No violation of Art. 8;No violation of Art. 12

ORG The applicant , a NORP citizen born in DATE , lives at GPE Wells in GPE .

ORG At birth the applicant possessed all the physical and biological characteristics of a child of the female sex , and was consequently recorded in the register of births as a female , under the name PERSON . However , already from a tender age the child started to exhibit masculine behaviour and was ambiguous in appearance . In DATE , after learning that the transsexual state was a medically recognised condition , she sought treatment . She was prescribed methyl testosterone ( a hormonal treatment ) and started to develop secondary male characteristics .

ORG In DATE , the applicant - who will henceforth be referred to in the masculine - changed his name to PERSON and subsequently , in DATE , to PERSON . He has been living as a male ever since . After the change of name , the applicant requested and received a new passport containing his new names . The prefix " Mr. " was , however , at that time denied to him .

Surgical treatment for physical sexual conversion began in DATE with a bilateral masectomy and led to the removal of feminine external characteristics . The costs of the medical treatment , including the surgical procedures , were borne by ORG .

ORG The applicant made several unsuccessful efforts from DATE onwards to persuade Members of ORG to introduce a Private Member ’s PERSON to resolve the problems of transsexuals . Representations were also made by him , and by a number of Members of ORG on his behalf , to ORG to secure the alteration of his birth certificate to show his sex as male , but to no avail .

ORG On DATE his solicitor wrote to the Registrar General making a formal request under ORG ) of ORG , on the ground that there had been " a mistake in completing the Register " . In support of his request , the applicant submitted a medical report by Dr. PERSON . The report stated that , in Dr. PERSON ’s opinion , of the CARDINAL criteria of sex - namely chromosomal sex , gonadal sex , apparent sex ( external genitalia and body form ) and psychological sex , the last was the most important as it determined the individual ’s social activities and role in adult life , and it was also , in his view , pre - determined at birth , though not evident until later in life . Dr. PERSON considered that as the applicant ’s psychological sex was male , he should be assigned male .

On DATE the Registrar General refused the application to alter the ORG . He stated that the report on the applicant ’s psychological sex was not decisive and that , " in the absence of any medical report on the other agreed criteria ( chromosomal sex , gonadal sex and apparent sex ) " , he was " unable to consider whether an error ( had been ) made at birth registration in that the child was not of the sex recorded " . No further evidence in support of the applicant ’s request was subsequently submitted .

ORG The applicant considers himself a man and is socially accepted as such . Except for the birth certificate , all official documents DATE refer to him by his new name and the prefix " Mr. " , where such prefix is used . The prefix was added to his name in his passport in DATE .

ORG In the GPE sexual reassignment operations are permitted without legal formalities . The operations and treatment may , as in the case of Mr. PERSON , be carried out under ORG .

ORG Under LANGUAGE law a person is entitled to adopt such first names or surname as he or she wishes and to use these new names without any restrictions or formalities , except in connection with the practice of some professions where the use of the new names may be subject to certain formalities ( see , inter alia , GPE ’s ORG , CARDINALth ed . , vol . CARDINAL , para . CARDINAL ) . For the purposes of record and to obviate the doubt and confusion which a change of name is likely to involve , the person concerned very frequently makes , as did Mr. PERSON , a declaration in the form of a " deed poll " which may be enrolled with ORG .

The new names are valid for purposes of legal identification ( see GPE ’s ORG , loc . cit . , para . CARDINAL ) and may be used in documents such as passports , driving licences , car registration books , national insurance cards , medical cards , tax codings and social security papers . The new names are also entered on the electoral roll .

Civil status certificates or equivalent current identity documents are not in use or required in GPE . Where some form of identification is needed , this is normally met by the production of a driving licence or a passport . These and other identity documents may , according to the prevailing practice , be issued in the adopted names of the person in question with a minimum of formality . In the case of transsexuals , the documents are also issued so as to be in all respects consistent with the new identity . Thus , the practice is to allow the transsexual to have a current photograph in his or her passport and the prefix " Mr. " , " Mrs. " , " Ms. " or " Miss " , as appropriate , before his or her adopted names .

ORG The system of civil registration of births , deaths and marriages was established by statute in GPE and GPE in DATE . Registration of births is at present governed by ORG " the CARDINAL LAW " ) . The entry into force of this LAW entailed no material change to the law in force in DATE , the date of the applicant ’s birth . The DATE Act requires that the birth of every child be registered by ORG for the area in which the child is born . The particulars to be entered are prescribed in regulations made under LAW .

A birth certificate takes the form either of an authenticated copy of the entry in the register of births or of an extract from the register . A certificate of the latter kind , known as a " short certificate of birth " , is in a form prescribed and contains such particulars as are prescribed by regulations made under LAW . The particulars so prescribed are the name and surname , sex , date of birth and place of birth of the individual .

An entry in a birth register and the certificate derived therefrom are records of facts at the time of the birth . Thus , in GPE and GPE the birth certificate constitutes a document revealing not current identity , but historical facts . The system is intended to provide accurate and authenticated evidence of the events themselves and also to enable the establishment of the connections of families for purposes related to succession , legitimate descent and distribution of property . The registration records also form the basis for a comprehensive range of vital statistics and constitute an integral and essential part of the statistical study of population and its growth , medical and fertility research and the like .

ORG The DATE LAW provides for the correction of clerical errors , such as the incorrect statement or omission of DATE of the birth , and for the correction of factual errors ; however , in the latter case , an amendment can be made only if the error occurred when the birth was registered . The birth register may also , within DATE from the date of registration , be altered to give or change the name of a child and re - registration of a birth is permitted where the child has been legitimated . In addition , under LAW , where a child is adopted , the register of births is to be marked with the word " adopted " ; the adoption is also registered in LAW and a short certificate of birth may be obtained which contains no reference to parentage or adoption .

ORG The criteria for determining the sex of the person to be registered are not laid down in the DATE Act nor in any of the regulations made under it . However , the practice of ORG is to use exclusively the biological criteria : chromosomal , gonadal and genital sex . The fact that it becomes evident later in life that the person ’s " psychological sex " is at variance with these biological criteria is not considered to imply that the initial entry was a factual error and , accordingly , any request to have the initial entry changed on this ground will be refused . Only in cases of a clerical error , or where the apparent and genital sex of the child was wrongly identified or in case of biological intersex , i.e. cases in which the biological criteria are not congruent , will a change of the initial entry be contemplated and it is necessary to adduce medical evidence that the initial entry was incorrect . However , no error is accepted to exist in the birth entry of a person who undergoes medical and surgical treatment to enable that person to assume the role of the opposite sex .

ORG The birth registers and the indexes of all the entries are public . However , the registers themselves are not readily accessible to the general public as identification of the index reference would require prior knowledge not only of the name under which the person concerned was registered , but also of the approximate date and place of birth and LOC .

ORG The law does not require that the birth certificate be produced for any particular purpose , although it may in practice be requested by certain institutions and employers .

In particular , a birth certificate has in general to accompany a first application for a passport , although not for its renewal or replacement . A birth certificate is also generally ( though not invariably ) required by insurance companies when issuing pension or annuity policies , but not for the issue of motor or household policies nor , as a rule , for the issue of a life insurance policy . It may also be required when enrolling at a university and when applying for employment , inter alia , with the Government .

ORG In LANGUAGE law , marriage is defined as a voluntary union for life of CARDINAL man and CARDINAL woman to the exclusion of all others ( per Lord GPE in PERSON ( DATE ) Law Reports CARDINAL Probate and Divorce CARDINAL , CARDINAL ) . LAW DATE gives statutory effect to the common - law provision that a marriage is void ab initio if the parties are not respectively male and female .

ORG According to the decision of ORG in PERSON v. PERSON ( DATE ) Probate Reports CARDINAL , sex , for the purpose of contracting a valid marriage , is to be determined by the chromosomal , gonadal and genital tests where these are congruent . The relevance of a birth certificate to the question whether a marriage is void only arises as a matter of evidence which goes to the proof of the identity and sex of the person whose birth it certifies . The entry in the birth register is prima facie evidence of the person ’s sex . It may , however , be rebutted if evidence of sufficient weight to the contrary is adduced .

ORG If , for the purpose of procuring a marriage or a certificate or licence for marriage , any person knowingly and wilfully makes a false oath or makes or signs a false declaration , notice or certificate required under LAW relating to marriage , he is guilty of an offence under LAW ( CARDINAL ) of LAW . However , a person contracting a marriage abroad is not liable to prosecution under LAW .

ORG The biological definition of sex laid down in PERSON v. PERSON has been followed by LANGUAGE courts and tribunals on a number of occasions and for purposes other than marriage .

The applicant has drawn the ORG ’s attention to the following cases . In CARDINAL case concerning prostitution , a male to female transsexual , who had undergone both hormone and surgical treatment , was nevertheless treated as a male by ORG for the purposes of LAW DATE and LAW ( GPE v. PERSON and Others DATE , [ DATE ] CARDINAL All England Law Reports CARDINAL ) . In CARDINAL cases concerning social security legislation , male to female transsexuals were considered by ORG Commissioner as males for the purposes of retirement age ; in the first case the person in question had only received hormone therapy , in the second he had involuntarily begun to develop female secondary characteristics at DATE , which developments were followed by surgery and adoption of a female social role DATE ( cases R ( P ) CARDINAL and R ( P ) CARDINAL in the DATE Volume of ORG ) . Lastly , in a case before an ORG a female to male transsexual , who had not undergone any sex change treatment , was treated as a female by the ORG for the purposes of LAW DATE ; the person in question had sought and received employment in a position reserved for men under LAW , but was dismissed after discovery of her biological sex ( NORP v. ORG [ DATE ] ORG p. CARDINAL ) .


