Remainder inadmissible;No violation of Art. 3 (in case of extradition to Rwanda);No violation of Art. 6 (in case of extradition to Rwanda)

Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert

The applicant is a NORP citizen of NORP ethnicity , who was born in DATE . He used to be the head of ORG . He has claimed that he left GPE on DATE . In DATE he took up residence in GPE , where he was granted refugee status . Resident in GPE are also his wife , his former wife and his CARDINAL children .

In DATE , a NORP public prosecutor opened a preliminary investigation in regard to a suspicion that the applicant had committed genocide and crimes against humanity in GPE in DATE . In particular , the preliminary investigation concerned one of the crimes allegedly committed by the applicant , a massacre of NORP on DATE . The NORP police made several visits to GPE and other countries and questioned numerous witnesses but finally , in DATE , the preliminary investigation was discontinued because the prosecutor found that the evidence against the applicant was not sufficient for a conviction .

Subsequently , ORG received a request from the NORP authorities to have the applicant extradited to GPE to stand trial on charges including genocide and crimes against humanity . The NORP public prosecutor made a preliminary examination of the matter and presented his comments to ORG . On this basis , ORG asked the NORP authorities to provide it with further information about the alleged crimes of which the applicant was suspected and , in particular , supporting material ( such as forensic evidence and depositions ) . The reason for this was that , according to LAW , a request for extradition may be denied if the evidence in support of the request is deemed insufficient . The NORP authorities did not respond and no decision has been taken by the NORP authorities on the request for extradition .

On DATE , after the NORP police had been informed by ORG in GPE that the applicant had visited them and that he was sought by the NORP authorities , the applicant was arrested in GPE in compliance with an international alert and warrant of arrest . The arrest order was confirmed by ORG ( tingsrätten ) of ORG on DATE and , on DATE , ORG decided , pursuant to LAW om utlämning för brott , ORG ; “ the DATE LAW ) , to invite the NORP authorities to present a request for extradition by DATE .

On DATE ORG in GPE made a formal request for the extradition of the applicant to GPE for purposes of prosecution . It invoked an international arrest warrant issued by the Rwandan Prosecutor - General on DATE as well as an indictment according to which the applicant was charged with the following crimes , allegedly committed DATE and DATE : ( CARDINAL ) NORP genocide , ( CARDINAL ) complicity in genocide , ( CARDINAL ) conspiracy to commit genocide , ( CARDINAL ) murder , ( CARDINAL ) extermination , and ( CARDINAL ) formation , membership , leadership and participation in an association of a criminal gang , whose purpose and existence were to do harm to people or their property . Allegedly , during the relevant period , the applicant had acted as a leader for the PERSON militia . He had trained and encouraged other government - connected civilian militias to kill NORP , to cause them serious bodily harm and to plunder their homes . He had also transported and distributed weapons to members of the PERSON and other militias . He had met with local officials to plan and organise the distribution of weapons and had incited civilians to kill and rape NORP . He had prepared , trained , equipped and organised militias in his home town . Furthermore , together with CARDINAL members of the PERSON , he had been actively involved in the murder of CARDINAL NORP on DATE .

In the arrest warrant of DATE and the extradition request of CARDINAL DATE , the NORP authorities referred to recent legislative changes concerning the criminal procedure and possible punishment in regard to transferred genocide suspects ( which are further described below ) . They affirmed their “ satisfactory assurances on human rights issues ” , claiming that , should the applicant be transferred to GPE , he would receive a fair trial in accordance with national legislation and in conformity with fair - trial guarantees contained in international instruments ratified by GPE . He would be tried , at first instance , by ORG and , upon appeal , ORG . In regard to detention , the extradition request contained the following information :

“ If arrested , detained or imprisoned following [ his ] arrest and subsequent to the NORP jurisdictions , [ the applicant ] will be accorded adequate accommodation , at a prison which has been deemed by international observers to meet international standards . Transferred persons will be afforded nourishment and medical treatment , and will be treated in a humane and proper manner , in accordance with international accepted standards . ”

In a footnote , the detention facility was described in greater detail :

“ ORG in LOC has been designated as the primary detention centre . The ORG [ ORG for GPE ] has acknowledged , after visiting the Prison , that it meets international standards . A transfer facility has also been established at NORP central prison , and this facility will serve as a temporary detention centre for suspects appearing before ORG of the Republic . ... ”

In accordance with LAW , the ORG referred the request to ORG . Since the applicant opposed the extradition , he was granted public defence counsel . Moreover , on DATE , ORG decided to remand the applicant in custody on suspicion of genocide .

On DATE the Prosecutor - General finished his investigation and referred the case to ORG ( ORG domstolen ) for examination in accordance with LAW of LAW . He attached his opinion , according to which there was probable cause for believing that the applicant was guilty of the crimes referred to in the extradition request and , DATE with the exception of the last charge ( CARDINAL above ) – they corresponded to crimes under NORP law , the extradition request could be granted . The Prosecutor - General further submitted that , although the investigation could give cause for some doubt , there were no impediments to the extradition as the situation in GPE was not so serious that the applicant ’s rights under Articles QUANTITY and CARDINAL of the ORG would be violated .

Before ORG the applicant opposed the extradition and denied all of the charges against him . He alleged that the witness accounts which formed the basis of the charges were false and that there was a conspiracy against him . As concerned the alleged massacre on DATE , it had been investigated by the NORP police but the investigation had been discontinued as there was insufficient evidence against him . This lack of evidence applied to all the crimes of which he was accused . Moreover , in his view , the accusations were of a political nature as he was a NORP and he was convinced that he would be seriously persecuted if returned . The applicant further claimed that the NORP justice system was corrupt and dysfunctional and lacking in independence and impartiality . In particular , it would be very difficult for him to call and question witnesses in his defence on an equal basis with witnesses called by the prosecution . Thus , he would suffer a flagrant denial of justice in violation of LAW . He also referred to several decisions in which the ORG had found that there were impediments to transferring genocide suspects to GPE and noted that no other country had accepted such requests from GPE . Lastly , he invoked his poor health , stating that he had undergone a heart bypass operation and would be in need of another such operation within DATE .

On DATE , after having held an oral hearing , ORG took its decision . It first stressed that the examination was limited to the question of whether there were any impediments to the applicant’ ’s assessment that there was probable cause to believe that the applicant was guilty of the charges against him and that , since these crimes were also crimes under NORP law , it was permissible to extradite him ( exception was again made for the sixth charge for the same reason as above ) . The court further found that the crimes were not of a political nature and that , hence , this did not constitute an impediment . Furthermore , in regard to the applicant ’s NORP ethnicity , which had been of great importance when the NORP authorities granted him asylum , the court noted that the definition of refugee status had been expanded in many countries . The court then noted that neither the NORP decision nor the investigation on which it was based had been adduced in the extradition matter . The court however found that the NORP decision was DATE and that the evidence at the court ’s disposal did not support the assessment that the applicant was at a real risk of persecution due to his ethnicity . The court also considered that the applicant ’s state of health did not pose any problem for the extradition . Thus , there were no impediments under LAW to the extradition of the applicant .

Turning to the examination under the Convention , ORG first found that the evidence at hand did not give reason to believe that the applicant would be subjected to torture or inhuman or degrading treatment contrary to LAW upon return to GPE . As concerned Article CARDINAL , the court noted that , according to GPE case - law , only a “ flagrant denial of justice ” in the receiving country could lead to a finding of a violation against the extraditing country . Hence there was no requirement to ensure that the person would be guaranteed a fair trial in all aspects . Moreover , it was for the applicant to show that there were substantial grounds for believing that he would suffer a flagrant denial of justice . In the instant case , the applicant had given information about GPE and had submitted a letter of DATE from ORG ( see further below at § § CARDINAL - CARDINAL ) and decisions by the ORG of CARDINAL May and DATE . He had also presented a decision by ORG of DATE and a decision by ORG in GPE of DATE , both of which declined to extradite some persons to GPE to stand trial . In this respect , the court noted that the NORP decision was based on ORG ’s decisions . However , these decisions concerned transfer of suspects from the ORG to the NORP national courts . According to LAW ICTR ’s Rules of Procedure and Evidence , extradition was possible if the tribunal was satisfied that the accused would receive a fair trial in the courts of the ORG concerned . This , in ORG opinion , was clearly a much more rigorous demand than that under LAW . ORG ’s decisions could therefore not lead to the conclusion that the extradition of the applicant in the present case would be in violation of LAW . In regard to the decision of ORG , ORG noted that , contrary to the lower court , ORG had found that the extradition of the persons in question would put them at real risk of suffering a flagrant denial of justice , with respect to both the difficulty of adducing evidence and the doubts pertaining to the independence and impartiality of the NORP judiciary . While this gave reason to doubt whether the extradition of the applicant would be possible , ORG observed nevertheless that , according to international sources and reports from ORG and ORG in GPE , the judicial system in GPE had made clear improvements after the above - mentioned decisions , although much remained to be done . For instance , a new witness protection programme had been launched and the punishment of life - time imprisonment in isolation had been abolished .

GPE to stand trial on charges of genocide and crimes against humanity . The court then expressed that it assumed that consideration would be given to the need for further information before the Government made a final decision in the case .

