Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);No violation of Article 5 - Right to liberty and security (Article 5-2 - Prompt information)

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria

The applicant was born in DATE and lives in GPE .

According to the applicant , at TIME on DATE , police officers belonging to the special intervention forces of ORG took the applicant into custody in order to transport him from his home in GPE to GPE , QUANTITY away . They had not presented any warrant or other legal document justifying his arrest , nor informed him of the reason for his arrest or where they intended to transport him .

The applicant contended that while in custody he had been beaten by police officers so severely that he had lost consciousness . As a result , he needed urgent medical assistance and was admitted to the emergency ward of ORG . While he was on a drip at the hospital , he was hit again and handcuffed by police officers . This occurred in the presence of his lawyer .

The Cluj Police immediately transferred him from ORG to the emergency ward of ORG , where he remained for TIME from TIME until TIME .

At TIME , although unable to speak because he had been given sedatives in hospital , he was transported from the hospital directly to ORG in order to be interviewed . There , he was informed for the first time of the reason for his arrest , namely that he was suspected of making repeated phone calls threatening to kill someone . He was interviewed until CARDINAL a.m.

A preliminary criminal investigation was initiated in connection with allegations that the applicant had made threatening telephone calls against a resident of ORG . On DATE , the prosecutor attached to ORG therefore issued an order for the applicant to be brought before him for questioning .

At TIME on DATE , having been informed by police officers about the order , the applicant agreed to accompany the police officers to ORG in GPE . On their way to GPE , near PERSON , the applicant informed them that he was feeling sick and became physically agitated , presenting the symptoms of an epileptic seizure .

The police officers took the applicant to the nearest hospital in DATE , where he was examined and received immediate medical treatment . While in the consulting room , the applicant had a panic attack and started hitting his legs and hands against the bed . CARDINAL police officers had to intervene and immobilise the applicant ’s hands so that he could be disconnected from the medical devices .

The applicant was transported in an ambulance from ORG to the emergency ward of ORG for further medical examinations , which took place from TIME . The diagnosis was abdominal trauma and abrasions .

As no traumatic injuries or clinical indications requiring an immediate operation were diagnosed , the applicant was discharged from the hospital and presented himself at the police station for questioning .

After questioning , the applicant gave a written statement , which according to the prosecutor was barely legible . He was assisted by his lawyer during the questioning .

On DATE ORG examined the applicant and issued a report that stated that his injuries could have been caused DATE by being hit with a hard object . It noted the existence of bruising and abrasions on the upper abdomen and on both hips , and estimated that the applicant would need DATE to recover .

A medical certificate issued by ORG on DATE showed that the applicant had been hospitalised on DATE for TIME . The certificate stated that the applicant had been diagnosed with a minor cranial trauma , abdominal trauma and abrasions , and concluded with the expression “ Affirmative assault ” ( “ PERSON agresiune ” ) .

The applicant contended that although on DATE he had submitted a request with ORG to be provided with a copy of the order to which the police officers had referred in order to justify the deprivation of his liberty , he had not received a copy .

On DATE the ORG attached to ORG decided to discontinue the criminal proceedings against the applicant for making threatening phone calls on the grounds that his guilt could not be proved .

On DATE the applicant lodged a criminal complaint against QUANTITY police officers alleging unlawful arrest , abuse of authority , abuse of the ORG powers of investigation and deprivation of liberty .

On DATE the applicant ’s lawyer , ORG , made a written statement concerning the events that had occurred on DATE . She submitted that the manager of the applicant ’s company had called her at QUANTITY informing her that CARDINAL police patrols had taken the applicant into custody . She had called the applicant , who had confirmed that he was in police custody . She also submitted that she could hear police officers insulting and hitting the applicant . As she had understood from their phone conversation that the applicant did not feel well , she had decided to accompany him . She had called the ambulance service and discovered that the applicant had been taken to the ORG emergency ward . When she found him there , he had been connected to medical devices but supervised by CARDINAL police officers from ORG . She alleged that she had seen the police officers punch the applicant because he refused to remain in bed . She had accompanied the applicant to ORG and then to the police headquarters , assisting him during questioning .

On DATE the applicant ’s criminal complaint was registered with ORG attached to ORG .

On DATE of the police officers against whom the applicant had lodged a criminal complaint were heard by the prosecutor . Their written statements were all identical .

On DATE ORG attached to ORG of Appeal decided not to prosecute on the grounds of lack of evidence that the offences in question had been committed . The decision stated that criminal proceedings had been initiated against the applicant on DATE . His deprivation of liberty had been justified by the necessity to interview him immediately , even before summoning him on the basis of an order to appear before the investigating body ( mandat de aducere ) issued by a prosecutor . The decision further stated that the applicant had agreed to accompany the police officers and that , in any event , the applicant ’s allegation that he had not been given a copy of the warrant could not lead to the conclusion that the police officers had abused their position , as his legal interests had not been infringed . In addition , the prosecutor held that the applicant had been provided with the order on the way from ORG to ORG . In respect of the applicant ’s allegation that he was subjected to physical violence by the police officers , he concluded that the injuries noted by the forensic doctor had been self - inflicted . The police officers had accompanied him to ORG because he had mentioned that he did not feel well . While he was being examined by a doctor , he had had a panic attack and had started to hit the hospital ’s bed with his body , hands and feet . The police ORG intervention had therefore been necessary ; they had immobilised him in order to disconnect him from the various medical devices .

On DATE the head of ORG dismissed the applicant ’s appeal against the aforesaid decision on the grounds that it had been lodged outside the time - limit set by the law . He stated , inter alia , that the order to appear before the investigating body had been issued because the applicant , although legally summoned , had refused to go to the police station to be interviewed . He added that the decision of CARDINAL DATE had been communicated to the applicant on DATE by registered letter and kept at the local post office until DATE . As the applicant had not collected the letter , it had been returned to the sender .

On DATE the applicant appealed to ORG of Appeal against the prosecutor ’s decisions .

On DATE ORG dismissed the appeal on the grounds that it had been lodged outside the time - limit . It stated that the decision of DATE had been communicated to the applicant by registered letter on CARDINAL DATE , but had not been collected by him from the post office . It concluded that the legal term of DATE for lodging an appeal against the prosecutor ’s decision had begun on DATE and not on DATE , the date on which the applicant had allegedly found out about the decision .

The applicant appealed again , claiming that the decision of CARDINAL DATE had never been communicated to him and , therefore , that the term for submitting his complaint against it had not started to run .

On DATE the High Court of Cassation and ORG allowed the appeal on points of law lodged by the applicant on the grounds that the appeal had been lodged within the time - limit set by law , quashed the judgment of DATE and referred the file back to ORG of Appeal .

The applicant lodged an application with the High Court of Cassation and Justice for the removal of the file to another court on the grounds that ORG was not impartial . His application was granted on DATE and the file was transferred to ORG of Appeal .

On DATE , ORG allowed the applicant ’s appeal against the ORG decision not to prosecute . It sent the file back to ORG attached to ORG for further investigation on the grounds that the investigation proceedings had not been properly conducted . It noted , inter alia , that the investigation of the allegations against the police officers had not been thoroughly investigated on the basis of the evidence against each of them . It added that despite the fact that the file contained CARDINAL pages , the procedural acts carried out by the criminal investigation body were mentioned only at pages DATE and consisted of CARDINAL identical statements made by CARDINAL of the police officers involved in the incident , and the statements of the applicant ( pages CARDINAL ) and the applicant ’s lawyer ( pages CARDINAL - CARDINAL ) . The rest of the file contained copies of documents submitted by the applicant and copies of documents not related to the case . It also noted that the prosecutor , in deciding not to prosecute , had provided no explanation as to why CARDINAL police officers out of CARDINAL had been interviewed , why their statements were identical and why he had not taken into account the documents submitted by the applicant attesting that the applicant had suffered injuries . It made particular reference to the medical certificate issued by ORG on DATE , as well as the medical certificate issued by ORG on DATE . It concluded that in the light of such medical certificates , a competent court could not decide that there was a lack of evidence that the offences in question had been committed .

On DATE ORG and ORG dismissed an appeal on points of law lodged by ORG attached to ORG . Consequently , the decision to continue the investigation was upheld .

On DATE the prosecutor questioned for the first time the CARDINAL other police officers involved in the events of DATE .

On DATE the applicant ’s lawyer made a written statement that she had not only heard during her phone conversation with the applicant but had also seen how the latter had been subjected to ill - treatment by the police officers on DATE . She added that despite the fact that she had repeatedly asked to see the order to appear before the investigating authority on DATE of the events , she had only seen it DATE in the case file .

On CARDINAL DATE the prosecutor heard CARDINAL of the police officers who had already made statements on DATE .

On DATE the ORG attached to ORG again decided not to prosecute the police officers . It found that the applicant had not been subjected to ill - treatment by the police officers and had been deprived of his liberty pursuant to a warrant that had been issued in compliance with the law .

