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

The applicant was born in DATE and lives in GPE .

The applicant and his family were living in a wooden house owned by the municipality on the riverside in PERSON settlement of GPE . From DATE the applicant had repeatedly informed the local authorities that the river was overflowing and the house was at risk of destruction .

In DATE the town administration made the applicant a few offers of a temporary dwelling . However , the applicant found it unsatisfactory and refused to move . On DATE the applicant ’s house was flooded , and the applicant ’s family moved to his GPE flat .

On DATE the applicant lodged a claim against the NORP town administration , seeking to be provided with a flat of a total surface area of not less than QUANTITY m. or to receive housing subsidy . He also sought compensation for pecuniary and non - pecuniary damage .

The first hearing was scheduled for DATE , but it did not take place due to the parties’ default in appearance . The hearing of DATE did not take place for the same reason .

On DATE the town administration requested that examination of the case be postponed until their representative returned from vacation . The applicant and his representative appeared at the hearing of DATE , which was adjourned to QUANTITY DATE and then to DATE on account of involvement of the PERSON settlement administration as a co - respondent and to give the applicant time to specify his claims .

On DATE ORG ( “ the ORG ” ) partly found for the applicant and obliged the town administration to provide him with a flat . His other claims were dismissed .

On DATE in a separate judgment ORG awarded the applicant legal expenses in the amount of MONEY ( RUB ) .

On DATE ORG of GPE ( “ the appeal court ” ) overturned the judgment of DATE on appeal and remitted the case for fresh consideration .

The parties did not appear at the hearing of DATE , which was adjourned to CARDINAL DATE . On the latter date the hearing took place and was adjourned , with the applicant having been invited to specify his claims .

On DATE the trial court required that the town administration supply certain documents .

The hearing of DATE did not take place as the respondent ’s representative failed to appear . On DATE and DATE the hearings were adjourned to give the applicant time to adjust his claims for non - pecuniary damage and to resolve an unspecified motion . On DATE the hearing was adjourned following a default in appearance of CARDINAL of the lay judges sitting in the case .

On DATE and CARDINAL DATE the applicant challenged judge PERSON on account of procrastination in consideration of the case . On DATE the case was assigned to judge N.

On an unspecified date the applicant renounced his claim for provision of housing , now seeking to be placed on the waiting list of persons entitled to ORG - funded housing subsidy , for the amount of the subsidy to be determined and to receive compensation for pecuniary and non - pecuniary damage . He also sought reimbursement of legal expenses .

On DATE the court gave a new judgment in which it ordered the authorities to place the applicant on the waiting list and to determine the amount of subsidy due to him . It also granted the applicant ’s pecuniary claim for RUB CARDINAL . The rest of his claims for pecuniary and non - pecuniary damage were dismissed . On DATE the court terminated the proceedings concerning reimbursement of legal expenses ruling that the issue had already been decided on DATE .

On DATE the appeal court upheld the judgment on appeal .

On DATE the Presidium of ORG of GPE quashed the judgment of DATE which had awarded the applicant legal expenses by way of supervisory review . On DATE the applicant learned about this decision and brought new claims for reimbursement of legal expenses .

On DATE the sum of RUB CARDINAL was transferred to the applicant ’s bank account and the enforcement proceedings in this part were terminated .

The hearings of CARDINAL and DATE , scheduled for examination of the legal expenses claim , did not take place as the applicant failed to appear .

On DATE ORG disallowed his claim . However , this judgment was overturned on appeal , and a new hearing was required . On DATE ORG granted his claim and awarded him RUB CARDINAL . The award was enforced on DATE .

On DATE the bailiff terminated the enforcement proceedings concerning the applicant ’s housing claims . It transpires from the text of the decision that on DATE the town administration informed the bailiff service that it had determined the amount of the housing subsidy for the applicant , and on DATE it stated that the applicant had been placed first on the shortlist of persons entitled to State housing subsidy following destruction of their homes by natural disaster . However , in a copy of the town administration ’s letter to the bailiff service of CARDINAL DATE obtained by the applicant the author advised that the applicant had been placed on the list of persons in need of improved housing conditions at number CARDINAL,CARDINAL .

The applicant appealed against the decision to terminate the enforcement proceedings . His complaint was first granted by ORG which noted that the bailiff had not been in possession of any evidence , other than the respondent ’s letters , that the in - kind awards had indeed been enforced . However , this judgment had been set aside on appeal on DATE .


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 H. Meyer - Dulheuer , a lawyer practising in GPE .

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

The applicant is a history graduate ( PERSON ) who obtained his degree in DATE and had been a lecturer in modern history at ORG in GPE , in GPE ( “ the GPE ” ) , since DATE .

He obtained his teaching certificate ( PERSON ) and the qualification Doctor PERSON after writing CARDINAL theses , which were not published .

The first thesis was completed in DATE and was entitled “ The creation of a ORG - monopolised research and development policy in the FRG ( Federal Republic of Germany ) , particularly in DATE . A study of the relationship between scientific and technological research and development in the non - university civilian sphere and its military use in the ORG from a historical perspective . Selected problems and facts ” ( “ PERSON staatsmonopolistisch orientierten Forschungs- PERSON in der BRD , insbesondere in den fünfziger CARDINAL . PERSON ziviler ausseruniversitärer wissenschaftlich - technischer FAC und Entwicklung und militärischer PERSON in der BRD in historischer PERSON . PERSON FAC ) .

The second was completed in DATE and was entitled “ The ORG [ ORG – ORG party in the ORG ] and the conception of the social market economy from DATE . The influence of neo - liberal ideas on the development of the programme of economic restoration in the western zones ” ( “ Die ORG und die LOC DATE . PERSON neoliberaler GPE die GPE der restaurativen Wirtschaftsprogrammatik in den PERSON ” ) .

After the reunification of GPE , and in accordance with the relevant provisions of LAW of DATE on NORP Unification ( Einigungsvertrag – Articles CARDINAL and CARDINAL § CARDINAL taken together with LAW § CARDINAL of Annex I , LAW , ORG , LAW – see “ Relevant domestic law and practice ” below ) , the applicant was incorporated into the civil service of ORG and worked in the fields of philosophy and history at ORG , ORG , GPE .

After reunification , in order to carry out the necessary restructuring and rationalisation of the university ’s staffing arrangements , structure and appointments boards ( Struktur- und GPE ) were set up . The purpose of the Structure and ORG for the history department was to draw up opinions for the university ’s ORG ( Zentrale Personalkommission ) as to whether the department ’s researchers should have their contracts of employment renewed .

On DATE the Structure and ORG for the history department DATE comprising CARDINAL university lecturers from outside the GPE , CARDINAL lecturers from ORG , a research assistant and a student from DATE interviewed the applicant .

CARDINAL members of ORG were present at the interview , CARDINAL of the lecturers from ORG being absent .

On DATE the ORG , by CARDINAL votes with CARDINAL abstentions , recommended to the ORG management that the applicant be dismissed .

On DATE Mr PERSON , a lecturer in the history faculty of ORG and a member of ORG , submitted the final version of his expert assessment of the applicant ’s professional qualifications , which was based entirely on the CARDINAL theses written by the applicant during the time of the GPE . Mr PERSON considered that the first thesis owed more to political analysis than to historical research . The second thesis , in his opinion , did not contribute anything new to contemporary understanding of its subject matter : the early history of the ORG and its economic ideas . In particular , the thesis did not include a comparison with the relevant literature published in the FRG – an essential component of a study of that nature DATE and merely cited the publications in question .

The expert concluded that , in view of the fact that the theses concerned a very narrow aspect of the post - war history of the ORG , that the applicant had published scarcely anything else in the meantime and that his unpublished work did not provide any convincing evidence of his ability to produce critical work as a historian , the applicant ’s continued employment in the civil service was unjustifiable ( nicht vertretbar ) on account of his lack of professional qualifications .

In a letter of CARDINAL DATE the Chairman of ORG recommended to the Rector of ORG that the applicant be dismissed on the ground of his lack of professional qualifications .

On DATE , following a further interview with the applicant and a process of written consultation , the ORG , now chaired by PERSON , confirmed its previous vote .

On DATE ORG decided to refuse the applicant ’s application for incorporation and to terminate his contract of employment with effect from DATE on the ground of his lack of professional qualifications .