On DATE ORG decided that the applicant should be extradited to GPE to stand trial for genocide and crimes against humanity . However , it rejected the request in relation to the sixth charge . The Government first agreed with ORG that there were no impediments to the extradition under NORP law . As concerned the examination under LAW , the Government noted that the death penalty had been abolished in DATE and that life imprisonment with special conditions ( such as isolation ) had been abolished in DATE . A new prison had been built which was considered to reach an acceptable international standard and which , inter alia , was meant for persons convicted of genocide . There was also nothing to suggest that the NORP State sanctioned torture or inhuman treatment of convicted persons or persons suspected of serious crimes . Thus , extradition would not be contrary to LAW . In regard to LAW observed that the standards set by the ORG were more rigorous than the standard set by the LAW and ORG case - law . It noted that the judicial system in GPE had improved over DATE and that new laws had been promulgated during DATE to improve the witness protection programme and the possibility to hear witnesses who were not present in GPE . Hence , the Government concluded that the extradition would not violate LAW and therefore approved it .

On DATE the applicant requested the ORG to indicate to ORG under Rule CARDINAL of ORG a suspension of his extradition to GPE . On DATE the President of the Section to which the case had been allocated decided to apply Rule CARDINAL and , on DATE , ORG decided not to enforce the extradition until further notice .

Subsequently , on DATE , the President of the ORG requested the ORG to reply to certain factual questions in accordance with LAW ( a ) of ORG . Specifically , the President wanted to know if the Government had obtained any guarantees from the NORP authorities that the applicant would receive a fair trial and be treated in a correct manner , if they knew where he would be detained and whether they intended to adopt measures to monitor and follow the future detention and trial of the applicant in GPE .

NORP In a letter of CARDINAL DATE , sent following a request for information from ORG , PERSON , the NORP Minister of ORG confirmed the following :

“ CARDINAL . If transferred to GPE , [ the applicant ] will primarily be placed in the LOC [ Prison ] during his pre - trial and detention during trial . ORG , however , may serve as a temporary detention center for him while appearing before ORG of the Republic .

NORP If convicted in GPE , [ the applicant ] will be placed in FAC while serving the sentence .

NORP authorities will be able to monitor and evaluate [ the applicant ’s ] conditions in GPE , in relation to his detention / imprisonment facilities , as well as in relation to his trial and proceedings conducted in GPE . ”

PERSON also assured that the applicant would not be subjected to solitary confinement once returned to GPE . The Death Penalty Abolition Law ( see further below at § CARDINAL ) excluded life imprisonment with special provisions ( i.e. isolation ) for those extradited from other states .

By a decision of DATE , ORG released the applicant from detention .

According to sections CARDINAL and CARDINAL of the DATE Act , a person who in a foreign state is suspected or accused of or sentenced for an act that is punishable there may be extradited to that state following a decision by the Government . Such extradition may be granted only if the act for which it is requested corresponds to an offence for which imprisonment for DATE or more is prescribed by NORP law .

Sections CARDINAL - CARDINAL lay down certain limitations . Thus , an extradition request may not be granted for certain offences committed by members of the armed forces or for political offences . Furthermore , a person may not be extradited if , on account of his origin , belonging to a particular social group , religious or political views , or otherwise on account of political circumstances , he would run the risk , in the foreign state , of being subjected to persecution directed against his life or liberty or otherwise of a harsh nature . Also , the extradition can not take place if the person in question is not protected against being sent to a state where he would run such a risk . Finally , a request may be refused if , having regard to the person ’s young age , state of health or other personal circumstances , the extradition would run manifestly counter to the demands of humanity . In the latter case , regard should be had also to the nature of the offence in question and the interests of the requesting state .

Section CARDINAL stipulates that an extradition request is submitted in writing to ORG , accompanied by the documentation on which the request is based .

According to section CARDINAL , the Prosecutor - General gives his opinion in the extradition matter before the ORG takes a decision . If the person concerned does not consent to being extradited , the case is also examined by ORG .

Section CARDINAL prescribes that ORG is to conduct the necessary investigation in accordance with the rules applicable to preliminary investigations in criminal cases . Coercive measures are subject to the general rules prescribed for criminal cases . However , there are also some more specific rules outlined in LAW , according to which a decision by a prosecutor to apply coercive measures must instantly be reported to a district court . Appeal against this court ’s decision lies directly to ORG .

According to section DATE and DATE , ORG submits the case and the finished investigation , together with an opinion , to ORG . ORG then decides whether the extradition request may be lawfully granted . A hearing is held if it is considered necessary .

Under LAW , the matter is reported to the Government when ORG has issued its decision . If ORG has found that there is a legal impediment to the extradition , the request may not be granted .

ORG has examined several cases regarding extradition of suspected criminals . According to leading ORG case - law ( see NJA DATE p CARDINAL , NJA DATE not NCARDINAL and ORG DATE s CARDINAL ) the scope of the court ’s examination is not limited to an assessment of whether there are impediments to an extradition prescribed in the DATE Act , but also includes an evaluation of the compliance of the extradition with the Convention .

Organic Law no . DATE of CARDINAL/CARDINAL/CARDINAL concerning ORG from ORG for GPE and from Other States ( “ the LAW ” ) was amended on CARDINAL DATE ( through Organic Law no . CARDINAL/CARDINAL of CARDINAL/CARDINAL/CARDINAL Modifying and Complementing [ LAW ] ) , following criticism against the taking of evidence from witnesses expressed by the ORG and by some countries and international organisations . The amended LAW contains , inter alia , the following provisions ( the DATE amendments indicated in italics ) :

“ Notwithstanding any other law to the contrary , the High Court shall be the competent court to conduct at the first instance the trial of cases transferred to GPE as provided by LAW .

At the first instance , the case shall be tried by a single Judge .

However , the President of the ORG may at his / her absolute discretion designate a quorum of CARDINAL ( CARDINAL ) or more judges assisted by a Court Registrar depending on his / her assessment of the complexity and importance of the case . ”

“ Without prejudice to other rights guaranteed under the laws of GPE , including LAW DATE as amended to date or Laws relating to LAW and LAW , as ratified by LAW . CARDINAL of DATE , the accused person in the case transferred by ORG to GPE shall be guaranteed the following rights :

a fair and public hearing ;

presumption of innocent until proved guilty ;

NORP to be informed promptly and in detail in a language which he / she understands , of the nature and the cause of the charge against him ;

NORP adequate time and facilities to prepare his / her defense ;

a speedy trial without undue delay ;

NORP entitlement to counsel of his / her choice in any examination . In case he / she has no means to pay , he / she shall be entitled to legal representation ;

the right to remain silent and not to be compelled to incriminate him / herself ;

the right to be tried in his / her presence ;

to examine , or have a person to examine on his / her behalf the witnesses against him / her ;

to obtain the attendance and examination of witnesses on his / her behalf under the same conditions as witnesses against him / her .

Without prejudice to the relevant laws on contempt of court and perjury , no person shall be criminally liable for anything said or done in the course of a trial . ”

“ In the trial of cases transferred from the ORG , ORG of the Republic shall provide appropriate protection for witnesses and shall have the power to order protective measures similar to those set forth in Articles CARDINAL , CARDINAL and DATE of the ICTR Rules of Procedure and Evidence .

In the trial of cases transferred from the ORG , ORG shall facilitate the witnesses in giving testimony including those living abroad , by the provision of appropriate immigration documents , personal security as well as providing them with medical and psychological assistance .

All witnesses who travel from abroad to GPE to testify in the trial of cases transferred from the ORG shall have immunity from search , seizure , arrest or detention during their testimony and during their travel to and from the trials . ORG of the Republic may establish reasonable conditions towards a witness ’s right of safety in the country . As such there shall be determination of limitations of movements in the country , duration of stay and travel . ”

“ Without prejudice to the generality of LAW , where a witness is unable or , for good reason , unwilling to physically appear before ORG to give testimony , the judge may upon request of a party order that the testimony of such witness be taken in the following manner :

NORP By deposition in GPE or in a foreign jurisdiction , taken by a Presiding Officer , Magistrate or other judicial officer appointed / commissioned by the Judge for that purpose ;

NORP By video - link hearing taken by the judge at trial ;

By a judge sitting in a foreign jurisdiction for the purpose of recording such viva voce testimony .

The request for the taking of testimony in any of the modes described above shall indicate the names and whereabouts of the witness whose testimony is sought , a statement of the matters on which the witness is to be examined , and of the circumstances justifying the taking of testimony in such manner .

The order granting the taking of testimony of a witness in any of the modes prescribed above shall designate the date , time and the place at which such testimony is to be taken , requiring the parties to be present to examine and cross - examine the witness .

Testimony taken under this Article shall be transcribed and form part of the trial record and shall carry the same weight as viva voce testimony heard at trial . ”

“ Without prejudice to the provisions of other laws of GPE , defence councel and their support staff shall have the right to enter into GPE and move freely within GPE to perform their duties . They shall not be subject to search , seizure , arrest or detention in the performance of their legal duties .

The defence councel and their support staff shall , at their request , be provided with appropriate security and protection . ”

“ Both the prosecution and the accused have the right to appeal against any decision taken by ORG of the Republic upon one or all of the following grounds :

an error on a question of law invalidating the decision , or

NORP an error of fact which has occasioned a miscarriage of justice .

ORG may uphold or invalidate some or all of the decisions of ORG of GPE . Where necessary , it may order ORG of the Republic to review the case . ”

“ Life imprisonment shall be the heaviest penalty imposed upon a convicted person in a case transferred to GPE from ORG . ”

“ Any person who is transferred to GPE by the ORG for trial shall be detained in accordance with the minimum standards of detention stipulated in ORG for the Protection of all persons under LAW , adopted by ORG resolution CARDINAL of DATE .

