PERSON is a NORP national , who was born in DATE and now lives with his wife at GPE in the canton of GPE , GPE .

ORG Until DATE he lived with his wife and their CARDINAL sons , GPE ( born on DATE ) and Ersin ( born on DATE ) , in the town of GPE in GPE . On DATE he travelled to GPE , where he applied for political asylum as a NORP and former member of ORG ( " the ORG " ) . He worked in a restaurant there until DATE , when he fell ill . Since then he has been in receipt of a partial - invalidity pension .

ORG In DATE the applicant ’s wife , who had remained in GPE with their CARDINAL sons , seriously burned herself during a fit brought on by her epilepsy , from which she had suffered since DATE . In DATE , having found that it was impossible for her to obtain proper treatment in the area where she was then living , she joined her husband in GPE , where she was taken into hospital as an emergency case . CARDINAL of the fingers of her left hand were amputated .

ORG On DATE in GPE PERSON gave birth to her third child , PERSON , a daughter . As she still suffered from epilepsy , she could not take care of the baby , who was placed in a home in GPE , where she has remained ever since . In a written declaration dated DATE , a GPE specialist in internal medicine stated that a return to GPE would be impossible for PERSON and might even prove fatal to her , given her serious medical condition .

ORG On DATE the Minister for Refugees rejected PERSON application for political asylum , on the ground that he had not been able to establish that he personally had been a victim of persecution , as the general situation of the NORP population in GPE was not in itself sufficient to justify granting political asylum . He went on to say that , according to reliable sources , no measures were being taken by the ORG authorities against former members of the ORG , and ordered the applicant to leave GPE by DATE , failing which he would be deported .

On DATE the applicant appealed against the above decision to ORG and ORG . He asserted that the collective repression of NORP in GPE , of which he himself had been a victim , in itself justified granting political asylum . In addition , at the time when he had fled to GPE all political parties had been proscribed and their members - especially the members of left - wing parties like the FAC - were being prosecuted . He could not therefore be required to return to GPE , and this would be in breach of LAW ) of the Convention .

ORG In a letter of CARDINAL DATE , ORG ) informed the applicant ’s lawyer that they supported Mr Gül ’s request for a residence permit ( GPE ) on humanitarian grounds in respect of himself , his wife and his daughter PERSON .

In view of the length of time PERSON had been living in GPE and his wife ’s precarious state of health , the police considered that the conditions for the issue of such a permit laid down in LAW ( f ) of ORG ( " the ORG " - see paragraph DATE below ) had been satisfied . The final decision to grant a residence permit was given by ORG on DATE .

ORG As ORG and ORG had informed PERSON that his application for political asylum had only very limited prospects of success on appeal , he withdrew it . The authorities took formal note of this on DATE .

ORG On DATE Mr Gül asked ORG for permission to bring to GPE his CARDINAL sons , GPE and Ersin , who had remained in GPE .

ORG In a decision of CARDINAL DATE ORG rejected Mr Gül ’s request , on the ground that the conditions for family reunion had not been satisfied ( LAW paragraph CARDINAL below ) . Firstly , the PERSON family ’s flat did not conform to the standards laid down and , secondly , the applicant did not have sufficient means to provide for his family . In any event , GPE was already DATE and was therefore ineligible for a residence permit under the rules governing family reunion .

ORG On DATE the applicant appealed against this decision to the ORG cantonal government ( NORP ) . He argued that the residence permit issued to him and his wife under LAW ( f ) of the ORG should have been extended to include his CARDINAL sons , as his personal circumstances made it an extremely serious case . Since it was impossible to return to GPE because of his wife ’s precarious state of health and the length of time he had lived abroad , the family could be brought back together only in GPE . Both Article CARDINAL ( article CARDINAL) of LAW , guaranteeing the right to respect for family life , and LAW on the Rights of the PERSON gave the QUANTITY boys the right to join their parents in GPE . If the cantonal government were nevertheless to rely on the provisions of Articles CARDINAL et seq . of the ORG ( see paragraph DATE below ) on family reunion , the younger son , Ersin , could and should be permitted to exercise that right . There was enough room for him in the family ’s flat and PERSON financial resources were sufficient to provide for his family .

ORG On DATE the ORG cantonal government dismissed the applicant ’s appeal . It pointed out that under section CARDINAL of ORG ( " the RSAA " - see paragraph CARDINAL below ) the question whether to grant a residence permit ( GPE ) or settlement permit ( Niederlassungsbewilligung ) was determined by the competent cantonal authorities with unfettered discretion ( nach freiem GPE ) , having regard to the relevant statutory provisions and international agreements . In that connection , the authorities had to take account of the country ’s moral and economic interests , and of the degree of immigrant penetration ( PERSON ) .

The cantonal government then considered whether PERSON CARDINAL sons could rely on a right to obtain permission to reside in GPE ( PERSON ) on the basis of the statutory provisions , as the agreement on settlement concluded by GPE and GPE on DATE did not confer such a right .

Under LAW ( CARDINAL ) of the ORG ( see paragraph CARDINAL below ) a minor did not have such a right unless his parent was in possession of a settlement permit . As PERSON and PERSON only had a residence permit , they could not rely on that provision in order to assert a right to family reunion . As for the guarantees set forth in LAW article CARDINAL) of the LAW , only NORP nationals or persons in possession of a settlement permit could rely on these ; PERSON and PERSON fell into neither of those categories .

Articles CARDINAL et seq . of the ORG ( see paragraph DATE below ) did not confer a right but merely set out the minimum conditions to be satisfied before family reunion could be authorised . The cantonal authorities had the final say on the matter , and in reaching their decision they had unfettered discretion . It being established that the provisions concerned could only apply , if at all , to the minor son , Ersin , the cantonal government listed the minimum conditions which Article CARDINAL para . CARDINAL of the OLNA ( see paragraph CARDINAL below ) required to be satisfied by a foreigner living in GPE before family reunion could be authorised , namely :

( a ) his residence and , where relevant , his gainful employment should appear to be sufficiently stable ;

( b ) he should live with his family and occupy accommodation suitable for that purpose ;

( c ) he should have sufficient means to support his family ;

and

( d ) firm arrangements should have been made for the care of any children who still needed their GPE presence .

The cantonal government did not determine points ( a ) and ( b ) , but carefully considered points ( c ) and ( d ) , on which it gave the following decision :

" ( c ) The calculations made by ORG and the cantonal government ’s legal service , which investigated the case , show that PERSON has not satisfied the condition laid down in Article CARDINAL para . CARDINAL ( c ) of the ORG . He does not have sufficient means to support his family during their residence in GPE . According to the reference calculation , PERSON should have a DATE net income of MONEY ( CHF ) if he is not to fall below the minimum standard of living . That figure is derived from the base rates used by the cantonal social security office for assessing the likelihood of reliance on social security , which are on the whole identical with the base rates adopted by ORG for the calculation of financial support . These base rates are used to establish the DATE living expenses of the foreigner concerned and the members of his family seeking to join him , which have to be covered by his income . This must be sufficient to provide not only the basic necessities of life but also a minimum standard of living . In this way the legitimate interest of the public authorities in preventing the family from becoming a burden on the social security services is also taken into account .

PERSON net DATE income is CHF MONEY , which falls CHF CARDINAL short of the amount required for the minimum standard of living as calculated by the social security services . The cost of keeping the youngest child , PERSON , in a children ’s home has not been taken into account , as it is not known who pays for this . The calculation of income is based on pay - slips from DATE , the latest available . On DATE ORG sent ORG a medical certificate stating that PERSON was PERCENT unfit for work and would remain so for a period that it was not possible to determine . On enquiry being made , it was confirmed in a medical certificate dated DATE that PERSON had suffered from PERCENT incapacity since DATE and would remain unfit for work for the foreseeable future . The GPE municipal social security services stated in a letter of CARDINAL DATE that PERSON would have to have several operations and that for the time being he was waiting to be awarded an invalidity pension . For DATE alone the social security services have paid the Gül family CHF CARDINAL,CARDINAL.CARDINAL , and the family will remain dependent on social security payments . In DATE PERSON stated during a personal interview with the subordinate authority ( PERSON ) that his family was at that time entirely dependent on social security payments . He therefore has no other source of income . At present the social security services are paying the PERSON family the amount needed by a CARDINAL - person family , but no more . The social security services can not be expected to provide for children arriving from abroad when it is known in advance that they will have to support them . Nor can PERSON support his other children from his own resources . For that reason alone the application for family reunion must be refused .

( d ) Article CARDINAL para . CARDINAL ( d ) also requires firm arrangements to be made for the care of children . But PERSON , for reasons connected with her illness , is not mentally or physically capable of keeping her daughter PERSON with her and looking after her . That is why PERSON has been brought up in the " PERSON " children ’s home in ORG , where she is to remain . It follows that if PERSON and PERSON DATE son Ersin joined the family , it is not at all certain that firm arrangements could be made for his care . He too would presumably have to be brought up in a children ’s home , which is not the aim of family reunion . A medical certificate dated DATE states that PERSON is suffering from a serious illness which makes it necessary for her to have constant medical supervision and treatment . She might even need to go into hospital again . That prospect makes it impossible to consider that firm arrangements have been made for the child ’s care as the Order requires . "

The cantonal government went on to say that residence permits issued on humanitarian grounds under LAW ( f ) of the ORG could not in addition confer on the recipients a right to family reunion . In order to ensure equal treatment for all aliens not having the right to reside in GPE , such reunion could take place only under LAW seq . of the OLNA .

