According to the covering note produced by the Government , on CARDINAL DATE ORG office sent certain materials relating to the lawfulness of the applicant 's detention to ORG .

On DATE the applicant was not brought to the court because she had fallen ill . The prosecutor and her counsel objected to holding the hearing in her absence . The hearing was adjourned until DATE .

On DATE ORG of GPE heard the appeals against the extension order and dismissed them . The court held that “ the imposition of a preventive measure in the form of placement in custody and [ subsequent ] extension of the detention in respect of the applicant were lawful and justified ” . As to the defence 's arguments about the applicant 's medical condition and adverse effects of her separation from her son , the court found that these arguments were not “ the grounds that would render the preventive measure applied to [ the applicant ] unlawful or unjustified ” . The court also added that it was not competent to impose a different “ preventive measure ” on the applicant , such decision being in the exclusive competence of investigators and prosecutors .

On CARDINAL , CARDINAL and DATE the applicant 's lawyers appealed against the decision of DATE . They submitted that the court did not take into account significant changes in the applicant 's situation after DATE of detention , including the worsening health of her son , and that it did not give any relevant reasons for the continued detention .

On DATE by ORG upheld the decision of DATE . The court confirmed the conclusions of the first instance court to the effect that “ the placement in custody as a preventive measure could be imposed on the sole ground of gravity of the [ committed ] offence ” . On the basis of a medical certificate issued by the detention facility on DATE the court determined that the applicant could remain in custody .

On DATE the acting Prosecutor General of GPE applied to ORG for an extension of the applicant 's detention until DATE .

On DATE ORG refused ORG application . It established that on DATE the applicant and her lawyers had finished studying the case - file and there were therefore no lawful grounds to extend her detention beyond the maximum DATE period .

On DATE the prosecutor ordered the applicant 's release from custody on the condition that she sign an undertaking not to leave the city .

On DATE the ORG of the GPE Region convicted the applicant of premeditated murder and sentenced her to DATE imprisonment in a correctional colony . The court excluded the record of the interview made on DATE following the arrest as inadmissible evidence because the applicant had been interviewed in the absence of a counsel , her rights had not been explained to her , she had not been informed of video - recording and because there were substantial discrepancies between the videotaped statements and the printed record .

On DATE ORG upheld the conviction . It established , however , mitigating circumstances in the applicant 's case and reduced her sentence to DATE imprisonment .

On DATE ORG of GPE , by way of supervisory review proceedings , quashed the judgments of CARDINAL DATE and DATE and remitted the case to the ORG of GPE for a new examination .

Since DATE the criminal case against the applicant has been pending before the ORG of LOC .

On DATE the proceeding were stayed because of the applicant 's illness . They were resumed on an unspecified date .

On DATE the applicant was taken to a hospital after she had a heart attack in the courtroom .

On DATE the proceedings were stayed again because of the applicant 's illness . They were resumed on an unspecified date .

On DATE the proceedings were adjourned until DATE at the applicant 's daughter 's request .

On DATE the hearing was adjourned because CARDINAL lay assessor had fallen ill .

On DATE the applicant did not appear at the hearing because she had to attend to her son .

On DATE the hearing was adjourned owing to the applicant 's counsel 's absence . On DATE another counsel for the applicant did not appear .

On DATE the court decided to hold a new directions hearing because , by virtue of recently amended LAW , the applicant 's case could be tried either by a single judge or by a CARDINAL - judge bench . On DATE the applicant applied for trial by a single judge .

The case is still pending before the trial court .

The Code of Criminal Procedure of the NORP Federalist Socialist Republic ( “ the CCrP ” ) of CARDINAL DATE ( effective until DATE ) listed as “ preventive measures ” or “ measures of restraint ” , inter alia , an undertaking not to leave a specified place and placement in custody ( LAW ) .

A decision to order detention on remand could only be taken by a prosecutor or a court ( Articles CARDINAL , CARDINAL and DATE ) . In making this decision the relevant authority was to consider whether there were “ sufficient grounds to believe ” that the accused would flee from investigation or trial or obstruct the establishment of the truth or re - offend ( LAW ) , as well as to take into account the gravity of the charge , information on the personality of the accused , his ( her ) profession , age , state of health , family situation and other circumstances ( LAW ) .

DATE . At the material time the accused could be placed in custody if he or she was charged with a criminal offence carrying a sentence of DATE imprisonment or in exceptional circumstances ( LAW ) . If the accused was charged with any of the serious intentional offences listed in LAW , including manslaughter , the detention on remand could be imposed on the sole ground of the dangerousness of that offence . LAW of ORG specifically directed the courts to avoid making any assessment of collected evidence or drawing conclusions as to the accused 's guilt or innocence in the decisions concerning the lawfulness and justification of the placement in custody ( Resolution of the Plenary Session of ORG of GPE , no . CARDINAL of CARDINAL DATE , paragraph CARDINAL ) .

A prosecutor 's order , or a court decision , ordering detention on remand was to be reasoned and justified ( Article CARDINAL ) . The accused was to be informed of the detention order and to have explained the procedure for lodging an appeal against it ( Article CARDINAL ) .

The Code distinguished CARDINAL types of detention on remand : CARDINAL was “ during the investigation ” , that is when an authorised agency – the police or a prosecutor 's office – undertook investigative measures , and the other was “ before the court ” ( or “ during the trial ” ) , that is when the trial court examined the case . Although there was no difference in practice between them ( the detainee was normally held in the same detention facility ) , the calculation of time - limits was different .

After his or her arrest the person was placed in custody “ during the investigation ” . The maximum permitted term of detention “ during the investigation ” was DATE but it could be extended for DATE in “ exceptional circumstances ” . Extensions were authorised by prosecutors of ascending hierarchical levels , up to ORG . No extensions beyond DATE were permitted ( LAW ) .

The term of detention “ during the investigation ” was calculated until DATE when the investigation was considered completed and the defendant was given access to the case file ( Articles CARDINAL , CARDINAL , CARDINAL and CARDINAL ) . The access was to be granted DATE before the authorised detention period expired ( Article CARDINAL ) . If the defendant needed additional time to study the case - file , a judge acting on a request by a prosecutor could grant an extension of the defendant 's detention on remand until such time as the reading of the file was completed , but for no longer than DATE .