On DATE , further to the ORG ’s recommendation and after consulting ORG , the ORG dismissed the applicant with effect from DATE under LAW , taken together with LAW , LAW , ORG , Section III ( see “ Relevant domestic law and practice ” below ) .

In a judgment of DATE ORG ( Arbeitsgericht ) allowed an appeal by the applicant on the grounds , inter alia , that the Structure and ORG had not been properly constituted , that the final version of the expert assessment had not been ready at the time of the vote and that Mr PERSON had acted both as an expert and as Chairman of ORG .

In a judgment of CARDINAL DATE ORG ( PERSON ) set aside the judgment at first instance and held that the applicant ’s dismissal had been justified under LAW ) of LAW ( GPE – see “ Relevant domestic law and practice ” below ) , in that it was indisputable that he lacked the requisite professional qualifications .

ORG held that ORG had concluded in a persuasive manner , on the basis of Mr PERSON ’s expert assessment and additional observations , that the applicant lacked the necessary professional qualifications . The fact that by DATE the applicant had not published any other academic work to compensate for the shortcomings of his theses served as further justification for his dismissal . In that connection , the applicant ’s argument that he had been prevented from publishing academic work was not convincing , as he had not given any precise reasons for that assertion .

ORG also held that the proceedings before the Structure and ORG had not infringed GPE ’s LAW ( Verwaltungsverfahrensgesetz ) ; moreover , the proceedings before ORG had been of a purely administrative and internal nature and had had no external consequences , as the ORG was merely empowered to issue opinions . Accordingly , even if there had been procedural flaws , they would have been inconsequential .

On DATE ORG ( Bundesarbeitsgericht ) refused to entertain an appeal on points of law by the applicant , on the ground that the ordinary courts’ decisions had been consistent with its own case - law and with that of ORG ( Bundesverfassungsgericht ) .

The applicant subsequently lodged a constitutional appeal with ORG . He argued , firstly , that the PERSON of DATE on extension of the period of applicability for dismissal of civil servants under LAW ( Gesetz zur GPE der Kündigungsmöglichkeiten in der öffentlichen GPE nach dem DATE see “ Relevant domestic law and practice ” below ) was unconstitutional , because the civil servants concerned were entitled to expect those provisions to be subject to a time - limit . Secondly , he asserted that LAW I to LAW should be construed as meaning that lecturers could be dismissed only if they had committed specific breaches of their duties ( konkrete Pflichtverletzungen ) . The criteria established in the ORG could not be applied indiscriminately to work carried out on such a delicate topic in the GPE , and if PERSON criteria were applied , no historians from the GPE who had worked on the history of the ORG would satisfy them . The actual circumstances in which the applicant had carried out his academic work should have been taken into account . ORG , he argued , should not have been allowed to base its decision solely on the expert assessment produced by the opposing party , as the applicant had thereby been denied any opportunity to state his case . The same was true of the proceedings before the Structure and ORG .

In a judgment of DATE , and after holding a hearing on CARDINAL and DATE , ORG dismissed the applicant ’s appeal and held that the decisions appealed against had not infringed his freedom to engage in an occupation ( PERSON ) or his academic freedom ( PERSON ) .

ORG held that there had been interference with the applicant ’s freedom to engage in an occupation , but that the interference had been in accordance with the LAW . Firstly , it had been prescribed by law , as it had been based on the relevant provision of LAW and on the PERSON on the extension of the period of applicability for dismissal of civil servants , enactments which were guided by the public interest and observed the principle of proportionality . In the instant case an extension of the period of applicability had been necessary on account of the numerous practical difficulties encountered in the administration of staff . Secondly , the ordinary courts’ interpretation of the provision in question had not infringed the applicant ’s fundamental rights . The provision was also applicable to university lecturers , as scrutiny of their academic ability pursued a public - interest aim . The conditions in which academics had worked in the GPE had been so different from those in the ORG that the qualifications awarded in the GPE were not sufficiently meaningful ( nicht hinreichend aussagekräftig ) .

ORG added that in the instant case ORG had taken sufficient account of the applicant ’s freedom to engage in an occupation and of his academic freedom . It considered it normal that a lecturer ’s qualifications should be assessed on the basis of his or her academic publications . Furthermore , it held that ORG was not open to criticism for having based its decision on the expert assessment and on the lack of any subsequent academic publications by the applicant , either during the time of the GPE or DATE in the ORG , to compensate for the shortcomings of his theses .

Lastly , ORG held that the applicant had had a fair hearing , seeing that ORG had undertaken a thorough examination of his professional qualifications . The fact that that court had not addressed all his arguments did not mean that it had not taken them into account . In any event , the applicant had not specified which of his arguments ORG had failed to take into account .

Section CARDINAL(CARDINAL ) of LAW provides :

“ A dismissal shall be socially unjustified unless it is based on grounds relating to the employee himself or to his conduct ... ”

“ Sozial ungerechtfertigt ist die PERSON , wenn sie nicht durch GPE , die in der Person oder in dem Verhalten des Arbeitnehmers liegen ... bedingt ist . ”

LAW of DATE on NORP ORG provides that the administrative bodies and other institutions of the civil service in the former territory of the GPE come under the authority of the government of the Land in which they are situated .

LAW provides that persons who were members of the GPE civil service at the time of reunification are subject to the transitional provisions in GPE

LAW CARDINAL of Annex I to LAW , LAW , ORG , LAW , provides for the incorporation of civil servants from the GPE into the ORG civil service by means of the substitution of the federal authorities and ORG FRG for the GPE authorities in the existing employment relationship .

As members of the GPE civil service belonged to an institution that did not satisfy the criteria of a ORG based on the rule of law , special provisions on dismissal were included in LAW CARDINAL of Annex I to LAW , LAW , ORG , LAW .

Thus , LAW I to LAW , LAW , ORG , LAW , provides :

“ Ordinary dismissal [ with notice ] from the civil service is permissible if

( a ) the employee does not satisfy the requirements on account of lack of professional qualifications or of personal aptitude , or if

( b ) the employee is surplus to the employer ’s requirements ... ”

“ Die ordentliche ORG in der öffentlichen PERSON zulässig , wenn

PERSON mangelnder fachlicher GPE oder persönlicher GPE den Anforderungen nicht entspricht oder wenn

PERSON mangelnden Bedarfs nicht mehr verwendbar ist ... ”

Those regulations were initially intended to apply for DATE , but the LAW DATE on extension of the period of applicability for dismissal of civil servants under LAW ( Gesetz zur GPE der Kündigungsmöglichkeiten in der öffentlichen GPE nach dem Einigungsvertrag ) extended their validity until DATE .


CASE OF KHUMAYDOV AND KHUMAYDOV v. RUSSIA

No violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect)

Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicants were born in DATE and DATE respectively and live in the village of GPE , LOC , in GPE .

The first applicant was married to PERSON , born in DATE . They are the parents of the second applicant . At the material time PERSON worked as a manager at GPE railway station .

NORP The applicants’ family lived at QUANTITY in GPE village . On TIME of DATE the applicants’ neighbours noticed a white PERSON vehicle parked not far from the applicants’ house .

At TIME PERSON , PERSON colleague , saw CARDINAL UAZ-CARDINAL vehicles parked near the special task force checkpoint located in the railway station and CARDINAL armed men in camouflage uniforms climbing into them . Then the vehicles drove away towards PERSON Street .

At TIME went to work . According to her neighbours , as soon as she left the house the white PERSON that had been parked near her house drove off . When PERSON turned from PERSON Street into FAC it followed her .

Mr NORP , a railway station employee , was behind PERSON on his way to work and saw her and the PERSON turning into FAC . TIME , when he reached FAC , he saw the PERSON swaying slightly and no trace of PERSON .

NORP The applicants’ neighbour , PERSON , saw a blue and a khaki UAZCARDINAL vehicle with aerials on their roofs moving along FAC towards FAC .

PERSON has not been seen since then .

At TIME on DATE PERSON left her house . She has not been seen since then .

PERSON had not arrived at her office by TIME Her colleagues began to worry and went to her house . The first applicant told them that his wife had left for work . The colleagues and the first applicant followed PERSON footprints , visible on the fresh layer of snow . The footprints stopped at the crossroads of PERSON and FAC , where Mr NORP had seen the PERSON .

The first applicant went to the police station to report his wife ’s disappearance . Police officers told him that they could not deal promptly with his complaint as they were having a DATE meeting . However , they assigned an investigator to deal with the matter .

DATE investigators visited the scene of the incident and photographed tyre prints .