Preliminary objections dismissed (victim, non-exhaustion of domestic remedies, six-month period);Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

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

On CARDINAL DATE the applicant was arrested and taken into custody . On DATE he was remanded in custody .

On DATE the public prosecutor at ORG filed a bill of indictment with the latter , accusing the applicant of membership of an illegal organisation . He requested that the applicant be convicted and sentenced under LAW .

On DATE ORG convicted the applicant as charged and sentenced him to DATE imprisonment . This judgment was quashed by ORG on DATE .

On DATE the applicant was released from detention .

Subsequent to promulgation of PERSON no . CARDINAL on DATE , which abolished the jurisdiction of ORG , ORG acquired jurisdiction over the applicant 's case .

On DATE ORG ordered that the criminal proceedings against the applicant be terminated on the ground that the statutory time limit under ORG CARDINAL and ORG of LAW had expired . At the time of this decision the applicant was not represented by a lawyer before this court . However , this judgment was erroneously notified to Mr GPE ( the legal representative of another co - accused , who bore the same name and surname as the applicant , during the proceedings before ORG ) and became final on DATE .

The applicant inquired about the developments in his case on DATE . As the judgment was in his favour , the applicant did not lodge an appeal with ORG .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

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

The applicant , in his capacity as a member of the management board of a stock corporation established under NORP law , was involved in the preparation and conclusion of an agreement between the corporation and ORG in DATE on the delivery of CARDINAL tanks to GPE .

In DATE the GPE public prosecution authorities initiated an investigation against the applicant on charges of breach of trust and evasion of income tax in connection with the said deals ( file No . CARDINAL KLs CARDINAL GPE DATE ) . He was suspected of having accepted for his own benefit - within the scope of a so - called kick - back procedure on the basis of a collusive agreement with a separately prosecuted arms lobbyist - the return flow of part of the commission payments made by the corporation and affiliated companies to an enterprise of which the said arms lobbyist was the beneficial owner ( wirtschaftlicher PERSON ) . He had thereby allegedly acted in breach of his fiduciary duties vis - à - vis his employer and without declaring the funds received in his income tax return .

In the course of the investigations the suspicion arose that in the period from DATE further executive staff of the said stock corporation and affiliated companies , including the applicant , had jointly evaded corporate and trade tax ( Körperschafts- und GPE ) by declaring commission payments as deductible expenses in breach of applicable tax law . The GPE public prosecution authorities severed this part of the investigations and they were subsequently conducted by the local public prosecution authorities with jurisdiction at GPE ( file No . CARDINAL Js CARDINAL/CARDINAL ) . In the course of the severed preliminary proceedings ( ORG ) documents were confiscated from the corporation 's and affiliated companies ' LOC as well as from the applicant , on the basis of a search warrant of ORG dated DATE .

By a decision of CARDINAL October CARDINAL ORG ( Landgericht ) ordered the seizure of the documents that had previously been confiscated by the GPE public prosecution authorities in the separate preliminary proceedings . ORG provided some of the documents , including analysis reports .

On DATE the main hearing against the applicant and a co - accused member of the managing board on charges of income tax evasion and breach of trust was opened before ORG ( file No . CARDINAL ORG ) . On the same date defence counsel lodged a first application to obtain the entire file in the separately conducted investigation proceedings from the GPE public prosecution authorities and requested that the hearing be adjourned .

On DATE ORG refused to adjourn the hearing , and dismissed the applicant 's request to obtain the file in the parallel proceedings as premature .

On DATE defence counsel again lodged an application to obtain the file in the parallel proceedings . He claimed that the content of the file would demonstrate that the applicant had not played a significant role in the transactions at issue . He further pointed out that further members of the management of the affiliated group who were suspects in the parallel proceedings together with the applicant had been summoned as witnesses in the proceedings before ORG . Effective questioning of these witnesses would only be possible if the defence was previously granted access to the file in the parallel proceedings . By a decision of DATE ORG ordered that the file be obtained .

By a letter dated DATE ORG stated that while there was no concern about granting the acting ORG at ORG access to the file , the request for the applicant 's counsel to have access to it had to be dismissed pursuant to LAW below ) on the ground that the preliminary investigations in the separate proceedings were ongoing and disclosure of the remaining documents might put the purpose of the investigations at risk . This was particularly the case because defence counsel was representing the applicant in both proceedings . ORG therefore refrained from obtaining the file .

On the occasion of hearings that took place on DATE and CARDINAL and DATE the applicant 's counsel lodged further applications for an adjournment of the hearing of the witnesses who were at the same time suspects in the parallel preliminary proceedings until the defence had had the opportunity to examine the file in those proceedings . He claimed that this was necessary with a view to preparing the questioning of the witnesses and in order to determine the scope of the witnesses ' privilege to refuse evidence and not to incriminate themselves on the ground that they were also suspects in the parallel preliminary investigations . Referring to the GPE public prosecution authorities ' refusal of access to the file , ORG rejected these requests and heard the witnesses . The ORG pointed out that it would always be possible to summon the witnesses again at a later stage .

On DATE ORG dismissed requests lodged on DATE by the applicant and the co - accused member of the management board for the file in the parallel proceedings to be seized . ORG held that it followed from the legal principle established in LAW read in conjunction with LAW ( Grundgesetz - see Relevant domestic law below ) that a seizure of the files would only be possible in the event the public prosecution authorities had not sufficiently reasoned their refusal of access to the file . However , in the case at hand the GPE public prosecution authorities had based their decision on LAW , stipulating that counsel may be denied access to files in ongoing preliminary investigations if their disclosure might put the purpose of the investigations at risk . This provision constituted a lex specialis in relation to LAW . Furthermore , there was nothing to establish that the decision of ORG to deny access had been arbitrary or unlawful . Given ORG refusal to make the file available to defence counsel , ORG had refrained from obtaining the file altogether , specifying that consultation of the file by the court alone would be in breach of the rights of the defence .

A further application to adjourn the hearing lodged on DATE by the applicant was rejected by ORG on DATE . The court held that the fact that it was not possible to obtain the entire file did not justify an adjournment of the hearing , since the GPE proceedings related to different tax evasion charges and different tax debtors . ORG however pointed out that while it was not possible to obtain the entire file in the parallel proceedings , nothing prevented the applicant and the prosecution authorities from lodging applications in line with the formal requirements to obtain specific documents and other means of evidence included in the file .

On DATE the applicant again requested the seizure of the entire file in the parallel proceedings , but this time alternatively limited his request to those documents that had been seized from the applicant on the basis of the search warrant issued by ORG on DATE , as well as all documents compiled within the scope of an independent investigation of the case by an accounting firm and a law firm . By a decision of CARDINAL DATE ORG granted the applicant 's alternative application and asked the GPE public prosecution authorities to examine whether disclosure of the said documents was possible .

On DATE the ORG agreed to disclose the requested documents and further announced that access to the entire file and residual documents would be granted in DATE .

By a decision of DATE ORG ordered the seizure of the documents specified in its decision of DATE on the ground that they could be of importance as evidence in the proceedings and counsel subsequently had the opportunity to examine the requested documents .

By a judgment of DATE ORG convicted the applicant of tax evasion in CARDINAL cases as well as of breach of trust and sentenced him to DATE imprisonment .

By written submissions of DATE and CARDINAL DATE the applicant appealed against ORG judgment to ORG ( ORG ) . He complained , inter alia , that ORG refusal to seize the file and to adjourn the proceedings until the entire file had been made available prevented him from effectively defending himself in breach of his right to a fair trial as guaranteed by LAW . Pursuant to LAW , ORG would have been under an obligation to obtain a decision by ORG of the GPE in its capacity as ORG superior authority on whether the refusal of access to the file was justified . LAW CARDINAL of LAW did not deal with a refusal of access in separately conducted proceedings and was not applicable in the case at hand . The question of whether LAW was lex specialis in relation to its LAW was of significant importance . He further alleged that the information contained in the file would have demonstrated that the applicant had not played a responsible role in the transactions at issue , contrary to what had been established in ORG judgment .

By a decision of DATE ORG ( file No . CARDINAL StR CARDINAL ) , following a statement by ORG ( ORG ) , quashed ORG verdict as regards the assessment of the scope of the applicant 's guilt ( GPE ) and to this extent remitted the case to ORG . At the same time ORG dismissed , inter alia , the applicant 's complaint that due to the failure to obtain the file in the parallel proceedings his defence had been restricted in a decisive point as ill - founded .

It found that it was doubtful whether the applicant had sufficiently substantiated this complaint pursuant to LAW CARDINAL in conjunction with LAW of LAW . The applicant had not established that there was a link between the alleged procedural flaw and the grounds on which the judgment of ORG had been based . Once the applicant had been granted access to part of the files he would have been under an obligation to specify what missing information would be significant for his defence . Furthermore , defence counsel would have been under an obligation to continue his efforts for a disclosure of the entire file within the time - limit for lodging his appeal on points of law with a view to establishing in his submissions to ORG that the non - disclosed parts of the file contained information that was significant for the defence . However , the applicant 's submissions contained only theoretical conclusions on the possibly relevant content of the file .