Lastly , the cantonal government considered the situation of the younger boy from the standpoint of LAW ( see paragraph CARDINAL below ) , announcing its decision in the following terms :

" Ersin Gül is CARDINAL . It must be determined whether his entry into GPE would be in accordance with LAW , which requires an ` important reason’ that is lacking in this case . There is no special reason for treating LOC differently from other children wishing to rejoin their families in respect of whom the conditions laid down in Articles QUANTITY et seq . of the ORG have not been satisfied . Another reason for refusing to admit him to GPE is the fact that Ersin and PERSON would be separated . Ersin has lived with GPE since birth . On the other hand , he has been separated from his father and mother for DATE and DATE respectively . Having regard to the child ’s welfare , which plays an important role in family reunion cases , the question arises , at the very least , whether it is reasonable to separate him from his brother and the environment he is used to in order to bring him to live with his mother , who is seriously ill and unable to keep him with her or look after him , and his father , who went away to GPE DATE after ORG birth , which means that he hardly knows him . In view of all the circumstances , and having regard to the child ’s welfare , the cantonal government considers that PERSON should not be authorised to join his parents in GPE . In any case , there is no important reason within the meaning of Article CARDINAL of the ORG which requires him to be admitted to GPE . "

The cantonal government concluded that PERSON had not satisfied the conditions laid down for family reunion and that his children could not rely on LAW ( f ) or LAW ORG either in order to come to GPE to join him .

ORG On DATE the applicant lodged an administrative - law appeal with ORG . He repeated his previous arguments ( see paragraph CARDINAL above ) and added that , because of the " special circumstances " , LAW article CARDINAL) of the ORG gave his sons the right to obtain permission to reside in GPE . The earlier issue of a residence permit on humanitarian grounds to himself , his wife and his daughter had been based on the finding that a return to GPE was impossible , as it would put the health of his wife and daughter seriously at risk . PERSON argued that the same considerations which had prevailed in the decision to grant that residence permit should prevent any withdrawal thereof , which would be tantamount to subjecting PERSON , whose state of health was still causing concern , to inhuman and degrading treatment contrary to LAW . The residence permit issued to PERSON and PERSON on humanitarian grounds was therefore the equivalent of a settlement permit , and it followed that they had the right to family reunion , which could only take place in GPE .

ORG In a judgment of DATE ORG declared the applicant ’s appeal inadmissible . It pointed out that , pursuant to section CARDINAL ( b ) ( CARDINAL ) of ORG , an administrative - law appeal in an immigration - control case was inadmissible if it concerned the issue or refusal of permits to which federal legislation conferred no entitlement . Like the cantonal government , ORG found that neither section CARDINAL ( CARDINAL ) of the RSAA nor LAW article CARDINAL) of the LAW conferred such a right on an alien resident outside GPE whose parent living in GPE had only a residence permit , as PERSON did . In particular , Article CARDINAL ( article CARDINAL) of the ORG could be relied on only by a person who had the right of abode in GPE either by virtue of his NORP nationality or by virtue of a settlement permit . The court gave this ruling in the following terms :

" DATE ( article CARDINAL) of ORG guarantees the right to respect for family life . In certain circumstances the right to be issued with a residence permit can be deduced from this ( see ORG [ Judgments of ORG ] CARDINAL Ib CARDINAL at CARDINAL , CARDINAL at c ; CARDINAL Ib CARDINAL at CARDINAL ; CARDINAL Ib CARDINAL at CARDINAL ) , so that LAW article CARDINAL) may be breached where an alien whose family lives in GPE is refused leave to enter the country . According to ORG established case - law , however , a breach can occur only where the family members living in GPE themselves possess a well - established right of abode ( Anwesenheitsrecht ) . For that purpose , it is in principle necessary to have NORP nationality or possess a settlement permit ( see ORG CARDINAL Ib CARDINAL at CARDINAL ; CARDINAL Ib CARDINAL at CARDINAL ) . A mere residence permit is at any rate not sufficient unless it is based on a firmly established right ( see ATF CARDINAL Ib CARDINAL at CARDINAL ) , as ORG has held in many unpublished judgments ( most recently in the judgment of DATE in the case of PERSON , at CARDINAL ) ... That is , moreover , consistent with the new provisions on the legal status of aliens having family members in GPE ( sections CARDINAL and CARDINAL ( CARDINAL ) of the ORG , as amended on DATE , which came into force on DATE ) . Under the Act the right to family reunion presupposes a firmly established right of abode , as pointed out above ( at CARDINAL ) . Given that the legislature ’s intention in adopting the amendment in question was precisely to take account of LAW article CARDINAL) of ORG GPE [ ORG ] DATE III , pp . CARDINAL et seq . , particularly pp . CARDINAL and CARDINAL ) , there is no reason , when that provision ( article CARDINAL) of the ORG is invoked with regard to recognition of legal rights in the matter of residence permits , to go beyond what the LAW itself expressly provides ( see ORG unpublished judgment of DATE in the case of PERSON , at CARDINAL ) . "

ORG also emphasised the differences between settlement permits and residence permits , stating :

" Unlike settlement permits , which are issued for an indefinite period ( section CARDINAL ( CARDINAL ) of ORG hereinafter the ORG ) , residence permits are always subject to a time - limit ( section CARDINAL ( CARDINAL ) of the ORG ) . Whatever the reason for granting the first residence permit , an alien must therefore allow for the possibility that his permit will not be renewed . There could be many reasons for this , including , for example , police , economic or demographic considerations . Although the alien ’s personal circumstances have to be taken into account in the inquiry into the proportionality of the decision not to renew , that does not mean that the alien is on that account entitled to have his residence permit renewed .

The above statement of the law also applies to residence permits issued on humanitarian grounds . The only effect of a finding that a case is an extremely serious one within the meaning of LAW ( f ) of ORG of DATE ( hereinafter ORG ) is to exclude the alien concerned from the quotas laid down in that Order ; it does not imply the existence of a right to a residence permit . The Aliens Police prefer to remain free to decide when such a permit should be issued ( see ORG CARDINAL Ib CARDINAL at CARDINAL ) . In addition , the possibility can not be ruled out that the particular circumstances which justified the issue of a residence permit on humanitarian grounds will subsequently cease to exist , or lose their significance to such an extent that not only will there no longer be any reason to exclude the person concerned from the quotas , but even renewal of the residence permit will no longer be justified . Moreover , it is apparent from the rule established in LAW para . CARDINAL of the ORG that the conditions required for a finding that the case is an extremely serious one may subsequently cease to exist ( see the unpublished judgment of DATE in the case of P. , at CARDINAL ) . The question whether the case is of this type is therefore entirely separate from the question whether the person concerned has the right to obtain permission to reside in GPE by virtue of DATE ( article CARDINAL) of ORG ( see ORG CARDINAL Ib CARDINAL) .

Furthermore , in the instant case the possibility can not be entirely ruled out that in the future the medical or other reasons which led the authorities to grant the residence permit will lose their significance , or that new grounds justifying a refusal to renew the permit will become apparent . The appellant can therefore not deduce from the fact that he is authorised to reside in GPE any right to the issue of a residence permit for his sons . "

ORG went on to say that the question how the ORG should be applied to the issue of permits was not one it had to examine in connection with the administrative - law appeal , as the cantonal government had already looked into the question whether the Güls’ younger son could be issued with a residence permit under LAW .

ORG Ersin has lived in GPE since his birth , at first in GPE until DATE ( with his mother until DATE ) , and then in GPE .

According to the Government , he is at present living , as is his grandfather , with the family of his elder brother PERSON , and has been visited several times by his father .

The applicant maintained that Ersin frequently moved from CARDINAL home to another and spent DATE staying with various NORP families who used to live in the village where he was born , including the family of his elder brother . Owing to his grandfather ’s limited financial resources and the distance between the homes of some of these families and the school it was not possible for the boy to attend school on a regular basis .

As is evidenced by an article which appeared in the NORP newspaper GPE on DATE , PERSON and PERSON visited their son in GPE in DATE and DATE .

ORG provides :

" The authority shall have discretion to decide , having regard to the relevant statutory provisions and treaties with foreign GPE , whether to grant residence or settlement permits . "

" CARDINAL . ORG When deciding whether to grant a permit the authorities must take account of the country ’s moral and economic interests , and of the degree of immigrant penetration .

" CARDINAL . ORG As a general rule , the authority shall first issue only a residence permit , even if it is foreseen that the alien will establish his permanent residence in GPE . In each case ORG shall fix the date from which permission to settle may be granted .

ORG Where that date has already been fixed , or where the alien is in possession of a settlement permit , his spouse shall be entitled to a residence permit for as long as the couple continue to live together . On completion of DATE uninterrupted lawful residence the spouse shall also become entitled to a settlement permit . Unmarried children under CARDINAL shall have the right to be included in the settlement permit for as long as they continue to live with their parents . These rights shall be extinguished if the beneficiary has engaged in conduct contrary to public policy . "

Before DATE the second paragraph of this section read :

" Where that date has already been fixed , or where the alien is in possession of a settlement permit , his wife and his children DATE shall have the right to be included in the permit if they form part of his household . "

ORG The relevant provisions of LAW are the following :

" The following categories of person shall not be included in the quotas :

( f ) aliens issued with residence permits in extremely serious personal cases or on general policy grounds .