The applicant lodged an appeal against this decision with the chief prosecutor , claiming that the prosecutor in charge had not observed the instructions of ORG and Justice in respect of the evidence to be re - administered . He also claimed that despite the fact that he had been summoned to appear before the prosecutor on DATE , he had not been heard because the prosecutor had been absent from his office for DATE . The applicant also submitted that not all of the police officers against whom he had lodged the criminal complaint had been heard by the prosecutor ; he made the same claim with respect to other individuals who had witnessed the events of DATE but had never been heard by the investigating body .

On DATE the chief prosecutor dismissed the applicant ’s appeal on the grounds that the injuries mentioned in the forensic certificate had been self - inflicted while he was simulating an epileptic seizure . He held inter alia that the order to appear before the investigating body had been issued because the applicant had failed to appear before the prosecutor , despite the fact that he had been summoned .

By a decision of CARDINAL DATE , ORG allowed the applicant ’s appeal . It held that the prosecutor had not complied with its decision of DATE and again remitted the case to ORG , ordering it to commence criminal proceedings against the QUANTITY police officers mentioned in the initial criminal complaint .

The criminal proceedings are still pending and no judgment on the merits has been rendered .

Excerpts from the relevant provisions of LAW with regard to ill - treatment can be found in GPE v. GPE ( no . MONEY , § MONEY , DATE ) .

Article CARDINAL of the NORP LAW deals with bodily harm and provides , inter alia , that the harm caused to the physical integrity or health of a person requiring DATE of medical care is punishable by CARDINAL to CARDINAL months’ imprisonment or a fine .

Article CARDINAL deals with abusive behaviour and provides that a public servant on duty who uses insulting language while physically harming someone shall be punished by DATE to CARDINAL years’ imprisonment .

The order to appear before the courts ( mandatul de aducere ) was , at the material time , provided for by ORG CARDINAL - CARDINAL of the Code of Criminal Procedure , which read as follows :

“ ( CARDINAL ) A person may be brought before [ a ] criminal - investigation body or [ a ] court on the basis of an order to appear , drawn up in accordance with the provisions of LAW , if , having been previously summoned , he or she has not appeared , and his or her hearing or presence is necessary .

( CARDINAL ) An offender or a defendant may be brought [ before the authorities ] on the basis of an order to appear even before being summoned , if the criminal - investigation body or the court considers that , and provides reasons why , this measure is necessary for the determination of the case . ”

“ ( CARDINAL ) [ An ] order to appear is enforced by the police .

( CARDINAL ) If the person specified in the order can not be brought [ before the authorities ] because of an illness or for any other reason , the police officer appointed to enforce the order shall mention this situation in an official report , which shall immediately be handed to the criminal - investigation body or the court .

( CARDINAL ) If the police officer appointed to enforce the order to appear does not find the person specified in the order at the specified address , he shall investigate and , if unsuccessful [ in locating the individual ] , shall draw up an official report including mention of the investigative activities undertaken .

( CARDINAL ) If the offender or the defendant refuses to accompany a police officer or tries to escape , he or she may be forced to obey the order . ”


The applicant , PERSON , is a NORP national who was born in DATE . He is represented before the ORG by PERSON , a lawyer practicing in GPE . The respondent Government are represented by their Agent , Mr PERSON of ORG .

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

The applicant has a son , PERSON , born in DATE out of wedlock . The applicant stopped cohabiting with PERSON ’s mother , PERSON , shortly after PERSON ’s birth . A. was granted sole custody of PERSON and no access arrangements were made for the applicant . It appears that the applicant had barely any contact with his son in his early childhood .

Due to A. ’s unstable life , child welfare officials intervened to give her support in caring for PERSON from DATE . In DATE , PERSON , then aged DATE , was taken into public care for DATE and placed with a substitute family ( S .- V. ) , who lived QUANTITY away from the applicant ’s home . Since then , this family has provided PERSON with support and respite and holiday care . In DATE started psychological therapy .

On DATE , A. was hospitalised and PERSON moved to live with the S .- V. family . DATE died . PERSON continued to live with PERSON Around that time the applicant began to visit PERSON regularly , and it appears that PERSON began to stay with him every other DATE .

On DATE , the local ORG ( sosiaalilautakunta , socialnämnden ) decided to take LOC into public care pursuant to LAW ( lastensuojelulaki , barnskyddslagen ) and ordered that he be placed with the S .- V. family . It appears that the applicant consented to the care order , and did not appeal against it .

Meanwhile , ORG instituted proceedings before ORG ( käräjäoikeus , tingsrätten ) , requesting that custody of PERSON be granted to his foster parents . During the proceedings , the applicant applied for custody . On DATE , ORG decided that custody of PERSON should be granted to the applicant as he , as a biological parent , was willing to assume custody . In addition , the visits between the applicant and PERSON had taken place without difficulty .

In DATE the applicant requested ORG to remove his son from public care . ORG asked for a report on the applicant ’s circumstances from ORG of the applicant ’s home municipality . According to the report , the applicant had been unwilling , or unable , to cooperate . The social welfare officials considered that were PERSON to live with his father , his care , upbringing , supervision and other needs might not be guaranteed . They were not convinced that PERSON would be better off with his father . PERSON ’s psychiatrist , Dr. PERSON , filed an opinion with ORG , in which she reported that PERSON did not want to decide where he should live , but had said that he did not want further changes in his life and wished to continue going to the same school with his friends .

It appears that the applicant was invited to participate in CARDINAL preparatory meetings held by ORG on DATE and DATE . The applicant did not attend .

On DATE , ORG decided to refuse the request . It considered that the circumstances justifying PERSON ’s continued public care still existed .

The applicant continued to meet PERSON regularly . It appears that although he was granted a right to have PERSON live with him for CARDINAL extended periods in DATE and DATE , for reasons attributable to the applicant the visits did not in fact take place .

The applicant challenged the care decision before ORG ( hallinto - oikeus , förvaltningsdomstolen ) . He claimed that public care was contrary to PERSON ’s interests . Further , the fact that he was PERSON ’s biological father had been neglected in the decision - making . He maintained that if the decision had been based on the fact that he had never lived with PERSON , it was deficient since he had never been given that possibility .

ORG submitted a statement to the court to which the applicant filed a response . Upon the request of the applicant , ORG held an oral hearing on DATE . In the hearing the applicant maintained that PERSON should live with him . He claimed that cooperation between the social welfare officials and the substitute family had been difficult . The court took evidence from a social worker , PERSON , who stressed inter alia that PERSON had been provided with child welfare services since DATE . She also considered that cooperation with the applicant had been difficult and that he was socially restricted . The foster mother , PERSON , told the court that the applicant had never visited them and that PERSON had developed significantly during his stay with the substitute family . PERSON , then aged DATE , expressed the view that he would like to live with his father , although he had good relations with his foster parents and the other children living in the substitute family .

ORG upheld the decision on DATE . It found that the mere fact that the applicant had been granted custody of PERSON was not conclusive of the public care in issue . It went on to find that the applicant was reported as having been uncooperative with the social welfare officials , who could not rely on him to take DATE responsibility for QUANTITY As M. had had difficult experiences and had suffered bereavement in his childhood , ORG concluded that , in its assessment , the continuation of public care in the substitute family was in PERSON ’s best interests .

On DATE , a care plan meeting was held at the home of the substitute family . According to the Government , the social welfare official reported that the applicant had behaved inappropriately at the meeting . This was contested by the applicant .

ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) , having obtained written submissions from ORG and the applicant , upheld the public care decision on DATE .

In DATE M. lived with the applicant for DATE . He refused to return to the S .- V. family and on DATE , he was placed in a children ’s foster home . When the re - placement was considered by ORG , PERSON did not object , and nor did he express the wish to live with the applicant . The applicant did not attend a preparatory hearing although allegedly invited . PERSON spent DATE with the applicant over DATE .

For an account of domestic law see PERSON and T. v. GPE [ ORG ] , no . GPE , § § CARDINAL - CARDINAL , ORG CARDINALVII and NORP v. GPE , no . CARDINAL/CARDINAL , § § DATE , DATE ) . In addition , the provisions of particular relevance to the present case are described below .

Section CARDINAL of LAW ( lastensuojelulaki , barnskyddslagen , Act no . DATE amended ) provides that ORG must take a child into care and provide substitute care for him or her if ( a ) the child ’s health or development is seriously endangered by lack of care or other conditions at home , or if the child seriously endangers his or her health and development by alcohol or drug abuse , by committing an illegal act other than a minor offence or by any other comparable behaviour ; ( b ) the measures of assistance in open care are not appropriate or have proved to be inadequate ; and ( c ) substitute care is considered to be in the best interests of the child .

According to section QUANTITY , ORG must discharge a child from care when there is no longer any need for the care or substitute placement referred to in section CARDINAL , unless such discharge is clearly contrary to the best interests of the child . In determining the best interests of the child , the duration of the substitute care , the relationship between the child and the persons providing the substitute care , and the contacts between the child and his parents shall be taken into account .


Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 13 - Right to an effective remedy

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in DATE and lives in GPE , a city in NORP .

At the material time the applicant was a colonel of ORG . In DATE he requested an early discharge for health reasons . Under domestic law , long - serving servicemen in need of better housing ( the applicant met these conditions ) could be discharged against their will only if the command provided them with such housing . When asking for discharge , the applicant specified that he wished to receive the housing .

Since no housing was provided , the applicant sued his command . On DATE the Military Court DATE ordered the Director of ORG to discharge the applicant with the provision of housing in GPE , and to pay MONEY ( RUB ) by way of non - pecuniary damages . This judgment became binding on DATE .

From DATE the command offered the applicant flats in GPE ( GPE ) , Kursk ( Kursk Region ) , PERSON ( Vladimir Region ) , PERSON ( GPE ) , GPE ( GPE ) , and PERSON ( ORG ) . The applicant rejected these offers because he wished to receive a flat in Tver .

For this reason , the applicant once again sued his command . On DATE ORG of Garrison CARDINAL ordered the Director of ORG to discharge the applicant with the provision of housing in GPE and to pay RUB CARDINAL by way of non - pecuniary damages . This judgment became binding on DATE after the appeal court had upheld it having specified that the housing should be provided in Tver .

In DATE , DATE , and DATE the command offered the applicant CARDINAL flats in GPE . The applicant rejected these offers because he considered that the command should have first satisfied his claims for other benefits , and because he disliked the flats’ characteristics .

Under section CARDINAL § CARDINAL of LAW on ORG , servicemen who have served DATE and more and whose housing needs to be improved , can not be discharged against their will without the provision of such housing .

According to the Ruling of the Constitutional Court CARDINAL-O of DATE , after expiry of a serviceman ’s contract and in the absence of his written agreement to discharge without provision of housing , he should be considered as serving voluntarily only until the provision of housing .


Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

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

CARDINAL .

NORP The applicant travelled to the GPE via GPE from GPE , GPE , on CARDINAL and DATE . She applied for asylum upon her arrival at GPE ( GPE ) FAC . At the first interview ( eerste gehoor ) , held to determine the applicant ’s identity and itinerary , it emerged that she was in possession of a boarding pass for an onward flight from GPE to GPE .

A further interview ( nader gehoor ) was held on DATE to enable the applicant to state grounds in support of her claim for asylum . The applicant stated that she had been active in the department of GPE as a member of the youth movement of the political party ORG ( ORG ) , visiting towns and villages in the countryside in order to spread political propaganda . Disappointed with the lax and accommodating attitude of her political leaders towards the guerrilla movements active in the country including ORG ( PERSON Revolucionarias de Colombia , ORG ) , she had transferred her allegiance and support to the independent presidential candidate Mr PERSON , who was campaigning on a platform of robust action against the guerrilla movements . Because of her political activity , she had received crudely - worded death threats by telephone and letter from members of ORG .

The applicant was subjected to a supplementary interview ( aanvullend gehoor ) on DATE in which she was questioned about her stated political activities . She gave details of these , and of the death threats about which she had spoken earlier . She had sought and been granted police protection : police officers had come to visit her from time to time , and one had given her a mobile telephone number to call . She had nonetheless decided to leave her country when the threats failed to diminish . She had obtained a ticket to GPE because , unlike the GPE , GPE was accessible to her without a visa .

The applicant ’s representative submitted corrections and additions to the report of the supplementary interview on DATE , and again on CARDINAL DATE , for addition to the file .

On DATE the Minister for ORG ( Minister PERSON Integratie , “ the Minister ” ) gave reasoned notice of her intention ( voornemen ) to deny the applicant asylum .

Written comments ( zienswijze ) were submitted on the applicant ’s behalf on DATE .

NORP The Minister gave her decision on DATE , finding that the applicant had actually enjoyed effective protection from the NORP authorities but had given it up to travel to the GPE .

An appeal was lodged on behalf of the applicant with ORG ( rechtbank ) of GPE , sitting in ‘ s - Hertogenbosch , on DATE . On various dates in the following DATE various supporting information was submitted . The Minister lodged a written statement of defence on DATE . The applicant ’s representative afterwards submitted further documents .

ORG held a hearing on DATE . It delivered its decision on DATE . It held the applicant ’s appeal well - founded , as the protection admittedly offered by the NORP authorities had been limited to brief visits by the police to the applicant ’s home and could not , in the light of the applicant ’s involvement in politics as a political party activist , be considered sufficiently effective to reduce any risk to her to acceptable proportions .

NORP The Minister lodged an appeal on DATE to ORG ( GPE bestuursrechtspraak ) of ORG ( PERSON ) .

A written response was lodged on the applicant ’s behalf on DATE .

Following a hearing on DATE , ORG gave judgment on DATE accepting the Minister ’s appeal and , deciding anew , retrospectively rejecting the applicant ’s appeal to ORG as ill - founded . It held that the protection offered by the NORP authorities could not be dismissed as ineffective , as the applicant had fled GPE after receiving a new death threat but without giving the protection a chance to be effective .

The applicant lodged a second asylum application on DATE . She was interviewed in connection with new facts and circumstances ( gehoor nieuwe feiten en omstandigheden ) on DATE . She alleged , among other things , that a family of NORP would - be refugees whom she had met in the GPE in DATE had been murdered , apparently by ORG , after having been returned to GPE .

On DATE the Head of ORG ( Immigratie- en naturalisatiedienst ) gave reasoned notice of the intention to reject this second asylum request also , given that it remained the case that the NORP authorities had shown themselves willing and able to offer the applicant protection against the ORG .

On DATE the Deputy Minister of Justice ( Staatssecretaris van Justitie , “ the Deputy Minister ” ) , who by this time had replaced the Minister for ORG as the minister responsible for the implementation of aliens law , gave a decision rejecting the applicant ’s second asylum request as unfounded on the ground that , whatever the value of the new facts stated by the applicant , and even if they could be lawfully established , it remained the case that the NORP authorities had been prepared to offer her protection .

Under LAW of the CARDINAL LAW ( Vreemdelingenwet DATE ) , an alien is eligible for a residence permit for the purposes of asylum if , inter alia ,

- he or she is a refugee within the meaning of the Convention relating to the Status of Refugees of CARDINAL DATE , or

- he or she has established that he or she has well - founded reasons to assume that he or she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment if expelled to the country of origin .

On DATE the Deputy Minister of ORG adopted a new paragraph of LAW DATE ) setting out the policy to be followed with regard to asylum seekers from GPE ( Staatscourant ( Official Bulletin ) DATE , no . DATE , published CARDINAL DATE ) . As relevant to the present case , it reads :

“ CARDINAL.CARDINAL ORG by the authorities

Within GPE there exist a number of protection programmes for persons fearing persecution by CARDINAL of the warring parties . Admission to CARDINAL of these programmes is , however , not possible for everyone . In addition , in a number of cases effective protection will not be possible .

Asylum seekers who claim to fear persecution by CARDINAL of the warring parties will have to make out a case that they can not qualify for protection or that effective protection is not possible in their case .

In principle , asylum seekers who report their problems to the authorities can be expected to await the reaction of the authorities . Persons who report to the authorities and leave GPE immediately without awaiting any reaction will have to provide a satisfactory explanation why it was not possible for them to await the authorities’ reaction .

If asylum seekers can not satisfy us that in their case protection can not be provided , then there is no reason to grant them a residence permit for asylum purposes based on LAW of LAW . ”

Mr PERSON , the presidential candidate supported by the applicant , was elected president of GPE for the first time in DATE . He won a second term in DATE . In DATE Mr PERSON , who had been minister of defence under President PERSON , was elected president .

According to the official country report ( ambtsbericht ) on GPE published by ORG in DATE , the presidency of PERSON was characterised by the expansion and strengthening of the NORP armed forces and police . The guerrilla movements had largely been forced back into rural areas , although they were still predominant in certain areas including parts of the department of GPE . However , protection programmes existed ; CARDINAL of these , operated by ORG and ORG , was available for trade union leaders , human rights activists , mayors and former mayors , journalists , witnesses of human rights violations , leaders of social organisations in general , members of the left - wing ORG party ( now defunct ) and ORG , elected members of local government bodies and local ombudsmen . This programme , for which MONEY had been reserved in DATE , protected CARDINAL individuals at that time .

In DATE ORG published the following advice to GPE nationals travelling to GPE :

Terrorism

In the rural areas confrontations still occur between guerrilla groups , new illegally armed groups , drugs cartels and NORP armed forces . Attacks occur regularly in the country , sometimes also in urban areas . GPE is CARDINAL of the countries with the highest numbers of landmine victims in the world . In rural areas , in particular those to which non - essential travel is to be avoided , you are therefore advised always to follow local advice about the possible presence of landmines .