ORG further confirmed that LAW was lex specialis in relation to LAW of LAW . When taking a decision on whether to grant access to files ORG had to weigh the interest of the accused to effectively defend himself in the proceedings before ORG against the necessity to keep the file in the preliminary investigations secret and might for instance grant access to parts of the file . In the case at hand a judicial review of the prosecution authorities ' denial to grant access to the files in analogous application of , inter alia , LAW might be considered . ORG on itsRegional Court until disclosure of the entire file .

By a decision of DATE ( file No . CARDINAL BvR CARDINAL/CARDINAL ) which was served on the applicant on DATE ORG declined to consider the applicant 's constitutional complaint .

It found that his complaint about ORG refusal to seize the documents retained by ORG was inadmissible since the applicant had not exhausted the appropriate procedural domestic remedies in this respect . He had failed to lodge applications for the taking of particular evidence , even though ORG had indicated this possibility and even though the applicant had been granted access to parts of the files by ORG . He had in particular been able to consult all the documents which had been the subject of his requests dated CARDINAL DATE and DATE . From the material that had been made available to him he must have been in a position to reason what other specific means of evidence would be needed for his defence . Given the fact that the proceedings had lasted until DATE he could have lodged further corresponding applications for the taking of evidence . However , allegations in respect of specific means of taking evidence had been made by the applicant for the first time during the proceedings before ORG .

ORG further pointed out that the GPE public prosecution authorities had announced that the entire file would be released in DATE and that the judgment of ORG had been pronounced on DATE . The applicant would have had the opportunity to lodge an application for an adjournment of the hearing of DATE thereby avoiding the alleged violation of his basic rights instead of subsequently lodging an appeal against the first - instance judgment .

In addition , ORG found that the applicant 's complaint was inadmissible on the ground that he had not established that the contested judgment was based on the alleged violation of his basic rights as required by Sections CARDINAL § CARDINAL and LAW ( Bundesverfassungsgerichtsgesetz ) . In his submissions before ORG and ORG he had not sufficiently substantiated that the consideration of the parts of the file that had not been available during the proceedings before ORG would have led to a different assessment of the case by the latter , even though he obviously had access to the retained parts of the file after termination of the main proceedings before ORG .

The separately conducted preliminary proceedings regarding the evasion of corporate and trade tax ( file No . CARDINAL PERSON ) were stayed by the GPE public prosecution authorities on DATE .

Following remittal of the proceedings concerning the charges on breach of trust and evasion of income tax as regards the assessment of the scope of the applicant 's guilt by ORG , ORG , by a judgment of DATE ( file No . CARDINAL ORG ) reduced the applicant 's sentence to DATE and DATE imprisonment .

Following a further appeal lodged by the applicant , ORG by a decision of DATE amended ORG judgment of DATE and reduced the applicant 's sentence to DATE imprisonment on probation . It dismissed the remainder of the applicant 's appeal as ill - founded .

By written submissions of DATE the applicant lodged a constitutional complaint alleging , inter alia , a violation of his right to a fair trial on grounds different from those being the subject of the instant application . The latter proceedings are still pending before ORG .

Pursuant to LAW all federal and authorities of the Länder shall render legal and administrative assistance to one another .

LAW stipulates that access to files or other documents kept by public authorities or public servants may not be requested if their superior authority declares that the publication of these files or documents would be detrimental to the welfare of the Federation or of a NORP Land .

LAW provides that defence counsel is entitled to consult the files which have been presented to the trial court or which would have to be presented to the trial court in case of indictment and to inspect the exhibits . LAW of this provision allows access to part or all of the files or to the exhibits to be refused until the preliminary investigation has ended if it might otherwise be at risk . Pending the termination of the preliminary investigation , it is for ORG to decide whether to grant access to the files or not ; thereafter it is for the president of the trial court ( LAW ) .

Pursuant to LAW be considered to be based on a violation of the law if the defence has been inadmissibly restricted by a decision of the court on a topic which was decisive for the judgment . Pursuant to LAW , in the event an applicant complains of procedural flaws , he has to establish the facts as regards such flaws .

Section CARDINAL of ORG requires that applications for the institution of proceedings lodged with ORG must be lodged in writing , state the reasons for the complaint and specify the requisite evidence . LAW stipulates that the right which has allegedly been violated has to be specified , as well as the action or omission of the organ or authority which has allegedly been at the origin of the violation .


Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect)

David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Paulo Pinto De Albuquerque

The applicant was born in DATE and lives in GPE .

The applicant is the editor and owner of ORG ( NORP ORG ) , a DATE political magazine . At TIME on DATE , with a search warrant issued by ORG , police officers from ORG of ORG conducted a search of the journal ’s office . An identity check was carried out and the police arrested CARDINAL persons , including the applicant , who were present in the office at the time . According to the search and arrest report signed by CARDINAL police officers , the applicant resisted the officers . He was subsequently handcuffed and put in a minibus to be taken to the ORG building . The applicant alleged that he had been beaten and insulted in the car by CARDINAL police officers . In particular , he stated that QUANTITY officer , ORG , had head - butted him and broken his nose .

At TIME the applicant was taken to ORG where he was examined by a doctor . In his report , the doctor noted bruises under the applicant ’s eyes and swelling on the bridge of his nose . The applicant was transferred to the Ear , Nose and ORG for consultation . The doctor examined the applicant at TIME , noted the injury to the applicant ’s nose and requested an X - ray .

On DATE the X - ray of the applicant ’s nose revealed that it was broken .

On DATE the applicant was examined once again at ORG branch of ORG . The doctor who examined him explained in his report that the applicant had complained that he had been subjected to ill - treatment in police custody . It was reported that the applicant had stated that he was beaten up in the minibus while he was being taken to ORG , and that he had been under psychological pressure while he was in police custody . Referring to the Xray of DATE , which showed that the applicant ’s nose had been broken , the doctor concluded that he was unfit to work for DATE .

On DATE the applicant was released by order of the public prosecutor .

On an unspecified date , the applicant lodged a criminal complaint with ORG , alleging that he had been ill - treated while in police custody .

On DATE the applicant was examined once again at the ORG branch of ORG . It was noted that he had bruising under his eyes and swelling on his nose . In a final report of DATE , the LOC branch of ORG , with reference to the X - ray of DATE , concluded that the applicant ’s nose had been broken , and stated that he was unfit to work for DATE .

On DATE ORG declared lack of jurisdiction and transferred the case file to ORG . ORG conducted CARDINAL separate investigations into the applicant ’s complaints . In file no . CARDINAL/CARDINAL , an investigation was commenced in respect of CARDINAL police officers who had been on duty at FAC of ORG on DATE of the applicant ’s arrest . In connection with this investigation , the public prosecutor gave a decision on DATE that he would not prosecute these CARDINAL officers , for lack of evidence .

In file no . DATE , ORG conducted an investigation into the events which took place during the applicant ’s arrest and his transfer to the ORG building . On DATE the ORG decided to transfer the case back to ORG . Accordingly , on DATE , ORG filed an indictment with ORG against CARDINAL police officers , accusing them of ill - treating the applicant under LAW . The applicant joined the proceedings as a civil party .

During the proceedings , the applicant lodged an objection , stating that the case should be dealt with by ORG , as the police ORG actions had amounted to torture . On DATE ORG declared that it did not have jurisdiction and transferred the case to ORG . In a hearing held on DATE , the applicant identified police officer GPE as the person who had broken his nose .

On DATE , on the basis of medical reports and witness statements , ORG found it established that Officer PERSON had broken the applicant ’s nose by head - butting him . Considering that the use of force had not been proportionate , the court found the police officer guilty of ill - treating the applicant under LAW . Having regard to the duration of the treatment , the court decided that the act did not amount to torture , since it had not been systematic . In conclusion , ORG was sentenced to CARDINAL months’ imprisonment and banned from public service for DATE . The court then converted his sentence to a fine , having had regard to the fact that he did not have a criminal record . Furthermore , the court decided to suspend his sentence under PERSON no . CARDINAL , considering that he was unlikely to break the law again . The other CARDINAL police officers were acquitted of the charges against them .

The applicant appealed against this decision .

On DATE ORG , noting that the statutory time - limit for the offence had expired , decided to drop the criminal proceedings against the accused police officer .

A description of the relevant domestic law and practice in force at the material time can be found in NORP v. GPE ( no . CARDINAL , § § DATE , ORG CARDINALXII ( extracts ) ) , and PERSON and Others v. GPE ( nos . LOC and QUANTITY , § § CARDINAL , ORG CARDINALIV ( extracts ) ) .


Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

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

The NORP Government ( “ the Government ” ) were represented by their Agent , PERSON .

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

According to the applicant , he came to GPE in DATE with the intention of settling permanently in PERSON . He worked in the leather business and established CARDINAL private companies in DATE and DATE .

The applicant was recognised as a victim in CARDINAL different sets of criminal proceedings which ended in DATE and DATE , respectively . According to the relevant judgments , the convicted defendants had to pay the applicant MONEY ( ORG ) and ORG CARDINAL as compensation for damage . The defendants failed to pay and the applicant applied to the domestic authorities asking for the execution of the court judgments and payment of the debts . According to the applicant ’s submission , he was also owed large amounts of money by CARDINAL other private individuals .

During a standard passport check on DATE , officers of ORG discovered that the applicant had been living in GPE without a valid residence permit or passport .

On DATE ORG drew up a record for an administrative offence ( inzibati xəta haqqında protocol ) , by which the applicant was found to be in breach of LAW ( “ the ORG ” ) . It decided to fine him in the amount of CARDINAL old NORP manats ( equivalent to CARDINAL new NORP manats ) and to deport him from GPE .

