Remainder inadmissible;Violation of Art. 6-1 and 6-3;Pecuniary and non-pecuniary damage - finding of violation sufficient

Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Mark Villiger

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

Prior to DATE the legal representation of defendants in criminal proceedings could be conducted only by a licensed advocate . The advocate ’s rights and obligations , and the required standards of professional competence and conduct were set forth in a separate ORG ( see paragraphs CARDINAL below ) . Other persons , including those holding a university law degree , were excluded from providing legal representation in criminal cases .

On DATE ORG found the relevant provisions of LAW unconstitutional and the parliament introduced relevant amendments to the LAW in DATE ( see paragraphs DATE and CARDINAL below ) .

On DATE the applicant was involved in a traffic accident , in which his car collided with another car . On DATE , criminal proceedings concerning the accident were instituted against the applicant .

On DATE the applicant signed an agreement with Mr M. for legal representation in the above - mentioned criminal proceedings . The latter was a lawyer , who held a university degree in law and who had a private legal practice , but who was not a licensed advocate .

On DATE the investigator allowed PERSON to act as defence counsel .

On DATE ORG ( “ the Dimitrov Court ” ) held a committal hearing in the case and decided to remit the case for additional investigation on the grounds that the applicant ’s right to mount a defence had been breached during the pre - trial investigation . The court noted that , in accordance with LAW , the right to provide legal assistance is conferred upon advocates and other legal specialists ( the term used to describe degree - educated practicing lawyers who have not been called to the Bar ) , but the right of the latter to act as defence counsel required to be defined by a specific piece of legislation . As there was no such law authorising a legal specialist with a private practice , such as Mr M. , to provide legal assistance in criminal matters , the decision of the investigator to allow such a specialist to take part in the case had been unlawful and therefore the applicant ’s right to mount a defence had been violated . The court ordered additional investigation with the participation of an advocate .

On DATE the applicant appealed against the decision of CARDINAL DATE , claiming that limiting his right to a free choice of defence counsel was contrary to the LAW and the decision of ORG of DATE ( see paragraph CARDINAL below ) .

On DATE the court rejected his appeal .

On DATE the investigator decided to allow Mr O. , who was a licensed advocate , to take part in the criminal case as the applicant ’s defence counsel .

On DATE the applicant appealed in cassation against the decisions of CARDINAL DATE and DATE .

NORP By letter of CARDINAL DATE , in reply to a request by the applicant that criminal proceedings be instituted against the relevant judge of ORG for alleged deliberate failure to comply with the decision of ORG concerning the right to a free choice of defence counsel , ORG informed the applicant that the court had rightly decided to remove PERSON from the applicant ’s case because he was not a licensed advocate .

On CARDINAL DATE the applicant asked ORG to remit his case for further investigation on the grounds that his right to mount a defence had been violated .

On DATE the court rejected his request . The court established that the applicant ’s right to mount a defence had been complied with as a result of the participation of Mr O. in the additional investigation .

On DATE the applicant notified the court that Mr O. was not his defence counsel and that he had seen him only once , in DATE , when he had pointed out to the investigator that he needed defence counsel but did not wish to be represented by Mr O. because he had not been freely chosen by him . Therefore , he contested the court ’s conclusion that his right to mount a defence had been complied with .

On DATE ORG rejected his appeal on the grounds that decisions as to the remittal of a criminal case were not subject to appeal in cassation .

On DATE ORG rejected a request by the applicant that Mr M. be allowed to represent him as his defence counsel because the law did not provide that a private practice lawyer could act as defence counsel in a criminal case . At the same time , the court accepted the refusal by the applicant to have PERSON O. appointed as his defence counsel .

In DATE the same court returned the applicant ’s appeal against the decision of DATE without consideration on the grounds that the contested decision was not subject to a separate appeal .

By a decision of DATE , following another request by the applicant to institute criminal proceedings against the judge of ORG for alleged failure to comply with the decision of ORG , ORG again refused to institute criminal proceedings .

On DATE ORG rejected an appeal by the applicant against the prosecutor ’s decision of DATE . The decision of CARDINAL DATE was upheld by ORG on DATE .