Before DATE the expression " extremely serious personal cases " read : " cases of extreme adversity " .

" Residence permits may be issued to other aliens without gainful employment where important reasons so require . "

" CARDINAL . ORG may authorise an alien to bring to GPE his spouse and his dependent unmarried children DATE .

" CARDINAL . ORG An alien may be authorised to bring his family without being required to complete any qualifying period ...

( a ) if his residence and , where relevant , his gainful employment appear to be sufficiently stable ;

( b ) if he lives with his family and occupies accommodation suitable for that purpose ;

( c ) if he has sufficient means to support his family ; and

( d ) if firm arrangements have been made for the care of any children who still need their GPE presence .

Accommodation is suitable if it meets the standards applicable to NORP nationals in the area where the alien wishes to live . "

Before DATE the words " without being required to complete any qualifying period " were not part of the text .

ORG According to the established case - law of ORG , a person is entitled under LAW article CARDINAL) of the LAW to join a member of his family in GPE if the latter is a NORP national or is in possession of a settlement permit ( Judgments of ORG ( ORG ) vol . CARDINAL , part GPE , p. CARDINAL ; vol . CARDINAL , part GPE , p. CARDINAL ; vol . CARDINAL , part GPE , pp . CARDINAL et seq . ) .

ORG Replying to the question asked at the hearing by CARDINAL member of ORG , the ORG stated that by virtue of the convention on social security concluded by GPE and GPE on DATE , which came into force on DATE with effect from DATE , invalidity insurance benefits payable in either country are also payable in the other . In the instant case , if PERSON returned to GPE , he would receive CHF MONEY , made up of his ordinary pension ( CHF MONEY ) and CARDINAL of the supplementary pension paid in respect of his wife ( CHF CARDINAL ) , his son Ersin ( CHF CARDINAL ) and his daughter PERSON ( CHF MONEY ) .

The applicant asserted that only his invalidity pension , not the social security benefits , could be paid to him in GPE . Moreover , his invalidity pension was currently under review ; if his invalidity were to be assessed PERCENT , his pension could no longer be transferred to GPE .


CASE OF THE UNITED MACEDONIAN ORGANISATION ILINDEN - PIRIN AND OTHERS v. BULGARIA

Violation of Art. 11;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings

UMO Ilinden – PIRIN was a political party founded on CARDINAL DATE and based in southwest GPE ( in an area known as the GPE region or the geographic region of LOC ) . It was declared unconstitutional by ORG on DATE and as a result dissolved .

DATE CARDINAL organisations of persons declaring to have NORP ethnic consciousness were formed and were active on the territory of GPE . Apparently most of these never sought to be registered .

One of them , ORG ( “ FAC ” ) , was founded on DATE . Its aims , according to its articles of association and programme , were to “ unite all NORP in GPE on a regional and cultural basis ” and to achieve “ the recognition of the NORP minority in GPE ” . DATE it applied for , but was refused , registration . In their judgments of DATE and DATE and DATE the competent courts found that the association ’s aims were directed against the unity of the nation , that it advocated national and ethnic hatred , and that it was dangerous for the territorial integrity of GPE . The aims of the association included the “ political development of GPE ” and the “ united , independent NORP State ” ( see PERSON and ORG v. GPE , ORG CARDINAL and CARDINAL , § § CARDINAL , ECHR CARDINALIX ) .

ORG made an additional attempt to register in DATE ( see ORG and Others v. GPE ( dec . ) , no . CARDINAL/CARDINAL , DATE ) . Registration was again refused .

NORP The applicant party was founded in the town of PERSON on DATE by fiftyone persons . Some of its founders had previously been members of ORG . It applied for registration at ORG .

In the course of the proceedings the public prosecutor , who participated ex officio , maintained that the party ’s aims were contrary to LAW and that registration should therefore be refused . In connection with these remarks the founders decided to amend CARDINAL point of the party ’s constitution . They did so at a meeting on DATE and presented the amended copy to the court .

By a judgment of CARDINAL DATE , a notice of which was published in ORG on DATE , the ORG registered the applicant party , holding that its aims , as set out in its constitution and programme , were not contrary to the proscriptions of LAW and of section CARDINAL(CARDINAL ) of LAW of DATE .

On DATE CARDINAL members of the NORP parliament requested ORG to declare the applicant party unconstitutional , more specifically , contrary to LAW and CARDINAL § CARDINAL of the LAW of DATE . They argued that the party had in fact been formed in DATE and was a successor of the “ illegal ” FAC . They further argued that the party ’s ultimate aim was the formation of an independent NORP state through the secession of GPE from GPE . The party ’s members and leaders had on numerous occasions declared such goals . The party ’s original constitution , amended in the course of the proceedings before ORG , contained language to the effect that it would “ protect the interests of the population of LOC [ and ] of the refugees from LOC and LOC . This indicated its separatist character . Also , the applicant party ’s chairman , Mr PERSON ( the second applicant ) , had sent letters to the state institutions and media of a neighbouring country , urging them to look for a “ NORP minority ” in GPE . It was true that the party ’s public influence was negligible , but its registration had created a dangerous precedent .

On DATE ORG declared the request admissible and invited the applicant party , ORG , ORG , the Ministers of Internal Affairs and of ORG , the ORG , ORG and ORG to submit written observations within DATE .

The second applicant , PERSON , acting in his capacity of chairman of the applicant party , filed written observations in which he argued that ORG was a democratic party and its activities were fully compliant with the LAW and the laws of the country .

In a joint memorial ORG and ORG argued against the applicant party ’s dissolution . They pointed out that it had existed for only a short time and that it was therefore too early to judge whether its activities rendered it unconstitutional . The few public statements of its leaders and members could not lead to a firm conclusion in that respect . On the contrary , the applicant party had never questioned the country ’s territorial integrity . A measure as radical as dissolution would be justified only if there was an immediate and direct threat to national security or public order , which was clearly not the case .

A hearing was held on DATE at which ORG heard oral argument . At the hearing ORG presented as evidence a letter written by Mr PERSON , former chairman of the applicant party , and sent by him on the party ’s behalf to ORG in GPE . In the letter PERSON PERSON had stated that “ LOC ha[d ] to gain cultural , political and economic autonomy ” and that “ the human rights of NORP in GPE [ stood ] higher than GPE ’s national sovereignty ” .

NORP That letter was discussed at a meeting of ORG of the applicant party held on DATE . The ORG distanced itself from the letter and expressed the opinion that Mr PERSON ’s actions had been contrary to the party ’s constitution and aims . The ORG recommended that Mr PERSON be expelled from the party . The applicant party informed ORG of this resolution .

The Constitutional Court gave judgment on DATE , declaring the applicant party unconstitutional ( реш. № CARDINAL от CARDINAL февруари DATE г. по конституционно дело № DATE г. , обн. , NORP брой CARDINAL от QUANTITY г. ) .

The court started by observing that the constitutionality of a party should mainly be assessed on the basis of its activity . It was not sufficient to make the assessment solely on the basis of the statements contained in its constitution and programme . The constitution of a party could be just a façade for facilitating its registration ; this is why it was necessary to have regard to the party ’s real activities . It could not be ruled out that the documents could conceal objectives , intentions and activities that were different from those which were publicly proclaimed . It was therefore necessary to compare their content with the party ’s practical actions . ORG had ruled on this issue in its judgment in the case of ORG of GPE and Others v. GPE ( judgment of DATE , Reports of Judgments and Decisions DATE ) .

The court went on to hold that although the applicant party had been registered in DATE on the basis of a constitution which had been adopted at a founding meeting on DATE , it was not a novel organisation . It had a predecessor and was continuing its activities . The court described the founding of ORG in DATE and its unsuccessful attempt to register in DATE ( see paragraph CARDINAL above ) . It further found that ORG had split in DATE , the radicals remaining on one side and the more moderate members forming CARDINAL separate organisations : ORG – Democratic Action and PERSON . Most of the applicant party ’s current leaders , including Mr PERSON ( the second applicant ) and Mr PERSON , had been members of these CARDINAL organisations , which had merged and , after an unsuccessful attempt to register as an association at ORG , had managed to register as a political party at ORG . It could thus be concluded that the applicant party was not a novel organisation , but was closely connected with the former unregistered association ORG . The CARDINAL had almost the same name and the same persons were their leaders and members . Moreover , the second applicant and another leader of the applicant party had intimated in newspaper interviews that they considered the applicant party and FAC as one and the same organisation . The court therefore concluded that the activities of the applicant party ’s predecessor organisations should be taken into account for purpose of assessing its constitutionality .

NORP The court then turned to the specific grounds invoked by the sixtyone members of parliament for declaring the applicant party unconstitutional .

With regard to its alleged incompatibility with LAW , the court found that there was no NORP ethnos in GPE . Therefore , it could not be said that the applicant party was based on ethnic origin . Moreover , it was clear from its constitution that every NORP citizen could become its member . This part of the request was therefore unfounded .