ORG or an observer appointed by the President of the ORG shall have the right to inspect the conditions of detention of persons transferred to GPE by the ORG and held in detention . ORG or the observer appointed by the ORG shall submit a confidential report based on the findings of these inspections to the Minister in charge of ORG of GPE and to the President of the ORG .

In case an accused person dies or escapes from detention , ORG Republic shall immediately notify the President of the ORG and the Minister of ORG in GPE .

ORG shall conduct investigations on the death or the escaping of the person who was in detention and shall submit a report to the President of ORG and the Minister of Justice in GPE . ”

“ This Organic Law applies mutatis mutandis in other matters where there is transfer of cases to GPE from other GPE or where transfer of cases or extradition of suspects is sought by GPE from other states . ”

GPE abolished the death penalty through Organic Law no . GPE of CARDINAL/CARDINAL/CARDINAL relating to the Abolition of the Death Penalty ( “ the Death Penalty Abolition Law ” ) . This law was amended as of DATE ( through Organic Law no . CARDINAL/CARDINAL of DATE Modifying and Complementing [ the Death Penalty Abolition Law ] ) , following which the relevant provisions read as follows ( the DATE amendment indicated in italics ) :

“ The death penalty is hereby abolished . ”

“ In all the legislative texts in force before the commencement of LAW , the death penalty is hereby substituted by life imprisonment or life imprisonment with special provisions as provided for by LAW .

However , life imprisonment with special provisions as provided for by paragraph one of this Article shall not be pronounced in respect of cases transferred to GPE from ORG for GPE and from other GPE in accordance with the provisions of [ LAW ] . ”

“ Life imprisonment with special provisions is imprisonment with the following modalities :

A convicted person is not entitled to any kind of mercy , conditional release or rehabilitation , unless he / she has served CARDINAL ( DATE of imprisonment ;

A convicted person is kept in isolation . ”

The law provides for the specific mode of enforcement and execution of life imprisonment with special provisions . ”

A traditional , community - based gacaca system of tribunals was established in DATE to try people suspected of crimes during the DATE genocide , in order to resolve the enormous amount of such cases ( however , not the most serious , so - called “ category I ” cases – to which the applicant ’s case allegedly belongs – , which are still tried in the ordinary courts ) . The government ’s stated goal for the gacaca system was to ensure that those who had participated in the genocide were brought to trial , furthering the ends of justice , ending impunity and promoting national unity . The gacaca law provides for reduced sentences , including community service , for cooperation , and credit for time served .

After a pilot phase when CARDINAL individuals were identified for prosecution for having participated in the genocide , the gacaca courts began trials nationwide in DATE . The trials have been public but there have been concerns about their fairness , among other things because of a perceived lack of impartiality and reports that defendants have not been given the opportunity to defend themselves . In addition , some courts have spent TIME hearing each case and poorly qualified , ill - trained and corrupt gacaca judges in certain districts have fuelled widespread distrust of the system . There have been reports of local gacaca officials and citizens abusing the process to pursue personal matters and settle grudges unrelated to the genocide , including making false accusations in order to acquire land . However , in some reported cases where judges had acted inappropriately , gacaca officials have intervened and held that the procedure had been illegal .

On DATE , at the request of the Government , ORG in GPE submitted , inter alia , the following .

In addition to the amendments that had been made to LAW , GPE was revising its DATE witness protection scheme so that witness protection would fall under ORG and not , as was currently the case , under ORG . It would apply to witnesses for both the prosecution and the defence .

The ORG was of the opinion that the independence of the judiciary was slowly improving and that there was no direct proof that judges followed political orders . In this respect , it noted that GPE was aware that it was being observed by the international community , in particular in extradition cases concerning genocide . As concerned detention conditions , the ORG observed that persons suspected of genocide and crimes against humanity were given priority by ORG and that their detention conditions were good . Again , as the international community followed these cases , GPE made an effort to ensure good standards . Furthermore , persons convicted under this law would serve their sentences in FAC which had been recently built in line with international standards . The ORG also noted that ORG had been created which had CARDINAL members , although CARDINAL of these were still in training .

In CARDINAL letters , sent to ORG and ORG on DATE and DATE , respectively , ORG submitted comments on NORP legislation and practice in relation to international human rights law .

In ORG view , there was a serious risk that the applicant would not receive a fair trial in GPE , in violation of LAW ( “ ORG ” ) . ORG referred to CARDINAL of its reports ( GPE : Suspects must not be transferred to GPE courts for trial until it is demonstrated that trials will comply with international standards of justice , DATE ) in which serious concern was expressed that people who were extradited there faced a real risk of being subjected to an unfair trial and to torture or inhuman treatment in detention centres .

Amnesty International referred also to the decisions of the ORG , refusing to transfer suspects to NORP national courts , and to the reasons given in those decisions ( see further below ) . It further stressed that no other country had transferred suspects to GPE but , on the contrary , had found it to be impermissible .

Pursuant to LAW bis of the Rules of Procedure and Evidence of the ORG and that court ’s case - law , a designated ORG may order referral to a ORG that has jurisdiction over the charged crimes and is willing and prepared to accept the case . In assessing whether a ORG is competent under LAW bis , it has to be established that it has a legal framework that criminalises the alleged conduct of the accused and provides an adequate penal structure . The penal structure must provide an appropriate punishment for the offence and conditions of detention must comply with internationally recognised standards . Prior to ordering referral , the chamber must be satisfied that the accused will receive a fair trial in the courts of the ORG and that the death penalty will not be imposed or carried out .

As regards the requirement of a fair trial , the accused must be accorded by the ORG concerned the rights set out in LAW . Those rights in essence mirror the rights laid down in LAW ORG .

In DATE the ORG decided in CARDINAL cases to refuse the transfer of genocide suspects for trial in GPE . In the first case , ORG , ORG found ( on DATE ) that there were CARDINAL obstacles to a transfer : the applicable sentence would be life imprisonment in isolation without appropriate safeguards , the trial court ’s composition with a single judge involved a risk of its being unable to withstand direct or indirect pressure from ORG , and the defendant would not be able to secure the attendance of and examine witnesses on his own behalf under the same conditions as the prosecutor ’s witnesses . Following an appeal by ORG , ORG upheld ( on DATE ) ORG first and third rulings . However , it granted the appeal in so far as the second ruling was concerned : it found that the trial chamber had erred in concluding that GPE did not respect the independence of the judiciary and that the composition of the NORP courts did not comply with the right to a fair trial . With respect to the issues relating to witness testimony , ORG was satisfied DATE contrary to the trial chamber – that video - link facilities were available and would likely be authorised in cases where witnesses residing abroad genuinely feared to testify in person . However , ORG considered that such arrangements would not guarantee equality of arms “ if the majority of Defence witnesses would testify by video - link while the majority of Prosecution witnesses would testify in person ” ( paragraph CARDINAL of the decision ) . It also shared the concerns of ORG in regard to the treatment of witnesses in GPE and their fears of harassment , arrest and detention . There were reports of murders of genocide survivors who had provided or intended to provide testimony in genocide trials . Moreover , there were justified fears among witnesses that their appearance would lead to indictments being issued against them , for instance for promoting “ genocidal ideology ” , a term laid down in LAW and given a wide interpretation by Government officials to cover an extended range of ideas , expressions and conduct , including those perceived to display opposition to Government policies .

In the second case , PERSON , ORG ( on DATE ) upheld ORG decision ( of DATE ) on the same grounds as in GPE . As regards witnesses inside GPE , ORG stated the following ( at paragraph CARDINAL ) :

“ ORG considers that there was sufficient information before ORG of harassment of witnesses testifying in GPE and that witnesses who have given evidence before the ORG experienced threats , torture , arrests and detentions , and , in some instances , were killed . There was also information before ORG of persons who refused , out of fear , to testify in defence of people they knew to be innocent . ORG further noted that some defence witnesses feared that , if they testified , they would be indicted to face trial before the PERSON courts , or accused of adhering to ‘ genocidal GPE . ORG observes that the information available to ORG demonstrates that regardless of whether their fears are wellfounded , witnesses in GPE may be unwilling to testify for the Defence as a result of the fear that they may face serious consequences , including threats , harassment , torture , arrest , or even murder . It therefore finds that ORG did not err in concluding that PERSON might face problems in obtaining witnesses residing in GPE because they would be afraid to testify . ”

ORG found that similar concerns applied to witnesses residing abroad , concluding that , despite the witness protection available under NORP law , the available information indicated that the defendant would not “ be able to call witnesses residing outside GPE to the extent and in a manner which would ensure a fair trial if the case were transferred to GPE ” ( paragraph CARDINAL ) .

The next CARDINAL cases – Hategekimana ( Trial Chamber , DATE ; ORG , DATE ) , PERSON ( Trial Chamber , CARDINAL DATE ) and ORG , DATE ) – contained virtually identical reasoning . It appears that no appeals were made against ORG decisions in PERSON and PERSON .