The applicant gave a handwritten explanation , in the section of the report designed for this purpose , that his passport was at ORG at the time . He made no reference to the residence permit . He then confirmed that he had read the report , by signing it in CARDINAL different places .

It appears that at DATE the applicant received his passport back from the ORG and presented it to ORG .

By a letter dated DATE ORG forwarded the applicant ’s passport and other documents to ORG , informing them that it had been decided to deport the applicant and requesting the ORG ’s assistance with the deportation .

According to the applicant , he was deported from GPE on DATE without any explanation .

According to the Government , the applicant was deported on CARDINAL DATE pursuant to the decision of DATE .

According to the applicant , after his deportation , he applied for a visa to ORG in GPE . On DATE he was granted a DATE - long NORP visa by the consulate . However , he was refused entry to GPE on DATE at the NORP - NORP border and again on DATE at the NORP - Azerbaijani border .

NORP In DATE the applicant applied to ORG , complaining that he had been deported from GPE because he had asked the domestic authorities to ensure the payment of unpaid debts . On DATE ORG informed the applicant that his complaint had been sent to the NORP authorities in the form of a diplomatic note . By a letter dated DATE , ORG informed the applicant that , according to the information provided by the NORP authorities , he had been deported on DATE under LAW ORG for residing on the territory of GPE without the relevant residence permit .

The relevant provisions of LAW ( “ the CAO ” ) , in force at the material time , read as follows :

Article CARDINAL . Residence without registration or unlawful stay in GPE of foreign nationals or stateless persons

“ Foreign nationals or stateless persons who reside on the territory of GPE without registration or ... stay without an official permit or visa shall be fined ... and deported outside the borders of GPE under the administrative procedure . ”

Article CARDINAL . The right to lodge a complaint or appeal against a decision on administrative offences

“ CARDINAL . A person against whom an administrative decision has been taken , ... as well as his or her counsel or representative , may lodge a complaint against the decision .

A complaint ... against a decision on an administrative offence is lodged according to the following procedure :

NORP against a decision taken by the competent authority or official – to the superior authority or official , or to court . ”

According to LAW into and Departure from the Country and on Passports , as in force at the material time , a foreign national could be refused entry into the country if he or she had breached the requirements of NORP law during his or her previous stays in the country .


Violation of Art. 5-3;Damage - finding of violation sufficient

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

On DATE the applicant was arrested on suspicion of killing PERSON , his fiancée .

On DATE ORG ( Sąd Rejonowy ) ordered his detention . It considered that placing the applicant in custody was justified by the existence of strong evidence against him and the gravity of the charges . Since he had attempted to flee , his detention was necessary to ensure the proper course of the proceedings .

The applicant ’s detention was subsequently prolonged several times by ORG ( PERSON ) . Each time the court repeated the reasons it had previously given .

On DATE the applicant lodged an application for release with ORG ( Prokurator Rejonowy ) . The prosecutor dismissed the application on DATE .

On DATE ORG lodged a bill of indictment with ORG . The applicant was charged with murder ( he had strangled his fiancée ) and fraud .

On DATE the ORG convicted him as charged and sentenced him to CARDINAL years’ imprisonment .

The Poznań Court of Appeal quashed that judgment and remitted the case on DATE .

NORP The applicant remained in custody .

On DATE the ORG ( Sąd Apelacyjny ) ordered that the applicant remain in detention until DATE .

On DATE the court refused his application for release .

Subsequently , the applicant ’s detention was extended DATE by ORG , for the same reasons as before .

The applicant lodged numerous unsuccessful applications for release with ORG .

On DATE ORG convicted the applicant of murder and sentenced him to DATE imprisonment . The court stressed the depraved nature of the crime and maintained that there were no mitigating circumstances in the case .

The Poznań Court of Appeal upheld the first - instance judgment on DATE .

On DATE ORG ( Sąd Najwyższy ) dismissed the applicant ’s cassation appeal .

The Code of Criminal Procedure of DATE , which entered into force on DATE , defines detention on remand as CARDINAL of the so - called “ preventive measures ” ( środki zapobiegawcze ) . The other measures are bail ( poręczenie majątkowe ) , police supervision ( dozór policji ) , guarantee by a responsible person ( poręczenie osoby godnej zaufania ) , guarantee by a social entity ( poręczenie społeczne ) , temporary ban on engaging in a given activity ( zawieszenie oskarżonego w określonej działalności ) and prohibition on leaving the country ( zakaz opuszczania kraju ) .

Article CARDINAL § CARDINAL sets out the general grounds for imposition of the preventive measures . That provision reads :

“ Preventive measures may be imposed in order to ensure the proper conduct of proceedings and , exceptionally , also in order to prevent an accused ’s committing another , serious offence ; they may be imposed only if evidence gathered shows a significant probability that an accused has committed an offence . ”

Article CARDINAL lists grounds for detention on remand . It provides , in so far as relevant :

“ CARDINAL . Detention on remand may be imposed if :

( CARDINAL ) there is a reasonable risk that an accused will abscond or go into hiding , in particular when his identity can not be established or when he has no permanent abode [ in GPE ] ;

( CARDINAL ) there is a justified fear that an accused will attempt to induce [ witnesses or co - defendants ] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means ;

NORP If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of CARDINAL CARDINAL years’ imprisonment , or if a court of first instance has sentenced him to CARDINAL CARDINAL years’ imprisonment , the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed . ”

The Code sets out the margin of discretion as to the continuation of a specific preventive measure . Article CARDINAL reads , in so far as relevant :

“ CARDINAL . Detention on remand shall not be imposed if another preventive measure is sufficient . ”

Article CARDINAL , in its relevant part , reads :

“ CARDINAL . If there are no special reasons to the contrary , detention on remand shall be lifted , in particular if depriving an accused of his liberty would :

( CARDINAL ) seriously jeopardise his life or health ; or

( CARDINAL ) entail excessively harsh consequences for the accused or his family . ”

The DATE Code not only sets out maximum statutory time - limits for detention on remand but also , in LAW , lays down that the relevant court – within those time - limits – must in each detention decision determine the exact time for which detention shall continue .

Article CARDINAL sets out time - limits for detention . In the version applicable up to DATE it provided :

“ CARDINAL . Imposing detention in the course of an investigation , the court shall determine its term for a period not exceeding DATE .

The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed DATE .

The court of appeal within whose jurisdiction the offence in question has been committed may , on application made by the court before which the case is pending or , at the investigation stage , on application made by ORG , prolong detention on remand for a further fixed period exceeding the periods referred to in DATE , when it is necessary in connection with a stay of the proceedings , a prolonged psychiatric observation of the accused , a prolonged preparation of an expert report , when evidence needs to be obtained in a particularly complex case or from abroad , when the accused has deliberately prolonged the proceedings , as well as on account of other significant obstacles that could not be overcome . ”


The applicant is a NORP national , born in DATE and living in GPE . The respondent Government are represented by PERSON , ORG .

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

The applicant , who is not a member of ORG , requested in his tax returns for the income DATE to be exempted from church tax . He claimed that the levying of church tax on a nonmember of ORG contravened , inter alia , LAW and LAW . He also stated that the municipality of GPE and not the relevant parish of the Church , PERSON , was financing the construction and maintenance of burialgrounds and the maintenance of churchyards in the area where he lived .

The tax authorities rejected the applicant ’s request and decided to charge him CARDINAL , CARDINAL and MONEY ( SEK ) respectively for DATE in church tax , CARDINAL SEK CARDINAL,CARDINAL . This corresponded to CARDINAL per cent of his taxable income for DATE and MONEY for DATE and DATE . The decision was taken in accordance with LAW Not Members of ORG om viss lindring i skattskyldigheten för den som icke tillhör svenska kyrkan , CARDINAL:CARDINAL ; hereinafter “ LAW ” ) which provided that , of the ordinary church tax , a non - member of ORG should pay MONEY for DATE and MONEY for DATE and DATE .

The applicant appealed to ORG ( länsrätten ) of GPE but did not request an oral hearing . On DATE the ORG rejected his appeal as far as it concerned DATE and , on DATE , it rejected his appeal with regard to DATE and DATE .

The applicant appealed to ORG ( kammarrätten ) in GPE . Again , he did not request an oral hearing . On DATE his appeals were rejected .

On DATE ORG ( Regeringsrätten ) refused the applicant leave to appeal . In his appeal to that court he had requested an oral hearing .

According to LAW , CARDINAL ) , the parishes within ORG are obliged to construct and maintain public burial - grounds , unless the Government decide in the case of a specific municipality that this task shall be performed by the municipality itself ( chapter CARDINAL , section CARDINAL ) . The right to be buried in a public burial - ground is not dependent on the deceased being a member of a particular religious community ( chapter CARDINAL , section CARDINAL ) . However , the responsible organ , whether it be the local parish or the municipality , is obliged to provide for separate burial - grounds for those who are not members of any NORP community . The construction and maintenance of such burial - grounds are done in consultation with the religious communities concerned ( chapter CARDINAL , section CARDINAL ) . Decisions taken under the LAW by the parish or the municipality may be appealed against to ORG ( länsstyrelsen ) ( previously regulated in chapter LAW , now in LAW ) . In the municipality where the applicant was liable to pay tax the burial administration was DATE and still is – the responsibility of the municipality .

When the responsibility for the keeping of population records was transferred from ORG to the local tax authorities in DATE ( see further below ) , it was decided that the parishes should take care of population records made before that date until these old records have been transferred to the ORG archives ( section CARDINAL of LAW ; GPE om införande av folkbokförings - lagen , CARDINAL:CARDINAL ) . It was estimated that it would take DATE before all old records had been so transferred .

