The applicant is a NORP national of NORP origin , born in DATE and , at the time of the introduction of the application , was detained in the GPE for expulsion purposes . He is represented before the ORG by Ms G.E.M. 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 , his spouse and their CARDINAL daughters left GPE for an unspecified destination somewhere in LOC . In the course of their journey , one of the applicant ’s daughters died of suffocation in the truck in which they were hiding . The applicant ’s spouse and the other daughter returned to GPE in order to bury the deceased child there . The applicant continued his journey .

On DATE , the applicant and CARDINAL others , who were found concealed in a vehicle bound to leave the GPE for GPE , were arrested by ORG ( ORG ) on suspicion of being illegal aliens . On DATE , after a verification of his identity , nationality and residence title , the applicant was placed in GPE detention for the purposes of expulsion ( vreemdelingenbewaring ) under LAW ( b ) and ( c ) of LAW ( PERSON ) .

On DATE , the applicant applied for asylum or , alternatively , a residence permit on humanitarian grounds . On DATE , the applicant – with the assistance of an interpreter DATE was interviewed by an official of ORG in relation to the grounds for his asylum request .

The applicant stated , inter alia , that as from DATE he had made propaganda for the pro - NORP HADEP party and that as from DATE , being a pharmacist , he had provided the ORG with medicines on a regular basis . His brother , a ORG member since DATE , had been arrested in DATE and was detained since . DATE , he himself had been arrested several times . After having been kept in detention for short periods , he had been released each time . After the arrest in DATE of a ORG member who had had medicines from the applicant ’s pharmacy in his possession , the applicant and his family left their home town for GPE . During his stay in GPE , the applicant learned that his pharmacy had been destroyed by a bomb by the NORP authorities . The applicant concluded therefrom that the arrested ORG member had given his name to the NORP authorities .

On DATE , the ORG Secretary of ORG ( ORG ) rejected the applicant ’s request for asylum or a residence permit . The ORG Secretary doubted the veracity of the applicant ’s account and in this respect noted , inter alia , that the applicant , who stated he was a pharmacist , could only name CARDINAL kinds of medicines amongst which aspirin , that he was unable to state the name of the medicine he claimed to use for treatment of his mental condition and that he was unable to state the name of the wholesaler from whom he would have bought medicines for his pharmacy . The ORG Secretary did not find it established that the applicant would face a real danger of treatment contrary to LAW if be expelled to GPE . In accordance with LAW , the ORG Secretary further ordered that the applicant ’s freedom of movement be restricted by assigning him to an asylum ORG centre and that this order was suspended until the measure of the applicant ’s placement in GPE detention was lifted otherwise than by a departure from the GPE .

On DATE , the legal basis for the applicant ’s placement in GPE detention was altered from LAW ( b ) and ( c ) of LAW into LAW ( a ) of LAW . On DATE his expulsion from the GPE was ordered .

On DATE , the applicant filed an appeal with ORG ( ORG ) of ORG ( ORG ) sitting in ‘ s - Hertogenbosch against the ORG Secretary ’s decision of DATE . He further requested ORG for an injunction on his expulsion pending the appeal proceedings . As he was placed in GPE detention he was not required , like asylum seekers not placed in GPE detention , first to file an objection ( bezwaarschrift ) with the ORG Secretary of ORG before filing an appeal with ORG .

At CARDINAL unspecified points in time the applicant started a hunger strike in order to obtain access to the asylum procedure for persons not placed in GPE detention . His first hunger strike lasted DATE and his second DATE .

On DATE , the ORG Secretary of ORG sent a notification to ORG of ORG sitting in ‘ s - Hertogenbosch that the applicant had been in GPE detention for DATE without having filed an appeal against the decision of his placement in GPE detention . This notification is considered on a par with a first appeal under LAW of LAW .

In its decision of DATE , following a hearing held on DATE in the course of which the applicant was represented by a lawyer , ORG rejected the appeal filed by way of a notification . It considered that the applicant ’s arrest and placement in GPE detention was lawful under the relevant statutory provisions . It held that there were serious grounds for believing that the applicant would seek to find ways of avoiding his expulsion . ORG considered at the outset that there were serious doubts as to the veracity of the applicant ’s account that he had come to the GPE to apply for asylum , as at the moment of his arrest he had been at the point of leaving the GPE . ORG found it established that he had intentionally sought to evade any form of control of entry of aliens and had sought to leave the GPE in an uncontrolled manner .