Once the investigation was considered to be complete and the defendant had received the bill of indictment and finished reading the case file , the file was transferred to a trial court . From DATE the defendant 's detention was “ before the court ” ( or “ during the trial ” ) . At the material time the Code set no time - limit for detention “ during the trial ” .

The detainee or his ( her ) counsel or representative could challenge the detention order , or any subsequent extension order , to a court ( Article CARDINAL ) . The judge was required to review the lawfulness and justification of a detention or extension order DATE after receipt of the relevant materials . The review was to be conducted in camera in the presence of a prosecutor and the detainee 's counsel or representative . The detainee was to be summoned and a review in his absence was only permissible in exceptional circumstances when the detainee waived his right to be present of his ( her ) own initiative . The judge could either dismiss the challenge or revoke the detention on remand and order the detainee 's release . A judge 's decision was to be reasoned ( Article CARDINAL ) .

An appeal against the judge 's decision lay to a higher court . The time - limit for examination of such an appeal was the same as that established for appeals against the conviction ( see below ) ( Article CARDINAL ) .

The case examination was required to start DATE after the judge issued a procedural order fixing a hearing date ( Articles DATE and CARDINAL ) . The duration of the trial was not limited in time .

The appeal court was required to examine an appeal against the first - instance judgment within DATE upon its receipt . In exceptional circumstances or in complex cases or in proceedings before ORG of GPE this time - limit could be longer , DATE ( Article CARDINAL ) . No possibility of further extensions was provided for .


The applicant , Mr PERSON , is an NORP national , who was born in DATE and currently lives in GPE , GPE . The application was introduced by the applicant ’s wife , PERSON , on his behalf . The respondent Government are represented by Mr PERSON , Deputy ORG - Secretary , ORG .

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

The applicant arrived in GPE from GPE in DATE as a tourist . He has lived there ever since , although he never obtained a residence permit . In DATE he married a NORP national . CARDINAL children have been born of the marriage .

On DATE ORG convicted the applicant of attempted murder on account of the fact that , in the course of a quarrel , he had stabbed a Mr A. He was sentenced to DATE imprisonment and to expulsion from GPE on his release from prison . On DATE ORG upheld the judgment .

Subsequent to his early release from prison , on DATE ORG of ORG ordered that the applicant be expelled and banned from the territory of GPE for a DATE period . The territorial ban was made under LAW no . DATE on ORG . He unsuccessfully lodged an objection against the ban with ORG .

On DATE the applicant ’s petition for a pardon was turned down by the President of the Republic . On DATE ORG ordered the immediate enforcement of the expulsion order .

On DATE the President of the Republic pardoned the applicant in respect of the territorial ban .

The applicant ’s wife submitted that , notwithstanding this pardon , no residence permit has ever been issued to the applicant .

On DATE the Government informed the ORG that – despite the grant of a pardon removing any legal obstacles to the issue of a residence permit DATE the applicant had failed to request a permit from the competent GPE and GPE Regional Directorate of ORG . Meanwhile , criminal proceedings have been instituted against the applicant on charges of drug abuse . In this connection , a ‘ certificate of temporary GPE , to be renewed DATE , has been issued to the applicant ex officio pending his trial . A bill of indictment was preferred on DATE .

On DATE the Registry invited the applicant to comment on the ORG ’s submissions . This letter was received at the applicant ’s address against signature on DATE . There has been no communication with the Registry from the applicant ever since .


Violation of Art. 8;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant , Mr PERSON , is a GPE national who was born in DATE and lives in GPE .

On DATE the applicant married NORP , a NORP national who was born in DATE . They decided to live in GPE ( GPE ) .

On DATE their son , C. , was born there . He is a national of GPE and of GPE . Parental responsibility was exercised jointly by both parents .

DATE NORP made several trips to GPE , sometimes accompanied by C. She decided to settle there with the child , in the municipality of LOC ( GPE of GPE ) , from CARDINAL DATE .

On DATE , NORP and PERSON moved to PERSON ( GPE of GPE ) .

On DATE NORP petitioned for divorce before GPE ( GPE of GPE ) and at the same time requested interim measures for the duration of the divorce proceedings , particularly with a view to obtaining custody of the child .

NORP On DATE the applicant petitioned for separation before a GPE court .

In a decision of DATE , the President of the appropriate division of ORG provisionally granted NORP custody of C.

On DATE the applicant started proceedings in ORG . Relying on LAW of DATE on ORG ( “ LAW ” , see paragraph CARDINAL below ) , he sought an order that his son be returned promptly to GPE . In support of his request he stated that his wife had gone to GPE in DATE , accompanied by the child , for DATE and also for health reasons . The applicant had joined her for a DATE holiday in DATE and had agreed with his wife that he would return alone to the GPE on DATE . Just before his departure NORP had , however , presented him with a divorce agreement . He had found it unacceptable and had thus refused to sign it . He then returned to the GPE without his child .

In a decision of DATE the President of the appropriate division of ORG ordered NORP to surrender PERSON 's passport and prohibited her from leaving GPE . At the same time , he decided to join the proceedings concerning the child 's return to the divorce proceedings , including the determination of rights of custody and access .

On DATE NORP deposited the child 's NORP passport .

On DATE NORP submitted her observations on the request for the child 's return to the GPE , arguing that the parties had decided to move to GPE at DATE . Thus , she alleged , the provisions of LAW were not applicable to the present case .

On DATE the President of ORG dismissed the applicant 's request for the child 's return to the GPE . He found that the situation admittedly appeared to be one of wrongful removal or retention within the meaning of DATE , sub - paragraph ( a ) , of LAW , given that parental responsibility for C. had been exercised jointly by both parents under the applicable laws of GPE where the child had habitually resided before his removal . The President further acknowledged that the decision of DATE to join the proceedings concerning the child 's return and the divorce proceedings had not complied with LAW , which precluded any decision on the merits of rights of custody before the ruling on the child 's return .