Serious crime

Serious crime and terrorism go hand in hand in GPE . The terrorist organisations ORG and ORG [ Ejército de Liberación Nacional , ORG ] , as well as drugs cartels and so - called new illegally armed groups are involved in drugs manufacturing and trading , abductions , extortion , smuggling and other serious criminal activity .

You are advised to be vigilant in connection with possible attacks in busy areas and in the vicinity of government and military buildings .

Unsafe areas

Owing to the presence and activity of illegally armed groups such as ORG and ORG you are advised not to travel at all to the regions of GPE , PERSON ( not including GPE ) , ORG ( not including PERSON ) , ORG ( not including PERSON , provided that one travels there by air ) , ORG and ORG and surrounding area .

You are advised to avoid non - essential journeys to GPE ’s rural border areas , rural areas in GPE , ORG , the south and west of Meta , ORG , GPE , the south and west of GPE del GPE , PERSON , GPE , GPE , PERSON , ORG and ORG .

Visits to the tourist spots , such as the coffee - growing area ( ‘ PERSON ) , GPE , GPE , GPE , GPE and PERSON , involve no security risk as long as normal precautions are taken . This also applies to DATE in the major cities GPE , NORP , GPE , GPE , GPE , GPE and PERSON and the departments of ORG and ORG . ”

The applicant has submitted a list , taken from ORG , of attacks which she states were carried out by ORG in the department of GPE DATE and DATE . Almost all of the CARDINAL attacks listed are directed against military and police targets , money transports and infrastructure ( e.g. roads , pylons ) . The victims are mostly soldiers , sometimes police officers ; on CARDINAL occasions “ politicians ” ; on CARDINAL occasions oil workers . Unidentified civilians are listed as victims of CARDINAL attacks .

ORG from GPE ( DATE , ORG / EG / COL/CARDINAL/CARDINAL ) contain the following information ( page CARDINAL , footnote references omitted ) :

“ Following DATE of intense fighting , a negotiated peace process with the ORG took place DATE . The negotiations eventually broke down in DATE and the conflict resumed , creating large population displacement . Since DATE , President PERSON committed to defeat the guerrillas pursuant to the ‘ ORG and Defence Policy’ . The current military efforts , such as the killing of ORG ’s chief commanders and the dismantling of its military structure , have significantly weakened the ORG . ”

It describes CARDINAL categories at risk , namely “ Present and Former Members and Supporters of CARDINAL of the Parties to the Conflict ” , “ Local and Regional Government Authorities ” , “ Judges and Other Persons Involved in ORG ” , “ ORG ” , “ Journalists and Other ORG ” , “ ORG Leaders ” , “ ORG ” , “ ORG and NORP ” , “ Women with Certain Profiles ” , “ Children with Certain Profiles ” and “ ORG ” . The category “ Women with Certain Profiles ” includes women victims of forced displacement , women victims of violence ( sexual abuse and sexual violence , torture , mutilation , forced prostitution , forced public nudity ) at the hands of illegal armed groups , forcibly recruited women ( i.e. for purposes such as sexual servitude ) , indigenous women or women of NORP descent , and women who are victims of domestic violence ( pages DATE ) .


Violation of Article 14+P1-1 - Prohibition of discrimination (Article 1 of Protocol No. 1 - Protection of property)

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi

The applicant was born in DATE and lives in GPE .

His wife died on DATE , leaving CARDINAL child born in DATE . His second claim for widows’ benefits was made in DATE and was rejected on DATE on the ground that he was not entitled to widows’ benefits because he was not a woman . After asking for reconsideration , the decision was again confirmed on DATE . The applicant appealed to ORG which on DATE confirmed the previous decision . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .

On DATE the applicant applied to the Inland Revenue , requesting an allowance equivalent to that received by a widow , namely Widow ’s Bereavement Allowance ( “ ORG ” ) for the DATE and NORP . On DATE the Inland Revenue informed him that he was ineligible for ORG as he was not a woman . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .

The relevant domestic law and practice is described in the ORG ’s judgment in the case of PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV and PERSON , PERSON , PERSON and Geen v. the GPE , nos . CARDINAL , GPE , GPE and GPE , judgment of DATE .


Jean Claude Geus;N. Valticos;R. Pekkanen

ORG Mr PERSON , a NORP national , lived in GPE DATE . He now lives in GPE .

ORG On DATE the NORP police arrested the applicant following the discovery of a quantity of drugs and a firearm , among other things , during a search of his home ; he was held in police custody for DATE . CARDINAL other persons were arrested in connection with the same proceedings . The applicant and the other CARDINAL suspects were prosecuted on charges of importing prohibited drugs into GPE , drug trafficking and unlawful possession of a firearm .

ORG During the trial Mr PERSON claimed that his confessions and those of the other CARDINAL defendants had been made under duress . He apparently also pleaded that his participation in the alleged offences had been intended to secure the arrest of drug traffickers wanted by the NORP guardia civil .

ORG On DATE the Tribunal de Corts gave judgment as follows :

[ ORG ] sentences PERSON , who has been found guilty of importing , possessing and dealing in toxic substances and prohibited drugs and of unlawful possession of a firearm , to DATE imprisonment ; ... orders that all the accused be deported from the ORG and that they pay costs ; the time already spent in custody in connection with these proceedings by those convicted shall be deducted from the principal sentence .

This judgment is final . "

The judgment was served on Mr PERSON on DATE in the presence of his lawyer .

ORG In its report the ORG noted in addition that after CARDINAL further trials ORG sentenced the applicant to DATE imprisonment for bribing a civil servant and to DATE imprisonment for attempting to escape , and that Mr PERSON claimed that these judgments - whose date has not been determined - were never served on him .

Mr PERSON chose to serve his sentence in GPE and was taken to GPE prison on DATE .

On DATE he attempted to escape and on CARDINAL DATE was sentenced on that account to DATE imprisonment by ORG .

He served part of his sentence at ORG prison DATE and DATE and was then moved to Muret prison .

ORG On DATE the applicant lodged a memorial with the ORG public prosecutor , complaining of the proceedings conducted against him in GPE and of his detention in GPE .

In a letter to the governor of Muret prison dated DATE and communicated to the applicant on CARDINAL March , the public prosecutor replied as follows :

" Please inform PERSON , prisoner number DATE , that he should address his petition to the President of ORG , which has sole jurisdiction , as the judgment which imposed the sentence he is serving was delivered by that court .

Please inform him that no further action is to be taken in connection with his application of DATE . "

ORG On DATE Mr PERSON lodged a criminal complaint with ORG against the ORG public prosecutor , alleging arbitrary detention and denial of justice . He also lodged an application to join the proceedings as a civil party . He claimed that the public prosecutor had not complied in his case with the requirements of Articles CARDINAL - CARDINAL et seq . of the Code of Criminal Procedure concerning the transfer to GPE of persons convicted abroad and had not even informed him of the existence of those provisions .

ORG On DATE the Minister of ORG wrote to the principal public prosecutor at ORG as follows :

" On DATE you forwarded to me a letter from Mr PERSON complaining of the proceedings as a result of which he came to serve his sentence in GPE .

I have the honour to inform you of the following .

PERSON chose to serve his sentence in a NORP prison , as he was entitled to do under LAW of LAW of DATE . No right to retract such a choice is conferred by that provision .

A transfer carried out under the above - mentioned LAW DATE means a transfer from a ` sentencing ORG ' to an ` administering ORG ' .

With regard to the circumstances of the complainant 's detention , GPE is indeed the ORG administering enforcement of the sentence imposed on him in GPE , and there is no provision in the Convention for transfer from CARDINAL administering ORG to another . I would add that , in any event , GPE can not even be regarded as the sentencing State , since in law it is not recognised as a ORG . It should be noted that the arrangement between GPE and GPE in the matter of the execution of prison sentences is not the only one of its kind ; it is similar to the situation under the Convention on neighbourly relations between GPE and the Principality of GPE of CARDINAL DATE . With regard to application of Articles CARDINAL - CARDINAL et seq . of the Code of Criminal Procedure , concerning the transfer to GPE of persons sentenced and imprisoned abroad , those provisions are not applicable in this case , as GPE is not considered a subject of international law and its courts are therefore not foreign courts within the meaning of Article CARDINAL - CARDINAL . "

ORG The applicant was released on CARDINAL DATE and then expelled from NORP territory .

ORG The transfer to GPE of a person convicted abroad is governed by the following provisions of LAW ( Law no . CARDINAL of DATE ) :

" Where , by virtue of an international convention or agreement , a person detained in execution of a sentence passed by a foreign court is transferred to NORP territory in order to serve the remaining portion of his sentence there , the sentence shall be enforced in accordance with the provisions of this LAW , and in particular Articles CARDINAL - CARDINAL to CARDINAL - CARDINAL . "

" Immediately after his arrival in NORP territory the convicted prisoner shall be brought before the public prosecutor of the place of arrival , who shall question him as to his identity and draw up a record of the interview . Where , however , it is not possible to question him immediately , the convicted person shall be taken to the local prison , where he may not be detained for more than TIME . On expiry of that limit the chief warder shall , without more , ensure that he is brought before the public prosecutor [ since the entry into force of Law no . CARDINAL - CARDINAL of CARDINAL DATE the words " chief warder " have been replaced by " prison governor " ] .