In these circumstances , ORG did not find that the applicant ’s request for asylum opposed ( a continuation of ) his placement in GPE detention . Noting that , at the time of his arrest and to date , the applicant did not hold a valid residence title , did not have any identity papers and did not have sufficient means of existence , ORG found that there were sufficient grounds to justify the measure of placement in GPE detention . It finally considered that the applicant ’s request for an injunction on his expulsion pending the appeal proceedings on the refusal to grant him asylum or a residence permit did not as such affect the lawfulness of his placement in GPE detention as pending the determination of this request it could not be said that there were no prospects of expulsion . Moreover , there were no indications in the applicant ’s case that it was highly likely that his request for an injunction would be successful . In this respect the court further noted that the injunction request would be dealt with in the near future . In the court ’s opinion , there were as yet realistic perspectives for the applicant ’s expulsion and the authorities were sufficiently diligent in their activities aimed at the applicant ’s expulsion .

On DATE , the applicant and a unspecified number of others placed in GPE detention started a third hunger strike in order to obtain access to the asylum procedure for persons not placed in GPE detention . He claims that during this hunger strike , that lasted until DATE , he was denied recreational rights that other persons placed in GPE detention enjoyed , such as access to the library . He further claims that he was not allowed to buy a telephone card or cigarettes and that medical care was hardly provided . Also , after he had ceased his hunger strike , no medical care was provided although he did complain of pain .

On DATE , following a hearing held on DATE in the course of which the applicant was represented by a lawyer , the President of ORG rejected the applicant ’s appeal . The President held that , although the general ( human rights ) situation in ( in particular south - east ) GPE could be called bad , the mere belonging to the NORP community in GPE is not sufficient for a finding of persecution within the meaning of the DATE LAW . The President found that it had not been established that the applicant had founded reasons to fear persecution within the meaning of the DATE Convention .

The President further considered that the fact that the applicant has only applied for asylum following his arrest did cast doubts as to the reliability of his statements . The President noted that the applicant , who alleged to be a pharmacist , could only name CARDINAL kinds of medicine and was unable to state the name of the wholesaler in GPE from whom he would have bought medicines . The President further considered as implausible the applicant ’s claim that pharmacists in GPE do not necessarily have to be professionally qualified . Since the applicant had failed to substantiate his account with any documents , the President held that the above seriously undermined the credibility of the applicant ’s account .

The President noted that the applicant ’s activities for HADEP were only of a marginal nature and that the applicant had stated that his various arrests were not linked to his brother ’s activities for the ORG but were based on his own activities for the ORG . Further noting that , shortly after each arrest , the applicant had been unconditionally released , the President held that there was no indication that the applicant was being considered by the NORP authorities as an important political opponent . The President further did not find it plausible that the NORP authorities would consider the fact that the applicant had provided the ORG with medicines as a political act , since a pharmacist always runs the risk that medicines are being provided to ORG members . The President further found no causal link between the bomb attack on the applicant ’s pharmacy and his activities for the ORG and considered that it was more plausible that this was linked to the general security situation in south - east GPE .

The President also noted that the alleged events had not given the applicant cause to leave GPE immediately as he had remained in GPE until DATE without having encountered any problems from the side of the NORP authorities . As to information contained in a letter of DATE from ORG in GPE to the effect that the applicant was an active supporter of ORG , that the NORP authorities were aware of these activities and that it was extremely likely that the applicant , if returned to GPE , would be arrested and detained with a very high risk of being ill - treated and/or tortured during his detention , the President held that this information could not be considered as coming from an objective source . The President concluded that it had not been established that the applicant , if expelled to GPE , would face a real risk of being subjected to treatment contrary to LAW . In these circumstances , the President did not find it necessary to determine the applicant ’s request for an injunction on his expulsion .

On DATE the applicant filed a second request for asylum or , alternatively , a residence permit on humanitarian grounds . On CARDINAL DATE the applicant was interviewed by an official of ORG in respect of his second asylum request . According to the written record of this interview , the applicant stated that he could understand the assisting interpreter very well , that he had no new facts or circumstances to adduce in support of his new asylum request and that he had filed this new request upon the advice of his new lawyer who considered that the written record of the applicant ’s interview held on DATE did not correctly reflect the applicant ’s account .

By letter of CARDINAL DATE , the applicant ’s new lawyer sent comments on the written record of the applicant ’s interview held on DATE to the ORG Secretary of ORG . In this letter a number of examples were given of discrepancies between what the applicant had allegedly said and what had been recorded . According to the applicant ’s lawyer , these discrepancies were the result of inadequate interpretation . On DATE , the applicant ’s new lawyer submitted comments to the written record of the interview held on CARDINAL DATE .

By letters of DATE , the applicant ’s lawyer filed complaints with the Minister of ORG and ORG about the asylum proceedings conducted in the applicant ’s case . In these letters , the applicant ’s lawyer complained in particular about the quality of interpretation during the applicant ’s interviews in relation to his CARDINAL asylum requests in that this interpreter was allegedly unable to communicate adequately in either NORP or NORP .