As to the other ground for declaring the applicant party unconstitutional , incompatibility with LAW , the court pointed to a number of specific instances in which members of the applicant party and its predecessor organisations had engaged in conduct prohibited under LAW :

– A meeting on DATE at FAC . At this meeting a declaration had been adopted , demanding full cultural , economic and political autonomy of the GPE region ; withdrawal of the NORP troops , referred to as “ occupational ” ; dissolution of all NORP political parties and organisations ; the establishment of a NORP orthodox church independent of the NORP orthodox church , etc .

– A commemorative rally held on DATE in the area PERSON krepost . A brochure announcing the event had featured a map of GPE , which had included territories that are part of GPE ( the GPE region ) and GPE , and in the middle of the map there had been depicted the sixteenray NORP star symbol .

– In DATE the newspaper PERSON , published by ORG , had printed a map of GPE featuring territories belonging to GPE and GPE .

– On DATE the faction of ORG lead by Mr PERSON had issued a memorandum according to which in GPE there existed “ modern - day genocide , discrimination and assimilation ” and the NORP there were deprived of the right to honour the memory of the CARDINAL of fighters who had fallen in the struggle for “ free and independent GPE ” . That memorandum had been circulated abroad .

– Immediately after the applicant party ’s founding , the newspaper LOC in its issue of CARDINAL DATE had reprinted an interview of Mr PERSON , the party ’s secretary , in which he had allegedly insulted the NORP nation and had attacked representatives of the NORP authorities . He had portrayed the GPE region as part of GPE and had indicated that the unique folklore , culture , traditions and individuality of the NORP people had been destroyed , that its history and customs had been stolen , and that its national identity had been denied .

– In DATE Mr PERSON had attended a press conference of ORG held in GPE , as a representative of ORG . When asked why he spoke NORP , he had replied : “ This is not NORP , but NORP , and this is the language spoken in GPE , whereas the NORP there speak PERSON language ” .

– In an interview for the NORP PERSON newspaper of CARDINAL DATE the applicant party ’s deputychairman , PERSON , had accused GPE of genocide and lack of democracy , and had spoken of a “ LOC part of GPE ” , as if of a NORP territory . He had obviously agreed with its secession from GPE but had thought that it was not the opportune time and had concluded : “ I believe time works for us ” .

– A declaration of ORG , signed by its chairman , Mr PERSON ( the second applicant ) , and its secretary , Mr PERSON , had been published in the issue of NORP PERSON of DATE . In this declaration the LOC region had been referred to as “ part of GPE ” . The organisation had proclaimed that it was a defender of “ the NORP in GPE and GPE ” , that is , a distinction had been drawn between LOC and GPE .

– The issues of the newspaper ORG of CARDINAL and DATE had contained publications relating to a letter issued by the applicant party and to a press conference given by its chairman , Mr PERSON , in GPE . It had been indicated in them that “ GPE even [ then ] continue[d ] to misappropriate GPE ’s cultural heritage ” and that “ GPE [ had ] incited GPE ’s partition ” .

– the applicant party had , together with several foreign organisations , participated in the issuing of a Declaration for the protection of the NORP people ’s national distinctiveness , addressed to the former GPE Government . CARDINAL of the declaration had requested an affirmation to the effect that part of the NORP people lived on NORP territory given in temporary trusteeship to GPE , GPE and GPE by the DATE treaty of GPE . It had been once again proclaimed that this part of GPE ’s territory was only temporarily under NORP administration .

– On DATE Mr PERSON , running for mayor of PERSON on the applicant party ’s ticket , had declared at a press conference : “ In several statements made by members of ORG it was said that if the [ ORG ] do not win the elections in PERSON , no funding will be forthcoming to the region . Thus , if we win , the government gives us the right to freely choose and declare that this is a free territory , which may decide subsequently where to turn to . ”

– In an interview of DATE the applicant party ’s chairman , Mr PERSON ( the second applicant ) , had been even more radical . He had noted that the party should be firm and assert the interests of LOC . He had gone on to say that the prime minister should be presented with the following statement : “ We have certain demands , or else we will secede GPE ” .

– The letter sent by Mr PERSON on DATE on behalf of the applicant party to ORG in GPE ( see paragraphs CARDINAL above ) was also significant . In it he had expressed the wish that “ LOC gain cultural , political and economic autonomy ” . He had also stated that “ the human rights of the NORP in GPE [ stood ] higher than GPE ’s national sovereignty ” . In the court ’s view , the fact that the applicant party ’s leadership had distanced itself from Mr PERSON was not relevant , as this had happened only after the letter had reached the addressee and had become known to the public .

The Constitutional Court continued :

“ The facts set out above indicate that the [ applicant party ’s ] activity is focused around the GPE region . It treats this part of the country ’s territory as nonBulgarian land . In its view , it is foreign territory , given to GPE for temporary administration pursuant to an international treaty . [ The applicant party ’s ] activity is in that direction , going as far as secession of the territory in question from GPE .

This is indicated by the calls for autonomy , which is expressly proscribed by LAW . It is also indicated by the maps of GPE issued and circulated [ by the applicant party ] , by the definition of the GPE region as part of GPE and by the interpretations of the Balkan War and the GPE treaty of DATE . Its culmination is the threat to secede the GPE region if the party ’s demands are not met . Such a threat , when made by the chairperson of a party , could not only be in words . It is real and shows the positions of the party itself ; moreover , it has been supported by its other leaders .

The actions in question constitute an activity aimed against the territorial integrity of the country within the meaning of LAW . Each and every one of them [ goes against this Article ’s proscription ] .

The constitutional rule protects a value of the highest calibre , namely the territorial integrity of GPE , which LAW proclaims as inviolable . That is why [ the proscription has been breached ] even in the absence of effective damage to the protected value – the country ’s territory . An activity aimed against the territorial integrity , such as the one present here , is quite sufficient .

A political party which declares part of GPE ’s territory as foreign and engages in actions for its secession is an unconstitutional party . It has no right to exist .

ORG deems it necessary to underscore that its notion of unconstitutionality is in line with LAW of LAW sand LAW of LAW . These provisions allow restrictions of the freedom of association when necessary in the interests of national security , as here . There is no doubt that an activity aimed against the territorial integrity of GPE imperils its national security . ”

CARDINAL judges voted against the majority . In their dissenting opinions they , inter alia , expressed the view that the activities of ORG should not be taken into account for the purpose of evaluating the applicant party ’s constitutionality . They went on to say that ORG had erred in taking into account only certain statements of members and leaders of the applicant party . Its most fundamental activity since its registration was rather its normal and fully democratic participation in the local government elections in DATE . However , the court had chosen to ignore that fact . Lastly , the dissenting judges expressed the opinion that the applicant party was being penalised for expressing its views , which it was entitled to convey , although they were shocking and probably offensive for the majority of NORP .

The relevant provisions of the LAW of DATE read as follows :

“ CARDINAL . GPE is a unitary country with local selfgovernment . No autonomous territorial entities shall be allowed [ on its territory ] .

NORP The territorial integrity of GPE shall be inviolable . ”

“ No political parties shall be formed on ethnic , racial , or religious basis , nor parties which aim to accede to power by force . ”

“ CARDINAL . Everyone is entitled to express an opinion or to publicise it through words , written or oral , sound , or image , or in any other way .

NORP This right shall not be used to the detriment of the rights and reputation of others , or for the incitement of a forcible change of the constitutionally established order , the perpetration of a crime , or the incitement of enmity or violence against anyone . ”

In its interpretative judgment no . DATE ( реш. № CARDINAL от DATE г. по конституционно дело № DATE г. , обн. , ДВ брой CARDINAL от CARDINAL юни DATE г. ) , in which it gave a binding interpretation of LAW , ORG held , inter alia , that “ speech which is deprived of constitutional protection is that which calls for a violent change of the constitutional order , i.e. for the destruction of the democratic constitutional order in a nonpeaceful way , which may even lead to the suspension of the LAW ” .

“ CARDINAL . Citizens may freely associate .

Organisations whose activities are directed against the country ’s sovereignty or territorial integrity or against the nation ’s unity , or which aim at stirring racial , national , ethnic or religious hatred , or at violating the rights and freedoms of others , as well as organisations creating secret or paramilitary structures , or which seek to achieve their aims through violence , shall be prohibited . ... ”

“ The Constitutional Court shall :

NORP rule on the constitutionality of political parties ... ”

This Act , which was superseded by new legislation in DATE , regulated the formation , registration , functioning and dissolution of political parties at the material time . Its relevant provisions read as follows :

“ No political parties shall be formed :

ORG which are aimed against the country ’s sovereignty or territorial integrity , the nation ’s unity , or the ORG rights and freedoms ;

whose aims are contrary to the LAW and the laws of the country ;

NORP [ which have ] religious or ethnic basis or [ aim to stir ] racial , national , ethnical or religious hatred ;

NORP which advocate a fascist ideology or seek to achieve their aims through violence or other illegal means . ”


The applicants , whose names appear in the annex , are NORP nationals . They are represented before the ORG by PERSON , a lawyer practising in GPE .

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

The applicants were heirs to plots of land in the village of NORP in GPE , GPE .

On DATE ORG conducted a cadastral survey pursuant to ORG and designated the applicants’ land as private forest .

On DATE , the Law no . CARDINAL , which provided for the nationalisation of all forest areas , came into force . On CARDINAL DATE the applicants’ land was nationalised and it was registered in the name of the ORG as “ ORG ” .