The court nevertheless refused to grant the request for the child 's return to the GPE , finding that the applicant had consented to the removal and retention of the child , thus removing any wrongfulness from NORP 's conduct for the purposes of LAW , sub - paragraph ( a ) , of LAW .

In the absence of witnesses , the President of the appropriate division of the court examined whether the applicant 's allegations could be regarded as sufficiently credible ( hinreichend glaubhaft ) . He found that the applicant had been unable to submit evidence in support of his allegation that , whilst he had agreed to the mother 's temporary stay in GPE , this had only been on the condition that she return the child to GPE once her visit to GPE for medical treatment had ended . Moreover , the judge took the view that the applicant had failed to show that the mother 's health problems had been resolved in DATE and that NORP 's residence in GPE was thus no longer justified from that time . On the contrary , the applicant could not reasonably have believed that his wife and child were only going to remain in GPE for a short time , as the mother had had herself registered in CARDINAL NORP municipalities in succession and had taken steps to find work there . The applicant had been kept informed of all these developments by his wife , whom he had in fact visited on several occasions .

In view of the above , the judge of ORG found , first , that the child 's removal to GPE had not been unlawful under LAW , sub - paragraph ( a ) , of LAW , since the applicant had given his express consent , and , secondly , that there was insufficient evidence to substantiate the allegation of the child 's wrongful retention .

In parallel the applicant brought an action for unjustified delay before ORG ( Obergericht ) of the GPE of LOC . He requested , firstly , an immediate decision on his application of DATE for the child 's return to GPE , and , secondly , the opening of a disciplinary procedure and the taking of appropriate measures against the President of ORG .

In a decision of CARDINAL DATE ORG supervisory panel ( Inspektionskommission des Obergerichts ) observed that the impugned decision , concerning the child 's return to the GPE , had been given in the meantime , on DATE . It noted that ORG had exceeded the DATE time - limit provided for in LAW for a decision on the child 's return . It further found that there had been an unjustified delay in the proceedings brought by the applicant . As regards the requested disciplinary measures against the President of ORG , the panel found that such measures were not appropriate having regard to the circumstances that had led to the delay . It pointed out that the President of ORG was required to adhere to a calendar that the panel itself had imposed , requiring disposal of older cases and the holding of hearings that could not be adjourned . Other factors came into play , such as the absence of a greffière and the busy DATE period . The panel also found that there were no indications to suggest that the delay could be attributed to other grounds , of a political nature , as the applicant had claimed .

On DATE the applicant lodged a second appeal before the GPE of ORG against ORG decision of CARDINAL DATE , arguing among other things that the latter had reversed the burden of proof , in patent disregard of LAW .

CARDINAL Par une décision du DATE , la cour d’appel rejeta ce recours.<}CARDINAL{>. NORP In a decision of DATE ORG dismissed the applicant 's appeal.<CARDINAL } Whilst it acknowledged that the President of ORG had wrongly reversed the burden of proof against the applicantapplicant had , in a sufficiently unequivocal manner , consented to the child 's retention for an indefinite period .

On CARDINAL DATE the applicant lodged a public - law appeal with ORG , seeking the prompt return of his child to GPE . He alleged that there had been numerous violations of the right to be heard , in particular because ORG had not duly taken into account or had misconstrued his offers to adduce proof to show that he had not consented to his child 's retention . Moreover , he criticised the fact that ORG had merged the proceedings concerning the child 's return with the divorce proceedings and that its decision on the child 's return had by far exceeded the time - limit provided for LAW . Lastly , he argued that the reversal of the burden of proof clearly constituted a violation of LAW .

{ CARDINAL PERSON du DATE , le Tribunal fédéral rejeta le recours de droit public du requérant.<}CARDINAL{>InIn a judgment of DATE , ORG dismissed the public - law appeal.<CARDINAL } It did not call into question the fact that ORG had wrongly merged the CARDINAL sets of proceedings . However , it failed to address the question of the time taken by the court below to reach its decision .

ORG shared ORG view that the child 's removal and retention had a priori been capable of breaching the applicant 's right of custody within the meaning of LAW .

NORP However , ORG rejected the allegations concerning the right to be heard , indicating in detail the reasons why it considered unfounded the arguments put forward by the applicant to prove that he had not consented to his child 's retention in GPE . By contrast , ORG regarded it as established that the parties had decided , in DATE , that the mother and her child would settle in GPE on a long - term basis . It was proven , according to ORG , that the applicant had agreed that the mother would find employment and buy a car there . Moreover , it could not be argued that ORG had reached its conclusions only by reversing the burden of proof against the applicant . Thus , ORG found that ORG had properly applied LAW , sub - paragraph ( a ) , of LAW . Accordingly , it refused to order the child 's return to GPE .

On DATE the applicant lodged a request with ORG for the revision of the judgment of DATE . He alleged in particular that he had suffered discrimination as the child 's father .

In a judgment of CARDINAL DATE ORG declared the request for revision inadmissible , because the allegation about discriminatory treatment did not constitute a valid ground for revision under the applicable law .

On DATE the supervisory panel of ORG found that there had been no unjustified delay in the revision proceedings .

On DATE ORG declared inadmissible a request for the revision of the DATE judgment of ORG .

According to a letter from ORG in GPE , dated DATE , its staff had attempted in vain to make contact with the child 's mother .

On DATE the applicant lodged a request for a right of access .

On DATE ORG ordered that the applicant be granted a right of access .

On DATE ORG declared inadmissible another request for the revision of the judgment that it had given on DATE . That decision was served on the applicant , according to him , on DATE .

The relevant provisions of LAW DATE on ORG , which entered into force in respect of GPE on DATE , read as follows :

“ Preamble

The GPE signatory to the present Convention ,

Firmly convinced that the interests of children are of paramount importance in matters relating to their custody ,

Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the ORG of their habitual residence , as well as to secure protection for rights of access ,

Have resolved to conclude a Convention to this effect , and have agreed upon the following provisions :

Article CARDINAL

The objects of the present Convention are –

a ) to secure the prompt return of children wrongfully removed to or retained in any ORG ; and

b ) to ensure that rights of custody and of access under the law of CARDINAL ORG are effectively respected in GPE .