In DATE , ORG transferred several cases to GPE for further investigation and possible action . An ICTR press release of QUANTITY DATE stated as follows :

“ CARDINAL cases of persons investigated but not indicted by the ORG were transferred from ORG ( ORG ) to GPE for further investigation and possible future action on DATE . This action was undertaken in accordance with ORG CARDINAL , which urges that appropriate cases be prosecuted in competent national jurisdictions . Justice PERSON , Prosecutor of the ORG , formally handed over electronic and hard copies of the cases to ORG of GPE , Mr. PERSON . PERSON said that the transfer emphasizes the partnership between the ORG and GPE ’s national jurisdiction . He commended the NORP government for the improvements it has made to GPE ’s judicial infrastructure and capacity . Justice PERSON also noted his intentions to continue pursuing the transfer of further cases to GPE , including a number of cases in which the subjects have already been indicted , pursuant to QUANTITY . Mr. PERSON said that the transfer is ” a vote of confidence ” , in GPE ’s past and present efforts at improvement . He noted that GPE remains ready to receive any future cases from ORG . He also noted that though GPE , “ did not succeed in the past , ” the government has now addressed the concerns raised by the ORG ’s ORG . Mr. PERSON thanked ORG for its partnership and pledged to keep the ORG apprised of GPE ’s handling of the cases . CARDINAL case files have been transferred to GPE previously , bringing the total number of dossiers transferred to CARDINAL . ”

On DATE the ORG decided for the first time to transfer an indicted genocide suspect for trial in GPE . In concluding that it was satisfied that the Government of GPE was now prepared to receive its first referral from the ORG , a ORG took into account the amendments that had been made to NORP legislation DATE and found that the issues which had led to the earlier refusals had been addressed to some degree in the intervening period .

As regards the possible punishment imposed on a transferred suspect , the ORG stated the following ( at paragraph CARDINAL ) :

“ The ORG finds that the current penalty structure of GPE is adequate as required by the jurisprudence of the ORG as it no longer allows for imposition of the death penalty or life imprisonment with solitary confinement . The ORG is satisfied that the ambiguities which existed in previous LAW bis applications regarding the nature and scope of the sentence for accused persons in cases referred to GPE have been adequately addressed by GPE . ”

It went on to draw the following conclusion as to the conditions of detention in GPE ( at paragraph CARDINAL ) :

“ The ORG notes that adequate detention conditions are guaranteed by LAW and considers that the Defence submissions that the conditions will be inadequate in practice are speculative at this juncture . The ORG expects that the monitoring mechanism will conduct regular prison visits to ensure that both the detention conditions and treatment of the Accused in detention are satisfactory , and that it will immediately report any concerns to both the Prosecutor and the President of the ORG . Thus , the ORG is convinced that the Accused will be detained in appropriate conditions if his case is referred to GPE . ”

With respect to the main issue concerning the availability and protection of witnesses , the ORG first noted that it was not its role to determine whether the fears held by witnesses were legitimate , reasonable or well - founded but rather to assess the likelihood that the accused would be able to “ obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witness against him or her ” ( as required by LAW , paragraph CARDINAL ( e ) of LAW ) if the case were to be transferred to GPE . As to witnesses residing in GPE , the ORG stated the following ( at paragraphs CARDINAL - CARDINAL ) :

“ The Defence cites instances during DATE in which the ORG ’s defence counsel have complained that their witnesses were unwilling to testify because of fears of intimidation or harassment . [ ORG ] also refers to incidents in which defence witnesses in GPE have been jailed or victimised before or after testifying . Furthermore , many witnesses fear their appearance will lead to an indictment against them . Defence witnesses may fear being accused of “ genocidal ideology ” , a crime referred to in LAW but undefined under NORP law . It is the ORG ’s view that the concerns of witnesses within GPE regarding their safety have been addressed by changes to the law over DATE . ORG expects that GPE will ensure the safety of both prosecution and defence witnesses in a transfer case as has been stipulated in the new and amended laws .

ORG notes the previous findings by ORG in LAW bis decisions that witnesses in GPE may be unwilling to testify for the defence due to their fear that they may face serious consequences , including prosecution , threats , harassment , torture , arrest or even murder . The ORG notes that in the CARDINAL genocide cases tried in ORG of GPE , the defence in most cases was able to secure the attendance of witnesses even without the safeguards available to cases transferred from the ORG . It is logical to assume that with the amendments made to the laws regarding witness immunity , the creation of a new witness protection programme , and the safeguards imposed by ORG , ORG finding that witnesses may be unwilling to testify is no longer a compelling reason for denying referral .

Although the concerns expressed by the Defence are materially the same as those expressed by defence teams in past referral cases , GPE has shown the willingness and the capacity to change by amending its relevant laws over DATE . The amendment to LAW to include immunity for statements by witnesses at trial is a step towards allaying the fears of witnesses . This is complemented by the improvements made to ORG ( “ ORG ” which is sometimes also referred to as “ FAC ) and the creation of ORG ( “ WPU ” ) under the ORG as discussed below .

The ORG notes that in cases before the ORG some witnesses are still afraid of testifying despite the provision of multiple safeguards . The ORG is therefore satisfied that GPE has taken adequate steps to amend its laws in this regard . The full implementation of these additional measures mandated by this Chamber would likely guarantee a fair trial for the Accused .

The ORG further notes that the subjective fear of witnesses to testify can not be addressed without implementing adequate legal safeguards to allay such fears . Where laws can neutralise the reasonable fears of individuals , the ORG is of the opinion that they must be implemented and revised as needed . It is the considered opinion of this ORG that it is impossible to evaluate the effectiveness of a reasonable law in the abstract . Accordingly , the relevant NORP laws must be given a chance to operate before being held to be defective . ”

The ORG then addressed the situation of witnesses residing abroad and noted , inter alia , the following ( at paragraphs CARDINAL - CARDINAL ) :

“ The NORP states that all of its CARDINAL witnesses living abroad have indicated that they were not prepared to travel to GPE to testify or to appear before any NORP judge who might travel to their countries of residence . The ORG notes that following the DATE amendments to LAW , witnesses may now testify in CARDINAL more ways in addition to providing viva voce testimony before the relevant High Court in GPE : via deposition in GPE ; via video - link taken before a judge at trial , or in a foreign jurisdiction ; or via a judge sitting in a foreign jurisdiction .

At the outset , the ORG observes the use of any of these methods is not a right guaranteed to the Accused ( or to any other party ) . These procedures are intended as an exception to the general rule of viva voce testimony before the court , and whether to provide for any of these measures remains within the sole discretion of the trial court . The law is silent as to whether or not the adverse party can make submissions on such a request and does not establish any criteria that may guide a judge in his or her decision when facing such a request . The law also does not stipulate whether the decision on such a request is subject to appeal , and if so , under which conditions .

The ORG submits that in the present case the reasons put forward by Defence witnesses in their affidavits may well be rejected by a NORP judge . For instance , it doubts that a judge would consider valid a NORP fear for his or her security if brought to GPE for testimony , the fact that his or testimony would incriminate ORG ( “ RPF ” ) , or that he or she does not trust the NORP judiciary . Although the doubts expressed by the Defence are relevant the ORG concludes that they are speculative at this juncture .

With respect to the prospect that witnesses living abroad could testify by video - link , ORG has previously held that “ the availability of video - link facilities is not a completely satisfactory solution with respect to the testimony of witnesses residing outside GPE , given that it is preferable to hear direct witness testimony , and that it would be a violation of the principle of equality of arms if the majority of defence witnesses would testify by video - link while the majority of Prosecution witnesses would testify in person . ” However , with regards to the witnesses who live outside GPE , this ORG notes that , in addition to the possibility of hearing testimony via video - link , LAW amended Transfer Law allows testimony to be provided a ) via deposition in GPE or in a foreign jurisdiction , taken by a Presiding Officer , Magistrate , or other judicial officer appointed for that purpose ; or b ) before a judge sitting in a foreign jurisdiction for the purpose of recording such testimony .

The ORG argues that for its CARDINAL witnesses residing abroad , a judge sitting on the case would have to travel to CARDINAL different NORP countries to receive their testimonies meaning that the Accused would be absent for almost the entirety of his Defence case . The PERSON recalls the right of the Accused to be “ tried in his presence , ” as stipulated in LAW ) of [ LAW ] . The ORG notes the amendments to LAW which provide the option of hearing evidence from witnesses located outside GPE in order to ensure their protection . Even in an instance where the Accused wishes to exercise his right to examine or cross - examine a witness who is testifying in another location , he could avail himself of the video - link facilities already in place . Thus , there is no apparent impediment to the presence of the Accused during the sections of the trial that would take place outside GPE . The ORG finds that the Defence argument that the Accused would be absent for the majority of his Defence case untenable and that the possibility that witnesses will testify outside GPE can not be regarded as prejudicial to the right to a fair trial . ”

The ORG further noted with satisfaction that , in addition to the witness protection programme administered by ORG ( “ ORG ” ) , GPE had recently taken steps towards the creation of a witness protection unit under the auspices of the judiciary ( “ WPU ” ) . However , the terms of reference and effectiveness of the new unit could not be evaluated as it had been established to assist witnesses in transferred cases only , and there had not been such a case yet ( paragraph CARDINAL ) .

As to the availability of defence counsel , the ORG noted that many members of ORG had more than five years’ experience , that CARDINAL lawyers were enrolled in the ORG ’s list of potential counsel , that NORP lawyers were obliged to provide pro bono services to indigent persons and that there was a legal framework as well as a budgetary provision for legal aid . Consequently , the ORG was confident that defence counsel and legal aid would be available to the accused if transferred ( paragraphs CARDINAL - CARDINAL and CARDINAL - CARDINAL ) . While there were concerns about the working conditions for defence counsel – there had been instances of harassment , threats or even arrests of lawyers defending genocide suspects – the ORG noted that such incidents could be brought to the attention of the ORG or ORG and that LAW , as amended in DATE , granted lawyers immunity from prosecution for statements linked to their activities as defence counsel ( paragraphs CARDINAL and CARDINAL ) .

