No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Russia);No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion;Article 8-1 - Respect for family life) (Conditional)

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska

The applicant , a NORP national of NORP origin , was born in DATE and lives in GPE .

The applicant arrived in GPE with his family on DATE and lodged an asylum request on DATE .

The applicant was raised in ORG and in LOC in GPE and went to school there for DATE . He did not have any vocational training , but worked subsequently in different jobs .

The applicant ’s wife was born in ORG and spent all her life in GPE , where she married the applicant in DATE in a religious ceremony .

With regard to his reasons to apply for asylum , the applicant claimed that he had supported the NORP fighters during the first war from DATE . Because he did not feel that his support had been sufficiently acknowledged , he did not take part in the second war in GPE . In DATE , mercenary soldiers came looking for him during a “ cleaning operation ” based on a file about the applicant that had been created after the first war . When they did not find him at home , the soldiers beat up the applicant ’s father . Later on , the family ’s house was burned down . Thereupon , the applicant ’s father advised the applicant and his wife to leave GPE and GPE .

On DATE , ORG ( Bundesasylamt ) dismissed the applicant ’s asylum request and declared the applicant ’s expulsion to GPE permissible .

The applicant appealed . On DATE , ORG ( PERSON ) allowed the applicant ’s appeal and awarded him asylum status . Referring to relevant country reports it found that the security situation in GPE had deteriorated from DATE and that numerous killings and unexplained disappearances occurred on a regular basis , many within the context of “ cleaning operations ” . It further found the humanitarian situation in GPE to be critical . Finally , it stated that there were no domestic alternatives , due to systematic hindrances encountered by NORP with NORP authorities throughout the country and also due to difficulties in obtaining registration and settling in other parts of GPE . It found the applicant ’s statements to be credible and sufficiently substantiated and concluded that the applicant was at a real risk of being subjected to ill - treatment if he returned to GPE .

On DATE , ORG also granted asylum to the applicant ’s wife . It reasoned that since the applicant was wanted in GPE because of his alleged hostility towards the NORP authorities , his wife was also at real risk of ill - treatment if she returned to GPE . It also noted that the applicant had been awarded the status of a recognised refugee and that the family would not be able to establish their life together in another country . Ruling out a domestic alternative ( moving to live elsewhere in GPE ) , it concluded that the applicant ’s wife therefore should be awarded asylum status in application of the principle in dubio pro fugitivo .

The applicant ’s daughter , who was born in DATE , was granted asylum on CARDINAL DATE ; and his son , born in DATE , was granted asylum on DATE .

On DATE , ORG ( PERSON ) convicted the applicant of attempted theft and sentenced him to CARDINAL GPE imprisonment , suspended , and placed him on probation .

On DATE , the Leoben Regional Court ( PERSON ) convicted the applicant of attempted resistance to public authority , aggravated damage to property and aggravated bodily harm , and sentenced him to CARDINAL months’ imprisonment , CARDINAL of which were suspended , and placed him on probation for DATE .

On DATE , ORG ( PERSON ) convicted the applicant of partly attempted and partly actual aggravated bodily harm , and sentenced him to QUANTITY months’ imprisonment , while quashing the probation order in the previous sentence . The applicant was found to have hit a prostitute on the head with an empty bottle because she had not told him that she was suffering from a sexually transmitted disease .

The applicant served his sentences and was released again in DATE . Since then , the applicant has been living with his wife and CARDINAL children in an apartment in GPE .

ORG initiated proceedings to lift the applicant ’s asylum status . In the interview conducted in the course of the proceedings , the applicant stated that he could not return to GPE because of his past and that he was convinced that he would be killed if he returned . He claimed that many people had returned to GPE after being informed that they would no longer be in danger of persecution in GPE , but had then disappeared or been killed by the security service of the NORP president . He could not prove this , since the people concerned were dead . Furthermore , the applicant ’s father had told him that he should not return to GPE and that he was still at risk of persecution .

On DATE ORG lifted the applicant ’s asylum status and ordered his expulsion to GPE . Referring to section DATE LAW , it noted that asylum status could be lifted after conviction by a domestic court of a particularly serious offence . It further referred to the CARDINAL criteria developed by ORG ( Verwaltungsgerichtshof ) that were as follows : firstly , the conviction must be for a particularly serious crime , such as murder , rape , child abuse , arson , armed robbery , drug trafficking , or similar crimes . Secondly , it must be a final conviction . Furthermore , the offence committed must be especially dangerous ( gemeingefährlich ) ; and finally , the public interest in lifting the asylum status must outweigh the applicant ’s interest in the protection provided by the asylum status . ORG continued by finding that in practice , offences against physical integrity and life would be qualified as “ particularly serious crimes ” . It also made reference to LAW DATE relating to the Status of Refugees that requested a balancing of the interests involved . In conclusion , it stated that the applicant had been convicted more than once of offences against physical integrity , and that he had reoffended after his first conviction .

It further found that the security situation in GPE had improved since the applicant had been awarded asylum status , and came to the conclusion that the applicant would not be subject to a real risk of ill - treatment contrary to LAW upon a return to GPE . As regards the applicant ’s rights under LAW , ORG stated that the applicant had not taken any serious steps towards integration into NORP society since the award of asylum status . He had for example only started learning NORP in DATE , when he had already been in the country for DATE . With regard to the applicant ’s family , it questioned its entitlement to protection , in the context of the violent offences the applicant had committed in the past . It referred also to the applicant ’s family still living in GPE , namely his parents and CARDINAL siblings , with whom the applicant maintained regular telephone contact and who constituted a clear link between the applicant and GPE , and concluded that the public interest , in view of the applicant ’s criminal record , outweighed his interests in respect of his family life .

The applicant appealed against that decision . On DATE ORG ( Asylgerichtshof ) held an oral hearing , at which the applicant repeated that he could not return to GPE . In general , his family had no problems with the security services there . His father had been visited by a member of the ORG DATE after the applicant had left the country and had been told that his family should not expect any problems with the authorities , as they were only looking for the applicant . The applicant ’s wife was also interviewed . Asked about her relationship with the applicant , she confirmed that she visited the applicant regularly in detention and that they would naturally continue to live together as a family as soon as the applicant was released from prison .

On DATE ORG dismissed the applicant ’s appeal as unfounded .

As regards the general security and political situation in GPE , and referring to relevant country reports , it found that military activities had decreased significantly in DATE and that the second war had ended officially on DATE . However , a country report by ORG dated DATE showed that there were still massive human rights violations occurring in GPE under Ramsan PERSON ’s dictatorship . Furthermore , the reports generally conceded that the civilian population was still the victim of “ cleaning ” operations , but also that unexplained disappearances had decreased since DATE . ORG considered torture still to be a problem in the region . Referring to reports of ORG High Commissioner for Refugees , it found people particularly targeted for persecution to be ( former ) rebels , their relatives , political adversaries of PERSON , human rights activists , and people who had lodged complaints with international organisations . It further stated that ORG High Commissioner for Refugees still dismissed any domestic opportunity for NORP in GPE . However , it also referred to a NORP practice that declared a domestic alternative elsewhere in GPE acceptable for NORP .

In its legal reasoning ORG stated that asylum status could be lifted if the person was convicted by a domestic court of a particularly serious offence , if he therefore presented a danger to the community , and if the public interest outweighed the person ’s private interests . It referred to ORG illustration of NORP practice , which is to qualify a particularly serious offence as one with a sentence of DATE imprisonment , but called it a “ flexible system ” . With regard to the applicant , ORG found that his repeated offences were of a very serious and violent nature . Finally , it emphasised the applicant ’s lack of integration in GPE and the poor prospects for his future development .

ORG continued by examining the possibility of subsidiary protection pursuant to section CARDINAL of the DATE LAW . In that context it found that the civil war in GPE had ended and that there was no general risk of treatment contrary to LAW in the event of expulsion to GPE . Further referring to the applicant ’s “ minor ” role in the first war , the stable life situation of his family in GPE and his good prospects of work in GPE , ORG dismissed a real and individual risk of persecution within the meaning of LAW in relation to the applicant . Finally , examining the applicant ’s rights under LAW with regard to his expulsion , as foreseen in section LAW ) of QUANTITY , it found that the applicant still had strong ties with GPE , and that his children were of a young and adaptable age .

On DATE , ORG ) dismissed the applicant ’s application for legal aid to lodge a complaint against the appeal decision of ORG , due to lack of prospects of success . The applicant nevertheless lodged a complaint and on DATE , ORG refused to deal with the complaint .

That decision was served on the applicant ’s counsel on DATE .

On DATE the applicant lodged a complaint with ORG and requested the application of an interim measure pursuant to Rule CARDINAL of ORG .

On DATE , the ORG applied the interim measure under Rule DATE and requested ORG to stay the applicant ’s expulsion to GPE until further notice .