The first applicant complained about his wife ’s disappearance to various official bodies , including the NORP President , the NORP State Duma , the NORP administration and ORG . The majority of his complaints were forwarded to ORG offices at different levels .

On an unspecified date the ORG authorities refused to institute criminal proceedings related to PERSON disappearance .

On DATE the prosecutor ’s office of LOC ( “ the district prosecutor ’s office ” ) informed the first applicant that they had quashed the decision refusing to investigate his wife ’s disappearance and instituted criminal proceedings under LAW of LAW ( “ kidnapping ” ) . The case file was assigned the number DATE .

On DATE the district prosecutor ’s office suspended the investigation in case no . DATE for failure to identify those responsible .

On DATE the first applicant complained about his wife ’s kidnapping to the military prosecutor ’s office of military unit no . DATE ( “ the unit prosecutor ’s office ” ) .

On DATE the military prosecutor ’s office of ORG ( “ the ORG prosecutor ’s office ” ) forwarded the first applicant ’s complaint to the unit prosecutor ’s office .

On DATE the prosecutor ’s office of GPE forwarded the first applicant ’s complaint to the district prosecutor ’s office .

On DATE the unit prosecutor ’s office informed the first applicant that they had no information either on PERSON whereabouts or on the implication of any military personnel in her kidnapping .

On DATE the district prosecutor ’s office resumed the investigation in case no . DATE . On DATE they notified the first applicant accordingly and commented that investigative measures were being taken to solve the crime . They also noted that the law enforcement agencies of GPE had not carried out any special operations for PERSON arrest and that her dead body had not been discovered .

On DATE ORG forwarded to the ORG prosecutor ’s office the first applicant ’s complaint about the disappearance of PERSON who “ had been abducted by federal military servicemen in DATE ” .

On DATE the district prosecutor ’s office informed the first applicant that the investigation in case no . DATE had been suspended and then resumed .

On DATE ORG of GPE ( “ the NORP FSB ” ) informed the first applicant that they had not arrested PERSON as there had been no legal grounds for it .

On DATE the prosecutor ’s office of GPE informed the first applicant of the progress in the investigation in case no . DATE . They listed investigative measures taken , such as ORG interviews and requests for information sent to law - enforcement agencies and to penitentiary institutions , and commented that those measures had been futile but that investigators continued to take requisite steps to solve the crime .

On DATE the investigation in case no . DATE was suspended .

On DATE ORG of ORG of the ORG informed the first applicant that they had not carried out any special operations in relation to PERSON in the village of GPE DATE .

On DATE and DATE the unit prosecutor ’s office informed the first applicant that they had no information on implication of the ORG servicemen in his wife ’s kidnapping .

On DATE ORG of GPE forwarded the first applicant ’s complaint to the department of the interior of LOC ( “ ROVD ” ) .

On DATE the ORG prosecutor ’s office informed the first applicant that the inquiry carried out by the unit prosecutor ’s office had been fruitless and advised that he request further information related to the search for his wife from the district prosecutor ’s office .

On DATE the ROVD informed the first applicant that they were taking measures to solve PERSON kidnapping .

On DATE ORG of GPE informed the first applicant of measures taken to solve his wife ’s kidnapping and noted that the investigation was under way . On DATE the prosecutor ’s office of GPE sent a similar letter to the first applicant .

On DATE the unit prosecutor ’s office informed the first applicant that an inquiry into his wife ’s disappearance had not established any involvement by military personnel .

On DATE the prosecutor ’s office of GPE informed the first applicant that PERSON whereabouts had not been established and that the district prosecutor ’s office had been instructed to search for her more vigorously . On DATE the ROVD informed the first applicant that they were taking requisite measures to establish his wife ’s whereabouts .

On DATE the district prosecutor ’s office informed the Chair of ORG of GPE that they had quashed the decision of DATE and resumed the investigation in case no . DATE .

On DATE the NORP Ministry of the ORG informed the first applicant that various law enforcement agencies were actively searching for his wife .

In reply to CARDINAL of the first applicant ’s recurrent complaints the ORG prosecutor ’s office informed him on DATE that they had no new information concerning PERSON kidnapping .

On DATE the district prosecutor ’s office informed the first applicant that they had quashed the decision of DATE and resumed the investigation on CARDINAL DATE .

On DATE and DATE and DATE the prosecutor ’s office of GPE forwarded the first applicant ’s complaints to the district prosecutor ’s office .

On DATE the investigation in case no . DATE was suspended for failure to identify those responsible .

On DATE the Shelkovskoy District Court of GPE declared PERSON missing as from DATE .

DATE . On DATE ORG informed the first applicant that they had no information on PERSON whereabouts .

On DATE the ORG prosecutor ’s office forwarded the first applicant ’s complaint to the unit prosecutor ’s office .

On DATE the district prosecutor ’s office replied to the first applicant ’s complaint that they had already carried out a thorough inquiry into the matters complained of . They also noted that , although the investigation had been suspended on DATE , measures were being taken to solve the crime .

On DATE the first applicant requested ORG , ORG and ORG the NORP President in ORG to help him to find his wife .

On DATE the prosecutor ’s office of GPE informed the first applicant that investigative measures were being taken to establish PERSON whereabouts .

On DATE the military commander of GPE ordered that the military commander ’s office of LOC carry out an inquiry into PERSON disappearance .

On DATE and DATE the ORG , acting on the first applicant ’s behalf , requested information from the district prosecutor ’s office on progress in the investigation in case no . DATE .

On DATE the prosecutor ’s office of military unit no . CARDINAL requested information on special operations carried out on DATE from a number of ORG officials .

On DATE the military commander of LOC ordered the ROVD to take measures to establish PERSON whereabouts .

On DATE the prosecutor ’s office of military unit no . CARDINAL informed the first applicant that law enforcement agencies had not carried out any special operations in LOC on DATE and had not arrested PERSON .

On DATE the ROVD informed the first applicant that measures were being taken to solve his wife ’s kidnapping .

On DATE the prosecutor ’s office of GPE replied to the PERSON ’s letter of CARDINAL DATE stating that the investigation of PERSON kidnapping was underway and that the first applicant had been granted victim status .

On DATE the first applicant reported his wife ’s disappearance to the department of the interior of LOC ( “ ROVD ” ) .

On DATE an investigator of the ROVD inspected the Magomadovs’ house and the surrounding area but found no items of interest .

On DATE the investigator of the ROVD refused to institute criminal proceedings related to PERSON disappearance for lack of evidence of a crime .

On DATE the district prosecutor ’s office quashed the decision of DATE and instituted an investigation into PERSON kidnapping under LAW of LAW . The case file was assigned the number DATE .

On DATE the first applicant was granted victim status and questioned . He stated that at TIME on DATE his wife had left for work . She had some work - related documents with her . At TIME Ms B. had come to his house searching for PERSON who had not arrived at work , although it took TIME to walk there . The first applicant and PERSON had gone to the railway station but his wife had not been there . The first applicant had reported PERSON disappearance to the police station . Later his neighbours had told him that they had seen a white PERSON vehicle with a twisted front number plate at the spot where PERSON had been last seen . CARDINAL men of dark complexion had been sitting inside the PERSON . Villagers had also seen a light - blue UAZ vehicle with a big aerial on its top parked near the railway station that had driven away with the PERSON and CARDINAL other ORG vehicles . The first applicant himself had not seen any of those vehicles .

On DATE the district prosecutor ’s office questioned CARDINAL neighbours of the applicants , PERSON and PERSON They both stated that at TIME on DATE they had noticed a white PERSON vehicle parked near PERSON house with QUANTITY men inside it ; PERSON added that at some point she had heard the PERSON leaving .

On DATE the district prosecutor ’s office questioned PERSON as a witness who stated that at TIME on DATE he had seen PERSON turning into FAC . TIME he had turned into that street as well but had not seen the woman . A grey UAZ vehicle with a red cross on its back door had been parked near the railway station ; its windows had been dirty so PERSON had not seen who was inside it . The UAZ vehicle had driven off towards the centre of GPE .

DATE . On DATE Mr D. was questioned as a witness and submitted that at TIME he had spotted PERSON walking QUANTITY ahead of him . A new white PERSON vehicle had been parked QUANTITY from the applicants’ house ; CARDINAL men had been sitting in it , CARDINAL of whom was wearing a military - style pea coat . At some point the PERSON had started moving and had turned right in the direction in which PERSON had gone . Mr NORP had turned right as well but saw CARDINAL on the street . The PERSON which had been stationary QUANTITY from him had started moving .