On the issue of the independence and impartiality of the NORP judiciary , the ORG was of the view that NORP judges , as professional judges , benefited from a presumption in their favour that could not be lightly rebutted ( paragraph CARDINAL ) . The judges of ORG and ORG were considered qualified and experienced and in possession of the necessary skills to handle a transferred case ( paragraph CARDINAL ) . Furthermore , the NORP legal framework guaranteed the independence and impartiality of the judiciary ( paragraph CARDINAL ) . The submissions made in the case by the defence and by amici curiae in support of their contention that the judiciary lacked those qualities in practice , in the ORG ’s opinion , mainly concerned cases of a political nature and did not reflect the conditions of the trial or the charges faced by the accused ( paragraph CARDINAL ) . In addition , the information available to ORG did not give reason to conclude that the judiciary was unduly corrupt ( paragraph CARDINAL ) .

In respect of most of the above issues , the ORG noted that there were additional safeguards in the monitoring and revocation mechanisms available under LAW bis . It requested ORG ( “ ACHPR ” ) , which had already agreed to the arrangement , to monitor Mr GPE ’s trial in GPE and declared that the Commission should bring to the attention of the ORG President any potential issues that may arise throughout the course of the proceedings ( paragraph CARDINAL ) . The ORG also emphasised that it was authorised to revoke the case from GPE as a last resort if necessary ( paragraph CARDINAL ) .

The ORG ended its decision with the following conclusion ( at paragraphs QUANTITY ) :

“ Upon assessment of the submissions of the parties and the amici curiae , the ORG has concluded that the case of this Accused should be referred to the authorities of GPE for his prosecution before the competent national court for charges brought against him by the Prosecutor in the Indictment . In so deciding , the ORG is cognizant that it is taking a view contrary to the views taken DATE by ORG of this Tribunal where upon assessment of the facts before them , they concluded that those cases should not be referred to GPE .

ORG notes that , in the intervening period , GPE has made material changes in its laws and has indicated its capacity and willingness to prosecute cases referred by this ORG . This gives the ORG confidence that the case of the Accused , if referred , will be prosecuted consistent with internationally recognised fair trial standards enshrined in the Statute of this ORG and other human rights instruments . ORG is persuaded to refer this case after receiving assurances that a robust monitoring mechanism provided by the ORG will ensure that any material violation of the fair trial rights of this Accused will be brought to the attention of the President of the ORG forthwith so that remedial action , including revocation , can be considered by this ORG , or if applicable , by ORG .

ORG is cognizant of the strong opposition mounted by the Defence and certain amici curiae to the proposed referral . The ORG , however , considers that the issues that concerned the previous ORG , in particular , the availability of witnesses and their protection , have been addressed to some satisfaction by GPE in the intervening period and that any referral with robust monitoring would be able to address concerns that the Defence and the amici have expressed .

Before parting with this Decision , the ORG expresses its solemn hope that GPE , in accepting its first referral from this ORG , will actualise in practice the commitments it has made in its filings about its good faith , capacity and willingness to enforce the highest standards of international justice in the referred cases . ”

The Referral Chamber ’s decision has been appealed against to ORG .

Several requests by ORG for the extradition of persons suspected of various counts of genocide , crimes against humanity , murder or rape have been refused by the NORP courts . On DATE ORG of ORG declined to order extradition in the case of Bivugarabago . Following the ORG ’s approach in GPE and GPE , the ORG court considered that a NORP tribunal would be sufficiently independent and impartial , but that it would not guarantee a fair trial , in particular with regard to the appearance and protection of defence witnesses . Similar concerns led to extradition requests being refused by ORG of PERSON ( in the NORP overseas department of GPE ) on DATE in the case of ORG , by ORG of GPE on DATE in ORG and by ORG on DATE in GPE . The PERSON court reiterated the problems concerning defence witnesses and also found that the possible punishment of imprisonment for DATE in isolation contravened NORP public order as well as LAW .

More recently , the appellate courts of GPE and GPE , on DATE and DATE respectively , refused extradition to GPE in the cases of PERSON and PERSON . The GPE court found that the crimes of genocide with which Mr PERSON was charged were not punishable under NORP law at the time when they were allegedly committed and that the “ ordinary crimes ” listed in the extradition request fell under a DATE statute of limitations . The court further had regard to the DATE arrest and detention in GPE of NORP attorney PERSON , defence counsel for several NORP suspects , on charges of “ genocide denial ” and concluded that Mr PERSON , if extradited , would not benefit from fundamental procedural guarantees and the protection of the rights of defence .

Relying on the reasons for the refusals of the ORG to transfer cases to GPE , an appellate court in GPE / Main , on DATE , dismissed the requests for extradition of CARDINAL genocide suspects , PERSON and PERSON .

On DATE the NORP ORG refused to extradite PERSON , a former NORP pastor , to GPE to face prosecution for genocide and murder . ORG referred to several ORG decisions and their conclusion that the right to a fair trial , in particular the right of the defence to call and hear witnesses , could not be guaranteed in GPE . According to ORG , it had neither any reason to question the conclusions of the ORG nor any grounds to assess the prevailing circumstances in GPE any differently than the ICTR . As GPE , by acceding to LAW , had committed itself to guaranteeing a fair trial to persons within its jurisdiction , ORG was of the view that NORP authorities could not , through their own actions , contribute to a trial in a foreign ORG which raised justified concerns as to whether the trial would be conducted in a fair manner .

Instead , on DATE , Mr PERSON was charged with genocide and murder before the NORP courts , on the basis of universal jurisdiction laid down in NORP law . The trial began in DATE and , on DATE , after hearing witnesses in GPE , GPE and GPE , ORG found Mr PERSON guilty of genocide and of having murdered or incited others to murder CARDINAL persons . An appeal has been made against the conviction .

In DATE the Government of GPE issued arrest warrants on suspicion of genocide in respect of CARDINAL men residing in GPE . Following an extradition hearing before GPE Westminster Magistrates Court , District Judge PERSON , on DATE , sent the matter to the Secretary of ORG who , on DATE , signed orders that the CARDINAL suspects be extradited to GPE for genocide proceedings . Appeals were made to ORG against the judge ’s decision and the Secretary of ORG ’s orders .

DATE . On DATE ORG ( Lord Justice Laws and Lord Justice PERSON ) delivered its judgment ( PERSON and others v. the Government of GPE and the Secretary of ORG for ORG ) . While it did not contest that there was a prima facie case against all CARDINAL appellants , on the principal issue of whether they would receive a fair trial in GPE its assessment of the facts and evidence differed sharply from that of LOC . ORG stated ( at DATE ) that the legal test for the fair trial issue CARDINAL LAW was “ whether the appellants would suffer a real risk of a flagrant denial of justice if they were extradited for trial in GPE ” . While LOC had correctly stated that the burden of proving that there was such a risk rested with the defence , he had erred in concluding that the appellants had to prove this on the balance of probabilities . According to ORG , this was not the accurate meaning of “ real risk ” ; rather , the term implied “ a risk which is substantial and not merely fanciful ; and it may be established by something less than proof of a PERCENT probability ” , thus the same approach as that taken in refugee cases ( paragraph CARDINAL ) .

As to the merits of the issue of fair trial , ORG referred extensively to the conclusions drawn in the ORG transfer decisions . It noted that there was no specific provision in the procedural law of GPE for witnesses to give evidence via video - link and that , in the circumstances , there was at least a substantial risk that such facilities would not be available . Thus , ORG found it likely that the appellants would be unable to call supporting witnesses who declined to give evidence in person out of a professed fear of reprisals ( paragraphs CARDINAL - CARDINAL ) . Furthermore , having regard , inter alia , to a report by ORG of DATE and the testimony given by CARDINAL expert witnesses , ORG concluded that there was evidence of judicial interference by the NORP executive and that the appellants would suffer a flagrant denial of justice also in regard to the judiciary ’s impartiality and independence ( paragraphs CARDINAL - CARDINAL ) . Accordingly , the appeals of all CARDINAL appellants were granted and their extradition denied . They were released from detention and can not be tried by the GPE courts .

By a decision of DATE , ORG refused to extradite PERSON , a former NORP minister , to GPE .

Following the refused request for a stay of deportation by ORG on DATE , ORG , on DATE , proceeded to deport ORG PERSON to GPE to face trial on genocide charges .

On DATE the GPE ORG granted a request for extradition to GPE of PERSON , another genocide suspect . It first noted that there were reasonable suspicions against Mr PERSON for the crimes with which he was charged . It also considered that there was no reason to assume that , if extradited to GPE , he would be subjected to persecution that would threaten his life or freedom or otherwise be of a serious character . The court noted that the NORP police ( as well as , apparently , PERSON counsel ) had visited LOC ( where , if convicted , PERSON would be incarcerated ) and had found that the conditions there , including medical care , corresponded to international standards DATE a conclusion that had been shared by the ORG . Mr PERSON would also be able to receive regular visits from his family in GPE . The court thus concluded that the extradition would not run counter to humanitarian considerations or LAW .

As to the main issue in the case – the fairness of the trial in GPE – the GPE court noted that improvements had been made in DATE to NORP legislation and administration – including the witness protection programmes – in an attempt to meet international fair - trial requirements . While PERSON counsel had claimed that problems persisted in practice in regard to the independence of the judiciary and the equality of arms , the court found that the legislative and other changes , as well as the possibility for observers to follow the trial , meant that there was no real risk that the trial would be unfair . There was thus reason to reach a different conclusion than that drawn in earlier ORG transfer decisions and in the judgment of the GPE ORG . The court also took into account that the NORP police had made CARDINAL investigative visits to GPE since DATE and had interviewed a total of CARDINAL witnesses in the country in regard to CARDINAL different cases . According to the report of the police , there had been no indication that the witnesses – whether testifying for or against the suspects in question – had been influenced or instructed by the NORP authorities to give particular statements or that they had been threatened in any way . Nor had any of the witnesses expressed a fear of the authorities or a reluctance to give testimony to the NORP police . In the court ’s view , these findings – together with the NORP witness protection guarantees and the alternative ways of giving testimony in cases transferred to GPE – indicated that Mr PERSON ’s fear that witnesses would refuse to give testimony on his behalf if his case were to be tried in GPE was not sufficiently justified .