On DATE the ORG Secretary of ORG rejected the applicant ’s second request for asylum or a residence permit . The ORG Secretary noted that the comments submitted on CARDINAL and CARDINAL DATE related to the first asylum proceedings and could not be regarded as new relevant facts and circumstances . In this respect , the ORG Secretary noted that the applicant ’s initial lawyer had already addressed the contents of the record on the interview held on DATE and had raised the same points as the ones that were now being raised by the applicant ’s new lawyer in relation to this interview . These subject matters had been examined both in the proceedings on the applicant ’s first request for asylum and in the proceedings on the lawfulness of the applicant ’s placement in GPE detention . The applicant ’s new asylum request was , therefore , inadmissible .

The ORG Secretary of ORG further held that no facts or circumstances had appeared on the basis of which the applicant would qualify for a residence permit on humanitarian grounds and that it had not been established that there was a real risk that the applicant , if returned to his country of origin , will be subjected to treatment contrary to LAW . Having found no reasons on grounds of which the applicant should be given the possibility to await the outcome of a possible appeal in the GPE , the ORG Secretary considered that the applicant should leave the GPE as soon as possible . The ORG Secretary further ordered that the applicant ’s freedom of movement be restricted by assigning him to an asylum seekers centre and that this order was suspended until the measure of the applicant ’s placement in GPE detention was lifted otherwise than by a departure from the GPE .

The applicant ’s expulsion to GPE was scheduled for DATE . No information has been submitted as to whether he has in fact been deported on this or any subsequent date .

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. alien 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 refugee .

Placement in GPE detention will not be ordered when - 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 is feasible that this point in time is attained at an earlier or later point in time than after DATE have passed . It can be later where the alien frustrates the determination of his identity or nationality and it can be sooner where the alien concerned is unable to obtain travel documents for reasons beyond his control .

LAW ( PERSON ) provides :

“ CARDINAL . Other than in the cases laid down by or pursuant to law , no one may be deprived of his liberty .

Anyone who has been deprived of his liberty other than by order of a court may request a court to order his release . In such a case he shall be heard by the court within a period to be laid down by law . The court shall order his immediate release if it considers the deprivation of liberty to be unlawful .

The trial of a person who has been deprived of his liberty pending trial shall take place within a reasonable time .

A person who has been lawfully deprived of his liberty may be restricted in the exercise of fundamental rights in so far as the exercise of such rights is incompatible with the deprivation of liberty . ”

Article PERSON of LAW provides as follows :

“ CARDINAL . A measure taken under this LAW to the effect of a limitation of the freedom of movement or deprivation of liberty shall , for the purposes of LAW , be considered as being on a par with a decision .

NORP The court shall examine a first appeal against a decision to the effect of deprivation of liberty within DATE , either during the preliminary examination under LAW or during a court hearing .

NORP If the appeal is directed against a decision as referred to in the second paragraph , the court shall determine the time of the trial proceedings without delay and in any event not DATE after DATE of transmission of the appeal . In deviation of LAW , the delay referred to in that Article can not be prolonged .

ORG hands down its written decision , unless immediately at the court hearing a decision is handed down orally , within DATE following the closure of the investigation < at the hearing>. As a deviation of DATE , second paragraph , of LAW , the delay referred to in that provision can not be extended .

Where the court finds that the applicant or execution of the measure is contrary to the law or after weighing the interests involved can not in all reasonability be regarded as justified , it declares the appeal < filed > under this provision founded and orders that the measure be lifted or a change in the manner of its execution . ”

Although no appeal lies against a decision by 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 .

Pursuant to LAW , the Minister of ORG must send a notification to the competent court when an alien has spent DATE in GPE detention where the person concerned has not himself filed an appeal against this decision . This notification is considered on a par with a first appeal within the meaning of Article LAW .


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

The applicants , PERSON and QUANTITY others are NORP nationals living in ORG , GPE region . Their names and dates of birth are listed in the appendix .

The applicants are co - owners of a company “ LOC saloon LOC located in PERSON ( “ the company ” ) .

On DATE , the company sued ORG of Novokuznetsk in ORG , claiming property rights on a building located in PERSON and used by the company for its professional activities .

On DATE , the court dismissed the company 's claims finding that the building at issue had not been included in the real estate subject to privatisation and that the company 's action was time barred .

The company lodged an appeal with ORG , contesting the lower court 's finding that the action was time - barred . On DATE , ORG upheld the first instance judgment .