In DATE the district prosecutor ’s office questioned PERSON , PERSON , Ms NORP , PERSON , Mr T. and Mr A. , the applicants’ fellow villagers . They stated that PERSON had not been in conflict with anyone and that they had learned of her disappearance on DATE .

On DATE and CARDINAL DATE the first applicant was again questioned . He stated that he had learned from neighbours that the PERSON and ORG vehicles had arrived from the town of PERSON . Some of his fellow villagers had told him that PERSON had been taken away by law - enforcement officers who had produced their badges , but those persons were unwilling to make official depositions out of fear for their lives and the first applicant could not name them .

On several occasions the investigators requested ORG , military commanders of different districts of GPE and district departments of the interior to carry out investigative measures related to PERSON disappearance and to submit information on whether any special operations had taken place in the village of GPE on DATE . According to the replies received , no such operations had been conducted and there was no information on PERSON arrest .

The investigators sent a request to a commander of the special unit of ORG of ORG who , while on mission in GPE , had been duty at the checkpoint over LOC on DATE .

On an unspecified date in DATE the commander of the special unit of ORG of ORG informed the district prosecutor ’s office that no PERSON vehicle had appeared in the registration log for vehicles passing checkpoint PERSON over LOC .

Police officers of the special unit of ORG of ORG who had been on duty at checkpoint KPP-CARDINAL on DATE were questioned as witnesses and stated that they had no information on PERSON disappearance or PERSON and ORG vehicles .

The investigation into PERSON kidnapping remains pending .

DATE . Despite specific requests by ORG refused to disclose the entire investigation file in case no . DATE . Relying on the information obtained from ORG , the ORG stated that the investigation was in progress and that disclosure of the documents would be in violation of LAW , since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings . The Government provided copies of the following documents : the decision to open the investigation of CARDINAL DATE , the decision of DATE to grant the first applicant victim status , transcripts of the first applicant ’s interviews of DATE , DATE and DATE , transcripts of interviews of PERSON , PERSON , PERSON , PERSON , PERSON , PERSON and PERSON , and the report of DATE by the commander of the special unit of ORG of ORG . They requested ORG to treat the documents submitted as confidential pursuant to LAW .

For a summary of relevant domestic law see PERSON and PERSON GPE , no . CARDINAL , § § CARDINAL , CARDINAL DATE .


Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The applicant , ORG , is a private NORP news agency and television company ( “ the applicant company ” ) that was set up in DATE and has its registered office in GPE . The applicant company was represented before the Court by Mr PERSON , Mr PERSON , PERSON , Mr PERSON , ORG and PERSON , lawyers practising in GPE , Mr PERSON and Ms PERSON , lawyers practising in GPE , and Mr A. PERSON . ORG ( “ the Government ” ) were represented by their Agent , PERSON , Representative of GPE at ORG .

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

The applicant company was established in DATE and initially operated as a news agency , with its own publishing house , newspaper and internet network .

According to the applicant company , since DATE it had applied on several occasions to the relevant public authorities to obtain a broadcasting licence with the intention of getting involved in television broadcasting , but was repeatedly refused a licence .

On DATE the applicant company entered into an agreement with another private company , the ORG television company ( “ ORG ” ) , to jointly produce a set of the applicant company 's television programmes , which included re - broadcasts of the TVCARDINAL NORP television channel and its own programmes , comprising news , political and economic analysis and constituting PERCENT of the whole content . Under the terms of the agreement , ORG allowed the applicant company to broadcast over band CARDINAL , for which ORG held a broadcasting licence due to expire on DATE .

In DATE legislative changes were introduced in the sphere of television and radio broadcasting .

ORG ( « Հեռուստատեսության և ռադիոյի մասին ORG օրենք – “ the LAW ” ) , passed in DATE , established a new authority , ORG ( Հեռուստատեսության և ռադիոյի ազգային հանձնաժողով – “ the ORG ” ) , which was entrusted with regulating the licensing and monitoring the activities of private television and radio companies . The ORG was a public body composed of CARDINAL members appointed by the President of GPE . LAW also introduced a new licensing procedure , according to which a broadcasting licence was granted on the basis of a call for tenders conducted by the ORG in respect of the list of available frequencies .

During DATE all existing broadcasting licences were temporarily re - registered by the ORG until the relevant calls for tenders were announced .

On an unspecified date in DATE the ORG decided to postpone the call for tenders for band CARDINAL until the adoption of appropriate rules and regulations and to permit ORG to continue to operate on band CARDINAL for an indefinite period of time until such call for tenders was issued .

On DATE the ORG announced calls for tenders for various broadcasting frequencies , including band CARDINAL . The ORG issued a notice in which it defined the conditions for participation in the call for tenders for band CARDINAL and the information and documents to be submitted . The information required included data on the technical facilities , the financial sources , the staff and the programme policy of an applicant .

The applicant company and CARDINAL other companies , GPE and ORG , submitted bids for band CARDINAL . The applicant company alleged that GPE was a company producing predominantly clerical programmes , while PERSON TV focused mostly on entertainment programmes .

On DATE the ORG held a points - based vote and recognised PERSON as the winner of the call for tenders for band CARDINAL . The decision stated :

“ Based on [ the relevant provisions LAW and other complementary legal acts ] , and taking into account the results of the call for tenders for television broadcasting on decimetric band CARDINAL in the area of GPE , [ the ORG ] decides ( CARDINAL ) to recognise ORG as the winner of the call for tenders for television broadcasting on decimetric band CARDINAL in the area of GPE , and ( CARDINAL ) to grant a television broadcasting licence to ORG ”

On an unspecified date the manager of the applicant company , Mr GPE , lodged an application with ORG ( ՀՀ տնտեսական դատարան ) , claiming that the tender procedure had been conducted with violations of the law and seeking to invalidate its results . In particular , he argued that the ORG , by announcing separate calls for tenders for different bands as opposed to a single one for all bands , had restricted the applicant company 's right to win a licence for any of the unoccupied bands . He further argued that the information required by the ORG had not been consistent with the information to be contained in a bid for a broadcasting licence as defined by law . Moreover , the ORG had not been authorised by law to define the information to be contained in a bid . Furthermore , he submitted that the ORG had failed to inform the applicant company in writing about the reasons for the refusal of a licence .

On DATE ORG examined the applicant company 's application . The applicant company was represented at this hearing by CARDINAL lawyers , GPE , FAC and PERSON , who made submissions on its behalf . ORG decided to dismiss the application , finding that the fact that the ORG had announced separate calls for tenders as opposed to a single one did not contravene the law . Nothing had precluded the applicant company from submitting bids for all these calls for tenders . The court further found that the ORG had been authorised by law to define the procedures and conditions of the tender process and that it had acted in accordance with the law in doing so . Nothing in the information required by the ORG in its notice issued following the announcement of the call for tenders on DATE had conflicted with the requirements of the law . As to the requirement to provide a written notification of the reasons for the refusal of a licence , the court found that the ORG , having recognised PERSON as the winner of the competition , had informed the applicant company about this in writing on DATE .

On an unspecified date Mr GPE lodged an appeal on points of law with ORG ( ՀՀ վճռաբեկ դատարան ) . In his appeal , he raised the same arguments as before ORG

On DATE ORG notified the applicant company that its hearing was scheduled for DATE at TIME

On DATE lawyer PERSON informed ORG in writing that on DATE at TIME he had to appear at another court hearing . In order to avoid an overlap between the QUANTITY hearings , lawyer PERSON requested ORG to notify him of the exact time when the applicant company 's claim would be examined . It appears that no reply was received to this letter .

On DATE at TIME Mr GPE , accompanied by lawyers PERSON and FAC , appeared at ORG . The latter had CARDINAL cases scheduled for that date with all the parties involved being notified to appear at TIME . The hearings started at TIME

The applicant company alleged that at TIME lawyer PERSON requested the presiding judge to inform him as to when the hearing on the applicant company 's claim would commence . The presiding judge replied that the hearing would commence “ whenever the court found it necessary ” . The lawyer repeated his request , explaining about the need to prevent any overlap between the QUANTITY hearings , whereupon he was removed from the courtroom upon the instruction of the presiding judge for violating order in court . At TIME ORG proceeded to examining the applicant company 's case . The ORG was represented at the hearing by CARDINAL lawyers , while the applicant company was represented only by Mr GPE since lawyer ORG had not been instructed to represent the applicant company . The hearing lasted TIME . The parties were not asked any questions and did not make any submissions .