In DATE the applicants brought an action before ORG . Relying on LAW b ) of PERSON no . PERSON , they filed a claim for the restitution of the land . The court requested ORG opinion concerning the legal status of the land . On DATE the Ministry informed the court that , in view of the requirements provided under LAW b ) of PERSON no . PERSON , the land in question did not have the necessary characteristics to be removed from “ nationalised land ” status . Following the notification of the ORG ’s opinion , the applicants did not pursue their case . The case was consequently struck off .

In DATE some of the applicants initiated another action before ORG with the same claim . The court requested ORG opinion once again . In a letter dated DATE the ORG reiterated its opinion given in the previous case .

In DATE the applicants challenged ORG opinion of CARDINAL DATE before ORG . In DATE ORG dismissed the applicants’ case . Subsequently , ORG also dismissed the ORG claim .

In DATE , due to the amendments made in GPE ( amended by PERSON no . CARDINAL ) , ORG conducted a cadastral evaluation ( aplikasyon çalışması ) in the area . The purpose of this evaluation was to detect the forests which were not yet included in the cadastral map and to remove the forest status of the lands which had lost their characteristics defined in the law .

ORG report was made public on CARDINAL DATE . It concluded that a plot of land which was located within the borders of ORG had lost its characteristics as a forest in accordance with LAW no . CARDINAL . It was therefore necessary to remove it from the “ state forest ” status . The report became final after DATE as there were no objections lodged against it . The plot was still registered in the name of the ORG ; however , it was no longer designated as forest area .

In DATE , due to the recent amendments in the Law on Forests ( amended by PERSON no . CARDINAL ) , ORG re - evaluated the status of the ORG once again . The Commission concluded in its report that another plot of land had to be removed from the “ state forest ” status as it had lost its characteristics as a forest . The commission ’s decision was pronounced on DATE .

On DATE some of the applicants lodged a complaint with ORG of first Instance in ORG demanding restitution of the property rights of ORG and the registration of the land in their names . They contended that the land in question never had the qualifications to be nationalised in accordance with LAW no . DATE .

In the meantime , on DATE the rest of the applicants initiated a separate case before ORG of first Instance in ORG , concerning the same subject matter and claim .

On DATE the court decided that it did not have jurisdiction and transferred both cases to ORG . The first case was registered under no . CARDINAL/CARDINAL and the second under no . CARDINAL/CARDINAL .

The first hearing of the case no CARDINAL/CARDINAL was held on DATE . The ORG lawyer requested the court to delay the hearings in order to submit evidence .

On DATE the applicants’ lawyer submitted the evidence .

At the hearing of CARDINAL DATE the applicant ’s lawyer contended that the land registry records submitted to the court by the administrative authority were not correct . He therefore requested additional time to provide the accurate records . The next hearing was scheduled for CARDINAL DATE .

At the hearing of CARDINAL DATE the land registry records were not yet provided before the court .

Neither the applicants nor their representative attended the following CARDINAL hearings .

In the case no . CARDINAL/CARDINAL the applicants did not attend the hearings until DATE . At the hearing of CARDINAL DATE the ORG lawyer requested the court to grant additional time in order to submit evidence .

At the hearing dated DATE the court decided to join the CARDINAL case files . Furthermore it requested from the applicants to provide the court with the certificates of inheritance .

On DATE the court decided to assign an expert to translate the register of the title - deeds which were written in NORP , in the NORP alphabet . At the following QUANTITY hearings the court waited for the expert ’s report .

On DATE the expert requested the court to grant him an extension for preparing his report . The applicants’ lawyer did not attend the hearing .

On DATE the expert report was submitted with the court . Both parties requested time to submit their observations on the report . The court granted their request . Moreover other heirs to the land in question requested to intervene in the proceedings .

At the hearing of DATE the court decided to obtain the opinion of ORG on the land in question .

At the hearing of CARDINAL DATE , upon the requests of both parties , the court rescheduled the next hearing for DATE .

On DATE the court carried out an on - site inspection together with the cadastral experts .

On DATE the experts submitted their report to the court . Both parties requested the court to grant additional time to examine the report .

On DATE the court decided to ask further information from ORG concerning the nationalisation procedure of the land . ORG submitted its reply on DATE . The court decided to send this reply to the cadastral experts and ask their opinion .

Furthermore , the court decided to appoint another expert to determine the applicants’ shares of inheritance . The report on the heritage was submitted to the court on DATE .

On DATE the ORG ruled in favour of the applicants . The ORG appealed .

On DATE ORG quashed the decision of ORG . It held that the applicants’ claim for restitution of property provided under PERSON no . PERSON was already dismissed by ORG in DATE . Moreover , as regards the applicants’ objection to the cadastral commission ’s report dated DATE the court held that the action was filed out of time . It maintained that according to the law on forests the actions brought against the cadastral evaluations had to be lodged within DATE from the pronouncement of the commission ’s decision . The commission report pronounced in DATE already concluded that the land in question , except a small part which no longer had the necessary qualifications , had “ state forest status ” and it was called “ ORG ” . This report became definitive on CARDINAL DATE as there were no objections lodged against it . The re - evaluation carried out in DATE was , in essence , the same as the previous one . The only difference was that , in DATE , ORG decided to remove a further part of the land from state forest status . Thus the objection should have been filed with the court following the first evaluation of the land . ORG therefore concluded that the applicants’ case must be rejected for failure to comply with the statutory time limit . It further concluded that , in any event , the land in question did not have the necessary physical characteristics to change its status to private forest .

The applicants requested rectification of ORG decision . On DATE their request was rejected .

On DATE the ORG followed ORG reasoning and dismissed the applicants’ case .

On DATE ORG upheld the decision of ORG .

On DATE ORG rejected the applicants’ request for rectification of the judgment .

Article CARDINAL provides that the forests which belong to the private or legal persons , foundations , villages , municipalities , provincial administration or public corporate bodies at the date of the entry into force of this law are nationalised in accordance with this law . These forests are registered in the name of the ORG without any notification or procedure .

Article CARDINAL lists the physical characteristics of the land in question which could form an exception to the rule provided under LAW .

Article CARDINAL provides that the landowners whose lands were nationalised in accordance with this law should submit an application with the forest administration within DATE from the date of the entry into force of this law . If they fail to do so within the statutory time - limit they will lose the right to receive compensation for the nationalisation of their lands .

Article CARDINAL provides that the lands which were nationalised in accordance with the PERSON no . PERSON can be returned to their previous owners if they have certain physical characteristics listed in this Article .

In accordance with the provisional LAW , those who failed to bring an action within the time - limit provided in LAW no . CARDINAL , can request compensation for nationalisation of their land within DATE from the date on which this law has come into force .

LAW provides that it is possible to challenge ORG reports by filing an action before the cadastral courts within DATE ( Law no . CARDINAL amended this time limit to DATE ) from the date on which these reports are announced . This time - limit is DATE for those who have the title deed of the land in question .

Article CARDINAL provides that the statutory time - limit to file an objection against the rights , limitations , and assertions found in the cadastral records , is DATE starting from the date on which these records become definitive . After the expiration of this time - limit , it is not possible to file an action by relying on the legal facts prior to the cadastral planning .

LAW same law evokes that the cadastral planning of a location can be carried out only once .


CASE OF EMRE v. SWITZERLAND (No. 2) [Extracts]

Violation of Art. 8+46;Remainder inadmissible;Non-pecuniary damage - award

András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque

The applicant was born in DATE and currently lives in GPE ( GPE ) .

He entered GPE with his parents on CARDINAL September CARDINAL .

On DATE he obtained a DATE residence permit , which was subsequently renewed on a regular basis .

On DATE , DATE and CARDINAL DATE he received , respectively , a suspended prison sentence of DATE , a DATE suspended prison sentence and a sentence of CARDINAL months’ imprisonment , for a number of offences committed DATE ( wounding , grievous bodily harm , assault , theft , robbery , damage to property , receiving stolen goods , proffering insults and threats , disturbance , a weapons offence and a serious breach of road traffic regulations ) .

In a decision of DATE ORG for ORG ordered the applicant ’s administrative removal for an indefinite duration . His appeals against that decision were dismissed , first on DATE by ORG for ORG ( the “ ORG ” ) , then on DATE by ORG .

On DATE the applicant was deported to GPE . After returning to GPE illegally in DATE or DATE , he was arrested and taken into custody on DATE pursuant to arrest warrants issued on the basis of his criminal convictions .

After various procedural developments and CARDINAL further prison sentences , of DATE and DATE respectively , for the improper use of a communication facility and for the offence of returning to GPE while banished , he was apparently sent back to GPE on DATE .

In the meantime , on DATE , he had lodged an application with the ORG submitting that his removal from GPE for an indefinite duration , as upheld by ORG , entailed a violation of ORG CARDINAL and CARDINAL of the Convention .

In a judgment of CARDINAL DATE , which became final on DATE , ORG unanimously declared admissible the complaint under LAW and found that there had been a violation of that provision . On that basis , it held that GPE had to pay the applicant the sums of QUANTITY ( ORG ) for non - pecuniary damage and LAW for the costs and expenses he had incurred “ in the domestic proceedings and before the ORG ” . The relevant passages of that judgment read as follows :

“ - Nature and seriousness of the offences committed by the applicant

The ORG notes , at the outset , that the relevant date for an assessment of the above - mentioned criteria is , in the present case , DATE , the date on which the applicant was notified of the final judgment of ORG confirming the withdrawal of his residence permit ( see , mutatis mutandis , PERSON v. GPE , no . CARDINAL , § DATE , DATE ) .