On DATE the Graz Federal Police Authority ( Bundespolizeidirektion Graz ) issued an exclusion order against the applicant for a period of DATE . Complaint proceedings are pending with ORG ( Verwaltungsgerichtshof ) .

In DATE , ORG examined Article ORG ) of LAW DATE relating to the Status of Refugees ( “ the DATE LAW ) and stated that CARDINAL conditions needed to be fulfilled cumulatively to allow for the expulsion of a refugee , despite a real risk of persecution : the refugee must have committed a particularly serious offence ; his or her conviction must be final ; the refugee must be especially dangerous ; lastly the public interest in the refugee ’s expulsion must outweigh the refugee ’s interests for protection in the state granting asylum status ( see judgment of ORG of DATE , no . CARDINAL/CARDINAL/CARDINAL ) .

In a subsequent judgment , ORG analysed the condition of a “ particularly serious offence ” in view of international law and academic writing and stated as therein used definitions that it needed to be a “ capital crime or particularly grave offence ” that was “ objectively and subjectively particularly serious ” . It further referred to academic sources that claimed that LAW was only “ meant to be applied on extremely rare occasions ” and as an “ ultima ratio ” that needed to be interpreted restrictively . Finally , ORG added for illustration that GPE used as a landmark for the application of LAW ) of the DATE Convention the condition of a sentence of DATE imprisonment ( see judgment of ORG of DATE , no . CARDINAL/CARDINAL/CARDINAL ) .

NORP The NORP CARDINAL LAW provides that a foreigner is excluded from the award of asylum status if he or she has been convicted of a particularly serious offence , if that conviction was final , and if the foreigner presented a danger to society due to his or her criminal conduct . For the same reasons , it is lawful to lift an asylum status ( see sections CARDINAL § CARDINAL(CARDINAL ) and QUANTITY CARDINAL(CARDINAL ) of the DATE LAW ) .

If an asylum request is either dismissed or lifted , an asylum seeker can still be awarded subsidiary protection under section CARDINAL of the DATE LAW if his or her expulsion , deportation or extradition constitutes a real risk of a violation of ORG and CARDINAL of the Convention .

In the event that an asylum request is dismissed or an asylum status lifted , the authority is obliged to declare at the same time that expulsion is permissible . However , it is not allowed to expel a person even pursuant to a negative asylum decision , if an expulsion would constitute a violation of LAW ( see sections CARDINAL § CARDINAL and CARDINAL § CARDINAL(CARDINAL ) of LAW ) .

The main aim of that visit of ORG for Human Rights was to review the human rights situation in the LOC in the context of the regular field visits that the Commissioner PERSON , like his predecessor , conducted . The report noted that since the Commissioner ’s previous visit in DATE , there had been an increased emphasis on the socio - economic development of LOC , and the implementation of a strategy aiming to improve the investment climate , fight corruption and address unemployment was ongoing . Despite these positive steps to improve the quality of life of the people living in the region , the situation in the LOC continued to present major challenges for the protection of human rights . The Commissioner defined as some of the most serious problems in terms of the protection of human rights in the GPE visited the issues of counter - terrorism measures , of abductions , disappearances and ill - treatment , of combating impunity and of the situation of human rights defenders . The report included the Commissioner ’s observations and recommendations in relation to those topics .

With regard to counter - terrorism measures , the report concluded that the continuing challenges to security in the LOC amounted to a major ongoing crisis , with consequences which extend beyond the region . While state authorities had a clear duty to protect the public from terrorism and the actions of illegal armed groups , counter - terrorism measures should be carried out in full compliance with human rights norms ( see paragraph CARDINAL of the report ) .

NORP The Commissioner was further deeply concerned by the persistence of allegations and other information relating to abductions , disappearances and ill - treatment of people deprived of their liberty in LOC . While the number of abductions and disappearances in GPE might have decreased in the more recent period compared to DATE , the situation remained far from normal . Referring to the far - reaching effects of disappearances on a society as a whole , he supported the proposal of ORG for creating an interdepartmental federal commission to determine the fate of persons who have gone missing during the entire period of counter - terrorism operations in LOC . The Commissioner further emphasised the importance of the systematic application in practice of rules against the wearing of masks or non - standard uniforms without badges as well as against the use of unmarked vehicles in the course of investigative activities . He also encouraged a wide spread dissemination of all reports of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment among all stakeholders and reiterated the principle that evidence obtained through ill - treatment or other unlawful means should be treated as inadmissible in criminal proceedings ( see paragraphs CARDINAL et seq . of the report ) .

The Commissioner went on by stating that the persistent patterns of impunity for serious human rights violations were among the most intractable problems of the LOC and remained a source of major concern to him . There have certainly been a number of positive steps , such as the establishment of ORG structures , the increased support for victim participation in criminal proceedings , and the promulgation of various directives such as LAW on victim participation and the instructions of ORG and ORG regarding the conduct of investigations . Despite these measures of a systemic , legislative and regulatory nature , the information gathered during the visit had led the Commissioner to conclude that the situation remained essentially unchanged in practice since his previous visit in DATE . He emphasised the importance of effective investigations of possible violations by State actors of the right to life and the prohibition against torture and ill - treatment and called on the NORP leadership to deliver the unequivocal message that impunity would no longer be tolerated to help in creating the requisite determination on the part of the investigators concerned ( see paragraphs CARDINAL et seq . of the report ) .

As a conclusion for his fourth and last topic , the Commissioner stated that human rights activists continued to face serious obstacles in their work and could be exposed to significant risks . In settings which present considerable challenges to the protection of human rights , it was all the more important to ensure that those persons and organisations which engage in human rights monitoring activities were able to go about their work freely and without undue impediments ( see paragraph CARDINAL of the report ) .

Under the heading “ Use of excessive force and other abuses in internal conflicts ” , ORG on GPE of ORG of DATE stated that violence continued to spread in the GPE republics , driven by separatism , inter - ethnic conflicts , jihadist movements , vendettas , criminality , and excesses by security forces . However , GPE saw a decrease in violence from DATE . Government personnel , rebels and criminal elements continued also to engage in abductions in LOC . Officials and observers disagreed on the number of victims . Human rights groups believed the number of abductions was under - reported due to the reluctance of GPE relatives to complain to the authorities for fear of reprisals . According to a report on the website PERSON , during DATE approximately CARDINAL people were kidnapped or unlawfully detained by armed parties in LOC , and CARDINAL were freed . Allegedly , there was no accountability for government forces involved in abductions . There were continued reports that abductions were followed by beatings or torture to extract confessions and that abductions were conducted for political reasons . Security forces under the command of NORP President PERSON allegedly played a significant role in abductions , either on their own initiative or in joint operations with federal forces . Human rights groups reported these forces were frequently suspected of being responsible for disappearances and abductions , including those of family members of rebel commanders and fighters .

Armed forces and police units reportedly frequently abused and tortured people in holding facilities where federal authorities dealt with rebels and people suspected of aiding them . In GPE and PERSON there continued to be reports of torture by government forces . There was also a report of a continued arson campaign . The NORP arson campaign began in DATE , following explicit threats by NORP President PERSON and PERSON Mayor PERSON to burn down houses belonging to families whose sons were suspected of joining the insurgency . Human rights activist PERSON was working on a documentary on the arson campaign when she was killed in DATE .

With regard to the overall security situation , the ORG report of CARDINAL DATE stated that general violence increased in DATE in GPE , PERSON and ORG . Even though the number of people killed decreased , the number of injured civilians increased , which showed that civilians were affected more and more by the armed conflict between the security services and the rebels . The NORP President PERSON was quoted as saying on DATE that the situation in the NORP had not in practice improved . The widespread impunity further encouraged the arbitrariness exercised by the security services ( see page CARDINAL of the report ) .

The main human rights violations happened by way of arbitrary detention to obtain confessions and information about rebels , torture and ill - treatment in secret detention centres , kidnappings and disappearances executed by members of federal and local security services and criminal groups for ransom , executions , the arson campaign targeting family members of alleged rebels , and lack of financial compensation , for example for burned houses and property . Those most at risk belonged to the following groups : NGO and human rights activists ; victims , their lawyers , witnesses and their families ; journalists ; government opponents and returnees from abroad and their relatives . The report noted that returnees from abroad were generally immediately detained , questioned about their stay abroad and sometimes tortured . The questioning did not necessarily stop after their release from detention . Returnees and their relatives had to expect arbitrary detention at any time . In individual cases , criminal suspicions were invented so that returners could be ill - treated as a form of punishment for leaving GPE in the first place ( see pages CARDINAL of the report ) .