Having inspected the documents recording the GPE ' agreement to the transfer and the prisoner 's consent , together with an original or execution copy of the foreign judgment containing his conviction , accompanied , where necessary , by an official translation , the public prosecutor shall apply for the convicted person 's immediate imprisonment . "

" The portion of the sentence imposed abroad remaining to be served in the foreign State shall , by virtue of the international convention or agreement , be directly and immediately enforceable in NORP territory .

However , where the sentence imposed is more severe , in nature or length , than the penalty provided for in NORP law for the same offence , the criminal court of the place of detention shall , on an application by either the public prosecutor or the person convicted , substitute for it the sentence which is most similar in LANGUAGE law , or reduce it to the maximum the law allows . Consequently , the court shall determine , in the individual case , the nature of the sentence to be enforced and its length , which may not exceed the portion which remained to be served in the foreign ORG . "

" The court shall give its decision in public , after hearing thepublic prosecutor , the person convicted and , where appropriate , the lawyer chosen by him or officially assigned at his request under the legal - aid scheme . This decision shall be enforceable immediately , any appeal notwithstanding . "

" The time taken for the transfer shall be deducted in full from the sentence enforced in GPE . "

" All appeals and applications relating to enforcement of the prison sentence remaining to be served in GPE shall be submitted to the criminal court of the place of detention . The provisions of Article CARDINAL of this Code shall apply . "

" Execution of sentence shall be governed by the provisions of this Code . "

" No criminal proceedings may be brought or continued and no sentence may be enforced in respect of the same offence against a convicted person who , under the terms of an international convention or agreement , is serving in GPE a prison sentence imposed by a foreign court . "

The LAW of the Principality of Andorra , in force since DATE , and ORG , of DATE , radically altered the LOC judicial system .

ORG In the PERSON and PERSON v. GPE and GPE judgment of DATE ( Series A no . CARDINAL , pp . CARDINAL , paras . CARDINAL - CARDINAL ) the ORG described the LOC legal system before DATE as follows :

" CARDINAL . ORG With the exception of ORG , which settles disputes between neighbours and is responsible to ORG , the courts of GPE have their legal basis in ORG historic ` right of justice ' and are thus directly responsible to ORG . The members of the lower courts are always of NORP nationality , while those of higher courts are often of foreign origin , because of the smallness of the ORG and out of concern for preserving the independence of the judiciary .

ORG As a general rule , judges are appointed by ORG . ORG traditionally selects NORP judges , either honorary judges or serving judges seconded by ORG , chosen with regard to personal competence , knowledge of LOC law , knowledge of NORP and understanding of NORP . The episcopal Co - Prince bases his choice on the criteria of competence , independence , lack of personal interests in GPE and availability for service , judicial office in GPE being incompatible with the position of judge in GPE , even on a part - time basis and for a fixed term .

Criminal justice

ORG A decree of the veguers [ ( direct representatives in GPE of the CARDINAL ORG , the President of GPE and ORG ) ] of DATE laid the foundations of a new criminal justice system , providing in particular for the intervention of counsel and the establishment of a public prosecutor 's office . A decree on criminal procedure followed on DATE . A Code of Criminal Procedure , based on the veguers ' decrees and on customary law , was introduced in DATE and amended on DATE .

( a ) The institutions

( i ) The batlles

ORG The batlles are first - instance judges with criminal and civil jurisdiction , and also have other duties . They carry out investigations into crimes which have been committed , supervise the enforcement of court judgments pronounced in GPE , and sit on ORG as non - voting assessors ( see paragraph CARDINAL below ) . Since the veguers ' decree of DATE they are CARDINAL in number . The NORP veguer and the episcopal Co - Prince each appoint CARDINAL of them , chosen from a list of CARDINAL names drawn up by ORG . The persons appointed must have PERSON nationality .

( ii ) ORG

ORG was established by ORG in DATE . It has first - instance jurisdiction over minor criminal cases and appeals against its judgments can be brought before ORG .

( iii ) The Tribunal de Corts

ORG was until DATE the supreme criminal court . It ` judges ... all cases relating to offences committed on the territory of the Valleys , without difference or distinction of persons , and offences committed by NORP abroad ' ( LAW ) . It also rules on appeals brought against judgments of the batlles .

ORG The court is composed of CARDINAL members , the Judge of Appeals and the CARDINAL veguers .

The Judge of Appeals presides over the court , directs the proceedings and acts as the reporting judge who drafts the judgment . He decides alone on appeals concerning detention on remand . He is a NORP or NORP judge appointed for DATE by each Co - Prince alternately ; he must have a knowledge of the law of the ORG and its official language , NORP .

The veguers ... are entitled to sit but generally do not do so . The NORP veguer - a diplomat appointed by ORG for an indefinite period - has since DATE been substituted by a NORP judge , either honorary or seconded by ORG . The episcopal veguer has not sat since DATE and now delegates his duties to a NORP judge ... The veguers or their substitutes need not be PERSON , nor need they be jurists , but they must speak LANGUAGE . They are assisted by CARDINAL batlles , CARDINAL notaries who act as clerks of court , an usher and CARDINAL rahonadors , who are delegated by ORG , of which they are members .

ORG The public prosecutor 's office is composed of a fiscal general and an assistant fiscal general , who are appointed for DATE by whichever of ORG has not appointed the Judge of Appeals .

( iv ) The Tribunal Superior de Corts

ORG By a decree of CARDINAL DATE , which had been in the course of preparation since DATE , the veguers established a new court , the Tribunal Superior de Corts , which consists of CARDINAL judges appointed for DATE by ORG and decides on appeals ( recursos de suplicació ) against judgments of ORG . On DATE they issued a further decree dealing with procedure , including the following transitional provisions :

' CARDINAL . ORG Convicted persons who before the coming into force of the present decree have to serve or ... are in the course of serving sentences of imprisonment as a result of judgments of ORG may bring an appeal ( recurs de suplicació ) against such sentences to the Tribunal Superior within DATE from the coming into force of the present decree .

ORG The present decree shall come into force on DATE . '

( b ) Enforcement of sentences

ORG Article CARDINAL of LAW provides for CARDINAL distinct systems of enforcement for sentences of imprisonment passed in GPE : a convicted person serves his sentence in an NORP prison if the sentence is DATE , and in a NORP or NORP prison in other cases .

( i ) The choice of country of detention

ORG In the latter case it is for the convicted person to choose between GPE and GPE . The choice is definitive and implies the tacit acceptance of the prison regime of the country chosen . This practice originates in customary law as traditionally applied since DATE .

DATE , transfer to GPE was requested by CARDINAL convicted persons and to GPE by CARDINAL . No prisoners from GPE were admitted to NORP prisons in DATE and DATE .

( ii ) The NORP system

ORG If a convicted person chooses GPE , as in the present case , enforcement of the sentence is governed by the provisions of LAW ( circular of the Minister of Justice of CARDINAL DATE ) . Like any person convicted in a foreign country and transferred to GPE , he is entitled ( according to ORG ) to remission of sentence , prison leave and semi - imprisonment in the same way and subject to the same conditions as prisoners sentenced by a NORP court ( Article D.CARDINAL of LAW ) .

ORG The judge responsible for the enforcement of sentences has sole jurisdiction to decide whether to grant the prisoner release on licence or to remit part of his sentence , within the legal limits .

If the term of imprisonment exceeds DATE , it is for the Minister of ORG to grant release on licence . The Minister must first obtain the consent of ORG ( LAW ) .

ORG Under LAW , disputes relating to the enforcement of sentences are brought before the court which pronounced the sentence , in this case the LAW court .

( iii ) Pardons

An individual pardon can only be granted by the CARDINAL ORG acting jointly .

ORG Collective pardons do not apply to prisoners sentenced by PERSON courts who serve their sentences in GPE , as they were expressly excluded by a decree of the President of GPE of DATE . The presidential decrees of CARDINAL DATE and CARDINAL DATE did authorise pardons to take effect if this was allowed by international agreements ratified by GPE , but there is no specific arrangement with GPE on this point .

( iv ) Amnesties

ORG Only the LOC authorities have jurisdiction to grant an amnesty . In addition , ORG can vary its own decision by reducing the sentence and granting genuine release on licence , which is referred to as ` provisional release ' .

Civil justice

ORG There are CARDINAL levels of jurisdiction in civil matters .

ORG The batlles ( see paragraph DATE above ) have first - instance jurisdiction , as in criminal cases .

ORG The Judge of Appeals ( see paragraph CARDINAL above ) hears appeals against the decisions of the batlles .