As regards , first , the ‘ ORG of the offences committed by the applicant , the ORG notes that in DATE and DATE he was given a suspended prison sentence of DATE , and then a DATE prison sentence , for proffering threats and insults , a serious breach of road traffic regulations , wounding , assault , theft , receiving stolen goods , robbery , damage to property and other property - related offences . In DATE he was given a further prison sentence of DATE , to be followed by deportation and a DATE ban on re - entering GPE , for disturbance and a weapons offence committed in DATE . Lastly , in DATE he was sentenced again on CARDINAL occasions , to DATE respectively . The total duration of his prison sentences ( DATE in all ) is thus far from negligible .

The ORG also notes that the criminal activities in question were spread over a wide period ( from DATE ) ( contrast GPE , cited above , § CARDINAL ) and that the CARDINAL suspended sentences of DATE and DATE were activated in view of the further offences committed by the applicant . At the same time , the ORG observes that some of the conduct attributed to the applicant dated back to his adolescence and some to a relatively young age ( see , to the same effect , GPE , cited above , § CARDINAL ; PERSON , cited above , § CARDINAL ; and PERSON GPE , no . GPE , § DATE , DATE ) . Moreover , the sentences of CARDINAL DATE and DATE were handed down by ORG for GPE . Therefore , at least some of the offences in question were committed by the applicant in a juvenile delinquency context . In this connection , the ORG notes that according to ORG , experience has shown that juvenile delinquency tends to disappear spontaneously in most individuals with their transition to adulthood ( see sub - paragraph I , CARDINAL ( e ) of LAW for ORG ( ORG ) , adopted and proclaimed by ORG in its CARDINAL of DATE ) .

As regards the ‘ nature’ of the offences committed by the applicant , it is undeniable that the convictions for wounding weigh heavily against him . Concerning the weapons offence , however , it appears to have been constituted merely by the possession of a tear - gas canister . In addition , it has not been established that it was the applicant who stabbed a security guard with a knife during the attack on the discotheque on DATE ( ORG judgment , point CARDINAL ; see paragraph CARDINAL above ) . As to the road traffic offences , whilst they may well constitute a potential danger they should nevertheless be seen in the light of the relatively lenient penalties normally imposed in such matters ( see , to this effect , PERSON , cited above , § DATE , and PERSON , cited above , § CARDINAL ) .

DATE . Therefore , in the light of comparable cases , the applicant ’s convictions should be assessed for what they really are , both in terms of their seriousness and of the penalties ultimately imposed ( contrast PERSON , cited above , § CARDINAL ; PERSON , cited above , § CARDINAL ; PERSON GPE , DATE , § DATE , Reports CARDINALIII ; PERSON , cited above , § CARDINAL ; PERSON , cited above , § DATE in fine ; and GPE v. GPE DATE . ) , no . CARDINAL , DATE ; NORP , cited above , § § CARDINAL ; GPE , cited above , § CARDINAL ; and GPE , cited above , § CARDINAL ) .

- Length of the applicant ’s residence in GPE

As regards the length of the applicant ’s residence in the country from which he is to be deported , the ORG notes that the applicant , who was born on DATE , arrived in GPE on DATE , before DATE . At the time of ORG judgment of CARDINAL May CARDINAL he was CARDINAL and a half . He had thus spent CARDINAL and a half years in GPE .

- Time between the commission of the offences and the impugned measure , and the applicant ’s conduct during that period

As regards the time that elapsed between the commission of the offences and the time when the impugned measure became final , and the applicant ’s conduct during that period , the ORG notes that his criminal activities were spread over a considerable period . Similarly , the domestic courts noted that he had not shown any awareness of his criminal activities and that he had refused to follow his psychotherapy ( see , in this connection , ORG , cited above , § CARDINAL ) .

- Strength of social , cultural and family ties with host country and destination country

As regards the applicant ’s particular ties with his host country , ORG noted that he had spent most of his life in GPE , including all his school years , and that his parents and brothers , CARDINAL of whom had NORP nationality , lived in the country . Whilst there is some debate between parties as to his professional integration in GPE ( see above , DATE and DATE ) , the ORG does not feel obliged to settle this question .

NORP In comparison with the above factors , showing that the applicant is integrated to a certain extent in GPE , despite his criminal activity , his social , cultural and family ties with GPE seem very tenuous . It can be seen from the case file that the applicant only stayed in that country for DATE , and that only his grandmother is still living there . The ORG is not convinced that his brief stay in GPE after his first removal , a measure complained of in the present application , may be taken into consideration . Moreover , there is no certainty that the applicant is sufficiently fluent in GPE . Even though relationships between parents and adult children would not attract the protection of Article CARDINAL without ‘ evidence of further elements of dependency , involving more than the normal , emotional ties’ ( see , mutatis mutandis , PERSON and GPE v. the GPE ( dec . ) , no . CARDINAL , DATE ) , the ORG also notes that ORG itself admitted that his family ties with GPE were far less significant than those he had made with his host country . Moreover , that court did not call into question the fact that the applicant would ‘ face major difficulties if returned to Turkey’ .

- Specificities of the case : the medical aspect

The ORG notes that a report of the ORG psychiatric and social centre dated DATE indicated that the applicant showed signs of ‘ an emotionally labile personality disorder , with impulsive and borderline elements , together with a phobic anxiety disorder’ vis - à - vis the prospect of his deportation ( ORG judgment , point CARDINAL ; see above , paragraph CARDINAL ) . A letter from the family doctor dated DATE moreover confirmed that the applicant had been brought up in a violent environment with little stimulation , and explained that deportation would distance him from the reassuring and structuring elements that he had built up in DATE ( ibid . ) .

The views of the parties to the proceedings differ on this point . The applicant argued that his illness , having involved suicide attempts , could not be adequately treated in GPE ( see paragraph CARDINAL above ) . The Government , for their part , claimed the contrary , considering that his family would still be able to support him financially from GPE . Moreover , they emphasised that the applicant had largely refused to undergo the psychiatric treatment prescribed for him ( see paragraph CARDINAL above ) .

The ORG does not rule out the possibility that the applicant ’s health problems could be treated adequately in GPE . Neither does it disregard the fact that the applicant neglected the prescribed treatment , at least at the outset . At the same time , it finds that his disorders , which the Government have certainly not called into question , whilst they are not sufficient in themselves to form the basis of a separate complaint under LAW , nevertheless constitute an additional aspect that would render even more difficult the applicant ’s return to his country of origin , where his social network would be lacking .

- The permanent nature of the expulsion

In order to assess the proportionality of the impugned measure , the ORG must also consider whether the exclusion from NORP territory was a temporary or permanent measure .

It notes that in the present case ORG and ORG of the Canton of ORG ordered the applicant ’s deportation for DATE ( see paragraph CARDINAL above ) . However , his administrative removal was ordered by ORG for ORG for an indefinite duration ( see paragraph CARDINAL above ) . The ORG observes that the applicant ’s application is directed against his administrative removal , the duration of which it finds particularly harsh ( see , as an example of cases in which the permanent nature of the exclusion order was considered by the ORG in concluding that the measure had been disproportionate , PERSON v. GPE , no . CARDINAL , § CARDINAL , DATE ; ORG , cited above , § CARDINAL ; PERSON , cited above , § DATE , and PERSON v. GPE , no . CARDINAL , § CARDINAL , DATE ; and by contrast , for cases where the limited duration of the impugned measure contributed to a conclusion that it was proportionate , see PERSON , cited above , § DATE ; PERSON , cited above , and GPE , cited above , § CARDINAL ) . As to the possibility for the applicant to request that the exclusion order be suspended temporarily or permanently rescinded , the ORG finds that this possibility remains purely speculative at present .

In view of the foregoing , and particularly in consideration of the relative seriousness of the applicant ’s convictions , the weakness of his links with his country of origin and the permanent nature of the removal measure , the ORG finds that the respondent ORG can not be regarded as having struck a fair balance between the interests of the applicant and his family , on the one hand , and its own interest in controlling immigration , on the other .

Accordingly , there has been a violation of LAW . ”

When asked what action it would take in response to the ORG ’s judgment , ORG ( the “ ORG ” ) , in a decision of DATE , refused to consider a request for leave to enter GPE on the ground that the matter had been dealt with on CARDINAL May CARDINAL by a final judgment of ORG . The ORG suggested that the applicant lodge a request for revision with that court .

In pleadings dated DATE , the applicant lodged a request for revision with ORG , requesting it to annul its judgment of CARDINAL DATE and the judgment previously delivered in the same case by ORG of the Canton of Neuchâtel on DATE .

ORG submitted that the request for revision should be rejected .