LAW , DATE ) also specifically stipulated that a parish may , inter alia , use its financial means to acquire and maintain church buildings and other ecclesiastical property .

At the material time , a church tax was collected together with the ordinary municipal tax . LAW , LAW referred in this respect to the provisions of LAW ( ORG , MONEY ) . The rate was determined by the local parish council which , under the transitional provisions of LAW ( Regeringsformen ) , had a status similar to that of the municipalities , including the right of taxation . This system had a long tradition , based on the fact that ORG is the established church . In DATE the rates applied by the parishes varied between CARDINAL and MONEY of the taxpayer ’s taxable income . The lowest rates were applied by the parishes of GPE where it is the municipality DATE and not the parishes – that has the responsibility for the burial administration ( cf . NORP kyrkans ekonomi , ORG CARDINAL:CARDINAL , p. CARDINAL , a report on the economy of ORG made by ORG ) . In DATE , the relevant DATE in the present case , the rate applied in the parish of PERSON , where the applicant lived , was MONEY .

LAW stipulated that a person who was not a member of ORG should pay a reduced church tax , the so - called dissenter tax . The reduction was motivated by the fact that non - members , referred to as dissenters , should pay the share of the tax that corresponded to the costs relating to the civil , i.e. non - religious , activities of the parish . The dissenter tax , like the church tax , was collected by the local tax authority and forwarded to the relevant parish .

Originally , the dissenter tax amounted to MONEY of the ordinary church tax . In DATE it was reduced to MONEY of what the members of ORG had to pay . The rationale behind this change was that the share of the costs for the civil tasks performed by ORG the keeping of population records and the maintenance of churchyards and public burial - grounds – amounted on average to MONEY of the ORG ’s total costs ( cf . Government PERSON , pp . CARDINAL ) .

On DATE the responsibility for the keeping of population records was transferred to the local tax authorities . With effect as from DATE , the dissenter tax was consequently further decreased , this time to MONEY of the amount paid by the members of ORG . It was considered that this percentage corresponded to the average costs of the parishes for the burial of the deceased ( cf . Government PERSON CARDINAL/CARDINAL:CARDINAL , appendix CARDINAL , p. CARDINAL ) . Reference was made to the above - mentioned report on the economy of ORG , according to which MONEY , or MONEY of the ORG ’s total costs , related to the burial of the deceased .

Under LAW of LAW the tax revenue of the different parishes was to a certain extent equalised through payments to and subsidies from the so - called ORG . Poor parishes received a general equalisation subsidy which was not ear - marked for any particular purpose . They could also be granted extra subsidies for specific purposes .

On DATE the relations between the NORP State and ORG were changed , involving in practice a separation between the ORG and the ORG . LAW and LAW were abolished .

The parishes’ right of taxation , previously regulated in LAW and LAW , was replaced with an obligation , laid down in section CARDINAL of LAW on ORG ( ORG om svenska kyrkan , GPE ) , on persons belonging to the ORG to pay a church fee .

According to the new chapter CARDINAL of LAW , every person who is registered as resident in GPE has to pay a burial fee to defray the costs of the burial of the deceased ( section CARDINAL ) . The fee is based on the taxpayer ’s taxable income ( section CARDINAL ) and is paid to the organ CARDINAL parish or municipality DATE responsible for burials at the place where the individual is registered ( section QUANTITY § CARDINAL ) . In the municipalities where the local parishes are responsible for burials , the fee of the members of ORG is to be included in the church fee ( section CARDINAL § CARDINAL ) . According to LAW ( Förordningen om begravningsavgift , CARDINAL ) , the burial fee of non - members is fixed by ORG and Funds ( NORP ) following a proposal by ORG . ORG and the municipalities responsible for burials are obliged to provide the tax authorities and – in the case of ORG with the information needed to calculate and collect the fees . Under the new chapter CARDINAL of LAW , the relevant ORG supervises the DATE burial administration in respect of persons who are not members of ORG .

As the parishes continue to be responsible for the care and maintenance of church buildings and other ecclesiastical property of historic value , ORG is to receive certain financial compensation from the ORG for the performance of this task .


Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Iran)

André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska

The applicants were born in DATE , DATE and DATE respectively and are currently in GPE .

On DATE the first and second applicants , a married couple , arrived in GPE and applied to ORG ( Migrationsverket ) for asylum , residence and work permits . Applications for refugee status and travel documents were lodged with written submissions dated DATE .

The applicants submitted that they had lived together in GPE . The first applicant is a NORP and the second applicant a NORP . They both had a university degree and had been working , the first applicant as a machine supervisor at a car factory and the second applicant as a teacher , before they left GPE . The first applicant had also been a musician , and he used to perform and sing political music for the NORP cause in GPE . He had played at several concerts , which had been criticised by the authorities . He had also been an active athlete as an NORP kick - boxing champion .

The first applicant claimed that he had been politically active in GPE . He had always been interested in the NORP issue and had once , in DATE , been arrested and questioned by PERSON , the NORP security forces , for being involved in a discussion on this topic . Subsequently , he had been sentenced to CARDINAL months’ imprisonment by ORG court . He had served DATE in GPE prison , before being released on bail . Despite the sentence , he had been able to keep his job and stay in GPE .

DATE before they left GPE , the first applicant had been approached by a colleague and close friend , who was a member of ORG of NORP GPE ( GPE ) , and asked if he was interested in supporting and working for the PERSON . He had accepted the proposition and started to disseminate leaflets , compact discs and other information about the party and also to recruit new members . He had sympathised with the party but had not been a full member . His only contact with the party had been through the colleague .

On DATE the first applicant had witnessed the arrest of a work colleague by Etalat outside their workplace . He had then , out of fear , decided to leave GPE as he assumed that his friend would reveal his contacts under torture . He had left work , gone to the bank to withdraw his savings and then home to tell his wife and to pack their most important belongings . The applicants had travelled first to PERSON , where the second applicant ’s parents lived and where they also left some personal belongings and documents , and then to ORG , where they stayed with the first applicant ’s grandparents for DATE .

On DATE the first applicant had called the doorman in their apartment building and been told that CARDINAL men from GPE had come looking for the applicants . PERSON had broken into their apartment , where allegedly they found evidence and GPE - related documents which the applicants had left behind .

On TIME CARDINAL DATE , the applicants had crossed the border into GPE and then continued through LOC by truck . Since coming to GPE they had been in touch with the first applicant ’s father , who had claimed that he had been threatened by Etalat and that they had been searching for the first applicant . On several occasions , PERSON had approached the father in his home and taken him to their head office for interrogation .

The second applicant submitted that she had not been politically involved and that she knew little of the extent of her husband ’s involvement in political activities while they were living in GPE . She had , however , helped him to distribute some materials from the party to friends and relatives .

In the initial contact with ORG the applicants also submitted that they had both been politically active in GPE . They had taken part in several meetings for the NORP cause and were also active in news programmes that were broadcast on a satellite channel banned in GPE and on internet blogs .

The first applicant had contacted members of the PERSON when he arrived in GPE and , soon after his arrival , he had participated in an information meeting concerning the party ’s CARDINALth ORG . The applicant submitted photographs of his attendance at the meeting before ORG . He also submitted a certificate issued by the GPE office in GPE on DATE , stating that the first applicant was a supporter of the party and that his life would be in danger if he were to return to GPE .

The second applicant had started in DATE to work regularly for PERSON , a NORP TV channel which was banned in GPE and considered critical of the NORP regime .

On DATE ORG rejected the ORG request for asylum . ORG found that the applicants’ story lacked credibility in several aspects . Leaving the credibility issues aside , ORG also found that the applicants had only been active in the PERSON at a very low level and that only activists higher up in the hierarchy would be of any interest to the NORP authorities . Furthermore , the ORG found that the applicants had not been very active since their arrival in GPE and had only participated in general meetings .

The first and second applicants proceeded to ORG ( Migrationsdomstolen ) where they maintained their story and added that several of their friends had been arrested since they had left GPE and the first applicant ’s father had received several threatening telephone calls from Etalat . In DATE the first applicant had been interviewed on PERSON about himself , sports and music , and political activity . The second applicant had started to work for PERSON as a translator , newscaster and journalist on a DATE basis . She had researched and reported , inter alia , on the hidden mass killings in NORP prisons .

In DATE they had become members of a NORP support committee for NORP prisoners on hunger strike in GPE . Until DATE , when the hunger strike ended , the first applicant had worked actively to collect support from different NGOs and to spread the information on human rights violations in GPE . The issue was brought up by ORG , on the initiative of the committee . The second applicant , as she could speak LANGUAGE , NORP and GPE fluently , had become the universal spokesperson for the committee . During the hunger strike , she had been interviewed by several NORP media , PERSON and ORG and both applicants had participated in debates on human rights violations in GPE on blogs and several internet sites . During another hunger strike in GPE , in DATE , the first applicant had also been interviewed by the NORP media , PERSON and ORG , and both applicants had participated on blogs and several internet sites . They claimed that their involvement with , inter alia , PERSON must have drawn the attention and interest of NORP authorities . They submitted a letter from the first applicant ’s father , compact discs containing interviews with them from PERSON and several reports and certificates from NGOs .

By a decision on DATE ORG rejected the ORG request to translate the submitted compact discs containing statements about the NORP government .