ORG The court of final jurisdiction is ORG which consists of CARDINAL ` senates ' , ORG of GPE and ORG .

The former consists of CARDINAL ex officio members ( the President of the GPE tribunal de grande instance and the NORP veguer , who has not sat for DATE now ) and CARDINAL members appointed for DATE by ORG ( a lawyer from the GPE bar and a person with knowledge of the language and customs of GPE ) . It does not apply NORP law or follow NORP procedure ; in particular , it is not subject to review by ORG .

The latter senate consists of a President , a Vice - President and CARDINAL judges ( vocals ) , appointed by the episcopal Co - Prince . The CARDINAL senates have their seats at GPE and GPE respectively , but carry out their functions in GPE . "

ORG Since DATE CARDINAL prisoner from GPE has been admitted to a NORP prison .

ORG In their joint report of CARDINAL DATE on the legislation of ORG prepared at the request of ORG ) Mr PERSON , Judge of ORG , and Mr PERSON , member of ORG , made the following observations :

ORG The LAW and the qualified law on justice have radically reformed the LOC judicial system . The system described by ORG in DATE and CARDINAL of its judgment in the case of PERSON and PERSON of DATE ( Series A no . CARDINAL ) is consequently a thing of the past .

At present , the court of first instance is the PERSON or ORG and the ORG themselves who have criminal , civil and administrative jurisdiction . The ORG sit as CARDINAL - person courts for petty criminal offences , for civil cases involving minimal amounts and for administrative cases concerning social security disputes . In other cases , ORG meets with CARDINAL members or in plenary .

ORG acts as a first - instance court for major offences and as an appeals court for petty and minor offences .

As for ORG , it has jurisdiction for all appeals lodged against judicial decisions handed down by the PERSON in civil and administrative cases , and by ORG in criminal cases .

All judges are appointed for a renewable DATE term by ORG . During their term of office they are irremovable . The office of judge is incompatible with any public office and with the exercise of any other professional activity .

Under DATE , paragraph CARDINAL , of the LAW , criminal judgments are handed down by a judicial authority other than the one in charge of the investigation .

The office of the public prosecutor forms a separate body possessing a status like that of the judiciary . Its members can not receive instructions from the political authorities .

ORG is composed of CARDINAL members appointed as follows : CARDINAL by ORG , CARDINAL by ORG [ who presides over ORG , which is the legislative organ and whose members are elected by universal suffrage ] , one by ORG and CARDINAL by the judges . Their DATE term is not renewable . The High Council appoints the judges , the Attorney General and his deputies . It exercises disciplinary power and , generally speaking , administers justice . There is then no Minister of ORG in GPE . ORG also has the task of guaranteeing the independence of PERSON justice , which formerly was the responsibility of ORG . ORG could not , however , exert any influence over the judges on account of their personality .

ORG We have no criticisms to make about the organisation of the judicial system , as briefly described . We consider that the limited term of office of the judges is not such as to jeopardise their independence . The composition of ORG and the difficulty of replacing judges , which leads to the almost automatic renewal of terms of office , seem to offer sufficient safeguards in this connection .

It should also be noted that the ORG assumes liability for injury resulting from judicial error or miscarriage of justice .

In the LAW , ORG is treated separately from the judicial system . It is composed of CARDINAL judges of whom CARDINAL is appointed by ORG and CARDINAL by the Consell General . Their term of office is DATE and is not immediately renewable .

It is the competent organ for appeals against laws on the grounds of unconstitutionality , requests for preliminary opinion as to the conformity of laws and international treaties with the LAW , constitutional protection procedures ( empara appeals ) , and conflicts of jurisdiction between public authorities . ORG questions are also addressed to it by the courts .

The remedy of empara has deliberately been restricted to acts by the public authorities that impair fundamental rights so as to guard against the Constitutional Court becoming bogged down with appeals , which might have the effect of increasing the length of proceedings . ORG thus drew lessons from NORP experience of the remedy of amparo . "

ORG In the PERSON and PERSON judgment the ORG described ORG 's international status as follows ( pp . DATE , paras . CARDINAL - CARDINAL ) :

" CARDINAL . ORG The status in public international law of ORG is striking by its originality and ambiguity , so much so that it is often regarded as an entity sui generis .

The practice followed in DATE suggests that there is now agreement between ORG to regard themselves as equals in the conduct of ORG 's international relations . GPE has entered into a number of bilateral and multilateral relations in this field .

A. Bilateral relations

Relations with GPE

ORG Relations between GPE and GPE do not fit into the pattern of relations between sovereign GPE . They have never taken the form of international agreements , as the NORP ORG is the President of GPE and ORG have always refused to recognise the ORG 's statehood . Such relations take a number of forms : unilateral NORP acts , such as the establishment of NORP schools ; administrative arrangements , such as those dealing with social security , telephone networks and customs regimes ; de facto relationships , sometimes deriving from custom ( this is the case with the enforcement of certain sentences outside GPE - see paragraphs CARDINAL above ) , sometimes based on administrative or judicial practice ( decisions of the LOC courts have the status of res judicata in GPE and do not require an exequatur for enforcement ) .

ORG also place a unit of police ( gendarmerie ) at the disposal of GPE .

Finally , GPE does not have a consulate in the ORG . NORP nationals in GPE are dealt with by the prefecture of the ORG department .

Relations with GPE

ORG Relations between GPE and GPE follow a similar pattern . They feature unilateral NORP acts , such as LAW of DATE regulating trade between the ORG and GPE , and bilateral arrangements such as the agreements of an administrative type relating to social security . ORG also make certain facilities available to the PERSON . Thus a unit of the guardia civil is stationed in GPE : the members of this unit are no longer responsible to their original administrative department and the episcopal veguer can effectively veto their appointment or presence in GPE ; the NORP authorities are responsible for their pay , while the costs of equipment and operational expenditure in respect of administrative and in particular consular functions are borne by the PERSON budget . There is no NORP consulate in GPE . The episcopal veguer acts as de facto consul for NORP citizens .

Relations with GPE other than GPE and GPE

ORG does not maintain diplomatic relations with any other ORG . On the other hand , it has entered into consular relations with the following CARDINAL countries : GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE . It does not have its own consular representation , however , and its nationals are protected by the NORP and NORP authorities in this respect .

ORG relations

International organisations

ORG FAC is not a member of any intergovernmental international organisation . On DATE ORG asked the Secretary General to contact the CARDINAL ORG to define the areas suitable for co - operation between ORG and ORG . In so doing it was giving an ` interim response ' to Recommendation CARDINAL ( DATE ) on ORG , adopted by ORG on DATE .

International agreements

GPE has acceded to CARDINAL international agreements , LAW ( GPE , DATE ) and ORG in the Event of Armed Conflict ( GPE , DATE ) .

International conferences

Since LAW ( GPE , DATE ) ORG has regularly taken part in meetings of ORG . It has also sent delegations to CARDINAL conferences : the conference on the protection of cultural property in the event of armed conflict ( GPE , DATE ) , the conference to revise LAW ( GPE , DATE ) , and the conference on the protection of phonographic recordings ( GPE , DATE ) . Since DATE , on the order of ORG , the ORG 's representatives at these conferences have been appointed by the veguers jointly . CARDINAL members of ORG now accompany the said representatives ; ORG is the spokesman of the delegation .

ORG

For DATE ORG was not part of the ORG ' customs territory . On DATE ORG adopted a directive inviting the ( Brussels ) Commission to negotiate an agreement with ORG with a view to creating a customs union for industrial products . The agreement in question came into being on DATE in the form of an exchange of letters , and entered into force on DATE . The ORG 's letter was signed by the representatives of ORG and by ORG . "

ORG Since then ORG 's international status has undergone sweeping changes . The Constitution of CARDINAL DATE defines GPE as " an independent , democratic and social ORG based on the rule of law " ( Article CARDINAL para . CARDINAL ) . The ORG became a member of ORG on DATE and of ORG on DATE . On DATE it joined ORG and signed ORG .

A treaty on " neighbourly relations , friendship and co - operation between GPE , GPE and ORG was signed on DATE by the NORP and NORP Ministers for ORG and on DATE by ORG 's ORG . In this treaty GPE and GPE recognised GPE as a sovereign ORG , established diplomatic relations with the country and undertook to facilitate its participation in international conferences and organisations and its accession to conventions .

Although ORG retains some special features - in particular the institution of ORG - there is no doubt that , whatever the position may have been hitherto , it is now a " ORG " for the purposes of public international law .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

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

On DATE business premises in ORG leased by the applicant were blown up by unknown perpetrators .

On DATE the applicant instituted civil proceedings against the ORG before ORG ( PERSON ) seeking damages . He based his claim on section CARDINAL of LAW .

On DATE ORG introduced an amendment to LAW ( “ the LAW ” ) which provided that all proceedings concerning actions for damages resulting from terrorist acts were to be stayed pending enactment of new legislation on the subject .

On DATE ORG stayed the proceedings pursuant to LAW .