Article CARDINAL

The removal or the retention of a child is to be considered wrongful where –

a ) it is in breach of rights of custody attributed to a person , an institution or any other body , either jointly or alone , under the law of the ORG in which the child was habitually resident immediately before the removal or retention ; and

b ) at the time of removal or retention those rights were actually exercised , either jointly or alone , or would have been so exercised but for the removal or retention .

The rights of custody mentioned in sub - paragraph a ) above , may arise in particular by operation of law or by reason of a judicial or administrative decision , or by reason of an agreement having legal effect under the law of that ORG .

Article CARDINAL

The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights . The Convention shall cease to apply when the child attains DATE .

Article CARDINAL

For the purposes of this Convention –

a ) " rights of custody " shall include rights relating to the care of the person of the child and , in particular , the right to determine the child 's place of residence ;

b ) " rights of access " shall include the right to take a child for a limited period of time to a place other than the child 's habitual residence .

Article CARDINAL

A Contracting State shall designate a ORG to discharge the duties which are imposed by the ORG upon such authorities .

GPE with CARDINAL system of law or GPE having autonomous territorial organizations shall be free to appoint CARDINAL ORG and to specify the territorial extent of their powers . Where a ORG has appointed CARDINAL ORG , it shall designate ORG to which applications may be addressed for transmission to the appropriate ORG within that ORG .

Article CARDINAL

ORG shall co - operate with each other and promote co - operation amongst the competent authorities in their respective ORG to secure the prompt return of children and to achieve the other objects of this Convention .

In particular , either directly or through any intermediary , they shall take all appropriate measures –

a ) to discover the whereabouts of a child who has been wrongfully removed or retained ;

b ) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures ;

c ) to secure the voluntary return of the child or to bring about an amicable resolution of the issues ;

d ) to exchange , where desirable , information relating to the social background of the child ;

e ) to provide information of a general character as to the law of their ORG in connection with the application of the ORG ;

f ) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and , in a proper case , to make arrangements for organizing or securing the effective exercise of rights of access ;

g ) where the circumstances so require , to provide or facilitate the provision of legal aid and advice , including the participation of legal counsel and advisers ;

h ) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child ;

i ) to keep each other informed with respect to the operation of this LAW and , as far as possible , to eliminate any obstacles to its application .

Article CARDINAL

Any person , institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to ORG of the child 's habitual residence or to ORG of any other ORG for assistance in securing the return of the child .

The application shall contain –

a ) information concerning the identity of the applicant , of the child and of the person alleged to have removed or retained the child ;

b ) where available , the date of birth of the child ;

c ) the grounds on which the applicant 's claim for return of the child is based ;

d ) all available information relating to the whereabouts of the child and the identity of the person with whom the child is presumed to be .

The application may be accompanied or supplemented by –

e ) an authenticated copy of any relevant decision or agreement ;

f ) a certificate or an affidavit emanating from ORG , or other competent authority of the ORG of the child 's habitual residence , or from a qualified person , concerning the relevant law of that ORG ;

g ) any other relevant document .

LAW

The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children .

If the judicial or administrative authority concerned has not reached a decision within DATE from the date of commencement of the proceedings , the applicant or ORG of the requested ORG , on its own initiative or if asked by ORG of the requesting ORG , shall have the right to request a statement of the reasons for the delay . If a reply is received by ORG of the requested ORG , that ORG shall transmit the reply to ORG of the requesting ORG , or to the applicant , as the case may be .

LAW

Notwithstanding the provisions of DATE , the judicial or administrative authority of the requested ORG is not bound to order the return of the child if the person , institution or other body which opposes its return establishes that –

a ) the person , institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention , or had consented to or subsequently acquiesced in the removal or retention ; or

b ) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation .

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views .

In considering the circumstances referred to in this LAW , the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by ORG or other competent authority of the child 's habitual residence .

Article CARDINAL

After receiving notice of a wrongful removal or retention of a child in the sense of LAW , the judicial or administrative authorities of ORG to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this LAW or unless an application under this LAW is not lodged within a reasonable time following receipt of the notice .

Article CARDINAL

A decision under this LAW concerning the return of the child shall not be taken to be a determination on the merits of any custody issue . ”

In a recent case that is largely comparable to the present one , ORG upheld the appeal of a mother , a NORP national , who opposed a request for the return of her child made by the child 's father , a NORP national living in GPE . The court took the view that the father had “ subsequently acquiesced ” , within the meaning of LAW , sub - paragraph ( a ) , of LAW , in the child 's retention , especially because he had taken to GPE items belonging to the mother that were to be used by her in her professional activities in GPE ( see ORG judgment of DATE , CARDINAL ) . Generally speaking , ORG finds it easier to accept the existence of a tacit agreement as to the removal or retention of a child where the party requesting the child 's return has actively contributed to the settlement of the child and the accompanying parent in the destination country ( ibid . , see also the ORG judgment of DATE , ORG ) .


The first applicant , Mr PERSON Panevskii , is a national of GPE from its NORP region and was born in DATE . The second applicant , PERSON , was born ( to a NORP father and GPE mother ) in GPE in DATE . She holds neither a NORP nor NORP passport : she obtained a passport from the NORP authorities but it was confiscated in GPE in DATE . The third applicant , PERSON , is the first and second applicants’ child : he was born in GPE in DATE and therefore holds an NORP passport .

The references to the NORP and GPE authorities are made solely for the purpose of distinguishing between actions undertaken in the name of those authorities . Prior to the events in question , the first and second applicants were living in the NORP region of GPE .

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

The first applicant ’s parents were killed in the hostilities of DATE and he lived in an orphanage from DATE until DATE . He claims that he has been a GPE ’s Witness since in or DATE .

By summons of the NORP authorities of DATE , the first applicant was required to present himself for military service in GPE on DATE . The summons stated that he would be subjected to sanctions if he did not attend . On the copy of the summons submitted to this ORG was a hand - written note ( of DATE ) of a NORP criminal investigator indicating that the copy summons had been placed on the file of that investigator as evidence in a case ( No . CARDINAL - CARDINAL ) against the first applicant . He did not respond to the call for military service and claimed before this ORG that this was because of his religion .