The Government contested this allegation , claiming that the applicant company 's lawyer was never removed from the courtroom . ORG had CARDINAL cases scheduled to be examined on DATE , starting at TIME was given to cases involving parties coming from distant regions and women . Having found out about this order , the lawyer informed the court that he had another hearing to attend at TIME and requested that the applicant company 's case be heard in a priority order . This request was refused so the lawyer voluntarily left the courtroom . The Government further alleged that the applicant company was represented by CARDINAL other lawyers , while the ORG had no representative .

ORG , and concluded by dismissing the applicant company 's appeal , finding that :

“ ... the arguments put forward in the appeal concerning a violation by ORG of [ the relevant legal acts ] are groundless , as [ the ORG ] , acting within the authority vested in it by the above legal acts ... defined the tender procedure for licensing of television broadcasting , which contains the rules on the conditions , procedures and time - limits of a call for tenders , submission of bids , recognising the winner of the call for tenders and declaring the call for tenders void . On DATE [ the ORG ] ... announced separate calls for tenders for unoccupied frequencies and on DATE in its decision no . CARDINAL recognised PERSON as the winner , about which it informed [ the applicant company in its letter ] of DATE .

... LAW ] guarantees the right to freedom of expression . LAW , however , does “ not prevent GPE from requiring the licensing of broadcasting , television or cinema enterprises ” . The arguments [ concerning a violation of LAW ] are also groundless , as ORG did not violate the requirements of [ this Article ] .

[ As to the improper examination of the applicant company 's claims by ORG , this argument is also groundless ] ... as the [ court ] ... evaluated each piece of evidence of the case in a detailed , thorough and objective manner . ”

The relevant provisions of the LAW , as in force at the material time , read as follows :

“ CARDINAL . [ ORG ] shall adopt a judgment when deciding on the merits of a dispute . ”

“ CARDINAL . When adopting a judgment [ ORG ] shall : ( CARDINAL ) assess the evidence ; ( CARDINAL ) determine which circumstances significant for the case have or have not been disclosed ; ( CARDINAL ) determine the laws and other legal acts applicable to the case ; and ( CARDINAL ) decide to fully or partially grant the claim or to dismiss it . ”

“ Unlawful acts of public authorities , local self - government bodies and their officials can be annulled or their actions ( inaction ) can be contested ( hereafter , annulling the unlawful act ) if the act in question contradicts the law and if there is evidence that the applicant 's rights and ( or ) freedoms guaranteed by LAW and laws have been violated . ”

“ CARDINAL . An application seeking to annul the unlawful acts of public authorities , local self - government bodies and their officials shall be submitted to a court dealing with civil cases or ORG , pursuant to their jurisdiction over the case .

The submission of an application to a court does not suspend the effect of the contested act ... ”

“ An appeal on points of law can be lodged on ... the ground of a material or a procedural violation of the parties ' rights ... ”

“ CARDINAL . NORP The President of ORG shall instruct CARDINAL of the judges of the chambers of ORG to study the appeal and the case file ...

NORP The judges of ORG shall be entitled to get acquainted with the appeal and the case file . ”

“ CARDINAL . The examination of a case in ORG shall start with the presentation by the judge rapporteur ...

The judge rapporteur shall [ contested ] judgment and the arguments raised in the appeal .

The judges of ORG shall be entitled to ask questions to the judge rapporteur .

The appellant shall have the right to be present at the hearing before ORG .

NORP If explanations are necessary , the appellant and other parties may be summoned to the hearing ... Their failure to appear shall not preclude the examination of the case . ”

“ The chamber of ORG shall review judgments and decisions within the grounds presented in the appeal . ”

“ Having examined a case , ORG has the right :

( CARDINAL ) to uphold the court judgment and to dismiss the appeal ... ;

( CARDINAL ) to quash the whole or part of the judgment and to remit the case for a new examination ... ;

( CARDINAL ) to terminate the proceedings or to leave the claim unexamined , if the grounds for [ doing so ] were disclosed during the proceedings in the court of first instance , ORG or ORG . ”

“ CARDINAL . ORG shall adopt a decision based on the results of the examination of the case .

NORP The decision shall be adopted in the absence of the appellant and other persons summoned to the hearing to give explanations .

The Court of Cassation shall be competent to adopt a decision if the majority of judges of the chamber of ORG are present .

NORP The decision shall be adopted by an open vote .

The decision shall be considered adopted if the majority of the total number of judges present at the hearing voted for it .

NORP The operative part of ORG decision shall be pronounced at the hearing . ”

“ CARDINAL . ORG is not entitled to establish or consider as proven circumstances which have not been established by the judgment [ of ORG ] or have been rejected by it , to determine whether or not this or that piece of evidence is trustworthy , to resolve the issue as to which piece of evidence has more weight or the issue as to which norm of substantive law must be applied and what kind of judgment must be adopted upon the new examination of the case . ”

The relevant provisions of LAW , as in force at the material time , read as follows :

“ In GPE television and radio broadcasting shall be conducted on the basis of a licence . ”

“ ORG ( hereafter , ORG ) is an independent body with the status of a public agency whose activity is regulated by this law , its regulations and the legislation of GPE . ORG deals with licensing and monitoring of only private television and radio companies ( television companies or radio companies ) .

ORG : ( a ) shall allocate broadcasting frequencies on a public and competitive basis and ensure the publication of complete information on the results of a call for tenders ; ... ( c ) shall grant licences ... ”

“ A television and radio broadcasting licence shall be granted for a particular available frequency on the basis of a call for tenders ... ”

“ When selecting the licence - holder , the ORG shall take into account :

( a ) the predominance of programmes produced in - house ;

( b ) the predominance of programmes produced in GPE ;

( c ) the technical and financial capacity of the applicant ; and

( d ) the professional level of the staff . ”

“ A licence shall not be granted if :

( a ) the applicant can not be a licence - holder pursuant to this law ;

( b ) the information contained in the bid is inaccurate ; or

( c ) the technical capacity for television and radio broadcasting is lacking or the declared technical capacity is insufficient .

An applicant shall be informed in writing of the reasons for the refusal of a licence within DATE from the date of the decision .

The refusal of a licence can be contested before the courts . ”

The relevant provisions of LAW read as follows :

“ In order to grant a broadcasting licence , the ORG , at its meeting and within the period prescribed by the tendering rules , shall adopt a decision on the basis of the results of a call for tenders . ”


CASE OF AL HUSIN v. BOSNIA AND HERZEGOVINA

Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Syria);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Reasonably necessary to prevent offence);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

It would appear from the case file that the salient fact in the domestic proceedings was the applicant ’s association with the mujahedin in GPE ( “ BH ” ) . The term mujahedin has been widely used to refer to foreigners – mainly from the NORP world – who came to BH during the war in support of NORP . However , the same term has been used to describe local NORP who joined the foreign mujahedin , endorsed their ideology and adjusted to their way of dressing . The phenomenon has been explained by ORG for the former GPE ( “ ORG ” ) in PERSON and PERSON , IT-CARDINAL - CARDINAL-T , § § DATE , DATE , and Delić , IT-CARDINAL - CARDINAL-T , § § CARDINAL - CARDINAL , DATE , as follows .

The first foreign mujahedin arrived in BH in DATE via GPE and with the assistance of the NORP authorities . It would appear that their arrival was welcomed by the ORG authorities . While the presence of at least some foreign mujahedin seems to have been motivated by a desire to provide humanitarian assistance to the NORP population , most of them actively supported the military struggle against the NORP ORG adversaries , ready to conduct a jihad or “ holy war ” . As stated by PERSON , an ORG witness of NORP origin who came to ORG in DATE , some of the mujahedin were members of ORG who had the aim of “ creating a base that would allow them to increase their area of operations ” . Some of them also came to perform missionary work .

Upon arrival , foreign mujahedin settled in various locations and did not form a homogeneous entity . Towards DATE , NORP started to join the foreign mujahedin . The locals were provided with military training and participated in combat action . They were also given religious instruction . A number of groups comprising foreign and/or local mujahedin were active . Notwithstanding instances of participation in combat alongside each other , it appears that these groups were anxious to maintain their distinct identities . There were religious and ideological differences between them , which resulted in occasional violent clashes .