Relying on statistical data provided by ORG , the report from ORG of DATE showed that DATE saw a return to the old tactics of abductions and disappearances , and the number of abducted people again increased in DATE to CARDINAL recorded cases . Furthermore , the number of punitive house burnings increased dramatically . Newer data were not available , since ORG work was severely hampered due to PERSON abduction and killing in DATE and the subsequent suspension of the organisation ’s work for DATE . However , ORG reported fewer human rights violations in GPE in DATE and DATE . Both NGOs stated that after PERSON ’s death it had become increasingly difficult to obtain reliable information about the security situation in GPE and that victims of beatings , threats and detention had become increasingly afraid to report those incidents to NGOs or official investigation authorities ( see pages CARDINAL to CARDINAL of the report ) .

As particular groups at risk of being exposed to torture , disappearances , kidnappings and extrajudicial killings the report enumerated members of rebel groups and any person suspected of supporting or sympathising with these groups ; relatives and friends of supporters or sympathisers of rebel groups ; young , healthy men ; young women ; persons who lodge complaints with ORG , NGOs or ORG and returnees from abroad . With regard to the last - mentioned group , there were reports that people returning from abroad were stopped by law - enforcement officials who requested money or kidnappings for ransom of returnees . They further risked being suspected of holding information about anti - Kadyrov elements of the NORP diaspora in NORP countries and were often interrogated on their return to GPE . A returnee would need to explicitly unite with the government and PERSON ’s policies ( see pages CARDINAL et seq . of the report ) . On the other hand , ORG ( “ the ORG ” ) in GPE reported on voluntary returns to GPE which were considered a success . In DATE the ORG assisted CARDINAL returns to LOC . The ORG conducted regular visits to GPE and met returnees there . The organisation conceded however that it was difficult to assess the situation in GPE on such short visits . It was also emphasised that the number of returnees in a particular ORG project might be too low to fully reflect the situation of returnees in general ( see pages CARDINAL et seq . of the report ) .

With regard to the risk to former members of the illegal armed groups , the report quoted an anonymous NORP embassy source stating that active participants in the fighting against the NORP federal army in DATE who have not since been militarily active or in opposition to ORG regime were not at risk of being persecuted by the present NORP authorities ( see page CARDINAL of the report ) .

With regard to NORP returning from other countries , LAW of DATE stated that upon their return they were often suspected of either being involved in illegal armed groups , or at the very least of having significant resources . They encountered suspicion , became victims of extortion and had criminal cases fabricated against them . Returnees were reportedly called to meetings with ORG and ORG , where they were questioned , often with threats and ill - treatment and demands for payment . Young men especially were made to collaborate with the security services . Those who spoke out about the regime were most at risk , for example applicants to ORG , as well as those who appealed to national courts , federal authorities or NGOs ( see pages CARDINAL et seq . of the report ) .


Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 6-1

Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

On DATE Ts . and ORG were drinking beer at a bus stop , where they saw the applicant and PERSON , a DATE boy . They were under the impression that the applicant was making sexual advances to PERSON and asked the assistant from a shop nearby to call the police . The shop assistant called the security guards from her company . CARDINAL guards , GPE , arrived and took the applicant and PERSON to the police station at TIME on DATE .

At the police station , the applicant was placed in an “ administrative ” cell with CARDINAL other detainees . According to PERSON and ORG , police officers on duty at the police station at the time , ORG had to remove the applicant from the cell because other detainees verbally and physically attacked him . The applicant did not dispute the account of his placement in the cell provided by PERSON and ORG However , he denied having been beaten by the other detainees . According to him , the police officer removed him from the cell as soon as one of the detainees started making threats to him . The detainee did not have time to hit him .

At TIME on DATE the applicant was taken to a separate room for questioning . According to the applicant , QUANTITY police officers handcuffed him , verbally insulted him and hit him on the head , legs , back and crotch with rubber truncheons . They kicked and punched him . Then they removed the handcuffs , took off his sweater and a jacket and continued the beatings , questioning him about the boy . At TIME they brought a rubber truncheon with a condom put over it . They pulled down the applicant 's pants , inserted the truncheon up his anus and put a gas mask over his head . He screamed and they stopped . After that he wrote a confession dictated by the policemen , who held the rubber truncheon in front of him throughout that time . At TIME the applicant was taken to the investigator 's office . The applicant told the investigator about the beatings . The policemen took him out of the office and punched him again .

According to policeman PERSON . , he took part in the applicant 's questioning together with policemen PERSON . and PERSON The applicant had bruises and scratches on his face when they saw him for the first time . It was obvious that he had been beaten up . His clothes were covered with dust and shoe prints were visible on them . PERSON . realised that other detainees had beaten the applicant up . The applicant was at first ashamed to tell them what had happened but then confessed . None of the policemen put any psychological or physical pressure on him . PERSON . confirmed PERSON . 's version of the events . PERSON later testified that he had no recollection of the applicant 's questioning .

On DATE at TIME the applicant was taken to the temporary detention centre , where the officer on duty documented his injuries . Then the applicant was taken to ORG no . CARDINAL . The doctor examined him and noted numerous bruises , scratches on the face , neck , back and arms , and abrasions on the back and chest . The doctor stated that those injuries were not of a serious nature and had not caused any “ health impairment ” or “ loss of working capacity ” .

According to the applicant , other persons detained at the temporary detention centre could see bruises and abrasions on his face . He also had scratches on his chin caused by the gas mask . The handcuffs left abrasions on his wrists . There were scratches on the neck and bruises on the chest , buttocks , legs and back . The skin of the anus was damaged and bleeding .

According to the materials in the investigation file , none of the persons detained at the temporary detention unit recalled that the applicant had had injuries on his face and body . Nor did they remember that he had told them about the beatings by the policemen .

On DATE the investigator ordered the applicant 's detention pending investigation , noting that he was charged with a serious criminal offence and might abscond .

On DATE the investigator authorised the applicant 's continued detention pending investigation . In particular , she noted as follows :

“ Given that [ the applicant ] might abscond or reoffend , and having regard to the gravity of the charges ... , [ he ] should remain in custody . ”

On DATE the ORG of GPE dismissed the applicant 's request to be released pending investigation and trial . The applicant appealed . He argued , inter alia , that he was not a repeat offender , that he had a permanent place of residence and employment and that he had to provide special care for his elderly parents .

On DATE ORG upheld the decision of DATE on appeal . In particular the court noted :

“ [ The applicant ] is charged with a very serious criminal offence . His remand in custody and indictment have been conducted in accordance with law . The [ ORG decision to dismiss the [ applicant 's ] application for release was therefore justified . ”

On DATE the prosecutor approved the bill of indictment and on DATE the ORG of GPE received the case file .

On DATE the court opened the trial . It held CARDINAL hearings in total . The first CARDINAL hearings , on DATE and DATE , were adjourned following requests submitted by the applicant and his counsel to study the case file and to obtain medical documents and materials concerning the applicant 's allegations of ill - treatment from the prosecutor 's office .

On DATE ORG found the applicant guilty of sexual assault of a minor and sentenced him to DATE imprisonment . On DATE the ORG quashed the applicant 's conviction on appeal , noting that the trial court had failed to establish the exact time of the crime and to consider an application by the applicant for certain evidence to be declared inadmissible . The court further ordered that the applicant should remain in custody .

On DATE the case file was returned to ORG . On DATE the trial was suspended pending consideration of a request by the prosecutor for supervisory review of the judgment of CARDINAL DATE .

On DATE ORG extended the applicant 's detention pending trial until DATE . In particular , the court noted :

“ After having heard [ the applicant ] , his counsel ... , who argued that the applicant should be released pending trial given that he was employed , could provide positive references and had CARDINAL elderly parents who needed his financial support , and the prosecutor , who argued that it was necessary to extend [ the applicant 's ] detention , the court finds that it is necessary to extend [ the applicant 's ] detention until DATE since , after [ the applicant 's ] conviction on DATE was quashed on appeal , the trial was adjourned pending consideration of the prosecutor 's application for supervisory review of the appeal judgment of CARDINAL DATE . The preventive measure was imposed on the applicant in accordance with the law and was justified . ”

On DATE the ORG of ORG dismissed the prosecutor 's request for supervisory review and returned the case file to ORG , which opened the trial on DATE .

On DATE ORG upheld the decision of DATE on appeal . The court noted as follows :

“ [ The applicant ] is charged with a very serious criminal offence . The indictment and the decisions to remand [ the applicant ] in custody and to subsequently extend his detention were in accordance with the law . ”

On DATE ORG further extended the applicant 's detention until DATE . In particular , the court noted :

“ The preventive measure in the form of detention imposed earlier on the defendant was lawful and justified . At the present time it is still necessary to detain [ the applicant ] as the circumstances justifying his placement in custody have not ceased to exist . ”

On DATE ORG upheld the decision of DATE on appeal .

On DATE , for an unknown reason , the applicant was not transported to the courthouse and his counsel did not appear in court . ORG adjourned the hearing .

On DATE the ORG commissioned a new comprehensive forensic medical examination of the victim .