By summons dated DATE and issued by the NORP authorities , the first applicant was required to attend the office of a criminal investigator on DATE on the basis of a suspected breach of LAW ( failure to present for military service ) . A further summons was issued by the same authority for the applicant ’s attendance on DATE . A copy of each summons was submitted to this ORG and both had the same hand - written note from the same NORP criminal investigator .

The first applicant claimed as follows : he attended that interview and QUANTITY police entered the room and beat him violently with a stool . They told him that he would be prosecuted for failing to report for military service . His arm was fractured and he had injuries to his back . He immediately left GPE for GPE where he was assisted by other GPE ’s Witnesses . He was obliged to make a report to the police in GPE about his injuries before he could get medical treatment . He obtained the report and then the medical treatment . He submitted to this Court a “ legal - medical ” report of a doctor assigned by the NORP police : it was stamped by ORG and dated DATE . Its stated purpose was to examine how the injuries had been caused . Reference was made to a “ dislocation of his right arm near the elbow ” and to “ contusion on the left leg ” . The first applicant claimed that this report put the NORP authorities on notice that he had avoided military service in GPE .

On DATE the NORP authorities published a “ search order ” including a photograph and description of the physical characteristics of the first applicant noting that he was accused of offences under , it appears , Articles CARDINAL - CARDINAL of the Moldovan Criminal Code ( avoidance of military service ) . The same hand - written note of the NORP criminal investigator was on the copy of that order submitted to this ORG . By summons dated DATE and issued by the NORP authorities , the first applicant was requested to attend on DATE before a NORP criminal investigator in connection with LAW ( concerning avoidance of military service ) .

By judgment dated DATE of ORG ( in Case No . CARDINAL - CARDINAL ) the first applicant was found guilty of a breach of ORG CARDINAL - CARDINAL of the Moldovan Criminal Code . The reasons were noted as follows :

– the first applicant had breached the law on military service in force on all of the territory of GPE . Indeed he had recognised that he was a deserter ;

– by virtue of the agreement between the authorities of GPE and GPE , everyone charged with offences committed on the territory of GPE or of GPE and who finds himself within the jurisdiction of one of the parties to that agreement , must be extradited to the authorities seized of the relevant investigation ;

– There was no reason requiring the applicant ’s recognition as a refugee in GPE as there was no risk of persecution in GPE because of his political or religious opinions . In addition , there was no possibility of an alternative to military service in GPE .

– Accordingly , the first applicant was to be extradited to GPE to the relevant authorities seized of the investigation there . The date of the extradition would be established by further decision of that court and the first applicant was to be informed by summons . He was required to be present when the date of extradition would be handed down .

By summons dated DATE a ORG required the first applicant ’s attendance on DATE . He did not appear and a search order was issued for him on DATE by ORG citing Articles CARDINAL - CARDINAL of the Moldovan Criminal Code . His photograph was included as well as a description of his physical characteristics . In DATE and DATE the NORP authorities also issued CARDINAL witness summons to the first applicant ’s former employer in GPE to attend the criminal investigator on DATE and on DATE . Copies of all CARDINAL summonses were placed on the Moldovan authorities’ investigation file concerning the first applicant .

The second applicant claimed she had been a GPE ’s Witness since DATE . It appears that in DATE she had a child ( PERSON ) : no complaint to ORG was made by him or on his behalf . The second applicant met the first applicant at a GPE ’s Witness meeting in DATE in GPE . She did not accompany the first applicant when he left for GPE in DATE although she visited him on a number of occasions in GPE .

She claimed that she was summonsed to appear CARDINAL times before a criminal investigator in GPE ( DATE and DATE ) . She attended on each occasion . She believed that the NORP police knew that she had contact with the first applicant and therefore maintained pressure on her . Initially they questioned her as a witness , requiring information about the first applicant . They then began to threaten to charge her with a criminal offence . They had searched her flat on a number of occasions during DATE . In DATE they searched her flat and found some GPE ’s Witness literature . Accordingly , in DATE when she appeared before a criminal investigator , she claimed that the authorities took her passport , made her sign a document undertaking not to leave the country and were preparing to charge her with illegal possession of the literature . She was scared and was already pregnant with the first applicant ’s child . She submitted a copy of CARDINAL summons : it was difficult to decipher its date but it required her to appear before a NORP criminal investigator for questioning ( under a provision of LAW ) and to bring her passport .

She therefore left in DATE and joined the first applicant in GPE on DATE .

Once the first applicant received the summons from the NORP authorities of DATE , he and the second applicant left GPE .

They travelled to GPE where they got on a truck which took them to GPE . They arrived in GPE on DATE . They applied for asylum on DATE . They completed their refugee status questionnaires ( CARDINAL and DATE , respectively ) and they were both interviewed on DATE . Reports pursuant to LAW were prepared .

On DATE the third applicant was born in GPE and he obtained an NORP passport on DATE . The first and second applicants’ consequent request for residency ( made in DATE ) has not yet been determined .

The first applicant completed his refugee status questionnaires on DATE and was interviewed on DATE . He claimed that he was a NORP ’s Witness and had therefore refused military service and that he would be persecuted for his faith in GPE . On DATE the Commissioner decided not to grant refugee status , finding as follows :

“ [ The first applicant ] has not demonstrated a well founded fear of persecution under a [ LAW ground . In order to qualify for refugee status [ the first applicant ] must “ demonstrate a well founded fear of being persecuted for reasons of race , religion , nationality , membership of a particular social group or political opinion ” and that he is unable or unwilling to avail himself of the protection of his country of origin . The incidents he referred to would not have amounted to persecution ...