On DATE ORG introduced the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations ( “ the DATE LAW ” ) .

Pursuant to the DATE LAW , on DATE ORG resumed the proceedings and , at the same time , dismissed the applicant 's action finding that it no longer had the jurisdiction in the matter . The applicant did not appeal against that decision .

The relevant part of LAW ( Zakon o obveznim odnosima – Official Gazette , LAW CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL ) provided as follows :

“ Liability for loss caused by death or bodily injury or by damage or destruction of another 's property , when it results from acts of violence or terror or from public demonstrations or manifestations , lies with the ... authority whose officers were under a duty , according to the laws in force , to prevent such loss . ”

NORP The relevant part of LAW ( Zakon o izmjeni PERSON o obveznim odnosima – Official Gazette no . CARDINAL/CARDINAL ) ( “ the DATE LAW ) reads as follows :

“ Section CARDINAL of LAW ( the Official Gazette nos . CARDINAL , CARDINAL and DATE ) shall be repealed . ”

“ Proceedings for damages instituted under LAW shall be stayed .

The proceedings referred to in sub - section CARDINAL of this section shall be resumed after the enactment of special legislation governing liability for damage resulting from terrorist acts . ”

This Act entered into force on DATE .

The relevant part of LAW ( Zakon o parničnom postupku – Official Gazette nos . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL ) provides :

“ Proceedings shall be stayed :

( CARDINAL ) where another statute so prescribes . ”

The Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations ( Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija – Official Gazette no . CARDINAL/CARDINAL ) ( “ the DATE LAW ” ) provides , inter alia , that the ORG is to compensate only damage resulting in bodily injuries , impairment of health or death . All compensation for damage to property is to be sought under LAW . LAW provides that all proceedings stayed pursuant to LAW are to be resumed .

This Act entered into force on DATE .

In its judgment Rev-CARDINAL/CARDINAL - CARDINAL of CARDINAL DATE ORG held , while dismissing the plaintiff 's claim on its merits , that , after the entry into force of the DATE LAW , the ORG was no longer liable for the damage ensuing from the destruction of the plaintiff 's business LOC ( attorney 's office ) that had been blown up by unknown perpetrators .

The relevant part of LAW ( Zakon o obnovi – Official Gazette nos . CARDINAL , CARDINAL , CARDINAL/CARDINAL and CARDINAL ) provides , inter alia , that the ORG shall grant , under certain conditions , reconstruction assistance to owners of property ( flats and family houses only ) which has been damaged during the war . The request is to be submitted to the competent ministry .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . The respondent Government were represented by Mr PERSON , of ORG , GPE .

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

In DATE the applicant sued a local authority and an insurance company ( “ the GPE ” ) in respect of damage caused to property which the applicant had leased from the local authority . He claimed that the authority had failed to look after the property and the surrounding area , and that the insurance company had failed to pay on a policy which covered the damage . The applicant ’s claims , initially for £ MONEY , were revised at trial to a total of £ MONEY . On DATE , the GPE made a payment into court of £ MONEY . The court offices of the GPE and GPE - upon - ORG forwarded form NCARDINAL to the applicant to inform him of the payment in . The forms , which provided for a number of options , had not been filled in . The GPE - upon - ORG gave judgment against the applicant in CARDINAL judgments of CARDINAL and DATE . Costs were ordered against the applicant , and leave to appeal was refused . Lord Justice PERSON refused permission to appeal to ORG on DATE , and he further refused permission to appeal to ORG on DATE .

On DATE , the GPE made a statutory demand in respect of the costs awarded against the applicant in the original action . The demand was not met , and on DATE a bankruptcy petition was served . The applicant was adjudicated bankrupt on DATE . An appeal against the bankruptcy order was dismissed on DATE , and on DATE the applicant applied , out of time , for permission to appeal . The application was refused by Lord Justice PERSON and Sir PERSON on DATE on the ground that the bankruptcy order was made in respect of an unchallengeable judgment debt as to which there was no counter - claim . At the same time , Lord Justice PERSON gave directions that the CARDINAL matters involving the applicant and then pending before ORG ( see below ) were to be heard together before DATE .

On DATE , at the renewed public examination of the applicant , the applicant was committed to prison for DATE for failure to comply with the reasonable requests of the trustee in bankruptcy . He had previously been imprisoned on a warrant for his arrest after he had failed to attend a hearing , and he had also been imprisoned for DATE for failing to co - operate with the trustee .

The bankruptcy proceedings revealed a number of incidents in which the applicant failed to comply with various obligations . He did not attend appointments at the Official Receiver ’s office on DATE , DATE , CARDINAL May and DATE . He also failed to attend for his public examination , as a result of which he was arrested and held in custody DATE and DATE . Thereafter , he failed to provide the Official Receiver with a statement of affairs , as required by the bankruptcy legislation , and he refused to attend the Official Receiver to answer questions . After the dismissal of his appeal against the bankruptcy order on DATE , the applicant ’s public examination was resumed before Mr Justice PERSON on DATE . The applicant again refused to answer questions and , after an adjournment to allow him more time to comply , the applicant was sentenced to DATE in prison on DATE .

After the judgment of DATE in the initial action , the applicant brought CARDINAL further sets of proceedings , against the Lord Chancellor ’s Department ( sued as ORG ) in respect of the information contained in Form NCARDINAL , against the GPE which , he claimed , had misled him into not accepting the payment into court , and against the GPE ’s barrister who , he claimed , had misled him into thinking that he could not withdraw the payment into court at the beginning of the action on DATE .

In the proceedings against the Lord Chancellor ’s Department , the applicant ’s claim was issued on DATE and re - issued on DATE . On DATE District Judge PERSON in ORG noted that Form NCARDINAL stated that :

“ if the defendant does wish to accept the payment in he should do so in writing within DATE . It then proceeds to give other events and times in brackets . The form , in this respect , is most unsatisfactory and is made worse because none of the various bracketed events are deleted . Indeed , I would not expect the average court clerk to have sufficient knowledge of the rules to know how to complete this part of the form and I imagine that in most cases all options were left open . ”

The claim was nevertheless dismissed on the ground that it had no real prospect of success , as the applicant could not establish that the CARDINAL error on the form had caused his losses . Leave to appeal was granted by the trial judge , and the appeal was dismissed by His Honour Judge PERSON ( a circuit judge ) in ORG on DATE . Judge PERSON summarised the claim as being that the court office had been negligent in that it issued a form that was ambiguous and to a certain extent incorrect , as a result of which the applicant did not accept the payment into court , lost the proceedings , and was ordered to pay costs of £ MONEY . The judge accepted that the Lord Chancellor ’s Department owed the applicant a duty of care and that the duty had been breached . He did not , however , accept that the applicant had acted to his detriment as a result of the breach : on the applicant ’s own account , he had not accepted the payment into court before the hearing because he relied on a statement of the GPE ’s barrister . The applicant applied for leave to appeal by a series of notices . CARDINAL of the applicant ’s points on appeal concerned the issue of the participation of the district and circuit judges who sat as single judges in the case . He underlined that they had been recommended for appointment , and were governed and could be dismissed by the Lord Chancellor , who was the defendant in the proceedings . Lord Justice PERSON , determining the application for permission to have a second appeal , granted permission on DATE , principally on the “ point of constitutional importance ” concerning the position of circuit and district judges in cases against the Lord Chancellor or his department . Leave to appeal was also granted on a number of subsidiary points .

The appeal before ORG was to have been heard on DATE , the ORG Solicitor had appointed counsel , and an amicus curiae had been appointed . Shortly before the hearing , the ORG office learned that the applicant had been adjudicated bankrupt on DATE , and the hearing was adjourned to establish the effect of the bankruptcy on the proceedings . The Official Receiver took the view that the causes of action had vested in him , and that he had no funds to pursue them . He added , in a letter of DATE , that he was prepared to consider a request to assign the causes of action to the applicant , but in the absence of co - operation from the applicant , was unwilling to do so .

The claim in the second action against the GPE , in respect of alleged negligent misstatement by the GPE ’s representatives during the trial of the initial action , was struck out by a district judge on DATE . Permission to appeal was refused on DATE by a circuit judge . No appeal lay against that refusal by virtue of Section CARDINAL(CARDINAL ) of ORG DATE . The applicant ’s request for a further appeal was discussed in ORG on DATE , when Lord Justice PERSON directed that the request be put before him to determine what direction to give . On receiving the papers , it became apparent that no appeal lay , and Lord Justice PERSON so directed . The applicant was informed on DATE and requested an oral hearing . On DATE Lord Justice PERSON directed that the hearing should be held together with the hearing in the action against the Lord Chancellor ’s Department .

The action against the GPE ’s barrister was dismissed on DATE , and the applicant applied for permission to appeal . The application was dealt with by Lord Justice PERSON on DATE , when he directed that the application should be listed with the action against the Lord Chancellor ’s Department .