On DATE ORG ordered the applicant 's release on an undertaking not to leave town . The court noted that the proceedings had been stayed pending CARDINAL expert examinations , that the investigation had been completed and the victim and all witnesses had been questioned . It further noted that the applicant had a permanent place of residence and employment and could not interfere with the proper administration of justice . On DATE ORG upheld the decision of DATE on appeal .

On DATE ORG granted the prosecutor 's request for a forensic psychiatric examination of the victim and stayed the proceedings , which were resumed on DATE .

On DATE ORG found the applicant guilty of sexual assault of a minor and sentenced him to DATE imprisonment . The applicant was placed in custody on DATE . According to the Government , the trial comprised CARDINAL hearings . CARDINAL of them were adjourned because of the witnesses ' failure to appear in court .

On DATE ORG upheld the applicant 's conviction on appeal .

On DATE the Presidium of ORG quashed the applicant 's conviction by way of supervisory review and remitted the case to the trial court for fresh consideration . The applicant was released on an undertaking not to leave town . In particular , the court indicated as follows :

“ The [ trial ] court failed to comply with the law requiring objective consideration of the case ... [ and ] found the applicant guilty on the basis of assumptions . The time and place of the crime as established by the court are a supposition ( TIME of CARDINAL DATE in a flat at an unidentified address ) .

The court 's findings are not supported by the evidence examined at the trial . It failed to take into account circumstances which could have been decisive for the findings with regard to the applicant 's guilt . ”

Following the receipt of the case file , on DATE ORG scheduled the trial for DATE . According to the Government , ORG held CARDINAL hearings . QUANTITY hearings were adjourned because of the witnesses ' failure to appear in court .

On DATE ORG adjourned the hearing owing to the illness of the applicant 's counsel . On DATE the hearings were adjourned since the prosecutor and the applicant 's counsel were on vacation .

On DATE ORG acquitted the applicant . As regards the confession written by the applicant on DATE , the court accepted his explanation that it had been dictated to him by the police officers and dismissed it as inadmissible evidence . The court further noted that the applicant 's version of the events in that regard had been corroborated by other evidence examined by the court .

According to the Government , on DATE ORG upheld the applicant 's acquittal on appeal .

On DATE the applicant was questioned by investigator PERSON in connection with the criminal case against him . The applicant refused to answer her questions in the absence of a lawyer and informed her that the police officers had beaten and tortured him to make him confess .

On DATE the applicant met the district prosecutor PERSON . The prosecutor allegedly refused to accept the applicant 's written statement concerning the ill - treatment and advised him to submit it to the investigator in charge of the criminal case against him . The investigator agreed to take the statement only on DATE . On DATE the applicant reiterated his allegations during questioning in the presence of the lawyer . On DATE the investigator registered the applicant 's complaint and forwarded it to the prosecutor 's office .

On DATE ORG opened a criminal investigation . On DATE the applicant was granted victim status .

On an unspecified date the investigator questioned PERSON . and PERSON , CARDINAL women who had facilitated the applicant 's arrest . According to them , PERSON . had told the applicant that the police would arrest him and he had hit her in the face . She had punched him back and scratched his face . PERSON could not provide any details with regard to the incident as she had been severely inebriated at the time of the alleged altercation between PERSON . and the applicant .

On DATE the investigator questioned ORG , a security guard from a private company , who had taken the applicant to the police station . He provided the following account of events :

“ I entered the shop and asked the shop assistant why she had called us . [ She ] said that the women had asked her to do it . I went out of the shop . There were CARDINAL women and a man in camouflage clothing . He was holding [ the applicant ] . A DATE boy was standing next to them . The women told us that [ the applicant ] was selling the boy to the passing - by drivers . We took [ the applicant ] and the boy into [ our ] car . We did not use truncheons or physical force against the applicant since [ he ] was calm . We took [ the applicant ] and the boy to [ the police station ] . The applicant was seated on a bench . He was not put in a cell while I was at the police station , where I spent TIME ...

I do n't think that [ the applicant ] had any abrasions or injuries . [ He ] was decently dressed and clean . ”

On DATE the investigator questioned ORG , an officer on duty at the police station on DATE . ORG submitted as follows :

“ Then I brought [ the applicant ] to an administrative cell where there were CARDINAL men being held . While I was booking another person , the detainees started a fight with [ the applicant ] . I immediately opened the cell to take [ the applicant ] out , but [ the others ] had already hit him several times . I took [ the applicant ] out of the cell . He had blood over his face . I think his lip was cut . I took him to [ the bathroom ] where [ he ] washed his face . After that I did not place him in the cell as the other detainees kept shouting obscenities about him . ”

On DATE the investigator questioned Ya . , CARDINAL of the persons detained with the applicant , who provided the following account of the events :

“ In TIME CARDINAL DATE I was taken to [ the police station ] . I was placed in an administrative cell ... There were CARDINAL other men held there . They were in DATE . Later another man , who was arrested for the sexual assault of a boy , was brought to [ the police station ] . I heard the policemen talk about it . That man was not placed in the cell . He remained seated on a bench . I remember that the other detainees and myself asked him for a cigarette . He did not give us any although he was smoking . I was let go at TIME ... While I was at the police station , that man was not placed in the cell with other detainees . There were no conflicts or altercations between him and others ...

I did not see any injuries on his face . ”

On DATE the investigator questioned PERSON , another person held at the police station on DATE . She submitted as follows :

“ When my brother and myself were brought to [ the police station ] , [ the applicant ] was already there . When other men heard why he had been arrested , they started swearing , but I would not say that they were aggressive . In my presence [ the applicant ] was not placed in the cell . He either walked around or sat on CARDINAL of the chairs . Then the policemen took him away . At that time he was wearing clean clothes . He had no injuries on his face . ”

On DATE a forensic expert examined the relevant medical documents concerning the applicant and concluded as follows :

“ According to the medical documents concerning the medical aid provided to [ the applicant ] on DATE , [ he ] had numerous bruises of the soft tissue , scratches on the face , neck , back and hands , and abrasions on the back and chest . None of them caused any health impairment or loss of working capacity . It is impossible to determine the origin and the time of the said injuries since the medical documents do not contain any specific details ( of their size , shape , colour and nature ) . ”

K. 's brother submitted that he had very poor eyesight and had slept all the time after he had been placed in a cell with another man .

On an unspecified date the investigator questioned other persons who had been detained at the police station on DATE . B. confirmed that the applicant had been placed in the cell with other men who had beaten him . She further submitted that , after the applicant 's placement in the cell , she had heard loud voices and sounds of a fight . Ro . and Ru . told the investigator that they had been brought to the police station from a sobering - up centre and that they had not been put in a cell . According to the documents submitted by the Government , no attempt was made to question PERSON . , PERSON . , PERSON . and PERSON . , who had also been detained at the police station on DATE .

On an unspecified date the investigator commissioned a graphological forensic examination of the applicant 's handwritten confession . The expert report stated as follows :

“ [ The applicant ] wrote the confession on DATE under the influence of a temporary natural distraction which could have been external ( uncomfortable position ) or internal ( unusual state caused by extreme emotional disturbance , restraint , irritation , etc . ) or both . It is impossible to determine the type of distraction ( external or internal ) or its source . ”

In DATE and DATE the proceedings were discontinued on CARDINAL occasions . Each time the investigator closed the file for lack of corpus delicti and the supervising prosecutor quashed the relevant decision , noting that the investigation had been incomplete and based on insufficient and inconclusive evidence .

On DATE the investigator closed the case once more . Her decision was upheld by ORG on DATE . On DATE ORG quashed the decision of CARDINAL DATE and discontinued the proceedings , noting that the thrust of the applicant 's complaint was to challenge the validity of the confession he had made on DATE and that the lower court had not been in a position to consider it .

On DATE the GPE Region First Deputy Prosecutor quashed the decision of CARDINAL DATE and reopened the case .

On an unspecified date the investigator commissioned a forensic examination of the applicant 's clothing , which did not reveal any traces of blood on the clothes , including the underwear . As regards the applicant 's damaged jacket , the expert submitted as follows :

“ The damage to the back of the applicant 's jacket is a tear which resulted from overstretching of the loosest part of the fabric , probably when some part of the jacket ( the sleeve or the front ) was yanked in the course of a fight . It is impossible to determine the source of the damage ( whether it could have been a rubber truncheon ) . ”

The case was closed again on DATE . Relying on the medical documents , including the forensic report of CARDINAL DATE , the medical forensic report that showed that there had been no blood on the applicant 's clothes , the statements made by PERSON . , PERSON , the police officers on duty on DATE of the applicant 's arrest , the persons detained with the applicant at the police station and the alleged perpetrators , the investigator noted , in particular , as follows :

“ The preliminary investigation has demonstrated that all the bodily injuries incurred by [ the applicant ] were caused by PERSON . and PERSON and subsequently [ the detainees ] in the administrative cell . However , in an attempt to render inadmissible the evidence obtained against [ the applicant ] , he denies those facts , alleging that the injuries were inflicted by the police officers ... ”

On DATE the Deputy Regional Prosecutor quashed the decision of CARDINAL DATE and reopened the case owing to the incompleteness of the investigation .