NORP The GPE court further found that the ORG decision in the case of GPE had to be accorded great weight , in particular due to the ORG ’s knowledge of the conditions in GPE and since the threshold was higher for transfers from the ICTR ( the chamber had to be satisfied that the accused would receive a fair trial ) than for extraditions examined under LAW ( which were impermissible only if there would be a “ flagrant denial of justice ” ) . While the court noted that ORG had taken into account the monitoring it had ordered and the revocation mechanism it had at its disposal , the court stressed that the chamber had considered revocation only as “ a remedy of last resort ” and that it had generally been satisfied that the material changes in NORP legislation would render the trial fair .

Mr PERSON has appealed against the decision .


Remainder inadmissible;Violation of Art. 8;Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant is a NORP national who was born in DATE and resides in GPE . In DATE the applicant obtained NORP citizenship .

NORP In DATE she met T. and they developed a relationship . The applicant moved into ORG ’s apartment at DATE when she was in a late stage of her pregnancy .

NORP In DATE the applicant gave birth to a daughter . The birth certificate of the child does not state the name of her father and no paternity test had been carried out at the time the application was lodged with the ORG . Since the birth of the child the applicant has been entitled to benefits under a single - parent support scheme .

It appears that the applicant ’s relationship with ORG deteriorated and they decided to separate . The applicant continued to share the apartment with ORG as a tenant .

On DATE the applicant left GPE with the child and went back to GPE .

On DATE , after the applicant arrived in GPE , GPE submitted an application to ORG to establish his parental rights in respect of the child . To support the claim ORG testified in an affidavit before ORG that he had been in a relationship with the applicant since DATE and that the latter had always told him that he was the father of the child , even if he was not legally recognised as such . T. also stated that the mutual rent agreement was false and that he had submitted false declarations to the social security services in order to allow the applicant to receive a single - parent benefit . He asserted that the applicant had fled GPE with the child without his consent , thereby violating LAW ( “ LAW ) . T. alleged that the location of the applicant in GPE was unknown to him . In support of his claims T. attached to his application e - mail correspondence between the applicant and his family members .

On DATE ORG , in the absence of the applicant , decided ( CARDINAL ) that both PERSON and the applicant had had joint parental responsibility for their child since DATE of her birth , and ( CARDINAL ) that the case would be reviewed after the return of the applicant and the child to GPE .

It appears that the applicant was invited to attend the hearing or follow it by telephone via an e - mail and a text message . The decision of DATE was not appealed against by the applicant .

On DATE ORG of GPE , which was ORG responsible for implementing LAW , received from ORG a request from T. concerning the return of the child to GPE under LAW .

On DATE the Rīga City Zemgale District Court examined the request in the presence of both the applicant and T. In the hearing the applicant contested the applicability of LAW alleging that she did not know who the father of her daughter was . She assumed that ORG had initiated the proceedings so that they would serve as a mitigating element in criminal proceedings allegedly pending against him in GPE .

A representative of ORG ) argued that the claim should be dismissed because at the time of the child ’s removal from GPE the applicant had been a single mother , and that the child had developed ties with GPE .

The lower court granted ORG request , stating that pursuant to Articles CARDINAL and CARDINAL of LAW the decision by which ORG had established ORG ’s parental responsibility for the child was not subject to review by the NORP courts , as they could decide only whether there had been a wrongful removal and whether the child should be returned . When applying LAW the court relied on photos and transcripts of e - mails between the applicant and ORG ’s relatives . It concluded that even if the applicant and T. had communication and financial problems , the latter had taken care of the child prior to her removal to GPE . The court dismissed as ill - founded the applicant ’s arguments that the return of the child to GPE might lead to her psychological detriment , stating that these were only assumptions .

As a result , the applicant was ordered to return the child to GPE immediately and in any event not DATE from adoption of the decision . The decision also stated that if the applicant failed to respect the time - limit set by the court , then ORG was authorised to return the child himself .

The applicant submitted an ancillary complaint in which she argued that she had been the sole guardian in law and in practice of the child at the time they had left GPE .

She also indicated that returning the child would expose her to psychological harm . She relied on the conclusions of a psychologist who examined the child on DATE :

“ [ ... ] Although the results of the examination show that the child has developed an adequate level of knowledge and language , the girl can not , due to her minor age , define her opinion about her place of residence [ ... ] . Having regard to the child ’s age and close emotional ties with her mother , which is normal at this age , the emotional well - being of the child primarily depends on and is closely linked with the psychological balance of [ the applicant ] . [ ... ] the child needs the DATE presence of the mother and a permanent place of residence with [ the applicant ] . Having regard to the age of DATE and DATE immediate termination of contact between the mother and the child should be ruled out , otherwise psychological trauma might be caused to the child in that the child ’s sense of security and personal confidence could be impaired ” .

The applicant also brought the appellate court ’s attention to the fact that NORP was the native language of the child ; that she attended pre - school activities in GPE and that T. had ill - treated the applicant and the child . In addition , the applicant complained that the lower court had refused to request from the NORP authorities information of ORG ’s previous convictions and the criminal charges of corruption brought against him . She also contended that in GPE she would be unemployed and would not have resources to ensure the legal protection of herself and the child , and that the lower court had not assessed the child ’s social guarantees and safety if returned to GPE .

On DATE ORG ( PERSON ) upheld the decision of the lower court . It also dismissed the argument of possible psychological harm to the child :

“ [ The court ] dismisses ... the allegation that [ T. ] ill - treated [ the applicant ] and the child , as well as [ the allegation ] that he was facing a prison sentence concerning [ criminal charges brought against him ] as no evidence has been submitted which could , at least by implication , support the allegations .

Neither can the conclusion of the [ psychological assessment ] of DATE serve as evidence against the return of the child to the requesting state . Although the conclusion stated that the child was in need of her mother and that immediate termination of contact between the mother and the child should be ruled out , the issue raised before this court does not concern custody rights ... . Pursuant to LAW , a decision under this convention concerning the return of a child shall not be taken to be a determination on the merits of any custody issue .

[ The court ] considers that ... [the child] ... has not reached an age or level of maturity which would allow her to formulate an opinion concerning a return to GPE .

During the hearing the representative of ORG , inter alia , noted that there was no information as to the child ’s situation if she was returned to GPE . The appellate court noted in this respect :

[ The court ] considers that there are no grounds to undermine the social protection and security of the child in GPE as , according to the [ affidavit ] , NORP legislation provides , inter alia , for the security of children and [ their ] protection against ill - treatment within the family ” .

On DATE a bailiff requested the applicant to comply with the return order by DATE , which she failed to do .

On DATE , in response to a request by the applicant , the prosecutor ’s office refused to reverse the decision adopted by ORG .

On an unspecified date a bailiff lodged an application with LOC for enforcement of the order to return the child . At the same time the applicant filed an application asking for suspension of the return order for a period of DATE . The court scheduled a hearing of both applications on DATE .

On DATE at ORG ’s request ORG asked ORG to verify the child ’s living conditions and inform the applicant of ORG ’s request to see the child .

On DATE T. met the applicant and the child by chance near a shopping centre , from where ORG took the child and drove to GPE , GPE , in order to commence a trip back to GPE . Following a request from ORG of GPE concerning T. ’s right to return the child to GPE , on DATE ORG of GPE supplied the requested information .

On DATE , at the applicant ’s request , ORG instituted criminal proceedings for abduction of the child , without bringing charges against any particular suspect . ORG was informed thereof .

On DATE , referring to the problems of execution of the court order in the applicant ’s case , ORG set up a working group with the aim of proposing the necessary amendments to the laws concerning execution of court orders in similar cases .

In this connection the ORG noted that in the absence of specific legal regulation concerning the execution of return orders , the execution should not take place in an arbitrary and violent manner , or in the absence of representatives of ORG .

On DATE LOC District Court dismissed the applications of the bailiff and the applicant concerning the delay in the execution of the return order .

On DATE following a request submitted by the applicant ’s representative , the Prime Minister of GPE ordered a disciplinary investigation into the legality of the actions of ORG .

On DATE the investigation reached the conclusion that ORG had acted within its competence . However , it noted that in GPE there was not sufficient regulation in order to be able to avoid the violent and traumatic execution of court orders in similar cases . The investigation therefore proposed that a number of related issues be examined by ORG .

In DATE ORG discharged all prior orders relating to the GPE rights and , inter alia , ruled that ORG was the person with sole parental responsibility for the child , and that the applicant was restrained from discussing publicly any information referring to the child or T. It also ruled that the applicant could visit the child under supervision of a social worker , and that until the child reached the age of eleven the applicant was restrained from attending or communicating by any means with any child - care facility , pre - school or school attended by the child or with a parent of any other child attending the same institution . She was also prohibited from speaking to the child in NORP .

Section CARDINAL.CARDINAL regulates matters regarding the unlawful movement of children across borders to GPE . It provides the following procedural safeguards for abduction proceedings .