On DATE , pursuant to the directions given on DATE in the bankruptcy appeal , Lord Justice PERSON considered the outstanding issues in relation to the CARDINAL sets of proceedings before him ( those CARDINAL above ) . He outlined the history of the case , and noted the CARDINAL important points which were raised . The first point was whether the district and county court judges were sufficiently independent of the Lord Chancellor , having regard to the terms of their appointments , to avoid a perception of bias or a violation of LAW . The second point was whether LAW ( CARDINAL ) of ORG DATE was compatible with LAW DATE .

Lord Justice PERSON found that all CARDINAL actions had vested in LOC on the applicant ’s bankruptcy . He did not accept the applicant ’s claim that where matters of great public importance had been identified , they should always be pursued . He insisted that it was always necessary for someone to be able and willing to pursue them . He noted specifically the applicant ’s history of non - cooperation with LOC .

The appeal in the action against the Lord Chancellor ’s Department was struck out , and the applications in the other CARDINAL actions were also struck out . The orders were made on the grounds “ that the person in whom the causes of action are vested does not wish to pursue that appeal and those applications ; and that [ the applicant ] , who does wish to pursue them , has no standing in those proceedings to do so ” . Lord Justice PERSON also directed that the applicant “ on providing to this court a copy of an assignment of the causes of action by the trustee in bankruptcy to him , may apply in writing to this court , within DATE , to reinstate the appeal and the applications . ... [ I]t seems to me correct , in view of [ the applicant ’s ] strong sense of grievance ... to leave open the possibility that , if such an assignment were made in his favour , he should be able to restore the appeal in this court . DATE may , itself , be extended on a written application to this court , with a copy to the Official Receiver , setting out the circumstances which suggest that any extension of the period would be likely to serve any purpose . ”

On DATE the Official Receiver asked the applicant for copies of requests for assignment of the action which the applicant had claimed had been made . He also asked for the applicant ’s proposals as to an assignment , and added that on receiving them he would consult his solicitors and seek their advice . He noted that he would have to be put in funds , as there were no funds in the estate and no assets of which he was aware which could be used to provide funds .

On DATE , in reply to CARDINAL letters of DATE from the applicant , the Official Receiver responded in the following terms :

“ As requested , I confirm that it is not my intention to pursue these matters further . I do not have access to public funds as ORG , other than in the most limited of capacities , and as you will know ... it is not the view of ORG that the matter should be taken forward ... I must also point out , that your failure to co - operate in these proceedings does nothing to advance your arguments , as you seem to be of the opinion that any decision that I take should be made in a vacuum .. . I am of the view that you have not co - operated in any substantive way whatsoever to date ...

As far as I am concerned , on no occasion have you made a formal request for the assignment to you of the ... action . ... I should be grateful if you would now forward a copy of the letters to which you refer . The absence of those letters suggests to me that no such letters were ever written by you ... If you wish the matter to proceed , please let me have your remittance for [ £ MONEY plus GPE for solicitors’ costs ] , and I will instruct them to consider the matter , and advise me ... ”

The applicant states that the Official Receiver sought his further committal to prison for failure to answer questions but that the application was refused on DATE .

The following is an extract from the skeleton argument of the amicus curiae appointed for the hearing which was to be held before ORG on DATE ( see above ) :

“ Appointment

CARDINAL ) Circuit judges are appointed by the Queen on the recommendation of the Lord Chancellor ( see LAW DATE section CARDINAL ) .

CARDINAL ) There is a significant judicial input into the selection of circuit and district judges . The selection process for both ORG involves confidential “ soundings ” from judges and members of the legal profession , which are not disclosed to candidates ( ... ) . More importantly , the selection of candidates for interview is made by a panel which comprises a sitting ORG , a civil servant and a lay person ( ... ) .

CARDINAL ) That said , the final decision as to whom to recommend to the Queen for appointment lies with the Lord Chancellor alone ( ... ) . The Lord Chancellor ’s recommendation is a necessary condition for appointment ( Courts Act DATE section CARDINAL ) .

CARDINAL ) The arrangements for the appointment of a District Judge are similar ( ... ) save that the appointment of ORG is made by the Lord Chancellor himself pursuant to section CARDINAL of LAW DATE ....

CARDINAL ) The personal qualities sought in candidates for the posts of ORG Judge include “ integrity and independence ” which is said to include “ independence of mind and moral courage ” and “ fairness and impartiality ” ( ... ) .

Pay

CARDINAL ) The salaries of both ORG are , by statute , set at the discretion of the Lord Chancellor , acting with the concurrence of the ORG ( ORG ) or the consent of the Minister for ORG ) .

CARDINAL ) In the case of ORG , section CARDINAL ) of GPE DATE provides :

“ Subject to the provisions of this section , there shall be a district judge for each district , who shall be appointed by the Lord Chancellor and paid such salary as the Lord Chancellor may , with the concurrence of the ORG , direct . ”

CARDINAL ) In the case of ORG , section CARDINAL ) of the Courts Act DATE provides :

“ Subject to Part II of Schedule CARDINAL to this LAW , there shall be paid to each Circuit judge such salary as may be determined by the Lord Chancellor with the consent of the Minister for ORG . ”

CARDINAL ) Section CARDINAL(CARDINAL ) provides , inter alia , that salary shall be payable at such intervals , not exceeding DATE , as the ORG may determine ( s. CARDINAL(CARDINAL)c ) and that such salary may be increased , but not reduced , by a further determination under LAW ( s. CARDINAL(CARDINAL)(d ) ) .

CARDINAL ) Mr Staff [ a civil servant from the Lord Chancellor ’s Department who gave evidence in the case ] explains that “ in practice ” judicial salaries are now settled DATE “ in the light of recommendations made to the Government by ORG ” . It does not appear , however , that this ORG has any statutory underpinning . Its recommendations are not binding on the Lord Chancellor or the Executive .

Oath

CARDINAL ) As PERSON Staff points out ( witness statement § § CARDINAL and CARDINAL ) both ORG are required to take the oath of allegiance and the judicial oath ( see ORG DATE section CARDINAL(CARDINAL ) , Courts Act DATE section CARDINAL(CARDINAL ) ) .

Removal

CARDINAL ) ORG may be removed from office by the Lord Chancellor pursuant to section CARDINAL ) of FAC DATE which provide :

“ ( CARDINAL ) A person appointed to an office to which subsection ( CARDINAL ) applies shall hold that office during good behaviour .

( CARDINAL ) The power to remove such a person from his office on account of misbehaviour shall be exercisable by the Lord Chancellor .

( CARDINAL ) The Lord Chancellor may also remove such a person from his office on account of inability to perform the duties of his office . ”

CARDINAL ) Circuit Judges may be removed from office by the Lord Chancellor pursuant to section CARDINAL of the Courts Act DATE . That provides :

“ The Lord Chancellor may , if he thinks fit , remove a Circuit judge from office on the ground of incapacity or misbehaviour . ”

CARDINAL ) It is submitted that the most troubling aspect in this case , from an LAW , is the limited judicial role in supervising the exercise of the Lord Chancellor ’s statutory power to remove county court judges .

CARDINAL ) It does not necessarily follow that the present arrangements are not LAW . On the face of it , the passages from PERSON ( § § DATE and CARDINAL above ) , PERSON ( § CARDINAL ) and ORG and Fell ( § MONEY ) are of significant assistance to the Respondent in the present case . PERSON ( a recent case presided over by ORG ... ) is of particular assistance to the Respondent , albeit that it is not a decision of ORG . It is right to note , however , that the passage quote above from ORG and Fell has been construed narrowly by ORG . See , in particular , the illuminating discussion of this passage by Lord PERSON at page CARDINAL of PERSON .

CARDINAL ) The Respondent ’s best defence to the Appellant ’s best point on DATE is that , in practice , removal almost never occurs and when it does it poses no threat to the independence and impartiality of the judiciary .

CARDINAL ) It is submitted that some caution is needed when seeking to place weight on the absence of many actual cases of removal of ORG judges ... in support of a conclusion as to their independence and impartiality in Convention terms . In theory , the need never to invoke the power to dismiss is just as consistent with a judiciary wholly bent to the will of the Lord Chancellor as it is with a fully independent and impartial judiciary with which no Lord Chancellor dares to interfere .

CARDINAL ) It is not , however , suggested that the former is the case . Indeed , to hold such a view might well cogently be said to display just the sort of “ neurotic distrust ” which the ORG cautioned against in Spear .

CARDINAL ) It is submitted that the answer to the question of whether the county court judges in the present case were not LAW compliant is not obvious . The case is more borderline than GPE , PERSON or PERSON in one direction and than PERSON and PERSON in the other .

CARDINAL ) On balance , it is respectfully submitted that the combination of

a ) the apparent long tradition of invoking the removal power in only the most unusual circumstances , and

b ) the availability of a relatively intense judicial review is sufficient to render the present system LAW , albeit , as emphasized above , a more obviously LAW regime is available and desirable . ”