On DATE ORG , after an oral hearing of the case , rejected the ORG appeal . The ORG story about their activities in GPE was considered stringent and substantiated by written evidence and the court found no reason to question the credibility of the story . However , reports showed that mainly high - ranking executives or militant members of the GPE were subjected to violent acts . It was not considered probable that the NORP authorities would show an interest in someone at such a low level as the first applicant . Furthermore , the political activities in GPE had been limited in scope and the applicants had not been able to show that these activities were of any interest to the authorities . The submitted letter from the first applicant ’s father and the certificate from the GPE ’s office in GPE were considered very general or of low value as evidence . Having regard to relevant country information and to the fact that the NORP authorities were not interested in activities at a low level , the court found that there was no indication that the applicants had come to the direct attention of the NORP authorities .

On DATE the third applicant was born .

Before ORG the first applicant additionally submitted that he had been actively involved for the NORP cause on PERSON , where he had expressed criticism and continuously informed , inter alia , about the situation for NORP and the severe human rights violations in GPE . He had also been interviewed on TV concerning his own reasons for leaving GPE . PERSON was allegedly monitored by the NORP intelligence services . The second applicant submitted that , in addition to her work for PERSON , she had been working for other NORP broadcasting services , that she had performed CARDINAL interviews and that she had worked on translations for ORG international secretariat in GPE . They submitted that they had been involved in substantial political sur place activity and that this activity was known to the NORP authorities .

On DATE ORG ( Migrations - överdomstolen ) refused leave to appeal .

Subsequently , the applicants turned again to ORG to stop the expulsion . On DATE the ORG decided not to grant a new examination . This decision was upheld by ORG on DATE and ORG refused leave to appeal on DATE .

In DATE , DATE and DATE , the applicants published several articles in “ NORP Perspective ” . The second applicant argued , in the articles , in favour of uniting opposition groups against the NORP government of GPE . She argued that there were many racial and religious groups in GPE , all of which were oppressed by the NORP authorities , who tried to take advantage of this variety and distract opposition activities . Several critical articles were also published on various internet sites .

In DATE and DATE the applicants signed several public petitions to free human rights activists in GPE on an internet site .

NORP In DATE , the second applicant was involved in promoting the imprisoned NORP Mr. PERSON as candidate for the Nobel Peace Prize . In the nomination process , the second applicant was named as a member of the nominating committee on several internet sites . She was interviewed about his candidacy on CARDINAL of the most popular opposition sites on DATE .

In GPE , the first applicant had also become a full member of the PERSON .

The provisions mainly applicable in the present case , concerning the right of aliens to enter and to remain in GPE , are laid down in LAW ( Utlänningslagen , DATE hereafter referred to as “ the Aliens Act ” ) .

LAW , of LAW stipulates that an alien who is considered to be a refugee or otherwise in need of protection is , with certain exceptions , entitled to a residence permit in GPE .

According to LAW , LAW , of the same LAW , the term “ refugee ” refers to an alien who is outside the country of his or her nationality owing to a well - founded fear of being persecuted on grounds of race , nationality , membership of a particular social group , religious or political beliefs , grounds of gender , sexual orientation and who is unable or , owing to such fear , is unwilling to avail himself or herself of the protection of that country . This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities can not be expected to offer protection against persecution by private individuals . By “ an alien otherwise in need of protection ” is meant , inter alia , a person who has left the country of his or her nationality because of well - founded fear of being sentenced to death or receiving corporal punishment , or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW , of LAW ) .

As regards the enforcement of a deportation or expulsion order , account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment . According to a special provision on impediments to enforcement , an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW , of LAW ) . In addition , an alien must not , in principle , be sent to a country where he or she risks persecution ( LAW , LAW , of LAW ) .

NORP Under certain conditions , an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force . This applies , under LAW , LAW , of LAW , where new circumstances have emerged that mean there are reasonable grounds for believing , inter alia , that an enforcement would put the alien in danger of being subjected to treatment as referred to in LAW , LAW , of LAW or there are medical or other special reasons why the order should not be enforced . If a residence permit can not be granted under this provision , ORG may instead decide to re - examine the matter . Such a re - examination shall be carried out where it may be assumed , on the basis of new circumstances invoked by the alien , that there are lasting impediments to enforcement of the nature referred to in LAW , Sections CARDINAL and CARDINAL , of LAW , and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so . Should the applicable conditions not have been met , ORG shall decide not to grant a re - examination ( LAW , LAW , of LAW ) .

After the elections in GPE on DATE ORG of the PACE on DATE adopted a declaration in which it considered the violent reactions of the NORP authorities to peaceful protests to be a serious breach of NORP ORG human rights . It also called upon governments of other countries not to expel NORP citizens to GPE .

In a document released by ORG on DATE ( Freedom on the Net – GPE , p. CARDINAL ) it was stated :

“ Since the protests that followed the disputed presidential election of DATE , the NORP authorities have waged an active campaign against internet freedom , employing extensive and sophisticated methods of control that go well beyond simple content filtering . These include tampering with internet access , mobile - telephone service , and satellite broadcasting ; hacking opposition and other critical websites ; monitoring dissenters online and using the information obtained to intimidate and arrest them ... ”

ORG : GPE , section CARDINAL : Freedom of Speech and Press / Internet Freedom ( DATE ) noted that :

“ The government monitored Internet communications , especially via social networking Web sites such as ORG , ORG , and collected ORG personally identifiable information in connection with peaceful expression of views . The government threatened , harassed , and arrested individuals who posted comments critical of the government on the internet ... ”

ORG Operational Guidance Note – Iran , dated DATE , stated the following :

“ CARDINAL ... There is a real risk that high profile activists and political opponents who have come to the attention of the authorities would on return to GPE face a real risk of persecution and should be granted asylum for reason of his or her political opinion .

CARDINAL.CARDINAL.CARDINAL Depending on the particular circumstances , some persons who do not have a political profile- which would include for example student demonstrators or other anti - government protestors- are likely to be perceived by the authorities in GPE to oppose the regime and may similarly face a real risk of persecution or ill - treatment on return . Case owners must consider carefully whether the personal circumstances of the individual concerned are such that he or she would face a real risk of persecution on return to GPE .

CARDINAL Those who have engaged in opposition political activity in the GPE might , depending on their level of involvement , similarly face a real risk of persecution on return to GPE on account of that activity and in such cases a grant of asylum will also be appropriate . The test to be applied in such cases is set out in detail in ORG ( Demonstrators in GPE DATE risk on return ) ORG [ DATE ] ORG DATE ORG ) .

CARDINAL NORP opposition groups suspected of separatist aspiration , such as ORG of NORP GPE ( GPE ) , are brutally suppressed .

CARDINAL.CARDINAL.CARDINAL Politically active groups and individuals are considered a threat to national security by the NORP government . If the NORP authorities consider a person to be working against national security , ( the person may for example be accused of being a spy or of cooperating with an oppositional religious , ethnic or political group ) , they may face severe punishment ranging from CARDINAL years’ imprisonment to execution . For instance , being in possession of a CD , a pamphlet or something similar made by ORG ( KDPI ) , GPE or other NORP organisations , may be considered as an act against national security . This form of persecution for political activities is a problem all over GPE . However , the authorities are watching NORP areas and GPE more carefully than other areas .

CARDINAL.CARDINAL.CARDINAL There is no evidence to suggest that an applicant of NORP ethnic origin , in the absence of any other risk factor , would on return face a real risk of serious mistreatment simply on the account of his or her ethnic origin alone . Applicants who are able to demonstrate that they are members or supporters of the GPE , GPE , or active members of ORG , and who are known to the authorities as such , will be at real risk of persecution and a grant of asylum will be appropriate unless there are case - specific reasons why it would not be . ”

Amnesty International , in its ORG DATE GPE , stated the following :

“ The authorities maintained severe restrictions on freedom of expression , association and assembly . Sweeping controls on domestic and international media aimed at reducing Iranians’ contact with the outside world were imposed . Individuals and groups risked arrest , torture and imprisonment if perceived as co - operating with human rights and foreign - based NORP - language media organizations . Political dissidents , women ’s and minority rights activists and other human rights defenders , lawyers , journalists and students were rounded up in mass and other arrests and CARDINAL were imprisoned . Torture and other ill - treatment of detainees were routine and committed with impunity . Women continued to face discrimination under the law and in practice . The authorities acknowledged CARDINAL executions , but there were credible reports of CARDINAL other executions .

... The authorities continued to restrict access to outside sources of information such as the internet . International radio and television broadcasts were jammed . In DATE , the authorities banned contact by NORP with CARDINAL news outlets and foreign - based organizations . Those willing to speak to the few large NORP - language media outlets on human rights issues were threatened or harassed by security officials .

... The authorities banned newspapers and student journals and prosecuted journalists whose reporting they deemed " against the system " . Wiretapping and intercepting of SMS and email communications were routine . A shadowy " cyber army " , reportedly linked to ORG , organized attacks on domestic and foreign internet sites deemed to be anti - government , while other sites , including some associated with religious leaders , were filtered ... ”

The GPE ORG in its Human Rights and Democracy : The DATE ORG – GPE , ( DATE ) , stated :

“ The NORP authorities continued to actively censor the internet , restricting access to wide range of sites including ORG and GPE and targeting bloggers and online journalists . The military - run ORG was reported to have taken a leading role in monitoring and disrupting internet sites and other online tools , including email and blog sites . ”

ORG , in its legal position document ( Rättsligt ställningstagande ) , regarding the determination of individual risk for minorities and other groups in GPE and also the refugee status for individuals with regard to sur place activity ( DATE ) stated that it must be considered that the NORP regime is interested in internet users and activity abroad . Its ability to track down and monitor Iranians’ use of internet and other activities abroad is remarkably high and GPE is considered to be one of the countries which go the furthest in this respect .