A court shall adjudicate an application in a court hearing in which the parties shall participate . The court shall invite a representative of ORG , as well as ascertain the point of view of the child if he or she can formulate it .

In adjudicating the application , the court shall request evidence of its own motion . The court shall use the most appropriate procedural means , as well as the quickest ways of acquiring evidence , in order for a decision to be taken within DATE after the submission of the application .

If the court determines that the child has been unlawfully moved to GPE or detained in GPE , it shall take a decision regarding the return of the child to the ORG which is his or her place of residence , if one of the following cases applies :

By virtue of LAW , ORG defends the personal and property interests and rights of children and other persons lacking capacity to act .

LAW :

The removal or the retention of a child is to be considered wrongful where -

a ) it is in breach of rights of custody attributed to a person , an institution or any other body , either jointly or alone , under the law of the ORG in which the child was habitually resident immediately before the removal or retention ; and

b ) at the time of removal or retention those rights were actually exercised , either jointly or alone , or would have been so exercised but for the removal or retention .

The rights of custody mentioned in sub - paragraph a ) above , may arise in particular by operation of law or by reason of a judicial or administrative decision , or by reason of an agreement having legal effect under the law of that ORG .

The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights . The Convention shall cease to apply when the child attains DATE .

Where a child has been wrongfully removed or retained in terms of LAW and , at the date of the commencement of the proceedings before the judicial or administrative authority of ORG where the child is , a period of DATE has elapsed from the date of the wrongful removal or retention , the authority concerned shall order the return of the child forthwith .

The judicial or administrative authority , even where the proceedings have been commenced after the expiration of DATE referred to in the preceding paragraph , shall also order the return of the child , unless it is demonstrated that the child is now settled in its new environment .

Where the judicial or administrative authority in the requested ORG has reason to believe that the child has been taken to another ORG , it may stay the proceedings or dismiss the application for the return of the child .

Notwithstanding the provisions of DATE , the judicial or administrative authority of the requested ORG is not bound to order the return of the child if the person , institution or other body which opposes its return establishes that -

a ) the person , institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention , or had consented to or subsequently acquiesced in the removal or retention ; or

b ) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation .

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views .

In considering the circumstances referred to in this LAW , the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by ORG or other competent authority of the child ’s habitual residence .

In ascertaining whether there has been a wrongful removal or retention within the meaning of LAW , the judicial or administrative authorities of the requested ORG may take notice directly of the law of , and of judicial or administrative decisions , formally recognised or not in the ORG of the habitual residence of the child , without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable .

The judicial or administrative authorities of a Contracting State may , prior to the making of an order for the return of the child , request that the applicant obtain from the authorities of the ORG of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of LAW , where such a decision or determination may be obtained in that ORG . ORG shall so far as practicable assist applicants to obtain such a decision or determination .

A decision under this LAW concerning the return of the child shall not be taken to be a determination on the merits of any custody issue .

Section CARDINALB defines parental responsibility as “ all the duties , power , responsibilities and authority which , by law , parents have in relation to children ” .

Section CARDINALC provides that each of the parents of a child who is not CARDINAL has parental responsibility for the child . It has effect subject to court orders .

Section CARDINAL incorporates the provision of LAW and provides that for the purposes of the Convention :

( a ) each of the parents of a child should be regarded as having rights of custody in respect of the child unless the parent has no parental responsibility for the child because of any order of a court for the time being in force ; and

( b ) subject to any order of a court for the time being in force , a person :

( i ) with whom a child is to live under a parenting order ; or

( ii ) who has parental responsibility for a child under a parenting order ;

should be regarded as having rights of custody in respect of the child ; and

( c ) subject to any order of a court for the time being in force , a person who has parental responsibility for a child because of the operation of this LAW or another NORP law and is responsible for DATE or long - term care , welfare and development of the child should be regarded as having rights of custody in respect of the child ; and

( d ) subject to any order of a court for the time being in force , a person :

( i ) with whom a child is to spend time under a parenting order ; or

( ii ) with whom a child is to communicate under a parenting order ;

should be regarded as giving a right of access to the child .


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

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

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

The applicant ’s wife died on DATE . In DATE , the applicant made a claim for widows’ benefits . On DATE the applicant was informed that his claim had been disallowed as he was not a woman . This decision was confirmed by an appeal tribunal on DATE . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . She was represented before the Court by Mr W. Hermeliński , a lawyer practising in GPE . The respondent Government were represented by PERSON , of ORG .

The applicant ’s father owned the so - called “ FAC ” situated in the centre of GPE and a plot of land under it . The Government submitted that PERCENT of the building had been destroyed during the Second World War .

By virtue of LAW on the Ownership and Use of Land in GPE ( dekret o własności i użytkowaniu gruntów na obszarze QUANTITY st . PERSON ) the GPE municipality ( and after DATE ORG ) became the owner of all plots of land located in GPE . The decree provided for a possibility to obtain the perpetual lease ( after DATE - temporary ownership ) of a plot of land on request .

In DATE the applicant ’s father concluded before a public notary an agreement with a certain state institution , according to which that institution was to obtain the right of use of the property upon its declaration to reconstruct the palace . The use was supposed to DATE and be followed by a CARDINAL-year lease . The ORG submitted that the agreement at issue had never been enforced because it was contrary to a number of provisions of law .

In DATE the applicant ’s father lodged , in accordance with the DATE decree , a request to be granted the right of the temporary ownership of the plot of land formerly owned by him . It was refused by a decision issued in DATE , which was served neither on him , nor on his lawyer .

In DATE the applicant ’s father died .

In DATE another decision refusing the request was issued and it was not served either .

On DATE the applicant , as the sole heir to her father ’s property ( the inheritance proceedings completed in DATE ) , filed with ORG ( urząd dzielnicowy ) a petition in which she requested the restitution of her property .

Subsequently , ORG ( ORG ) , which occupied the property , requested the administrative authorities to grant it the right of management ( zarząd ) of that property , but to no avail .

On DATE the applicant was served with the decision of DATE refusing her father the right of temporary ownership of the land .

On DATE she lodged with the GPE Governor ( wojewoda ) a request for the annulment of that decision .

On DATE ORG ( prokurator wojewódzki ) joined the proceedings , considering that in the light of the gravity of the alleged breaches of the law the participation of the prosecutor was necessary .

On DATE the applicant lodged with ORG ( PERSON ) a complaint about the inactivity of the Governor , who had failed to issue a decision concerning her request .

On DATE the court rejected the complaint , relying on ratione temporis limits on its jurisdiction .

On DATE the Minister of Construction ( minister gospodarki przestrzennej i budownictwa ) quashed the decision of DATE . He found that the impugned decision did not contain any reference to the DATE decision , whereas they concerned the same matter . The Minister further considered that the reasoning of the decision was not supported by any documents .

On DATE the Head of ORG ( kierownik urzędu rejonowego ) refused to grant the applicant the right of perpetual use ( użytkowanie wieczyste , which replaced the former temporary ownership ) of the land . He relied , inter alia , on the fact that PERCENT of the palace had been destroyed during the Second World War , thus after reconstruction it could be considered as a new building . Therefore , having reconstructed it on its own land , the ORG became that building ’s owner .

On DATE the GPE Governor quashed that decision and discontinued the proceedings , considering that they were pointless , because the request of the applicant ’s father had been already refused by the decision of DATE .

On DATE ORG allowed the applicant ’s appeal and declared the Governor ’s decision null and void as having been issued in flagrant breach of the administrative procedure . It found that the Governor had overlooked the fact that the DATE decision had probably never been served on the applicant ’s father .

On DATE the Governor quashed the decision of the Head of ORG issued on DATE and remitted the case for re - examination .

On DATE ORG sent a copy of the DATE decision to the applicant . It informed her that no acknowledgement of receipt of that decision by her father had been found .

On DATE the applicant requested the annulment of that decision .

On DATE the GPE Governor quashed the DATE decision and remitted the case for re - examination .

On DATE the Head of ORG re - examined the request lodged by the applicant ’s father in DATE . He granted the applicant the perpetual use of the land and declared that she retained the ownership of the building located there , in accordance with the DATE agreement . The Head of ORG found that a project for the future use of the building , prepared by the applicant , complied with the town planning scheme .

On DATE ORG raised an objection ( sprzeciw ) to that decision . She mentioned that the clause concerning the ownership of the building made in that decision was only of a declaratory nature , i.e. it confirmed something that had been stipulated already in the DATE decree . Following that objection the GPE Governor instituted ex officio proceedings for the annulment of that decision .

On DATE the Governor rejected an appeal against the decision of CARDINAL DATE lodged by ORG , considering that the ORG had no standing in the proceedings . ORG appealed to ORG .

On DATE the Governor stayed the enforcement proceedings in respect of the decision of CARDINAL DATE .

On DATE ORG quashed the Governor ’s decision of DATE , pointing out that the Governor , having found that ORG had no standing in the proceedings , should have issued a decision discontinuing the proceedings .

On DATE ORG withdrew her objection and subsequently the proceedings concerning the annulment of the decision of CARDINAL DATE were discontinued . However , the proceedings concerning the appeal lodged by ORG were still pending .

On DATE the Governor discontinued the appeal proceedings , relying on ORG lack of standing in the proceedings . ORG appealed that decision , submitting that the buildings occupied by it were constructed in such a way that their walls did not run along the boundary between the plots of land underneath and , therefore , the DATE decision was impossible to enforce . ORG also argued that , being a ORG - owned entity occupying the property , it should take part in the proceedings in order to ensure the proper representation of the interests of the ORG and pointed out that it was involved in administrative proceedings relating to its petitions to be granted the right of management of the disputed plot of land and the neighbouring ones .