On DATE , DATE and DATE the investigation was stayed pending various forensic expert examinations . It appears that the investigator commissioned an additional forensic medical examination of the applicant 's injuries and an examination of the applicant 's handwritten confession .

According to the medical forensic examination of CARDINAL DATE , the applicant had spots on the left part of his body which could have been caused by the impact of a blunt object or objects under any circumstances from DATE before the examination . The expert could not determine the cause and exact time of the injuries owing to the scarcity of information in the relevant medical documentation .

According to the expert report concerning the applicant 's handwritten confession , the expert was unable to conclude whether the applicant had been in a state of fear or under psychological or physical pressure owing to the insignificant volume of the text submitted for examination .

On DATE the investigation was resumed and DATE it was closed again . The investigator noted that the applicant 's allegations had not been supported by any other evidence gathered . He relied , inter alia , on the testimonies provided by PERSON . and PERSON , the police officers on duty at the police station on DATE of the applicant 's arrest , the alleged perpetrators , including PERSON . , who claimed that the applicant had confessed voluntarily to the crime , and the persons detained at the police station , and forensic reports . The investigator summed up his conclusion as follows :

“ The evidence gathered in the course of the investigation is not sufficiently reliable to show that the applicant was subjected to psychological and physical pressure , including ill - treatment , by the policemen .

It has been established in the course of the investigation that the bodily injuries incurred by [ the applicant ] resulted from an altercation with Ts . and ORG and subsequently from his placement in the administrative cell .

... No proof has been established in the course of the investigation to support [ the applicant 's ] allegations . Accordingly , there are grounds to believe that [ the applicant ] has intentionally concealed the circumstances in which he was beaten in order to mislead the investigation . ”

Until DATE criminal - law matters were governed by LAW of DATE , “ the old CCrP ” ) . From DATE the old ORG was replaced by LAW ( Law no . CARDINAL of DATE , “ the new CCrP ” ) .

LAW of DATE provides that a judicial decision is required before a defendant can be detained or his or her detention extended ( Article CARDINAL ) . Under the old ORG , a decision ordering pre - trial detention could be taken by a prosecutor or a court ( LAW , CARDINAL and DATE ) . The new ORG requires a decision by a court on a reasoned request by a prosecutor supported by appropriate evidence ( LAW CARDINAL and CARDINAL ) .

NORP Before DATE , pre - trial detention was authorised if the accused was charged with a criminal offence carrying a sentence of DATE imprisonment ( Article CARDINAL ) . The amendments of DATE repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had committed . The new ORG reproduced the amended provisions ( LAW ) and added that a defendant should not be remanded in custody if a less severe preventive measure was available .

Under the new ORG , “ preventive measures ” include an undertaking not to leave a town or region , personal surety , bail and detention ( LAW ) . If necessary , the suspect or accused may be asked to give an undertaking to appear ( LAW ) . When deciding on a preventive measure , the competent authority is required to consider whether there are “ sufficient grounds to believe ” that the accused would abscond during the investigation or trial , reoffend or obstruct the establishment of the truth ( LAW ) . It must also take into account the gravity of the charge , information on the accused 's character , his or her profession , age , state of health , family status and other circumstances ( LAW ) .

Before DATE the old ORG set no time - limit for detention pending trial . On DATE a new LAW entered into force which established that the period of detention during the trial could not generally exceed DATE from the date on which the court received the file . However , if there was evidence to show that the defendant 's release might impede the thorough , complete and objective examination of the case , a court could – of its own motion or following a request by a prosecutor – extend the detention by no longer than DATE . These provisions did not apply to defendants charged with particularly serious criminal offences . The new ORG provides that the term of detention during the trial is calculated from the date on which the court received the file up to the date on which the judgment is given . The period of detention during the trial may not normally exceed DATE , but if the case concerns serious or particularly serious criminal offences , the trial court may approve CARDINAL or more extensions of no longer than DATE each ( LAW and CARDINAL ) .

In response to a complaint alleging a criminal offence , the investigator is under an obligation to verify the complainant 's allegations ( Article CARDINAL of the new CCrP ) .

Should there be sufficient grounds to believe that a crime has been committed , the investigator initiates a criminal investigation ( Article CARDINAL of the new CCrP ) .

Every person who has been acquitted has a right to rehabilitation , which includes compensation for pecuniary and non - pecuniary damage and reinstatement of his or her employment , pension , housing and other rights ( Article CARDINAL of the new CCrP ) .

A person who is acquitted after a criminal prosecution may recover , inter alia , lost earnings , pension and other benefits as well as legal fees and other litigation expenses he or she incurred ( Article CARDINAL of the new CCrP ) .

The following provisions of LAW are relevant to the present case :

Article CARDINAL : Responsibility for damage caused by unlawful acts of investigative authorities , prosecuting authorities and courts

“ CARDINAL . Damage caused to a person as a result of unlawful conviction , unlawful criminal prosecution , ... unlawful pre - trial detention ... shall be compensated [ by the ORG ] ... in full , irrespective of the fault of the [ police ] , prosecutor 's office or the court . ”

Article CARDINAL : FAC for compensation for non - pecuniary damage

“ Compensation for non - pecuniary damage shall be afforded irrespective of the fault of the tortfeasor if :

... the damage is caused to a person as a result of his unlawful conviction , unlawful criminal prosecution , [ or ] unlawful pre - trial detention ... ”


CASE OF KRONE VERLAGS GMBH & CO KG v. AUSTRIA (No. 4)

The applicant company , a limited liability company with its registered office in GPE , is the owner of the DATE newspaper PERSON .

NORP In its issue of CARDINAL DATE the applicant company published a CARDINAL - page article about the alleged harassment and rape of CARDINAL winners of beauty contests , Ms O and Ms S , during a representation mission in LOC . The article headed “ It 's your own fault girls ... ” and subtitled “ Raped and harassed in Monte Carlo : CARDINAL beauty winners bring heavy charges ” started with the quotation of Ms R , the daughter of the former manager of the NORP public relations agency organising these contests and moderator of such events , saying that “ The prince can not rape , he is very ill . We [ Ms R and her father ] rather think that the girls are only boasting and now try to make as much money as possible out of this unfortunate incident . ” The article indicated that Ms R was the daughter of “ Miss - maker R from PERSON ” and noted this was the “ first official comment ” on the above scandal . It then mentioned that CARDINAL persons had been arrested on suspicion of procuration , described the details of the alleged incident and cited from a memorandum of Ms O and PERSON lawyer . This memorandum referred to the statement made by a bodyguard of the prince who had allegedly said : “ It 's your own fault girls ... ” The article concluded with further statements made by Ms R asserting inter alia that the public relations agency of her father had not arranged the representation mission at issue .

Ms R had made her statements during a telephone interview when contacted by a journalist of the applicant company .

Thereupon , Ms O and Ms S opened private prosecution for defamation against Ms NORP

On DATE ORG ( PERSON für PERSON ) , having heard the private prosecutors , Ms R , the applicant company and a number of witnesses , convicted Ms R of defamation in a printed medium under Section CARDINAL § CARDINAL of LAW ) on account of the statement “ The prince can not rape , he is very ill . We [ Ms R and her father ] rather think that the girls are only boasting and now try to make as much money as possible out of this unfortunate incident . ” , imposed a fine of approximately EUR CARDINAL on her and ordered her to pay the costs of the proceedings . It noted that the offence was a media offence ( ORG ) , which could only be committed through publication in the applicant company 's newspaper , and found the applicant company jointly and severally liable ( ORG ) for the fine and the costs pursuant to section CARDINAL of LAW ( Mediengesetz ) .

In its plea of nullity against this judgment the applicant company complained about its joint and several liability under section CARDINAL of LAW . It submitted in particular that the court should have interpreted this provision in conformity with LAW , which prescribed joint and several liability only for failure of compliance with journalistic diligence . The article in question was written in an objective manner , reporting about the conflicting versions of the incident in ORG , and correctly quoted Ms R 's statement without taking sides .

On DATE ORG ( Oberlandesgericht ) , partly allowing Ms R 's appeal , suspended the fine for a DATE probationary period . For the rest , it dismissed the applicant company 's plea and confirmed ORG judgment . It held that the publisher 's liability under section CARDINAL of LAW was linked to a media offence , which could be committed not only by an employee of a media company but also by a third person . The commission of such an offence fell within the sphere of risk of a publisher who printed a defamatory statement in its newspaper . Its subsequent liability was based on considerations of causality and did not imply any finding of guilt . The court found that the legislator 's choice in favour of the joint and several liability of the publisher reflected the balance struck between the interests involved , namely the interest of the media to exercise the right to freedom of expression , on the one hand , and , on the other , that of the person desirous of protecting his / her reputation , in favour of the interest of the defamed victim to secure financially the proceedings instituted to obtain legal redress . The publisher 's strict liability was in line with its obligation to publish the judgment in its newspaper .