In its World Report DATE , ORG stated the following :

“ In DATE NORP authorities refused to allow government critics to engage in peaceful demonstrations . In DATE , DATE and DATE security forces broke up large - scale protests in several major cities ... There was a sharp increase in the use of death penalty . The government continues targeting civil society activists , especially lawyers , rights activists , students , and journalists . ”

In a judgment of ORG in ORG ( GPE ) [ CARDINAL ] EWCA Civ CARDINAL , the issue of sur place activities was considered . The case concerned an appeal by an NORP of NORP ethnicity who claimed to have been involved with GPE , a NORP political party , in GPE and that GPE leaflets had been found in his home . He had said that after fleeing GPE and applying for asylum he had become more involved with GPE . A photograph of him had been posted on the internet and a film sequence of a demonstration he had attended in GPE had been broadcast on ORG in GPE . ORG considered that the Immigration Judge ’s conclusions on the credibility of the appellant were not sustainable , however , the court did also consider the appellant ’s sur place activities . Bearing in mind that the burden of proof lay on the appellant , Lord ORG found that the Immigration Judge had been entitled to reach the conclusion he did . He commented :

“ There must be a limit as to how far an applicant for asylum is entitled to rely upon publicity about his activities in the GPE against the government of the country to which he is liable to be returned . It seems to me that it is not enough for such an applicant simply to establish , as here , that he was involved in activities which were relatively limited in duration and importance , without producing any evidence that the authorities would be concerned about them , or even that they were or would be aware of them . ”

However , in GPE ( GPE ) v. Secretary of ORG for ORG [ DATE ] EWCA Civ CARDINAL , which was handed down on DATE , ORG took the following approach to the issue of sur place activities . The case involved an NORP asylum seeker who claimed to have been active in support of the opposition ORG whilst in GPE . ORG again remitted the issues arising from sur place activities to be heard before a differently constituted ORG , which stated :

“ ... [ T]he ORG , while accepting that the appellant ’s political activity in this country was genuine , were not prepared to accept in the absence of positive evidence that the NORP authorities had ‘ the means and the inclination’ to monitor such activities as a demonstration outside their embassy , or that they would be able to identify the appellant from photographs of the demonstration . In my judgment , and without disrespect to what is a specialist tribunal , this is a finding which risks losing contact with reality . Where , as here , the tribunal has objective evidence which ‘ paints a bleak picture of the suppression of political GPE by a named government , it requires little or no evidence or speculation to arrive at a strong possibility , - and perhaps DATE that its foreign legations not only film or photograph their nationals who demonstrate in public against the regime but have informers among expatriate oppositionist organisations who can name the people who are filmed or photographed . Similarly it does not require affirmative evidence to establish a probability that the intelligence services of such states monitor the internet for information about oppositionist groups . The real question in most cases will be what follows for the individual claimant . If , for example , any information reaching the embassy is likely to be that a claimant identified in a photograph is a hanger - on with no real commitment to the oppositionist cause , that will go directly to the issue flagged up by art CARDINAL ) of the [ LAW ] . ”

In a more recent judgment of ORG in ORG ( Demonstrators in GPE DATE risk on return ) ORG [ DATE ] ORG DATE ORG ) , the tribunal gave a new “ country guidance ” determination on returns to GPE in light of the post - presidential election violence . The case concerned an NORP national ’s sur place activities in the GPE The ORG considered the appellant to be a demonstrator whom the NORP authorities would particularly wish to identify and that there was a real risk that they would be able to do so . Additionally , because of the nature of his association with PERSON there was also a real risk that he would face ill - treatment which would amount to persecution because of his political beliefs . The ORG stated , inter alia , the following .

“ CARDINAL Given the large numbers of those who demonstrate here and the publicity which demonstrators receive , for example on ORG , combined with the inability of ORG to monitor all returnees who have been involved in demonstrations here , regard must be had to the level of involvement of the individual here as well as any political activity which the individual might have been involved in GPE before seeking asylum in GPE .

CARDINAL ( a ) NORP returning to GPE are screened on arrival . A returnee who meets the profile of an activist may be detained while searches of documentation are made . Students , particularly those who have known political profiles are likely to be questioned as well as those who have exited illegally .

( b ) There is not a real risk of persecution for those who have exited GPE illegally or are merely returning from GPE . The conclusions of the ORG in the country guidance case of ORG ( risk on return DATE illegal exit ) GPE CG [ DATE ] UKAIT DATE are followed and endorsed .

( c ) There is no evidence of the use of facial recognition technology at the NORP GPE International airport , but there are a number of officials who may be able to recognize up to CARDINAL faces at any CARDINAL time . The procedures used by security at the airport are haphazard . It is therefore possible that those whom the regime might wish to question would not come to the attention of the regime on arrival . If , however , information is known about their activities abroad , they might well be picked up for questioning and/or transferred to a special court near the airport in GPE after they have returned home .

CARDINAL It is important to consider the level of political involvement before considering the likelihood of the individual coming to the attention of the authorities and the priority that the NORP regime would give to tracing him . It is only after considering those factors that the issue of whether or not there is a real risk of his facing persecution on return can be assessed . ”

A number of factors were considered and placed under CARDINAL main heads : ( i ) the type of sur place activity involved ; ( ii ) the risk that a person will be identified as engaging in it ; ( iii ) the factors triggering inquiry on return of the person and ; ( iv ) in the absence of a universal check on all entering the country , the factors that would lead to identification at the airport on return or after entry .

In a recent judgment of ORG of DATE , the court considered the need for international protection based on sur place activity . The court stated that a real risk to be subjected to severe ill - treatment can be based on an applicant ’s sur place activity and that a comprehensive examination of all circumstances has to be made to determine such a risk . It was considered to be of particular importance whether the claimed activity was an expression and a continuation of opinions already founded in the country of origin .

ORG , in its legal statement of CARDINAL DATE CARDINAL(as referred to above ) , recognised that a risk based on sur place activity can constitute grounds for refugee status and asylum and listed the following factors to be considered in such assessment :

“ CARDINAL . Whether the person has been politically or religiously active also in his country of origin . It is of importance for the determination whether a need for international protection has occurred sur place if the claimed activity is an expression and a continuation of an opinion already founded in the country of origin . The starting point should be that the requirements are higher regarding the extent of sur place activity if it has only occurred in GPE .

Whether the political activity and its extent are of interest to the NORP state . The activity must be sufficiently serious in nature and involve behaviour which would generally be seen to displease the NORP regime . The assessment should be based on the nature and extent of the activity and should take into consideration the NORP approach to such activity according to current country information , the degree of exposure in GPE and the possible subsequent risk on return to GPE .

Whether the activity has or may come to the knowledge of the NORP state . The asylum seeker has to make plausible that the activity has or may come to the knowledge of the NORP authorities . To this end he must , in the absence of other evidence , provide a clear and coherent story supported by current country information . ”


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

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in NORP , a village in GPE . ORG ( “ the Government ” ) were represented by Mr P. Laptev , former Representative of GPE at ORG .

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

The applicant leads a group of workers who build roads in GPE . In DATE they organised themselves as Private Enterprise “ Saturn ” ( ORG « Сатурн ORG ) . The applicant allegedly was the sole owner of ORG .

In DATE and DATE Saturn won CARDINAL civil actions against its customer – Yekaterinovskoye State Road Construction Enterprise “ Dorotdel ” ( PERSON государственное дорожное ремонтно-строительное предприятие « PERSON ) .

On DATE ORG of GPE awarded PERSON MONEY ( RUB ) in damages and costs . This judgment became binding on DATE and was enforced on DATE .

On DATE ORG of GPE awarded Saturn RUB CARDINAL,CARDINAL,CARDINAL in damages and costs . This judgment became binding on DATE but has not been enforced .

In DATE Saturn was declared bankrupt and liquidated . In DATE PERSON was subjected to insolvency proceedings .

Under section CARDINAL of LAW of DATE , a bailiff must enforce a judgment within DATE .


Violation of Art. 6-1;Violation of Art. 13

Javier Borrego Borrego;Margarita Tsatsa-Nikolovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych

The applicant was born in DATE and lives in PERSON , in the PERSON region of GPE .

On DATE ORG ( NORP міський суд PERSON області ) awarded the applicant CARDINAL hryvnyas ( ORG ) against his former NORP employer , the ORG - owned ORG Mine “ PERSON ” ( CARDINAL відкрите акціонерне товариство « Шахта ім. Дзержинського » ) , in disability benefits and other payments .

This judgment was not appealed against , became final , and enforcement proceedings were instituted to collect the debt .

The debt was paid to the applicant in numerous small instalments , the last payment of ORG CARDINAL having been made on DATE .

As explained by the bailiffs ' service , the enforcement of the judgment had been delayed on account of numerous reasons , including a prolonged reorganization of the debtor , insufficient funds and a tax lien imposed on its property , as well as a statutory moratorium on the forced sale of the ORG property .

The relevant domestic law is summarised in the judgment in the case of ORG v. GPE ( no . CARDINAL , § § DATE , DATE ) .


Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger

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

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

On DATE the applicant sued his former lawyer for unjust enrichment and sought payment of CARDINAL NORP korunas ( CZK ) , MONEY ( ORG ) . At the same time he applied for a lawyer to be appointed to act on his behalf and for a waiver of the court fees .