In relation to the [ first ] applicant ’s claims it can not be doubted that FAC do experience some degree of discrimination in the NORP region of GPE and that distribution of any material in relation to this religious group is illegal . It is important then to consider that the [ first ] applicant seems to have been content to live in such an environment as previous to his problems in relation to military service he made no attempt to leave the NORP region and move to the GPE controlled part of the country where practice of the NORP Witness religion is permitted . This would seem to indicate that up to that point the [ first ] applicant certainly had not been persecuted in GPE , such would have been the opportunity for him to leave the NORP region . According to the GPE ORG report the option of internal flight clearly would have been an option to the [ first ] applicant at this time .

[ The first applicant ] claims to have attended a court hearing at which it was decided he should be extradited to GPE . In addition , he claims to have subsequently been given a hearing date for the Spring of CARDINAL at which his extradition date to GPE was to be set . He then states that it was after receiving this notice of the second hearing that he left GPE . It is in my opinion highly doubtful if somebody up for extradition would be released until DATE for his extradition was set . It would seem most peculiar that he would not have been kept in custody until his alleged extradition , especially considering he would be such a major flight risk . ”

The first applicant was informed of the recommendation of the Commissioner by letter dated DATE .

The second applicant completed her refugee status questionnaires on DATE and was also interviewed on DATE . She indicated that the first applicant was a GPE ’s Witness from birth and that she was a GPE ’s Witness since DATE . She responded in some detail to numerous and specific questions on the GPE ’s Witness religion . She indicated that baptism was important but that not every GPE ’s Witness was baptised . She described the first applicant ’s failure to respond to his call to complete military service , how he was beaten by the police in GPE and how he left GPE for GPE together with the extradition proceedings there . She also described how she had been summoned to appear before a criminal investigator in GPE and the searches of her flat . She considered that it would be difficult for them to live in GPE ( inter alia , she could not speak GPE ) and if she moved to GPE she would have had to leave the first applicant . She noted that , if they returned to GPE , the authorities might leave her alone but the first applicant would be imprisoned . A report was prepared on DATE

In DATE the second applicant was admitted to a psychiatric hospital following an overdose of antidepressant drugs she had brought from GPE . She was discharged TIME later and was referred to a mental health centre . She was there prescribed milder anti - depressant medication and a mild sedative which she took for DATE . Having requested a medical report from the centre ( concerning her capacity to participate in a hearing ) in order to obtain an adjournment of her asylum proceedings , she was informed that the practice was that the centre would issue such a certificate following an official request from the second applicant ’s lawyers or the relevant tribunal . She claimed that , given the difficulties in communicating and securing an appointment with the ORG , the request for such a certificate was not made and on DATE of the hearing she was advised by her legal advisers not to raise her condition or medication with the tribunal .

On DATE the Commissioner decided not to recommend the grant of refugee status . It was noted that :

“ This ongoing pressure from the police could have indeed created in the mind of the [ second ] applicant a subjective fear of persecution . The [ second ] applicant stated that she became increasingly concerned about the actions of the authorities as time went by , and felt that she might be charged with an offence when her passport was retained , and she signed an order to remain in GPE . [ The second applicant ] was additionally worried because FAC literature was found in her home when it was searched in DATE . As the applicant herself stated , ... emotions are important . ...

Objectively , if CARDINAL examines all aspects of the [ second ] applicant ’s case , and the perceived persecution she faced in GPE , it is felt that even on a cumulative basis the applicant did not face what would amount to persecution , as defined by LAW , ... Additionally , it should be noted that the [ second ] applicant claims to have moved freely between the GPE region and GPE when she went to visit her partner . This point raises a question over the well - foundedness of the applicant ’s fear of persecution in GPE .

An important aspect of any claim for asylum is the issue of national identity . [ The second applicant ] stated that she is NORP , and stated that she thinks her partner is GPE . Technically everyone in GPE is a citizen of [ GPE ] . The [ second ] applicant stated that her passport was confiscated ... by the GPE authorities . [ She ] did however , submit her birth certificate , which states that she was born in [ GPE ] in DATE ; importantly this certificate states that [ the second applicant ’s ] mother is GPE and her father is NORP .

Examining the citizenship laws of GPE , specifically LAW , it seems that [ the second applicant ] is entitled to citizenship of [ GPE ] , and would therefore be afforded the protection of this state . [ The second applicant ] stated that she was concerned that she would not be able to live in GPE because of the language differences , and the old system of registration .

The law of registration has changed in GPE . The authority to register individuals has been modified . It is no longer the police who issue identity documents , rather it is the responsibility of ORG , which is no longer part of ORG . Further the largest minority group in GPE is ethnic NORP . Most people , if not all , speak NORP in GPE , and evidence suggests that NORP remains an important spoken language in GPE DATE .

Considering the above COI [ country of origin information ] , in addition to the [ second applicant ’s ] own remarks concerning her ethnic background , in addition to the freedom which [ the second applicant ] seemed to have when visiting her husband in [ GPE ] , overall , it is felt that [ the second applicant ] would have been able to relocate within GPE , and therefore would have effectively removed herself from the errant behaviour of the local [ NORP ] police . There is no objective evidence which would suggest that [ the second applicant ] could not have found protection and safety in [ GPE ] had she sought it . ”

The Commissioner concluded , in rejecting her application for asylum :

“ [ The second applicant ] is claiming asylum because of her imputed political opinion . There is a considerable amount of ORG which states that the option of alternative service does not exist and that objection to military service for reasons of religious conscience is not respected in the NORP state . Additionally , there is evidence which shows that the authorities of the NORP region do discriminate against members of the NORP ’s ORG .

Refugee status as defined by LAW is reserved for those persons who are in need of international protection . Considering all aspects of the [ second applicant ’s ] claim DATE the alleged persecution which [ the second applicant ] experienced , and the option for [ the second applicant ] to relocate to [ GPE ] , it is felt that the applicant does not meet the provisions of the DATE LAW needed to be declared a refugee . ”

The second applicant was informed of the recommendation of the Commissioner by letter dated DATE .

Both appealed against the recommendation on the basis of notices of appeal prepared by counsel instructed by ORG ( ORG ) .

On DATE ORG ( “ the NORP ” ) decided to uphold the recommendation of the Commissioner and to reject their appeal ( the applicants were legally represented ) . The first applicant maintained his asylum claim on the basis of his avoidance of military service in GPE and his religion . The second applicant ’s request for asylum was based on the NORP authorities’ prosecution of her concerning the GPE ’s Witness material found in her home . The ORG found as follows :

“ The applicants in this matter base their claim for refugee status on persecution because of their religious beliefs . ...