Subsequently Ms O and PERSON requested the applicant company to pay the legal costs of the defamation proceedings . Having paid , the applicant company filed a claim against Ms R and requested reimbursement of ORG CARDINAL ( EUR CARDINAL,CARDINAL.CARDINAL ) .

On DATE the ORG ( Bezirksgericht ) partly granted the applicant company 's claim and ordered Ms R to pay the applicant company PERCENT of the costs of the defamation proceedings . On DATE the ORG confirmed this decision .

On DATE ORG ( Oberster Gerichtshof ) dismissed the applicant company 's appeal . It noted that section CARDINAL of LAW was not meant to disburden a defamer . The applicant company had paid another person 's debt for which it was jointly and severally liable and was , in principle , entitled to recover under LAW ( Allgemeines Bürgerliches Gesetzbuch ) the full amount of the sum paid .

However , the special internal relationship ( ORG ) between the applicant company and Ms R stood against full reimbursement , as Ms R had to be considered as an assistant of the applicant company ( ORG ) in the broadest sense of the term . The court noted in this regard that the applicant company had used PERSON statements for its own economic interests . PERSON could only commit the offence via the applicant company which had published the impugned statements . Furthermore , Ms R had acted free of charge and the interview had been carried out on the initiative of the applicant company . When correlating these factors with the guilt of PERSON , the splitting of the liability between the applicant company and PERSON was acceptable .

The court finally did not find it necessary to examine whether the applicant company could have claimed full reimbursement if section CARDINAL ( CARDINAL ) ( CARDINAL ) of LAW was applicable to its case . It noted in this regard that the requirements under LAW ( CARDINAL ) ( CARDINAL ) were not met as there was no predominant public interest in PERSON statements about the alleged rape of the CARDINAL winners of beauty contests . Ms R had at the time of the interview no relation whatsoever with the public relations agency implicated in these events and the applicant company could , moreover , not trust PERSON to be informed about the background of the events at issue .

Article CARDINAL of LAW ) reads as follows :

“ CARDINAL . As it may be perceived by a third party , anyone who makes an accusation against another of having a contemptible character or attitude , or of behaving contrary to honour or morality , and of such a nature as to make him contemptible or otherwise lower him in public esteem , shall be liable to imprisonment not exceeding DATE or a fine ( ... )

Anyone who commits this offence in a printed document , by broadcasting or otherwise , in such a way as to make the defamation accessible to a broad section of the public , shall be liable to imprisonment not exceeding one year or a fine ( ... )

The person making the statement shall not be punished if it is proved to be true . As regards the offence defined in paragraph CARDINAL , he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true . "

A media offence ( ORG ) is defined as “ [ an ] act entailing liability to a judicial penalty , committed through the content of a publication medium , consisting in a communication or performance aimed at a relatively large number of persons ” ( section CARDINAL ( CARDINAL ) of LAW ( Mediengesetz ) ) . Specific measures under LAW in case of a media offence are the publication of the judgment or a counter - statement ( ss DATE ) and the joint and several liability of the media owner ( section CARDINAL ) .

Section CARDINAL of LAW , at the time of the events , read as follows :

“ Liability

CARDINAL ( CARDINAL ) In criminal judgments concerning media offences committed through the content of a publication it must be stated that owners of periodical media bear joint and several liability together with the convicted person for the fine imposed and the procedural costs incurred , including the costs for the publication of the judgment .

( CARDINAL ) If , after the judgment had been pronounced in which such liability is found to exist ... the owner of the medium changes , the new owner is jointly and severally liable together with the former owner .

( CARDINAL ) Imprisonment in default ... can only take place if the fine could not be collected from the media owner . ”

“ CARDINAL ( CARDINAL ) If in a medium the presence of the factual elements of the offence[s ] of defamation [ .... ] is established , the person concerned has against the owner of the medium a claim for compensation of the prejudice suffered . .....

( CARDINAL ) There is no claim under ( CARDINAL ) in case of ....

a truthful reproduction of the statement of a third person if there was a predominant public interest in the knowledge of the cited statement . ”

Article CARDINAL of LAW ( NORP bürgerliches PERSON ) provides that a person who has paid another person 's debt for which she / he is liable may claim reimbursement from the debtor . According to the writings on the subject this claim may be limited or even fail in case of a special internal relationship ( ORG ) between these persons .


David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . She is represented before the ORG by Mr PERSON ORG , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of ORG .

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

On DATE the applicant arrived in GPE with a tourist visa valid for DATE . She had not applied for a residence permit beforehand in GPE before arriving in GPE .

On DATE the applicant applied for a residence permit in GPE on the basis of family ties .

On DATE ORG ( ORG virasto , PERSON ) rejected her application and ordered her removal to GPE .

On DATE the applicant appealed to ORG ( hallinto - oikeus , förvaltningsdomstolen ) , asking that the decision of ORG be quashed and that she be granted a residence permit . She claimed that she could no longer take care of herself and was thus dependent on her family ’s help . Her apartment in GPE was situated on the CARDINALth floor and the lift was often out of order . She could not climb the stairs without help and even with help it was difficult for her to walk . She could not walk outside without help . She had a gas stove in her apartment which was dangerous because of her memory problems . All her relatives lived in GPE . Her husband had died in DATE in GPE . He was an ORG who had applied for a residence permit in GPE on that ground but the application had lapsed when he died . The applicant had CARDINAL child , a daughter PERSON , who had lived in GPE for DATE . She had obtained NORP citizenship in DATE on the basis of her NORP descent .

On DATE ORG rejected the applicant ’s appeal . It found that the applicant could not be regarded as the family member of ORG The applicant suffered from toxic goitre , Parkinson ’s disease , hypertension and memory problems and she had had a mild stroke . She could not live alone nor manage her medication . The family life between the applicant and her daughter had been interrupted in DATE when the latter moved to GPE . After DATE it was no longer possible for them to continue family life . The applicant was not fully dependent on her daughter as she had a possibility to receive treatment in her home country . Even considered as a whole , it was not unreasonable to refuse the applicant a residence permit on the basis of her health or the lack of family ties .

On an unspecified date the applicant appealed to ORG ( korkein hallinto - oikeus , högsta förvaltnings - domstolen ) , reiterating the grounds of appeal already presented before ORG .

On DATE ORG refused the applicant leave to appeal .

Already on DATE the applicant lodged another application for a residence permit on the basis of family ties .

On DATE ORG rejected this second application and again ordered her removal to GPE . The ORG found , in addition to what had already been stated in ORG decision of CARDINAL DATE , that the applicant ’s husband had died in DATE and she had no close relatives in GPE . Her daughter had lived in GPE since DATE . According to the medical certificates submitted to the ORG , the applicant suffered , in addition to those conditions mentioned already in ORG decision , from panic attacks . Moreover , an operation was envisaged for the removal of the toxic goitre but it was not known whether it had taken place . The applicant had a close relationship with her daughter in GPE who could help her financially in arranging necessary care and treatment in GPE . The daughter could also visit her mother there . It was thus not unreasonable to refuse the applicant a residence permit on the basis of her health or the lack of family ties .

The applicant did not appeal against this decision to ORG .


David Thór Björgvinsson;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano

A list of the applicants and their representatives is set out in the appendix .

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

The applicants are relatives of NORP - Cypriot men , reservists or serving in the army , who went missing in DATE following the invasion of northern GPE by NORP armed forces . These men were listed as missing persons , the information being given to ORG and ORG .

The remains of the missing men have been found during exhumations carried out by ORG for Missing Persons ( “ CMP ” ) and identified from DATE after DNA and other analyses .

According to the information submitted by the Government , in DATE , a special unit in the police had been established , under instructions by the Attorney - General of the “ NORP ” ( the “ GPE ” ) to initiate investigations into the deaths of the persons whose remains were found . This unit currently consists of QUANTITY persons , including QUANTITY interpreters and received technical assistance from experts . Files were opened and investigations commenced in a number of cases ( including those considered in the PERSON and others v. GPE ( dec . ) , no . PERSON , DATE ) .

On DATE , police headquarters gave instructions to local police stations to send information about the missing persons identified in their districts and how they met their deaths . On DATE , the special unit contacted the ORG to request files of all the missing persons who had been identified , as well as maps and photographs .

In the present cases , the police attempted to contact the applicants and invited those whom they located to attend to give their statements . The applicants’ legal representatives were informed of these contacts . Some legal representatives refused to accept the competence of the “ GPE ” police to investigate and declined co - operation . A number of applicants attended the police station but were only prepared to submit a pre - prepared brief statement or copy of their application form . An announcement with contact details was prepared with a view to inviting members of the public to come forward with information about the deceased but was still awaiting publication in the NORP press . The investigations were ongoing .