In DATE the GPE nad ORG discontinued the proceedings ; in DATE the decision was quashed by LOC , which also noted that the applicant should clarify his claims .

In DATE the applicant extended his action to CARDINAL judges and ORG .

In response to the applicant ’s request , on DATE ORG referred the case to ORG on the grounds that the judges of the GPE nad ORG could have been biased owing to the applicant ’s action against one of them .

Later , the applicant sought the exclusion of the ORG judges from the case ; however , ORG dismissed this request . The applicant also challenged , before ORG , the impartiality of ORG judges to examine the exclusion of the first - instance court judges , and later he challenged the impartiality of the High Court judges before ORG . All these requests were refused .

Throughout DATE the ORG appointed CARDINAL different lawyers to act on the applicant ’s behalf and dismissed his request for the extension of the action to the other CARDINAL parties . The relevant lawyers successfully challenged their appointments in view of their relationship to the case . In DATE ORG changed this decision in part and granted the request for the extension of the action to CARDINAL judge .

On DATE ORG revoked the exemption from the court fees granted to the applicant in DATE and refused to appoint any more lawyers on his behalf . Based on the ORG records it found that the applicant possessed CARDINAL big plots of land and that he had obtained ORG CARDINAL as a result of his application before the Court ( LOC v. GPE , no . CARDINAL/CARDINAL , DATE ) . The applicant did not challenge this decision .

On DATE ORG held a hearing , refused the applicant ’s request for the exclusion of the ORG judges from the case , granted the applicant ’s action in relation to his former lawyer and dismissed it concerning the judge . The applicant did not attend the hearing , without providing any explanation in a timely manner and despite having been duly notified .

On DATE ORG refused the applicant ’s request for the hearing to be rescheduled as unsubstantiated , refused his former request for the exclusion of a ORG judge from the proceedings and upheld the judgment . It became final on DATE .

In DATE the applicant lodged a claim for compensation for non - pecuniary damage arising from the excessive length of the proceedings with ORG under PERSON no . CARDINAL/CARDINAL , as amended by PERSON no . DATE .

As the Ministry did not deal with the applicant ’s request within the DATE statutory time - limit , he brought a civil action for damages against ORG on DATE . He specified the non - pecuniary damage that he had suffered at CZK MONEY ( EUR CARDINAL ) .

In a letter of DATE ORG acknowledged that the proceedings had been unreasonably lengthy . Taking into account the complexity of the proceedings and the applicant ’s substantial contribution to the delay , ORG awarded him CZK CARDINAL for non - pecuniary damage .

On DATE the GPE CARDINAL ORG granted the action in part and awarded the applicant CZK CARDINAL,CARDINAL in addition to the just satisfaction granted by ORG . The court concluded that the proceedings on the merits had been delayed from DATE ; however , they had been carried out smoothly after that period . It considered that the applicant had significantly contributed to their length when repeatedly applying for the exclusion of judges from proceedings , raising the issue even before the High and ORG . Although he had exercised his undisputed rights , the examination of all his requests must objectively have taken due time .

On DATE ORG refused the applicant ’s request to exclude the judges of the Municipal and High Courts from the proceedings for their alleged bias and upheld the judgment , finding that the applicant had initially claimed a sum representing CARDINAL the minimum monthly salary and that the litigation could have hardly caused considerable non - pecuniary damage . Overall , the applicant was awarded just satisfaction of CZK CARDINAL,CARDINAL ( ORG CARDINAL,CARDINAL ) .

The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the ORG ’s decision in the case of PERSON v. GPE ( no . MONEY ( dec . ) , § § CARDINAL - CARDINAL , DATE ) .


Violation of Art. 6-1;Pecuniary and non-pecuniary damage -  financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

The applicant was the chair of ORG , a registered social club operating on FAC , GPE . In DATE , ORG ( “ ORG ” ) carried out a search of the LOC and removed many documents .

The applicant was subsequently required to attend for interview with a financial investigator appointed under LAW ) Order DATE . He did so on DATE and answered all questions put to him .

On DATE , the applicant was charged by the police with false accounting and conspiracy to defraud .

On DATE , a further notice was served on the applicant under the DATE Order , requiring his attendance before financial investigators at a police station on DATE . The maximum penalty for failure to attend an interview was DATE imprisonment or a fine not exceeding GBP CARDINAL . The notice , which was dated DATE , stated that the investigation was into whether any person had benefited from theft or false accounting , contributing to the resources of a proscribed organisation or from contraventions of betting regulations . The applicant was required to attend at FAC on DATE .

NORP On DATE , the applicant 's solicitors sent a letter seeking a written guarantee that no information or statements obtained during the interview would be used in criminal proceedings .

On DATE , a further notice , dated DATE , was served on the applicant , again requiring him to attend the interview on DATE . The notice was served with a letter in which the investigators confirmed that they were aware of the criminal proceedings pending against the applicant . They set out the safeguards in paragraph CARDINAL of Schedule CARDINAL to the Order , and stated that the applicant therefore had the guarantees he sought . They added that paragraph CARDINAL of Schedule CARDINAL restricted the disclosure of information obtained by a financial investigator , and added that “ this does not prevent the answers or information being used to further the investigation ” .

On DATE , the applicant 's solicitor sent a letter to the financial investigators indicating that the applicant 's replies could become admissible evidence at a trial and suggesting that the purpose of the interview was to compel him to disclose his defence . He added that the applicant had been advised not to attend an interview unless a satisfactory response to the letter was received .

On DATE , the applicant 's solicitor was informed by letter that the reason for the interview was not to force the applicant to disclose his defence but that a number of matters from the earlier interview required clarification and additional matters had also arisen .

On a request by the investigators , on DATE the applicant 's representatives informed the investigators that the applicant would not attend the interview . The interview did not take place .

On DATE , a summons charged the applicant with the offence of failing without reasonable excuse to comply with the financial investigator 's requirement to answer questions or otherwise furnish information , contrary to paragraph CARDINAL ) of Schedule DATE Order . On DATE , the applicant was convicted of this offence in the Magistrates ' Court and fined the sum of GBP CARDINAL .

On DATE , ORG allowed the applicant 's appeal against conviction , finding that the prosecution had not proved the absence of a reasonable excuse . The judge noted that ORG had dealt with a similar case ( PERSON v. PERSON [ DATE ] NI CARDINAL ) which related to the same legislation and the same investigation . ORG had held that as ORG had put in place certain express limitations on the use of information obtained by investigators , it could not have intended that the person concerned could put forward the risk of self - incrimination as a “ reasonable excuse ” . In PERSON v. PERSON , however , the accused had refused to answer questions at an interview , and he had not been interviewed by the police , or charged with any offence .

The judge further noted that CARDINAL of the grounds on which the information obtained by investigators could be used in criminal proceedings was where evidence inconsistent with the information was relied on by the defence . That ground had been amended in the light of the ORG 's judgment in the case of ORG v. the GPE , and the amendment would have afforded the applicant the protection he sought had it been in place at the time . The judge took the view that once he had been questioned by the police and charged , the applicant had a right not to answer questions that would have tended to incriminate him . The only outstanding matter was whether the applicant should have attended the interview and then refused to answer questions , or , as he did , refuse to attend the interview once he failed to receive the assurances he had asked for . The judge regarded the distinction as technical , and found that the prosecution had failed to establish the absence of a “ reasonable excuse ” for not answering questions about the proceeds of a crime , with which he had been formally charged .

On DATE , the prosecutor requested ORG to state a case for the purpose of an appeal to ORG in GPE .

On DATE , ORG in GPE heard the appeal . On DATE , Lord Justice PERSON , giving judgment , considered , in the light of NORP v. ORG , ex parte ORG ( [ DATE ] ORG CARDINAL ) , that LAW is directed towards the fairness of the trial itself and is not concerned with extra - judicial inquiries “ with the consequence that a person to whom those inquiries are directed does not have a reasonable excuse for failing or refusing to comply with a financial investigator 's requirements merely because the information sought may be potentially incriminating ” . The appeal was upheld , and the applicant 's conviction confirmed .

The criminal proceedings for false accounting and conspiracy to defraud ( see § CARDINAL above ) were struck out on grounds of delay by ORG in DATE . The magistrate was asked by the office of ORG to state a case for ORG , but he died before having prepared the stated case .

The Proceeds of Crime ( Northern Ireland ) Order DATE inter alia provides for investigatory measures and powers in respect of the tracing and confiscation of proceeds of criminal conduct .

Pursuant to paragraph CARDINAL ) of Schedule CARDINAL , it was an offence for a person to fail , without reasonable excuse , to attend to answer questions by a ORG appointed under the Order . Paragraph CARDINAL restricted the use that could be made of the statements made to CARDINAL situations :

( a ) on a prosecution for an offence under the Perjury ( GPE ) DATE ;

( b ) on a prosecution for some other offence where evidence inconsistent with any such answers or information is relied on by the defence , or

( c ) on a prosecution for failing to comply with a requirement of the DATE Order , such as attending to answer questions

On DATE , paragraph CARDINAL ) was limited by ORG and Criminal Evidence Act DATE to permit use of the statements only if they are adduced , or if they are the subject of questions at trial , by the defence .

According to paragraph CARDINAL of Schedule CARDINAL , information obtained by a person in his capacity as a financial investigator may not be disclosed by him except to ( a ) a constable ; ( b ) any GPE department or government department discharging its functions on behalf of the ORG ; ( c ) to any competent body as defined , or ( d ) any foreign equivalent of ( a ) –(c ) .