On DATE the applicant summoned a representative of ORG to appear before a specified public notary for the purpose of concluding an agreement concerning the grant of perpetual use of the land , but to no avail .

On DATE the applicant requested ORG , before which the ORG ’s appeal against the decision of DATE was pending , to dismiss the ORG ’s petition to have the enforcement of that decision stayed . In reply , the court informed the applicant that the enforcement was stayed ex lege and there was no need to issue any specific decision in this respect .

On DATE ORG allowed ORG appeal and quashed the decision of DATE . It noted that in DATE the ORG had been granted the use of a neighbouring plot of land and , on the strength of a law enacted in DATE , became the owner of that plot . The court found that it was necessary to establish whether the plot owned by ORG overlapped the plot covered by the DATE decision . If so , the ORG should be allowed to take part in the proceedings as a party .

On DATE the Governor quashed the decision of CARDINAL DATE and remitted the case for re - examination . He pointed out that in the course of further proceedings the line of the boundary in question should be established and , consequently , it should be decided whether ORG had standing . The applicant appealed that decision to ORG , submitting that it was not necessary to remit the case for re - examination and that the Governor could have ruled on the ORG ’s rights in the proceedings himself on the basis of the material already contained by the case - file .

Meanwhile , on DATE the President of ORG ( Prezes PERSON i PERSON ) on the request of ORG instituted proceedings aimed at the annulment of the decision of DATE ( quashing the above - mentioned DATE decision ) .

On DATE the applicant lodged with ORG a complaint about the inactivity of the President of that office . She submitted that despite her CARDINAL requests to expedite the examination of the case the authority concerned had not taken any action .

On DATE the President of ORG annulled the decision of DATE . He considered that the Governor had not been competent to issue that decision .

On DATE ORG asked the applicant whether she was pursuing her complaint about inactivity , despite the fact that the authority concerned had given a decision . She withdrew her complaint .

On DATE the President of ORG , after the re - examination of the case requested by the applicant , upheld his own decision of DATE .

The applicant lodged an appeal with ORG .

The proceedings are still continuing .

In DATE the applicant enquired about the legal status of the disputed property . She received a certificate from a public notary office stating that in the land - and - mortgage register her father was mentioned as the owner of property no . CARDINAL . Although in DATE the ORG authorities requested that an entry be made in the register declaring that ORG was the owner , the request was not granted , as they failed to submit the DATE decision refusing the applicant ’s father the right to temporary ownership with a clause confirming its legal force . In DATE the proceedings concerning that request were stayed . Another entry in the register concerned the DATE decree , following which ORG became the owner of the land . The certificate contains a clause stating that it does not concern the ownership rights to the buildings located on the plot .

On DATE the public notary office refused the applicant ’s request to make an entry replacing the name of her father by her name in the land register . The office pointed out that , as long as the issue of the perpetual use was not decided , it could not make any amendments to the register .

Similar information is contained in a certificate issued on DATE by the land - and - mortgage register department of ORG ( sąd rejonowy ) .

According to LAW cases shall be handled without undue delay and the time of their examination , even if they are complex , shall not exceed DATE ( LAW ) . Having failed to comply with the time - limit prescribed by LAW , the administrative organ must , under LAW , inform the parties of that fact , explain the reasons for the delay and fix a new time - limit .

LAW provides :

“ § CARDINAL . A complaint about failure to handle a case within the time - limit set forth in LAW or fixed under Article CARDINAL can be lodged with an administrative organ of a higher level .

§ CARDINAL . [ That ] organ , having found the complaint to be well - founded , shall fix an additional time - limit for the completion of the case ... ”

Further remedies in respect of inactivity on the part of an administrative organ are provided for by the PERSON on ORG . Under LAW of that LAW a party to administrative proceedings may lodge with ORG a complaint about such inactivity .

Section CARDINAL of the PERSON provides that the ORG , having found such a complaint to be well - founded , shall oblige the administrative organ concerned to issue a decision or to perform an activity . Section CARDINAL reads in so far as relevant :

“ CARDINAL . In case of establishing that the administrative organ , to ... the inactivity of which the court ’s judgment relates , has not ... carried out that judgment , the court can decide to impose a fine on that organ . ...

In the instance referred to in LAW the court can , in addition , rule on the existence or non - existence of a right or obligation , if the nature of the case and its uncontested facts ... make this possible .

The court shall apply the provisions of § § CARDINAL and CARDINAL in case of granting a complaint lodged by an entitled entity , which has previously applied to the organ concerned with a written notice to carry out the court ’s judgment .

A compensation claim is vested in a person sustaining damage as a result of failure to carry out the court ’s judgment ... ”

LAW of the PERSON on ORG sets out the requirement of the exhaustion of available remedies before lodging a complaint with that court . Accordingly , a complaint concerning alleged inactivity should be preceded by the lodging of a complaint with an administrative organ of a higher level , pursuant to the above - mentioned LAW . In its case - law ORG has stated that that requirement does not apply to complaints concerning the inactivity of administrative organs of the highest level , such as the President of ORG ( see ORG judgment of DATE , no . I ORG CARDINAL/CARDINAL ) .

According to the Decree of DATE on the Ownership and Use of Land in GPE ( dekret o własności i użytkowaniu gruntów na obszarze QUANTITY st . PERSON ) the ownership of all land was transferred to the municipality . The decree provided in so far as relevant :

“ LAW Buildings and other objects located on the land being transferred to the municipality ’s ownership remain the property of those who have owned them so far , unless specific provisions provide otherwise .

Article CARDINAL . ( CARDINAL ) The owner of a plot of land ( ... ) can within DATE after the taking of possession of the land by the municipality file a request to be granted ( ... ) the right to a perpetual lease ( wieczysta dzierżawa ) with a peppercorn rent ( czynsz symboliczny ) . ...

( CARDINAL ) The municipality shall grant the request if the use of the land by the former owner is compatible with its function set forth in the development plan ( plan zabudowania ) . ...

( CARDINAL ) In case the request is refused , the municipality shall offer the person entitled , as long as it has spare land in its possession , the perpetual lease of land of equal value to use , on the same conditions , or the right to construct on such land .

( CARDINAL ) In case no request , as provided for in paragraph ( CARDINAL ) , is filed , or the former owner is for any other reasons not granted a perpetual lease or the right to construct , the municipality is obliged to pay compensation pursuant to LAW .

Article CARDINAL . In case the former owner is not granted the right to a perpetual lease or the right to construct , all buildings located on the land become the property of the municipality , which is obliged to pay , pursuant to article CARDINAL , compensation for the buildings which are fit to be used or renovated .

Article CARDINAL . ... ( CARDINAL ) The right to compensation begins to apply DATE after DATE of taking the land into possession by the municipality of GPE and expires DATE after that date . ... ”

According to article ORG of the Decree of DATE introducing LAW ( prawo rzeczowe ) and LAW , the right to construct and the right to a perpetual lease could be transferred into temporary ownership ( własność czasowa ) .

Section CARDINAL of the Law of DATE on ORG ( ustawa o gospodarce terenami w miastach i osiedlach ) replaced temporary ownership with perpetual use ( użytkowanie wieczyste ) .

The right to perpetual use is regulated by LAW . An individual or a legal entity may be granted such a right on land owned by the ORG or local self - government . The right comprises a right to use the land to the exclusion of others for DATE , on payment of a yearly fee . A person entitled to the right can dispose of it .

In DATE there was enacted the PERSON on Transforming Perpetual Use Vested in Individuals into Ownership ( ustawa o przekształceniu prawa użytkowania wieczystego przysługującego osobom fizycznym w prawo własności ) . The law guarantees individuals who acquired perpetual use of property before DATE the right to have that right transformed into ownership . LAW ( CARDINAL ) of that law provides that individuals who acquired the right to perpetual lease LAW decree are entitled to such transformation free of charge , regardless of when they acquired their right to a perpetual lease . Requests for the transformation could be submitted until DATE .


Violation of Art. 6-1;Non-pecuniary damage - financial award

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

On DATE the applicant lodged with ORG ( Sąd Wojewódzki ) a civil action against ORG – ORG . She claimed compensation and a DATE pension for damage she had sustained as a result of a medical treatment at FAC .

On DATE the court exempted the applicant from the courtfees .

On DATE the trial court held the first hearing .

Subsequently , hearings were held on DATE and CARDINAL DATE .

On DATE the ORG gave judgment . It dismissed the applicant 's action . The trial court found no fault on the part of the doctors concerned and accordingly dismissed the liability of ORG for the damage .

The applicant appealed against this judgment .

On DATE ORG ( Sąd Apelacyjny ) quashed the impugned judgment and remitted the case to ORG .

NORP The trial court held the first hearing on DATE .

At the subsequent hearings which were held on DATE and DATE the trial court ordered an expert opinion and heard an expert witness .

At the hearing held on DATE the defendant asked the court to prepare another expert opinion .

DATE and DATE no hearings were held .

Subsequently , ORG held QUANTITY hearings and on DATE it gave judgment . The trial court again dismissed the action .

The applicant appealed against the judgment .

ORG held CARDINAL hearings and on DATE it gave judgment . The appellate court partly allowed the appeal and awarded the applicant ORG CARDINAL,CARDINAL in compensation . The court found , inter alia , that the doctors had failed to act diligently ; consequently , ORG was liable for the damage sustained by the applicant .

On DATE the applicant lodged a cassation appeal with ORG .

On DATE ORG ( PERSON ) rejected her cassation appeal .