On DATE the foreign mujahedin were organised into a unit within the local ORG ( ORG of GPE ) forces . The unit , named “ GPE ” , was based in GPE . Following its establishment , the unit significantly grew in size . By DATE , it consisted of CARDINAL fighters . Although the original idea had been to replenish the unit with foreign mujahedin only , locals soon outnumbered its foreign members . The factors that motivated locals to join it included : its stricter regimental discipline ; a better degree of organisation ; superior equipment and combat morale ; its religious dedication ; and material benefits . The unit received funds and assistance from many organisations and individuals from the NORP world , including ORG and ORG . ORG in GPE provided logistical support .

El Mujahedin had a number of features setting it apart from regular ORG units . It was led by foreign mujahedin who were not appointed by the ORG . At the top of the hierarchy was an emir , who has been described as the highest - ranking person within the unit . PERSON , a NORP , was its first emir . In DATE , he was succeeded by an NORP , PERSON , who remained in that position until the end of the war . A different person from the emir , the military commander , headed the military council and was responsible for the conduct of combat operations . In DATE , this post was held by an NORP named PERSON . After his death in DATE , another NORP , PERSON , succeeded him . PERSON was killed in DATE . The unit had a religious council , the shura , which was its supreme decision - making body . It consisted of CARDINAL prominent members of the unit , mostly of NORP origin . The emir was elected by and answerable to the shura . At DATE , Sheikh PERSON joined the leadership of the unit . He was the head of ORG in GPE and known to be an extremist who was well - connected with NORP fundamentalists all over the world ( the ORG relied in that regard on a judgment of ORG of DATE ) . He facilitated the recruitment of volunteers from NORP countries for the struggle in BH . Although Sheikh PERSON did not hold an official function within the unit , its members considered him to be the political authority and even the real emir within the unit . He could issue binding rulings ( fatwa ) and his authority was never challenged by the shura . Sheikh PERSON was killed , together with PERSON , at an HVO ( Croatian Defence Council ) military checkpoint on DATE .

The General Framework Agreement for Peace , which ended the war in ORG , was initialled at a military base near GPE , GPE , on DATE and signed in GPE , GPE , on DATE . LAW CARDINALA to that Agreement called for the withdrawal of all foreign forces , including individual advisors , freedom fighters , trainers , volunteers , and personnel from neighbouring and other GPE , irrespective of whether they were legally and militarily subordinated to any of the local forces . In view of that , on DATE the ORG disbanded ORG and ordered its foreign members to leave the country by DATE . Despite initial resistance , the shura accepted that the unit be disbanded . It would appear that awards , such as the “ GPE ” , were given to its members as an incentive for foreigners to leave . Members of the unit were also provided with ORG certificates of service , which assisted its foreign members to acquire ORG citizenship . Whereas most of the unit ’s foreign members left ORG , some of them ( such as the present applicant ) applied for ORG citizenship and continue to live in ORG to date .

After the attacks of DATE , the official attitude towards foreign mujahedin changed dramatically . Many lost their ORG citizenship or were deported from ORG after being declared a threat to national security .

The applicant was born in GPE in DATE .

In DATE he went to the then GPE to pursue his studies . He first studied at ORG , in GPE , and then at ORG , in GPE .

It would appear that the last time the applicant was in GPE was in DATE . He stayed DATE and obtained a new NORP passport .

In DATE , having returned from GPE , the applicant met a refugee from BH in GPE . They were married in a NORP wedding ceremony in DATE and then in a civil ceremony in DATE ( the applicant had previously been married ) . They have CARDINAL children together , born in DATE . The applicant ’s wife also has CARDINAL children from her first marriage ( her first husband was killed at the beginning of the war ) . The applicant has no children from his previous marriage .

While it is certain that the applicant was a member of ORG , the ORG unit described above , it is not clear for how long . According to a certificate issued to the applicant , his service in the ORG lasted from DATE until DATE , but this is not consistent with the applicant ’s version of events . Neither is it clear when he obtained BH citizenship . He was first issued a national identification number on DATE on the basis of a naturalisation decision of CARDINAL DATE and again on DATE on the basis of a naturalisation decision of DATE . However , the applicant claims that the naturalisation decision of DATE did not exist . Indeed , it has never been delivered to him , despite his numerous requests .

In the immediate aftermath of the war , the applicant acted as leader of a group of foreign mujahedin and their local supporters based in ORG . The group advocated the NORP - inspired NORP / NORP version of NORP . In his role as the group ’s leader , he interrogated CARDINAL local NORP for TIME in DATE . This led to his conviction for false imprisonment in DATE and a suspended prison sentence .

On DATE the relevant administrative authority quashed the naturalisation decision of DATE . On DATE ORG quashed that decision and remitted the case for reconsideration . On DATE the relevant administrative authority quashed the naturalisation decisions of CARDINAL DATE and DATE . They held that the applicant had acquired ORG citizenship by means of fraudulent conduct , false information and concealment of relevant facts . As a result of this decision , the applicant became an unlawful resident in ORG . On DATE ORG and on DATE ORG upheld the decision ( see paragraph CARDINAL below ) .

On DATE the applicant applied for a residence permit . On DATE ORG rejected his application . It held , on the basis of confidential intelligence reports , that the applicant was a threat to national security . He was granted a period for voluntary departure of DATE . On DATE ORG , after having assessed the national security evidence , upheld that decision . On DATE ORG dismissed an application for judicial review . On DATE another bench of the same court upheld that decision . On DATE ORG set aside ORG decision of DATE and remitted the case for a retrial ( see paragraph CARDINAL below ) .

On DATE the applicant claimed asylum . He maintained that he would be perceived by the NORP authorities as a member of the outlawed ORG ( in view of his involvement in rallies organised by that organisation in DATE ) or as an NORP ( given his association with the mujahedin movement advocating the NORP - inspired NORP / NORP version of NORP ) . The applicant claimed that the NORP authorities were aware of his activities in ORG , as he had always been outspoken about them ( for example , he had given a number of interviews to the ORG television channel and the PERSON newspaper DATE ) . Those authorities had allegedly interviewed his father and brothers on several occasions in this connection and , furthermore , had held one of his brothers in detention for DATE because of his refusal to spy on the applicant . He referred to the situation of PERSON , a mujahedin of NORP origin , who had reportedly been tortured in GPE and sentenced to CARDINAL years’ imprisonment for membership of ORG ( although no proof of his membership in that organisation had been presented at trial ) , belonging to an organisation formed with the purpose of changing the economic or social structure of the state , carrying out activities that threatened the state or might damage its relationship with a foreign country and weakening national feeling and inciting sectarian strife . The applicant claimed that he might also be targeted because of his draft evasion . Given all the above and the general political and human rights situation in GPE , the applicant argued that his deportation to GPE would expose him to a risk of being subjected to ill - treatment . Lastly , he submitted that his deportation would be contrary to LAW in view of his family situation .

On DATE ORG refused the asylum claim and granted the applicant a DATE period for voluntary departure . It held that the applicant did not face a real risk of being subjected to ill - treatment given that he had never been a member of ORG ( unlike PERSON mentioned above ) . It further held that it had not been shown that he would be ill - treated solely because of his fighting with the foreign mujahedin in ORG ( in view of the fact that none of the parties to the war in BH were either an ally or an enemy of GPE ) or because of his draft evasion . As regards the applicant ’s allegations about his father and brothers , ORG rejected them as unsubstantiated . Lastly , ORG considered the Article CARDINAL complaint to be irrelevant in an asylum case . On DATE ORG upheld that decision . On DATE ORG set aside the part of ORG decision concerning LAW and remitted it for a retrial . It upheld the remainder of that decision ( see paragraph CARDINAL below ) .

On DATE the ORG decided to indicate to the Government that the applicant should not be expelled pending the final decision of ORG in the applicant ’s case ( ORG CARDINAL ) and for a period of DATE following notification of that decision ( see paragraph CARDINAL above ) .

On DATE ORG edited its DATE ORG in ORG , in which the applicant ( known as PERSON ) had been wrongly identified as convicted terrorist PERSON alMasri ( who had also fought with the foreign mujahedin in BH ) .

On DATE ORG rendered its decision in the applicant ’s case ( ORG CARDINAL ) . It set aside ORG decision of DATE ( see paragraph CARDINAL above ) and ORG decision of DATE in part ( see paragraph CARDINAL above ) . It upheld the remainder of ORG decision of DATE and ORG decision of DATE in its entirety ( see paragraph CARDINAL above ) .