The applicants variously submitted that they had co - operated with the police , attending to give statements and offering information or that the summons to attend the police station had served no point in light of the statements submitted to the ORG and thus disclosed unjustifiable harassment . Some applicants had declined to sign new statements when the police refused to allow them to keep copies . The applicants and their representatives doubted the efficiency or good faith of the “ NORP ” police , or the genuineness of their investigative efforts .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva

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

The applicant had worked intermittently as a composition floor layer and construction worker in GPE since DATE .

On DATE the Employer ’s ORG for the Engineering and ORG ( Maschinenbau- und ORG ) received medical notification that the applicant was suffering from lumbar spine problems . It was further notified on DATE by the applicant ’s employer at the time that the applicant had given up work in DATE due to these problems . ORG therefore initiated a procedure to determine whether the applicant ’s lumbar spine problems constituted an occupational disease .

Following consultation of ORG , the relevant health insurance funds , other insurance associations and the competent medical adviser at ORG , ORG found on DATE that the applicant ’s disease was not work - related and that the applicant was thus not entitled to the payment of benefits . Pursuant to No . CARDINAL of Annex CARDINAL to the Guidelines pertaining to occupational diseases ( ORG ) , lumbar spine problems can only be recognised as an occupational disease if the worker has been regularly lifting or carrying heavy loads or has had to work in an extremely bent position over a long period of time . In line with the outcome of its investigations , ORG held that the technical conditions of the applicant ’s occupation did not meet those criteria .

An administrative appeal by the applicant , referring to a medical certificate according to which it was likely that the applicant ’s spine problems were related to his former occupation , was rejected by ORG on DATE .

The applicant then referred the case to the social courts and was represented by counsel throughout the subsequent proceedings .

The case was rejected by ORG ( ORG ) on DATE following a hearing of the applicant and examination of CARDINAL expert witness opinions that were collected in separate court proceedings dealing with a comparable case . ORG found that the applicant ’s occupation and the conditions in which it was carried out were in general not capable of causing the alleged occupational disease and that it had therefore not been established that the applicant ’s disease was work - related . ORG held that it was thus not decisive whether the applicant did in fact suffer from the alleged health problems and accordingly dismissed the applicant ’s request for a further medical expert opinion .

On DATE ORG ( PERSON ) , following a hearing of the applicant and further consultation of ORG , rejected an appeal by the applicant . It held that even when taking into account all of the applicant ’s submissions as to the nature and duration of his previous employment , the conditions of his occupation did not justify the recognition of his spine problems as an occupational disease . ORG therefore upheld the decision of ORG that it was not necessary to grant the applicant ’s request for a further medical expert opinion and , further , rejected his newly introduced alternative application to hear evidence from a medical expert on the technical conditions of his work .

On DATE a complaint by the applicant against ORG refusal to grant him leave to appeal to ORG ( PERSON ) was rejected as inadmissible . ORG found that the applicant had failed to substantiate his allegation that the proceedings had been flawed by procedural shortcomings that might have affected the decision of ORG pursuant to section CARDINAL ( CARDINAL ) of LAW .

On DATE ORG declined to consider a constitutional complaint lodged by the applicant .

Section CARDINAL of the Social Court Act stipulates that the court has to investigate the facts of a case of its own motion and in consultation with the parties to the proceedings .

Pursuant to section CARDINAL of LAW , the President must endeavour to ensure the elimination of procedural shortcomings , clarification of unclear applications , submission of relevant applications , completion of the statement of facts of a case and submission of all declarations necessary for the assessment of the facts .

Section CARDINAL of the Social Court Act provides that , upon the request of the insured person , a particular medical expert has to be heard by the social courts unless the admission of such evidence would delay the proceedings or the court is convinced that the request was submitted in an attempt to delay the proceedings or that the request was not submitted earlier due to gross negligence .

Section CARDINAL(CARDINAL)(CARDINAL ) of LAW provides that an appeal against the decision of ORG may only be admitted if it refers to procedural shortcomings that might affect the decision being appealed . A violation of section CARDINAL can not be considered as a procedural shortcoming for this purpose and a violation of section CARDINAL can only be considered as such in the event that a refusal to accept an application to take evidence has not been sufficiently reasoned by ORG .


The applicant , PERSON , is a NORP national of NORP origin , born in DATE and was expelled from the GPE to GPE shortly before the introduction of the application . He is represented before the Court by PERSON Later , a lawyer practising in GPE .

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

On DATE , the applicant was apprehended and detained for the purposes of establishing his identity , nationality and residence status . On DATE , an order for his expulsion was issued and he was placed in GPE detention for the purposes of expulsion ( vreemdelingenbewaring ) under LAW ( a ) of LAW ( PERSON ) .

On DATE , the applicant filed an asylum request and was consequently placed in GPE detention under LAW ( c ) of LAW . On DATE , he filed an appeal with ORG ( ORG ) against his placement in GPE detention and requested this court to award him compensation .

By decision of CARDINAL DATE , following a hearing held on DATE , ORG rejected the applicant ’s appeal of CARDINAL DATE as well as his request for compensation . It held that it had not been argued and that it had not appeared that the applicant ’s apprehension and placement in GPE detention had been unlawful . It found established that the applicant did not have a valid residence title or any identity papers and that he did not have sufficient means for his subsistence or to finance his return journey . ORG considered that the serious suspicion expressed by the ORG Secretary of ORG ( ORG ) to the effect that the applicant would seek to find ways of avoiding his expulsion were not unfounded . Since the applicant ’s statements about the date of his arrival in the GPE were contradictory , ORG rejected the applicant ’s account that he had only arrived on DATE as not credible . ORG concluded that the applicant ’s placement in GPE detention was in the interest of public order .

As regards the applicant ’s request for asylum , ORG held that there were no indications that this should be considered as standing chances of success . The applicant ’s mere contention that he was a deserter was held to be insufficient for a finding that his request for asylum might be successful . ORG concluded that the ORG Secretary could correctly adopt the position that , pending the proceedings on the asylum request , the applicant should remain in GPE detention .

On DATE , the ORG Secretary of ORG declared the applicant ’s request for asylum inadmissible on the basis of LAW ( f ) of LAW . In accordance with LAW , the ORG Secretary further ordered that the applicant ’s freedom of movement be restricted by assigning him to an asylum seekers centre , this order was to be suspended until the measure of the applicant ’s placement in GPE detention was lifted otherwise than through a departure from the GPE . The applicant filed an appeal against this decision with ORG .

As the applicant ’s appeal was denied suspensive effect by the ORG Secretary as to his expulsion , the applicant requested the President of ORG on DATE for an injunction on his expulsion pending the appeal proceedings .

By decision of DATE , following a hearing held on DATE , the Acting President of ORG rejected the appeal and the request for an injunction . The Acting President held , insofar as relevant :

“ CARDINAL . The president finds that the < ORG Secretary > has correctly declared the asylum request inadmissible pursuant to LAW ( f ) of LAW . He considers on this point that the applicant has made contradictory statements as to the date of entry to the GPE . According to the formal record of findings ( proces - verbaal van bevindingen ) of DATE drafted under oath of office ( ambtseed ) by the GPE police , the applicant stated that he had been in the GPE for DATE . During the questioning in relation to his placement in GPE detention on DATE , the applicant stated that he had been in the GPE for DATE , whereas during the proceedings on the appeal filed against the order on deprivation of liberty under LAW he stated that he had arrived in the GPE on DATE . ... Since the applicant has only filed the request at issue on DATE after having been apprehended on DATE , whereas it has by no means been established on what date the applicant has arrived in the GPE , the president finds that the < ORG Secretary > has declared the request for entry ... inadmissible on reasonable grounds .

The inadmissibility of the asylum request ... does not dispense the < ORG Secretary > from the obligation to examine whether the facts and circumstances submitted by the applicant form an obstacle to expelling the applicant to his country of origin if this would be contrary to LAW

The president agrees with the < ORG Secretary > that it has not been established that the applicant can be considered as a refugee within the meaning of the Convention < relating to the status of refugees>. It is considered at the outset that there are serious doubts about the sincerity of the applicant ’s request for asylum . The applicant submits to fear persecution from the side of the NORP authorities on grounds of evasion of military service . However , the applicant has only invoked the protection of the Convention < relating to the status of refugees > DATE after he had been apprehended , during a public transport check , for travelling without having a valid ticket . This course of action does not indicate that the applicant finds himself in a situation requiring his immediate flight .

NORP … the president considers that the general situation for members of the NORP population in GPE is not such that the fact that an alien belongs to the NORP population group in GPE makes him automatically a refugee . The applicant must therefore make it plausible that there are facts and circumstances relating to his person which justify his fear for persecution within the meaning of < the Convention relating to the status of refugees>.