The first ... applicant stated that he fled GPE and went to GPE because he received his call up papers to do his military service . He stated that he did not wish to complete his military service because he had been a member of ORG since DATE .

On the basis of his answers in relation to his membership , particularly in relation to the date of birth of PERSON ( which he stated was DATE , when ORG deem it to be DATE ) , I am not persuaded that the applicant is a member of ORG .

The applicant was asked if he had received sacraments as a member of the GPE ’s Witness and stated “ no ” because he had not reached that level . I am of the view , from the [ first ] applicant ’s evidence , that it is unlikely that he is a member of the GPE ’s Witnesses given that he claims to be a member since DATE and has not yet been baptised . ( Baptism and The Lord ’s Supper are the only Sacraments recognised by ORG . ) In view of this , I find his evasion of military service does not amount to persecution for any reason contemplated by LAW DATE ( as amended ) .

With regard to the second ... applicant , I find her evidence that the police searched her apartment DATE after the applicant left for GPE to be contradicted by evidence from her and the first ... applicant . The first ... applicant stated that DATE after he arrived in GPE ( sic ) , he applied to the local police station for a forensic medical certificate to enable him to get medical treatment for his injuries . He stated that , as a result of this , the police in GPE ( sic ) started extradition proceedings on the grounds that he was avoiding military service . It is clear from this that the police in GPE were aware of the location of the first ... applicant and , in that regard , I find the second ... applicant ’s evidence that he apartment was searched on a DATE basis to be implausible .

The second ... applicant , together with the first ... applicant , decided to leave GPE and travel to GPE . I am aware from country of origin information ( ORG report DATE ) that citizens of GPE are free to travel to GPE . I am also of the view that the second ... applicant could have relocated to GPE and lived there if she wished . Her reasons for leaving GPE would appear to be that she was being investigated for a criminal offence . In my view , the [ second ] applicant was fleeing prosecution and not persecution . In light of this , I find that the applicant has not demonstrated a well - founded fear of persecution while she lived in GPE .

In the circumstances , I find that the applicants are not refugees within the meaning of LAW DATE ( as amended ) . ”

By letter dated DATE the ORG informed the first and second applicants of its decision ( as required by LAW ) of LAW ) . A letter dated DATE to the second applicant from ORG indicated that it was not in a position to recommend that legal aid be granted to her in order to institute judicial review proceedings .

Section CARDINAL of LAW DATE , as amended by LAW and LAW , ( “ the DATE LAW ) provides , in so far as relevant , as follows :

“ CARDINAL . In this LAW “ a refugee ” means a person who , owing to a well founded fear of being persecuted for reasons of race , religion , nationality , membership of a particular social group or political opinion , is outside the country of his or her nationality and is unable or , owing to such fear , is unwilling to avail himself or herself of the protection of that country ; or who , not having a nationality and being outside the country of his or her former habitual residence , is unable or , owing to such fear , is unwilling to return to it , ... ”

Section CARDINAL contains the prohibition of “ refoulement ” :

“ ( CARDINAL ) A person shall not be expelled from the ORG or returned in any manner whatsoever to the frontiers of territories where , in the opinion of the Minister , the life or freedom of that person would be threatened on account of his or her race , religion , nationality , membership of a particular social group or political opinion . ”

Persons seeking asylum may apply to the Minister for ORG for a declaration recognising their status as refugees ( section CARDINAL of the CARDINAL Act ) . The matter is referred , for investigation , to the Commissioner , who may interview the candidates and prepare a report on those interviews and on the investigations carried out ( sections CARDINAL and CARDINAL of LAW ) . A recommendation issues which may be appealed to the ORG . The applicants are notified of the ORG ’s decision under LAW ( CARDINAL ) of LAW . The Minister is then notified of the ORG ’s decision ( section CARDINAL(CARDINAL)(b ) of the CARDINAL Act ) . If the ORG decision upholds a Commissioner ’s refusal to recommend refugee status , the Minister “ may ... refuse to give the applicant a declaration ” of refugee status ( section CARDINAL(CARDINAL)(b ) of LAW ) .

Section CARDINAL further provides , in so far as relevant , as follows :

“ ( CARDINAL ) Where the Minister has decided to refuse to give a declaration , he or she shall send to the applicant a notice in writing stating that -

( a ) his or her application for a declaration has been refused ,

( b ) the period of entitlement of the applicant to remain in the ORG under section CARDINAL has expired , and

[ ( c ) the Minister may make an order under LAW ] , requiring the applicant to leave the ORG and if the notice contains the statement specified in subsection ( CARDINAL ) of that section , it shall not be necessary for the Minister to give the notification specified in the subsection ( CARDINAL ) of that section , " ] ,

and a copy of the notice shall be sent to the High Commissioner and to the applicant ’s solicitor ( if known ) .

( CARDINAL ) The Minister may , at his or her discretion , grant permission in writing to a person who has withdrawn his or her application or to whom the Minister has refused to give a declaration to remain in the ORG for such period and subject to such conditions as the Minister may specify in writing .

( CARDINAL ) A person to whom the Minister has refused to give a declaration may not make a further application for a declaration under LAW without the consent of the Minister . ”

Section CARDINAL of the DATE Act confers on the Minister the power to make deportation orders in respect of certain categories of persons ( Article CARDINAL ) of the CARDINAL Act ) , having had regard to the factors listed at Article CARDINAL(CARDINAL ) and once the Minister is satisfied that the deportation would not breach the prohibition of refoulement ( section CARDINAL of LAW ) . That section , in so far as relevant , provides as follows :

“ ( CARDINAL ) Subject to the provisions of LAW ) of the [ CARDINAL Act ] , and the subsequent provisions of this section , the Minister may by order ( in this LAW referred to as “ a deportation order ” ) require any non - national specified in the order to leave the ORG within such period as may be specified in the order and to remain thereafter out of the ORG .