On DATE ORG placed the applicant in an immigration centre on security grounds , pursuant to section CARDINAL(CARDINAL)(b ) of LAW DATE . On DATE ORG , after having assessed the national security evidence , upheld that decision . In his constitutional appeal , the applicant maintained that even if he indeed constituted a security threat , that factor would not be sufficient in itself to justify his detention ( he relied on GPE ( no . CARDINAL ) , DATE , Series A no . CARDINAL ; PERSON v. GPE , DATE , Series A no . CARDINAL ; and PERSON v. GPE , CARDINAL DATE , Series A no . CARDINAL ) . On DATE ORG held that the applicant ’s custody was lawful and consistent with the LAW . The initial detention period was extended DATE on security grounds until DATE ( see paragraph CARDINAL below ) . All extension orders were upheld by ORG and some of them also by ORG ( constitutional appeals concerning the remaining orders are pending ) .

On DATE ORG , ORG in ORG called upon the ORG authorities not to deport the applicant to GPE because of a serious risk of ill - treatment .

Further to ORG decision of DATE ( see paragraph CARDINAL above ) , on DATE ORG quashed part of ORG decision of CARDINAL DATE mentioned in paragraph CARDINAL above and instructed that service to examine whether the indication of a period for voluntary departure was contrary to LAW . On DATE ORG held that the impugned measure was consistent with LAW . On DATE ORG quashed that decision . On DATE ORG again held that the impugned measure was consistent with LAW On DATE ORG quashed that decision . On DATE ORG again held that the impugned measure was consistent with LAW . On DATE ORG upheld that decision . It emphasised that the indication of a period for voluntary departure should not be confused with a deportation order and that the issue of whether the applicant ’s departure would be contrary to LAW appropriately be examined within the context of deportation proceedings . It would appear that a constitutional appeal against that decision is pending .

Further to ORG decision of DATE ( see paragraph CARDINAL above ) , on DATE ORG assessed the national security evidence and upheld ORG decision of DATE mentioned in paragraph CARDINAL above . It relied on the applicant ’s conviction of DATE ( see paragraph CARDINAL above ) , his public threats against ORG authorities , his standing in the mujahedin community which allowed him to issue a binding ruling ( fatwa ) , his lectures at a mosque in GPE kolonija , a GPE suburb , advocating the NORP - inspired NORP / NORP version of NORP and his attempts to obtain ammunition illegally . It also took into account some secret evidence . Following a constitutional appeal , on CARDINAL DATE ORG ordered as an interim measure that the applicant should not be expelled pending the proceedings before ORG . On DATE the ORG quashed ORG decision of CARDINAL DATE and remitted the case for a retrial . It further ordered that its interim measure remain in force until ORG had examined the application under LAW . On CARDINAL DATE ORG quashed the first- and second - instance administrative decisions and remitted the case to ORG for reconsideration . On DATE ORG rejected the application for a residence permit and granted the applicant a period for voluntary departure of DATE . On DATE ORG upheld that decision . On DATE , after having assessed the national security evidence , ORG upheld that decision . It relied , among other things , on the fact that the applicant ’s name appeared on a list of international criminals maintained by ORG ( ORG ) . On DATE another bench of the same court upheld that decision . It would appear that the applicant has lodged a constitutional appeal in that regard which is still pending .

On DATE ORG issued a deportation order : it decided to expel the applicant and to prohibit his re - entry for DATE . On DATE and CARDINAL DATE ORG and ORG , respectively , upheld that decision . The applicant has ever since been detained with the intention of deportation pursuant to section CARDINAL(CARDINAL)(a ) of LAW DATE .

On DATE the ORG decided to indicate to the ORG that the applicant should not be expelled to GPE until further notice ( see paragraph QUANTITY above ) .

LAW DATE ( Zakon o kretanju i boravku stranaca i azilu , ORG nos . CARDINAL and DATE “ the DATE LAW ) was in force from DATE until DATE . On DATE LAW DATE ( Official Gazette of BH no . CARDINAL/CARDINAL – “ the CARDINAL Act ” ) entered into force . LAW was applied to the present applicant ’s claim for asylum and application for a residence permit because the proceedings had started before the entry into force of LAW . On the other hand , LAW was applied to the applicant ’s detention .

Section CARDINAL of the CARDINAL Act provided that asylum had to be granted to an alien who , owing to a well - founded fear of being persecuted for reasons of race , religion , nationality , political opinion or membership of a particular social group , was outside his or her country of nationality and was unable or , owing to such fear , was unwilling to benefit from the protection of that country . The principle of non - refoulement was incorporated in section CARDINAL of that Act , which read as follows :

“ An alien shall not be returned or expelled in any manner whatsoever to the frontiers of territories where his or her life or freedom would be threatened on account of race , religion , nationality , membership of a particular social group or political opinion , regardless of whether or not the person concerned has been granted asylum . The prohibition of return or expulsion shall also apply to persons in respect of whom there is a reasonable suspicion for believing that they would be in danger of being subjected to torture or other inhuman or degrading treatment or punishment . An alien may not be returned or expelled to a country where he or she is not protected from being sent to such a territory . ”

Pursuant to section CARDINAL of the CARDINAL Act , aliens whose claims for asylum had been refused had to be granted leave to remain on humanitarian grounds if their removal would breach the principle of non - refoulement .

NORP Under section CARDINAL(CARDINAL)(i ) of LAW , the authorities were entitled to issue deportation orders against aliens constituting a threat to public order or national security . LAW contains a similar provision ( section CARDINAL(CARDINAL)(h ) of that Act ) . While it is not clear whether an appeal against a deportation order had suspensive effect under LAW ( see section QUANTITY ) , such an appeal suspends deportation under section CARDINAL of the CARDINAL Act . Under both acts , a claim for asylum and an application for judicial review against a refusal of such a claim suspend deportation ( sections CARDINAL and CARDINAL of the DATE Act and sections CARDINAL , CARDINAL ) and CARDINAL of the CARDINAL Act ) . Pursuant to section CARDINAL of the DATE LAW CARDINAL of LAW , once an alien has become subject to expulsion , removal directions shall be issued within DATE . An appeal does not suspend deportation .

In accordance with section CARDINAL(CARDINAL)(b ) of LAW , an alien must be detained if it has been established that he or she constitutes a threat to public order or national security , irrespective of whether a deportation order has been issued . Once a deportation order has been issued , the alien concerned may also be detained under section CARDINAL(CARDINAL)(a ) of that Act . An initial detention order is valid for DATE ( section CARDINAL ) of that Act ) . It may be extended any number of times for DATE at a time . However , the total period of detention may only exceed DATE in exceptional circumstances , such as if an alien prevents his or her removal or if it is impossible to remove an alien within DATE for other reasons ( see section QUANTITY ) .

LAW DATE ( Zakon o zaštiti tajnih podataka , ORG nos . CARDINAL and CARDINAL ) entered into force on DATE . In accordance with LAW , the judges of ORG and ORG have access to all levels of secret data without any formalities ( for example , security clearance or special authorisation ) , if such access is required for exercising their duties .

The relevant part of the latest concluding observations on BH of ORG against ORG reads as follows ( see document CAT / C / BIH / CO/CARDINAL - CARDINAL of DATE , § DATE ) :

“ Notwithstanding [ section CARDINAL of LAW DATE ] with regard to the principle of prohibition of return , the ORG remains concerned at reports that the competent authorities of ORG have failed to properly assess the risk of refoulement faced by those who apply for international protection and that persons considered to be a threat to national security are subject to being expelled or returned to another ORG where there are substantial grounds for believing that they would be in danger of being subjected to torture . It is also concerned at the very low rate of successful asylum applications . ”

The Commissioner for Human Rights , an independent institution within ORG , has been mandated to promote the awareness of and respect for human rights in the CARDINAL ORG member states . His recent report on ORG ( document CommDH(CARDINAL)CARDINAL of DATE , § CARDINAL ) reads , in the relevant part , as follows :

“ According to ORG , of the CARDINAL recognised refugees in GPE , CARDINAL are from GPE . Most of them were recognised prior to the handover of refugee status determination by ORG to the authorities of ORG in DATE . Since DATE , refugee status has been granted CARDINAL persons , none of whom is from GPE ( CARDINAL NORP , CARDINAL NORP , one NORP and CARDINAL GPE ) . In addition , ORG granted subsidiary protection to CARDINAL GPE minors from GPE in DATE , and CARDINAL PERSON from GPE . ”

According to many reliable and objective sources , torture and other forms of ill - treatment have been used extensively and with impunity in police stations and security agencies’ detention centres . The relevant part of ORG DATE Country Report on ORG in GPE reads as follows :

“ Under LAW of the constitution , ‘ no one may be tortured physically or mentally or treated in a humiliating manner’ . Nevertheless , security forces reportedly continued to use torture frequently . Local human rights organizations continued to cite numerous credible cases of security forces allegedly abusing and torturing prisoners and detainees and claimed that many instances of abuse went unreported . Individuals who suffered torture or beatings while detained refused to allow their names or details of their cases to be reported for fear of government reprisal .