In a judgment of DATE ORG upheld the request for revision and annulled its judgment of DATE . At the same time it quashed the CARDINAL DATE judgment of ORG , limiting the duration of the applicant ’s exclusion to DATE from DATE . The reasoning of the judgment reads as follows :

“ ... CARDINAL In its judgment of CARDINAL DATE ORG observed that , in deporting PERSON from its territory for an indefinite duration , GPE had breached his right to private and family life , as guaranteed by DATE . On that basis it awarded him ORG CARDINAL,CARDINAL in compensation for non - pecuniary damage under LAW . That provision gives ORG the power to grant ‘ just satisfaction’ to the injured party where the internal law of the ORG in question ‘ allows only partial reparation to be PERSON for the violation found . The payment of such compensation does not , however , necessarily release the ORG concerned from its obligation under LAW to comply with the judgments of ORG . The respondent ORG , having been found responsible for a violation of the ORG or its Protocols , is thus obliged not only to pay those concerned the sums awarded by way of just satisfaction , but also to choose , subject to supervision by ORG , the general and/or , if appropriate , individual measures to be adopted in its domestic legal order to put an end to the violation found by the ORG and to redress as far as possible the effects , the aim being to put the applicant , as far as possible , in the position he would have been in had the requirements of the ORG not been disregarded ( see , among other references , the judgment of ORG in PERSON gegen GPE ( PERSON ) v. GPE , no . CARDINAL , § § DATE and DATE , CARDINAL DATE , and the numerous authorities cited therein ) . This is the principle of restitutio in integrum , which has the practical effect of limiting the freedom of GPE in the choice of means by which to remedy a violation of the Convention ...

CARDINAL Where , as in the present case , ORG upholds a request for revision , it gives CARDINAL separate decisions in succession , even though it generally does so in a single judgment . In the first , referred to as the rescindant , it annuls the judgment of which revision is sought ; in the second , known as the rescisoire , it rules afresh on the application previously referred to it . The annulment decision puts an end to the revision procedure as such and leads to the re - opening of the previous proceedings . This has an ex tunc effect , such that ORG and the parties are put back in the situation in which they found themselves at the time the annulled judgment was delivered , and the case will have to be adjudicated as if that judgment had never existed ( see the above - cited judgment PERSON of DATE , point CARDINAL ) .

CARDINAL In its judgment , ORG found that , in view of the circumstances , and particularly of the applicant ’s relatively serious convictions , the weakness of his links with his country of origin , and the permanent nature of the removal measure , GPE had failed to strike a fair balance between the interests ( private and public ) at stake ( judgment cited above , para . CARDINAL ) . It specifically emphasised that the indefinite duration of the exclusion had been ‘ particularly harsh’ , taking the view that the possibility for the applicant to have the exclusion order suspended temporarily or permanently rescinded remained purely speculative at present ( judgment , para . CARDINAL ) . In other words , it was not particularly opposed to the principle of the impugned measure but rather to its permanent nature . Generally speaking , in its most recent judgments , ORG seems , moreover , to accord increasingly decisive weight to the latter criterion , refusing , with rare exceptions , to endorse permanent exclusions from a country , unlike bans of limited duration ...

That being said , in the light of the circumstances prevailing at the material time , namely when the annulled judgment was delivered ( on DATE ) , an immediate revocation of the removal measure was not a matter for consideration . Admittedly , the applicant ’s links with GPE were at that time weaker than those he enjoyed with GPE , such that a return to his country of origin appeared to be a relatively harsh measure for him . That obstacle had in fact been taken into consideration and discussed in the first judgment . However , ORG had also observed , without being contradicted by ORG on this point , that the applicant ’s presence in GPE represented a particularly serious danger for public order and security , because his conduct and offences showed that his ‘ mindset was hardly capable of resolving conflicts and frustrations otherwise than by violence , ready to impose his own rules , by himself or with the help of partners , without consideration for property or for the physical well - being of others , and openly contemptuous of the judicial authority’ ( judgment cited above of DATE , point CARDINAL ) . Moreover , ORG also emphasised , and there is nothing in ORG judgment that would justify departing from this assessment , that the applicant had no awareness of the seriousness of his actions and that he thus presented a high risk of reoffending : he had committed further offences after his first convictions and had refused to follow psychiatric treatment during his detention ( see the above - cited judgment of ORG DATE , point CARDINAL in initio ) . In those circumstances , it was not possible for the applicant ’s private interest in remaining in GPE , bearing in mind that he was an adult , was single and had no children , to prevail over the public interest in his expulsion , at least for a certain period of time . In other words , the only appropriate solution in order to alleviate the effects of the impugned measure against the deportee and comply with the judgment of ORG would consist in limiting the duration of the exclusion .

CARDINAL Consequently , it is justified to limit the removal measure ordered against the applicant to a period of DATE with effect from the removal decision of DATE . After such time he will be able to lodge an application for leave to remain , which will be examined by the competent authority in the light of the applicable law and the circumstances then prevailing ( the applicant ’s family and personal situation ; his conduct since his expulsion ; etc . ) .

It follows from the foregoing that the request for revision must be upheld and ORG judgment of CARDINAL DATE annulled . Moreover , the judgment delivered on DATE by ORG must be set aside , and the measure of removal banning the applicant from GPE for an indefinite duration is to be replaced by removal with a ban of DATE from DATE .

On DATE the applicant married a NORP national . As a result of that marriage he has obtained a NORP residence permit .

On DATE he lodged with ORG for ORG an application for reconsideration of a decision of DATE of ORG , which had refused the suspension of his removal , relying in particular on his new situation , namely his marriage to a NORP citizen . In a judgment of DATE , the court rejected the request and referred the matter back to ORG .

The applicant transmitted additional documents to ORG on DATE and DATE . The response to his request for the revocation of the removal measure so that he could settle in GPE was negative . In a letter of DATE , ORG for ORG took the view that it could not rule on a request for reconsideration , in particular for the following reasons :

“ ... Although the marriage solemnised on DATE in GPE to a NORP national , together with the issuance of a NORP residence permit following that marriage , constitute new facts , we note that they do not by themselves constitute pertinent justification for ORG to act upon the request for reconsideration . The nationality of the wife , by itself , does not have the effect of requiring the annulment of the removal or the granting of leave to remain in GPE . The wife would have to submit a request for leave to remain in GPE , to be in CARDINAL of the situations covered by ORG ( ORG ) , and to fulfil the conditions thereof , without being excluded by any public order or security grounds .

The right to family reunification is always predicated on the existence of original leave to remain granted to an ORG / EFTA national under the provisions of the ORG . The right of abode conferred on family members is a correlative right of which the validity is in principle subject to the duration of the original leave to remain .

According to the applicant , there was no possibility of challenging or complaining about the content of that letter .

Section CARDINAL of LAW of DATE , in force since DATE , provides as follows :

“ An application for review of a judgment of ORG on account of a violation of LAW DATE for ORG ) may be submitted if the following conditions are satisfied :

( a ) ORG , in a final judgment , has found a violation of the ORG or its Protocols ;

( b ) compensation can not remedy the effects of the violation ;

( c ) the review is necessary to remedy the effects of the violation . ”

The relevant provisions of ORG I of the LAW between ORG and ORG on the free movement of persons ( the “ ALCP ” ) read as follows :

“ CARDINAL . The Contracting Parties shall allow nationals of the other Contracting Parties and members of their family within the meaning of LAW and posted persons within the meaning of LAW to enter their territory simply upon production of a valid identity card or passport .

No entry visa or equivalent requirement may be demanded save in respect of members of the family and posted workers within the meaning of LAW who do not have the nationality of a ORG . ORG concerned shall grant these persons every facility for obtaining any necessary visas .

“ CARDINAL . A person who has the right of residence and is a national of ORG is entitled to be joined by the members of his family . An employed person must possess housing for his family which is regarded as of normal standard for national employed persons in the region where he is employed , but this provision may not lead to discrimination between national employed persons and employed persons from the other ORG .

The following shall be regarded as members of the family , whatever their nationality :

( a ) his spouse and their relatives in the descending line who are under DATE or are dependent ;

( b ) his relatives in the ascending line and those of his spouse who are dependent on him ;

( c ) in the case of a student , his spouse and their dependent children .

The Contracting Parties shall facilitate the admission of any member of the family not covered by the provisions of this paragraph under ( a ) , ( b ) and ( c ) , if that person is a dependant or lives in the household of the national of ORG in the country of provenance

“ CARDINAL . The rights granted under the provisions of this Agreement may be restricted only by means of measures which are justified on grounds of public order , public security or public health .


The applicant , Mr Sergejs Dmitrijevs , is a “ non - citizen ” of GPE , who was born in DATE and lived in GPE ) . Sentenced to DATE imprisonment , he is serving his service in FAC . ORG ( “ the Government ” ) are represented by their Agent , Ms I. Reine .

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

DATE a number of killings , attempted killings and burglaries were committed in the GPE district by a CARDINAL - person organised gang .

On DATE , CARDINAL individuals assaulted PERSON , a well - known GPE businessman , for the purpose of stealing his car . After following the victim and meticulously tracking his movements around the city , the criminals lay in wait for ORG car near a house which he visited regularly . Once the car had stopped in front of the house , one of the assailants , wearing a cap , gloves and sunglasses , ran towards the vehicle , opened the door and pointed a pistol at the victim , ordering him to get out . PERSON also pulled a pistol from his pocket , at which point the assailant fired CARDINAL times , killing him immediately . TIME , having noticed the victim ’s adult daughter PERSON approaching the scene , the killer fled on foot .

During the pre - trial investigation , ORG was questioned CARDINAL times : on CARDINAL , DATE and CARDINAL DATE .

On DATE the applicant was arrested by police officers from the anti - crime unit as a suspect in the above - mentioned crime and placed in police custody .