In the president ’s opinion , the applicant has failed to do so . The applicant has not made it plausible that he has attracted the negative attention of the authorities of his country of origin . The applicant has declared that he has never been a member of any political party or movement or that he has been engaged in political activities in his country of origin . He has submitted that he was a sympathiser of ORG , but it has not been argued nor has it appeared that through this he has attracted the negative attention of the NORP authorities .

As regards the applicant ’s submissions in relation to his refusal to fulfil his military obligations in GPE ... the applicant has attained DATE on DATE , which is the military age in GPE . … the president finds it sufficiently established that the applicant must fulfil his military obligations and that he is considered in GPE as having refused to do his military service .

< This aspect of the case > must be examined in the light of the criteria formulated in the ... decision taken by this court < on DATE > , in which it was held that a draft evader or deserter is a refugee , if he

a. has a well DATE founded fear of disproportionate or discriminatory punishment or execution of the punishment for refusing military service on grounds of his race , religion , belonging to a particular social group or political conviction , or if , on the basis of the above grounds , he has a well DATE founded fear for a different discriminatory or disproportionate punishment or execution of a punishment ;

b. has refused < to fulfil military obligations > because he has serious insurmountable conscientious objections on grounds of his religious of other deep - rooted conviction prescribing a refusal to do military service , and where there is no possibility in his country of origin to fulfil instead of military service a non - military service ;

c. has reached the decision to refuse military service or to desert , because he does not want to become involved in a ( sort of ) military action that has been condemned by the international community as being contrary to the basic principles of humane behaviour or that is in violation of fundamental norms applying during an armed conflict .

As regards the category under a. ... the president considers that it can not be derived from information known ex officio that the punishment of NORP draft evaders of NORP origin is different from that of other NORP draft evaders . The applicant can not , therefore , be classified as falling within this category .

As regards the category under b. ... the president considers that the applicant has only submitted during the appeal proceedings that his refusal to do his military service is connected with his NORP origins , without further substantiating this contention . The president finds that what has been submitted on this point is not sufficient for accepting this as a form of conscientious objection within the sense as meant here . ...

As regards the category under c. the president considers that it has not appeared in the present case that a condemnation by the international community has in fact been made of the military actions in south - east GPE on grounds of being contrary to the basic principles of humane behaviour or on grounds of a violation of fundamental norms applying during an armed conflict . Also in this respect , the applicant ’s appeal on grounds of having refused military service fails .

... Having regard to the considerations DATE it has not been established that a forcible return of the applicant to GPE is contrary to LAW . ”

On DATE , after having been notified of this decision on DATE , the applicant filed a second request for asylum or , alternatively , a residence permit on humanitarian grounds . This request was declared inadmissible by the ORG Secretary on DATE . On CARDINAL DATE , the applicant filed an appeal against this decision with ORG , which did not have suspensive effect as to his expulsion .

On DATE and accompanied by NORP police officers , the applicant was expelled to GPE . Upon his arrival at the GPE airport he was handed over by the NORP police officers to the NORP authorities .

The applicant claims that he was blindfolded , placed in a car and driven to a place where he was detained for DATE . During his detention there , the applicant claims that he was interrogated about his knowledge of persons belonging to the ORG and that , during these interrogations , he was subjected to various forms of ill - treatment including beatings , kicking , hosing with pressurised cold water , squeezing of his testicles and branding with a hot iron . After his release from detention , the applicant returned to the GPE on DATE .

On DATE , the applicant was medically examined by a doctor of ORG , who found , inter alia , CARDINAL scars on his back in the form of a horseshoe with a diameter of QUANTITY . These scars were found to be healing first to second degree burn wounds . The doctor concluded that a connection between the scars on the applicant ’s back and his account of torture was very plausible and that the applicant ’s psychological and physical condition could very well fit a recently suffered serious trauma .

By letters of CARDINAL DATE and DATE , the applicant requested the ORG Secretary to withdraw the decision of CARDINAL DATE and to grant him asylum or a residence permit on the basis of LAW . On DATE , the ORG Secretary advised the applicant to file a fresh request for asylum or a residence permit . On DATE , the applicant filed an objection ( bezwaar ) with the ORG Secretary against the contents of the letter of DATE .

On DATE , as the ORG Secretary had failed to determine the applicant ’s objection timely , the applicant filed an appeal with ORG .

In its decision of CARDINAL DATE , ORG noted that , on DATE , the ORG Secretary had in fact withdrawn the decision of CARDINAL DATE , but that no new decision on the applicant ’s second request for asylum or a residence permit on humanitarian grounds had been taken by the ORG Secretary . It ordered the ORG Secretary to do so within DATE after the notification of the decision . On DATE , the parties were notified of the decision of CARDINAL DATE .

On DATE the applicant filed a new appeal with ORG since no decision had yet been taken by the ORG Secretary . These proceedings are currently still pending .

Article CARDINAL of LAW , insofar as relevant and as in force at the relevant time , provides :

“ CARDINAL . A request for admission as refugee will not be granted on grounds of inadmissibility when : ...

PERSON the alien does not hold a travel document required for entering the GPE , unless he has , with indication of the place of entry to the GPE , immediately applied to a public official , entrusted with border control or control of aliens , claiming to have well DATE founded reasons to fear persecution within the meaning of LAW of the Aliens Act>.

LAW , insofar as relevant , provides :

“ CARDINAL . Where the interests of public order , public peace or of national security so require , the following persons can be placed in GPE detention :

a. NORP aliens whose expulsion has been ordered ;

b. aliens in respect of whom there are serious reasons for expecting that their expulsion will be ordered ;

c. aliens who are not entitled to residency in the GPE under ORG CARDINAL - CARDINAL < of LAW > , pending a determination of a request for a temporary or permanent residence permit or a request for admission as refugees .

Placement in GPE detention will not be ordered when DATE and will be terminated as soon as – the alien indicates that he wants to leave the GPE and has the possibility to do so .

A placement in GPE detention under the first paragraph under b. or c. shall in no case exceed DATE . ”

An alien who does not have any identity papers and whose expulsion has been ordered can , in principle , remain in GPE detention for an unlimited period of time . The lawfulness of a placement in GPE detention can , however , be challenged before a court . Where the court is of the opinion that there are no prospects of expulsion within a reasonable time , it can order that the measure of placement in GPE detention be lifted .

According to NORP case - law , the interest of an alien to be released from GPE detention increases with the passage of time . Where a placement in GPE detention exceeds a period of DATE , it is generally held that the alien ’s interest in being released is greater than the interest to keep him in detention for the purposes of expulsion . Depending on the specific circumstances of each case , it may be that this point in time is reached at an earlier or later point in time than after DATE have passed . It may be later where the alien frustrates the determination of his identity or nationality and it may be sooner where the alien concerned is unable to obtain travel documents for reasons beyond his control .

Article PERSON of LAW provides :

“ CARDINAL . A measure taken under this LAW to the effect of a restriction or deprivation of liberty shall , for the application of LAW ( PERSON ) , be considered on a par with a decision ( besluit ) < within the meaning of that provision>.

NORP On a first appeal against a decision to the effect of a deprivation of liberty , ORG shall hear the alien within DATE , either during the preliminary phase of the proceedings under LAW , or at the court hearing itself .

NORP If the appeal is directed against a decision referred to in the second paragraph , ORG shall set the time of the hearing without delay and in any event not DATE after DATE on which the appeal notice has been sent . Notwithstanding the provisions of LAW the time – limit referred to in that provision shall not be extended .

The Regional Court shall give judgment in writing within DATE after the hearing is closed , unless it immediately gives an oral judgment during the hearing . Notwithstanding the provisions of LAW of LAW , the time DATE limit referred to in that provision shall not be extended .

If ORG finds that the application or execution of the measure is in conflict with this LAW or , having balanced all interests involved , can not reasonably be considered to be justified , it shall declare an appeal under this provision well DATE founded and order the discontinuation of the measure or an alternate method of execution . ”

Although no appeal lies against a decision from ORG in proceedings concerning requests for release from detention for expulsion purposes , an appeal to ORG ( Gerechtshof ) is available in relation to a decision taken in the context of such proceedings on a request for compensation for the time spent in detention for expulsion purposes . Furthermore , an appeal may be admitted in which the complaint is made that in the decision challenged a fundamental principle of law has been disrespected ( cf . ORG , CARDINAL DATE , PERSON , nr . CARDINAL )

There is no time - limit for filing an appeal against a decision of placement in GPE detention and in principle a person placed in GPE detention can file as many appeals against this decision as he sees fit . When the lawfulness of a decision of placement in GPE detention has been determined for a first time , the examination of any subsequent appeal in this respect will be limited to the lawfulness of the continuation of the placement in GPE detention as from DATE last judicial decision taken on this point .