Former prisoners , detainees , and reputable local human rights groups reported that methods of torture and abuse included electrical shocks ; pulling out fingernails ; burning genitalia ; forcing objects into the rectum ; beatings while the victim is suspended from the ceiling and on the soles of the feet ; alternately dousing victims with freezing water and beating them in extremely cold rooms ; hyperextending the spine ; bending the body into the frame of a wheel and whipping exposed body parts ; using a backward - bending chair to asphyxiate the victim or fracture the spine ; and stripping prisoners naked for public view . In DATE ORG documented CARDINAL types of torture and mistreatment used against detainees in the country . ORG reported that torture was most likely to occur while detainees were held at CARDINAL of the many detention centers operated by the various security services in the country , particularly while authorities attempted to extract a confession or information . Courts systematically used ‘ ORG extracted under duress as evidence , and defendants’ claims of torture were almost never investigated . ”

The relevant part of the most recent concluding observations on GPE of ORG against Torture reads as follows ( document CAT / C / SYR / CO/CARDINAL of CARDINAL DATE , § § CARDINAL and CARDINAL ) :

“ The ORG is deeply concerned about numerous , ongoing and consistent allegations concerning the routine use of torture by law enforcement and investigative officials , at their instigation or with their consent , in particular in detention facilities . It is also concerned at credible reports that such acts commonly occur before formal charges are laid , as well as during the pre - trial detention period , when the detainee is deprived of fundamental legal safeguards , in particular access to legal counsel . ”

“ The ORG is also concerned at reports that the ORG has established secret detention facilities under the command of intelligence services , such as the Military Intelligence service , ORG , ORG and ORG . The centres controlled by these services are not accessible by independent monitoring and inspection bodies , and are not subject to review by the authorities . ORG is further concerned that detainees are deprived of fundamental legal safeguards , including an oversight mechanism in regard to their treatment and review procedures in respect to their detention . ORG is also concerned at allegations that those detained in such facilities could be held for prolonged periods without any judicial review , in practice in incommunicado detention and subject to torture or cruel , inhuman or degrading treatment . ”

Reportedly , actual or suspected NORP and members of the banned ORG have been subject to particularly harsh abuse . According to ORG DATE Report DATE , they have faced arbitrary arrest , prolonged detention , torture and other forms of ill - treatment , and unfair trials ( see also ORG report Far From Justice : GPE ’s ORG of DATE , pp . DATE ) . Those convicted of belonging to ORG were sentenced to death but their sentences were immediately commuted to DATE prison terms . CARDINAL of convicted NORP prisoners were held at FAC , where conditions are harsh .

According to ORG Operational Guidance Note on GPE of DATE , § QUANTITY , the authorities have cracked down on all expression of political opposition with increasing brutality since the onset of political protest and civil unrest in DATE ( see also the ORG High Commissioner for Human Rights’ report on the human rights situation in GPE of QUANTITY DATE , document A / HRC/CARDINAL/CARDINAL , suggesting that the scale and nature of the ongoing human rights abuses may amount to crimes against humanity ) . Therefore , if an applicant has previously been involved in opposition political activity , or whose beliefs make it likely that he will in future take part in such activity , or who could be perceived to hold opposing views if returned to GPE , a grant of asylum is likely to be appropriate .

Following a fact - finding mission to GPE , GPE and GPE , ORG and ORG published a report on human rights issues concerning NORP in GPE in DATE . Its general remarks about punishment for draft evasion ( p. CARDINAL ) read as follows :

“ A Western diplomatic source found it likely that if a person has been drafted for military service while residing abroad , he would be identified by the immigration authorities upon return to GPE as his name will then appear on a list of wanted persons . The immigration authorities will instruct him to report to the military usually within DATE or DATE . However , if he does not report to the military within the specified time , he will be called to ORG and he will be charged with draft evasion . Any prison sentence issued in absentia by ORG will be commuted to DATE of service in the army . It was added that in reality nobody goes to prison for draft evasion .

Based on information from a NORP lawyer , the NORP embassy reported in DATE that : ‘ Military courts decide penalty for matters related to the defence forces . The punishment for not showing up to service varies DATE . However , due to the issuance of amnesty decrees regularly and DATE by the President it is not applied in practice . In addition , since these sentences are issued in absence , they are subject to objection and then cancellation . In this way , a person would be free within DATE of arrest or surrender . Later the trial is repeated at the time when a person is free . The verdict would be either found innocent or the crime is covered by the amnesty law . ... ’

According to ORG men who evade compulsory military service ( CARDINAL months’ duration ) reportedly face different levels of penalty according to the circumstances of the case :

Persons who were abroad and failed to report when summoned for military service face arrest by the military police immediately upon return to GPE and sentence of DATE of imprisonment ( usually at FAC ) ;

Persons who fail to report for military service while in GPE face arrest and a prison term of DATE , then further imprisonment for DATE if they fail to undertake military service after completing the first term of imprisonment . ”


Violation of Art. 6-1;Violation of P1-1;Not necessary to examine Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic and convention proceedings

The applicants were born in DATE , CARDINAL , DATE and DATE respectively and live in GPE .

The applicants are in receipt of welfare payments for their children . In DATE they brought separate sets of civil proceedings against a local welfare authority , claiming arrears in those payments .

On DATE the ORG of GPE awarded the first applicant MONEY ( RUR ) against the welfare authority . This judgment entered into force on DATE .

On DATE a writ of execution was issued and sent to the bailiffs . It appears that some time later the bailiffs discontinued the enforcement proceedings in respect of the above judgment and returned the writ of execution to the first applicant , as the debtor had insufficient funds .

In DATE the first applicant was paid the amount due pursuant to the writ of execution .

On DATE the ORG of GPE awarded the second applicant ORG against the welfare authority . This judgment entered into force on DATE and a writ of execution was sent to the bailiffs .

On DATE the bailiffs discontinued the enforcement proceedings in respect of the judgment of DATE and returned the writ of execution to the second applicant , referring to the lack of the debtor ’s funds .

In DATE the second applicant was paid the amount due pursuant to the writ of execution .

On DATE and CARDINAL DATE the Zheleznodorozhny ORG of GPE awarded the third applicant ORG and CARDINAL respectively . The judgments entered into force on DATE and DATE .

On DATE and DATE writs of execution were issued and sent to the bailiffs . It appears that some time later the bailiffs discontinued the enforcement proceedings in respect of the above judgments and returned the writs of execution to her , referring to the lack of the debtor ’s funds .

On DATE , in reply to the third applicant ’s complaint about the bailiffs’ failure to enforce the judgments in her favour , ORG of ORG informed the applicant that her award would be enforced in the order of priority set out by LAW .

NORP In DATE the third applicant was paid the amounts due pursuant to the writs of execution .

On DATE ORG of GPE awarded the fourth applicant ORG DATE . The judgment entered into force on DATE .

On DATE a writ of execution was issued and sent to the bailiffs . It appears that some time later the bailiffs discontinued the enforcement proceedings in respect of the above judgment and returned the writ of execution to the fourth applicant , as the debtor had insufficient funds .

In DATE the fourth applicant was paid the amount due pursuant to the writ of execution .

Section CARDINAL of LAW of DATE provides that a bailiff ’s order on the institution of enforcement proceedings must fix a time - limit for the defendant ’s voluntary compliance with a writ of execution . The time - limit may not exceed DATE . The bailiff must also warn the defendant that coercive action will follow , should the defendant fail to comply with the time - limit .

Under LAW of the LAW , the enforcement proceedings should be completed within DATE of the receipt of the writ of enforcement by the bailiff .