During the period in police custody , the applicant was questioned by the police on several occasions . During those interviews , which took place without a lawyer , the applicant admitted that he had participated in CARDINAL incidents of theft and hold - up as a member of the gang of robbers . He also confessed that he had been responsible for killing PERSON

On DATE the applicant was placed under investigation on a charge of aggravated murder and banditry . In the meantime , CARDINAL other individuals suspected of belonging to the same gang were charged with burglary , robbery and murder . They thus became the applicant ’s co - defendants .

During questioning in DATE , the applicant informed the prosecution service that all the confessions he had previously made were false , as they had been forced out of him by police officers from the anti - crime unit while he had been held in police custody . In the presence of his counsel , the applicant alleged that a specific police officer , whom he named , had threatened him and had offered him money and a reduction in his sentence in return for a confession ; this statement was recorded in TIME of the interview . In consequence , the applicant asked the prosecution service not to take into consideration the content of the preceding interviews and to acquit him .

On DATE the prosecution service submitted a final bill of indictment ( apsūdzības raksts ) against the applicant and his co - defendants . The applicant was charged with aggravated murder and banditry ; the second charge included CARDINAL hold - ups . With particular regard to ORG murder , the prosecution service considered that the applicant ’s guilt was sufficiently proven by the co - existence of inferences arising from the following evidence :

– the statements by the victim ’s adult daughter , who was questioned during the pre - trial investigation on CARDINAL , DATE and CARDINAL DATE and confirmed that she had seen her father ’s killer leaving the crime scene . On CARDINAL DATE she gave the following description of the criminal :

“ ... A twenty to twenty - five- year old man , dark hair , wearing a dark cap and sunglasses covering his eyes , he was wearing gloves . I do not remember his clothes . He resembled the pop - singer “ Titomir ” . ... ”

On DATE PERSON gave the following description of the criminal :

“ ... He could be DATE , his height QUANTITY , he was wearing dark clothes , a cap and sunglasses . ... I think his hair was not long ... ”

– a statement by CARDINAL motorcyclists who had passed the crime scene TIME after the killing ; those CARDINAL witnesses claimed that they had followed a man who was running away for QUANTITY ; his physical characteristics corresponded to those of the applicant ;

– a statement by a person who had seen a man resembling the applicant running towards the crime scene a minute or CARDINAL before the sound of gunfire ;

– the cap and sunglasses found hanging on the branches of a bush near the site of the killing , which resembled those worn by the killer ;

– statements made by the applicant himself during the initial interview and the scene - of - crime reconstruction to the effect that , after fleeing the scene of the crime , he had removed the cap and sunglasses and had thrown them towards a bush while running ; the location indicated by the applicant corresponded to the exact spot where the CARDINAL objects had been found ;

– the results of biological analysis of hair and traces of sweat taken from the cap and glasses and of osmological tests , confirming that it was highly probable that those CARDINAL items had been worn by the applicant ;

– the applicant ’s initial statements , which were concurring and corresponded to the results of other investigative measures , particularly the scene - of - crime reconstruction , carried out on - site on DATE ;

– statements by an anonymous witness , referred to in the case file by the pseudonym “ PERSON ” , alleging that he had met the applicant on TIME of the killing and that the latter had admitted to him that he had killed M.G.

After forwarding the investigation file to the defendants , the prosecution service sent the case to ORG , the court of first instance in the case .

ORG began examining the merits of the case on DATE . The applicant pleaded not guilty at the hearing , and repeated his allegation that the confessions had been forced from him by a police officer who promised money and a reduced sentence in exchange for an admission of guilt . After questioning the police officer named by the applicant and several of his colleagues and hierarchical superiors , the court found that that officer had questioned the applicant on CARDINAL occasion and that he was not part of the investigation team responsible for the case . As he had not been present at the crime - scene reconstruction on DATE , he could not therefore have guided the applicant ’s actions or helped him to falsify the results of that investigatory measure . Accordingly , the court dismissed the applicant ’s allegations in this connection . At the hearing , ORG questioned the witnesses and examined all the other evidence submitted by the public prosecution service .

On DATE a neurologist issued a medical certificate , prohibiting ORG to participate in court hearings and proceedings because of the state of her health .

With regard to ORG killing in particular , the court summoned and questioned several witnesses , but not , however , the victim ’s daughter . Her statements , made during the preliminary investigation of the case , were submitted and read out at the trial on DATE , in accordance with LAW .

In a judgment delivered on DATE , ORG convicted the applicant of aggravated murder and banditry ; with regard to ORG killing , the court established the applicant ’s guilt on the basis of the coexistence of inferences arising from the afore - mentioned evidence established by the prosecution service . Under LAW in force at the material time , the applicant was sentenced to death .

The applicant himself and his legal counsel appealed against the judgment of CARDINAL DATE to ORG . In their respective memorials , they reiterated the applicant ’s argument that the confessions had been forced from him by a police officer who had offered him a trade - off , and challenged the manner in which the evidence had been assessed by ORG .

On DATE a NORP DATE newspaper published an interview with a forensic expert , a director of ORG . In a part of the interview he said the following :

“ ... When leaving a gun next to a dead body , a killer “ gives ” it [ the gun ] to the police . And all ends break – where is the gun from , who is the owner of the gun – go and find it . But if a killer takes ORG [ a type of gun ] with himself – one can find it in a search . If one will try so sell a gun to someone else – then the gun will move from hand to hand and will appear in the police together with its present owner , but it is not the link to the real killer . ... ”

These statements were followed by the illustration of the CARDINAL examples :

“ ... The well - known murder of the Vice - President of “ Interpegro ” M [ ... ] G [ ... ] was detected exactly because the guns used in committing the murder M [ ... ] G [ ... ] were found in searching the persons arrested in the course of a completely different case . The killers of V [ ... ] L [ ... ] did it more professionally . All around , including GPE , requests were sent out about bullets used in the murder . No tracks ... ”

The applicant submitted this article to ORG , without requesting to summon the expert for examination .

In a judgment of CARDINAL DATE ORG dismissed the applicant ’s arguments . After re - examining all the evidence available to it , the ORG confirmed the validity of ORG findings . Furthermore , like the first - instance court , the ORG dismissed the applicant ’s request that ORG daughter be summoned and questioned in court . The ORG dismissed the allegation that the confessions had been obtained through extortion ; having watched the video recording of the scene - of - crime reconstruction , which took place on DATE , it found that the applicant ’s actions in demonstrating what had happened were authentic and very precise and that any attempt to manipulate or rig the event would have been impossible . However , the ORG quashed the applicant ’s conviction on the charge of banditry ; this charge was reclassified as armed robbery with violence . Equally , the ORG noted that as LAW No . CARDINAL to the LAW had entered into force with regard to GPE on DATE , the death penalty could no longer be implemented . Accordingly , the ORG commuted the death sentence to CARDINAL years’ imprisonment , unsuspended .

As the applicant ’s defence counsel had chosen not to represent the applicant in subsequent proceedings , the latter drew up an appeal on points of law himself and submitted it to the ORG of ORG . In his memorial , the applicant complained primarily of errors in assessment of the facts which he alleged had been made by the lower courts . He also submitted that the presiding judge in ORG had interrupted him several times during his statement , that the appeal judges had refused to grant all of his procedural requests and that the rights of the defence had been seriously infringed . Equally , the applicant complained about the ORG ’s refusal to summon and question in court the forensic expert who had informed the press that he was in possession of the murder weapon , and also ORG daughter . The applicant stressed that cross - examination of this second witness would have enabled the defence to focus on the visual difference between the portraits of the criminal and of the applicant , and thus to show that the killer had been someone else .

By an order of DATE , served on the applicant on DATE , the ORG declared inadmissible the applicant ’s appeal on points of law as lacking legal grounds . According to the order , ORG and ORG had carried out a full and very detailed examination of all the evidence available to them . Equally , the decisions by the trial and appeal courts had been fully reasoned in terms of fact and law . As to the establishment of the factual circumstances in the case , the ORG pointed out that that question did not fall within the jurisdiction of ORG , which dealt with appeals on points of law . Finally , the ORG considered the applicant ’s various allegations of procedural violations to be unfounded .

According to LAW , a transcript report of the court proceedings includes , inter alia , the information about case - related applications and petitions .

The relevant part of LAW provides that within DATE after signing a transcript report of the court proceedings , the defence counsel and accused may submit remarks there on its accuracy . The remarks shall be considered and accordingly added to the transcript report .

In accordance with LAW , the parties enjoy rights in terms of summoning and questioning witnesses during the trial .

The defence is entitled to cross - examine the victims and witnesses on the same conditions as the prosecution service ( Articles CARDINAL and CARDINAL ) . If CARDINAL of the parties requests that a new witness be summoned or any new evidence be submitted to the court , it must explain to the court the reasons for such a request and , in particular , what it intends to prove through this new evidence . Dismissal of such a request does not prevent the party from resubmitting it during the examination of the case ( LAW and CARDINAL ) .

Where a witness or a victim submits good reasons for failure to attend the trial , the statements made by them during the preliminary investigation of the case are read out to the court ( LAW ) .

The defendant may also be cross - examined by his or her co - defendants and their lawyers ( LAW ) .

Article CARDINAL states that examination of a judgment by the cassation court is permissible only if it is based on a violation of the criminal law or substantial violation of the Criminal Procedure law .