( CARDINAL ) An order under subsection ( CARDINAL ) may be made in respect of -

( f ) a person whose application for asylum has been refused by the Minister ,

( CARDINAL)(a ) Subject to subsection ( CARDINAL ) , where the Minister proposes to make a deportation order , he or she shall notify the person concerned in writing of his or her proposal and of the reasons for it and , where necessary and possible , the person shall be given a copy of the notification in a language that he or she understands .

( b ) A person who has been notified of a proposal under paragraph ( a ) may , within DATE of the sending of the notification , make representations in writing to the Minister and the Minister shall -

( i ) before deciding the matter , take into consideration any representations duly made to him or her under this paragraph in relation to the proposal , and

( ii ) notify the person in writing of his or her decision and of the reasons for it and , where necessary and possible , the person shall be given a copy of the notification in a language that the person understands .

( CARDINAL ) A notification of a proposal of the Minister under subsection ( CARDINAL ) shall include-

( a ) a statement that the person concerned may make representations in writing to the Minister within DATE of the sending to him or her of the notification ,

( b ) a statement that the person may leave the ORG before the Minister decides the matter and shall require the person to so inform the Minister in writing and to furnish the Minister with information concerning his or her arrangements for leaving ,

( c ) a statement that the person may consent to the making of the deportation order within DATE of the sending to him or her of the notification and that the Minister shall thereupon arrange for the removal of the person from the ORG as soon as practicable , and

( d ) any other information which the Minister considers appropriate in the circumstances .

( CARDINAL ) In determining whether to make a deportation order in relation to a person , the Minister shall have regard to—

( a ) the age of the person ;

( b ) the duration of residence in the ORG of the person ;

( c ) the family and domestic circumstances of the person ;

( d ) the nature of the person ’s connection with the ORG , if any ;

( e ) the employment ( including self - employment ) record of the person ;

( f ) the employment ( including self - employment ) prospects of the person ;

( g ) the character and conduct of the person both within and ( where relevant and ascertainable ) outside the ORG ( including any criminal convictions ) ;

( h ) humanitarian considerations ;

( i ) any representations duly made by or on behalf of the person ;

( j ) the common good ; and

( k ) considerations of national security and public policy ,

so far as they appear or are known to the Minister . ”

Section CARDINAL provides that a person shall not question the validity of , inter alia , a ORG decision ( section CARDINAL of LAW ) , or a notification or deportation order under section CARDINAL(CARDINAL ) and ( CARDINAL)(a ) of the DATE Act other than by an application for judicial review under LAW ( ORG . DATE ) . Section CARDINAL ) provides , in so far as relevant , as follows :

“ ( CARDINAL ) An application for leave to apply for judicial review under the Order in respect of any of the matters referred to in subsection ( CARDINAL ) shall -

( a ) be made within DATE commencing on the date on which the person was notified of the decision , determination , recommendation , refusal or making of the Order concerned unless the High Court considers that there is good and sufficient reason for extending the period within which the application shall be made , and

( b ) be made by motion on notice ( grounded in the manner specified in the LAW in respect of an ex parte motion for leave ) to the Minister and any other person specified for that purpose by order of ORG , and such leave shall not be granted unless ORG is satisfied that there are substantial grounds for contending that the decision , determination , recommendation , refusal or order is invalid or ought to be quashed .

( CARDINAL ) ( a ) The determination of ORG of an application for leave to apply for judicial review as aforesaid or of an application for such judicial review shall be final and no appeal shall lie from the decision of ORG to ORG in either case except with the leave of ORG which leave shall only be granted where ORG certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to ORG .

( CARDINAL ) The High Court shall give such priority as it reasonably can , having regard to all the circumstances , to the disposal of proceedings in that ORG under this section .

While the bringing of a judicial review application does not have suspensive effect , applicants can ( and generally do ) seek , at the same time , an interlocutory injunction preventing their deportation following which the Minister generally gives an undertaking not to deport pending the determination of the judicial review proceedings .

In the case of the ORG ( PERSON ) v. Stardust Compensation Tribunal [ DATE ] ORG CARDINAL ) , Judge PERSON endorsed the “ ORG principles ” of judicial review ( ORG v. ORG [ DATE ] CARDINAL KB CARDINAL ) namely :

“ if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it , then the ORG can interfere ... but to prove a case of that kind would require something overwhelming ” .

Noting that those principles had evolved over DATE , he considered :

“ that the test of unreasonableness or irrationality in judicial review lies in considering whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense . ”

In O’Keefe -v- An Bord Plenala and Others ( [ DATE ] I IR CARDINAL ) the Chief Justice endorsed Judge PERSON ’s test noting that :

“ it is necessary that the applicant should establish to the satisfaction of the ORG that the decision - making authority had before it no relevant material which would support its decision ” .

In accordance with LAW the President referred sections CARDINAL and CARDINAL of the PERSON to ORG for a decision as to whether those sections were repugnant to LAW .

As regards the DATE limitation period , the ORG was satisfied that the discretion of ORG to extend the period wa

ORG also considered whether the requirement in section CARDINAL ) to satisfy ORG that there were “ substantial grounds ” for contesting the validity of the decision in question imposed a burden which , with the DATE limitation period , unreasonably restricted access to court . It noted that the “ substantial grounds ” requirement had been imposed in other legislation . It recalled that PERSON in the case of PERSON -v- An Bord Pleanála ( no . CARDINAL ) ( [ DATE ] CARDINAL I.L.R.M CARDINAL ) had interpreted the phrase “ substantial grounds ” in LAW DATE as being :

“ equivalent to “ reasonable ” , “ arguable ” and “ weighty ” and held that such grounds must not be “ trivial or tenuous ” . Although the meaning of the words “ substantial grounds ” may be expressed in various ways , the interpretation of them by PERSON is appropriate . The court is of the view that the imposition of a requirement to show “ substantial grounds ” in an application for leave to apply for judicial review is one which falls within the discretion of the legislature . It is not so onerous , either in itself or in conjunction with a DATE limitation period , as to infringe the constitutional right of access to the ORG or the right to fair procedures . ”