The Appellate Instance of ORG continued to consider commercial cases on appeal until DATE when the Seventh ORG of Appeal started its activities in GPE .

The company applied to ORG for ORG against the lower court 's decisions on the ground that they had distorted the facts and violated material law . On DATE the court dismissed the company 's complaint and upheld the previous judgments .

On an unspecified date , the company lodged an application for supervisory review with ORG . On DATE , a single judge declared the application admissible .

On DATE ORG , sitting in a committee of CARDINAL judges , dismissed the company 's application for supervisory review of the lower courts ' judgments . The court concluded that the application , which relied upon “ violations of substantive and procedural law ” , was in effect aiming at the reconsideration of the lower courts ' conclusions . Therefore , the court did not find any ground for examination of the case by the Presidium of ORG in accordance with Article CARDINAL of LAW .

LAW ( No . CARDINAL ) in force since DATE provided for setting up of commercial courts of appeal . It provided , in particular , that the Seventh ORG of Appeal be set up by DATE for review of judicial decisions of commercial courts of the LOC , GPE , GPE , GPE regions and of GPE ( Article CARDINAL and new Article CARDINAL § CARDINAL(CARDINAL ) introduced in LAW on commercial courts of GPE ( No . MONEY ) of CARDINAL DATE ) .

Under LAW , a commercial court of appeal is considered as set up once the minimum of CARDINAL judges are appointed on its bench ; its activities start on the date to be determined by the Plenum of ORG ; the appellate instances of regional commercial courts continue reviewing cases on appeal up until the start of activities of the relevant court of appeal .

On DATE the Plenum of ORG , after having examined the report of the President of the Seventh ORG , decided that the activity of the latter would start on DATE .

The Code of Commercial Procedure ( no . CARDINAL-FZ of CARDINAL DATE ) in force before DATE provided that final judgments and decisions of commercial courts were amenable to supervisory review initiated on an application by the President of ORG or his deputy or by ORG or his deputy ( Articles CARDINAL and CARDINAL ) .

On DATE , LAW of LAW for the review of courts ' decisions by way of supervision ” ( “ Производство по пересмотру судебных актов в порядке надзора ” ) entered into force .

According to LAW , an application for supervisory review may be lodged with ORG by the parties to the case or certain other persons entitled by the Code if they consider that the contested judicial decision substantially violates their rights and legitimate interests in commercial or other economic activities due to a breach or improper application by a commercial court of material or procedural law . The application for supervisory review may be lodged within DATE after the contested judicial decision enters into force , if all other judicial remedies were exhausted .

According to the transitional provisions of the PERSON on the Introduction of LAW of DATE ( Федеральный закон « О введении в действие Арбитражного процессуального кодекса PERSON No . CARDINAL-ФЗ ) , the supervisory review proceedings against the court decisions delivered before DATE could be brought before ORG within DATE from DATE ( Article CARDINAL ) .

The admissibility of the application ( вопрос о принятии заявления или представления к производству ) is decided by a single judge within DATE after receipt of the application ( Article CARDINAL ) . Once declared admissible , the application is considered by a committee of judges , which decides , within DATE after receipt of the application or of the case - file , whether to send the case to the ORG of ORG for supervisory review ( Article CARDINAL ) . If the conditions provided for in Article CARDINAL are satisfied , the court makes a decision to send the case for supervisory review and transmits the case to the ORG within DATE after this decision ( Article CARDINAL ) . The ORG will consider the case within DATE after the decision to transmit the case to the ORG ( LAW ) .

Article CARDINAL , as originally adopted , provided as follows :

Article CARDINAL Grounds for revising or repealing by way of supervision of the judicial decisions entered into legal force

“ Judicial decisions of the commercial courts entered into legal force shall be revised or repealed if the Presidium of ORG of GPE reviewing the case by way of supervision finds that the contested judicial decision :

CARDINAL ) violates the uniformity of the interpretation of the legal norms by commercial courts ;

CARDINAL ) prevents the delivery of a lawful judicial decision in another case ;

CARDINAL ) violates the rights and legitimate interests of an undetermined number of people or other public interests . ”

On DATE , LAW DATE ( No . CARDINAL-ФЗ ) entered into force replacing the point CARDINAL above by the following :

“ CARDINAL ) violates the human and citizens ' rights and freedoms in accordance with the universally recognised principles and norms of international law and the international treaties of GPE ; ( ... ) . ”

Article CARDINAL of LAW provides for reopening of commercial proceedings on the basis of newly discovered circumstances . CARDINAL of the grounds allowing such reopening is a violation of the LAW found by ORG in the examination of a particular case by a commercial court on account of which the applicant complained to ORG ( Article CARDINAL § CARDINAL ) .