During a court hearing on CARDINAL DATE ORG examined a request from the applicant asking it to accept his dismissal of a lawyer , PERSON , who had been appointed by the court to represent him after the decision of DATE , and to appoint his wife as his representative . The court allowed his request in part . It allowed the applicant ’s wife to be his defence counsel but rejected the applicant ’s dismissal of PERSON on the grounds that the applicant had complained on numerous occasions about a violation of his right to mount a defence and therefore determined that he should be legally represented .

On DATE the applicant wrote a letter dismissing PERSON claimed that the appointed advocates , PERSON and PERSON , had only formally represented him and had not properly defended him . He noted , however , that he did need defence counsel , although not a formally admitted one .

On DATE the court rejected the applicant ’s dismissal letter , stating that he had claimed that he needed defence counsel .

On DATE the court rejected the applicant ’s request to remit the case for additional investigation . It also rejected the applicant ’s dismissal of PERSON and the applicant ’s request asking that PERSON be allowed to take part in the case again .

On DATE the applicant was found guilty of a breach of traffic rules which had caused medium bodily injury and sentenced to CARDINAL years’ restraint of liberty ( обмеження волі ) . However , he was discharged from serving his sentence owing to the expiry of the statutory time - limit for the prosecution . He was also ordered to pay compensation for pecuniary and non - pecuniary damage caused to the victims .

The applicant appealed against that judgment , claiming , inter alia , that his right to a free choice of defence counsel had been violated .

On DATE ORG upheld the judgment of DATE in part . The court noted that there had been no procedural violations that would require the judgment to be quashed . At the same time , the quantum of damages had not been substantiated and therefore the court remitted this part of the case for fresh consideration in separate civil proceedings .

The applicant appealed in cassation to ORG , claiming , inter alia , that his right to a free choice of defence counsel had been violated .

On DATE ORG upheld the decision of ORG . In reply to the applicant ’s complaint of a violation of his right to mount a defence , the court noted :

“ It is not worth paying attention to the arguments [ submitted in ] the cassation appeal by the convict that his right to mount a defence was violated , because , in rejecting the request of the convict , the court reasonably noted that , in accordance with LAW , only a person who is the bearer of an advocate ’s licence for practice in GPE is allowed to act as defence counsel and PERSON is not the bearer of such a licence . ”

By a judgment of CARDINAL DATE of ORG , the applicant was ordered to pay compensation to the victims of the traffic accident for pecuniary and non - pecuniary damage caused to them .

On DATE and DATE respectively ORG and ORG upheld the judgment of DATE .

Relevant provisions of the LAW read as follows :

“ Human and ORG rights and freedoms affirmed by LAW are not exhaustive .

Constitutional rights and freedoms are guaranteed and shall not be abolished .

The content and scope of existing rights and freedoms shall not be diminished in the adoption of new laws or in the amendment of laws that are in force . ”

“ Everyone has the right to legal assistance . Such assistance is provided free of charge in cases envisaged by law . Everyone is free to choose his or her own defence counsel .

In GPE , advocacy acts to ensure the right to mount a defence against an accusation and to provide legal assistance during the determination of cases by the courts and other ORG bodies . ”

“ ... A suspect , an accused or a defendant has the right to mount a defence ... ”

“ The following are determined exclusively by the laws of GPE :

( CARDINAL ) NORP human and ORG rights and freedoms , the guarantees of these rights and freedoms ; the main duties of a citizen ...

( CARDINAL ) the judicial system , judicial proceedings , the status of judges , the principle of judicial expertise , the organisation and operation of the prosecution service , bodies of inquiry and investigation , the [ status of ] notaries , bodies and institutions [ pertaining to ] the execution of punishments , the fundamentals of the organisation and activities of the Bar ... ”

In this case , ORG decided that :

“ CARDINAL . The provisions of LAW , that " everyone is free to choose his or her own defence counsel ” , in terms of the constitutional application of citizen G.I. S. shall be understood as the constitutional right of a suspect , an accused or a defendant in their defence from an accusation ... in order to obtain legal aid , to choose , as his or her defence counsel , anyone who is a legal specialist and who is entitled by law to provide legal assistance [ on his or her own account ] or on behalf of a legal person .

NORP The provisions of part CARDINAL of LAW that " in GPE , advocacy acts to ensure the right to mount a defence against an accusation ... " shall be understood as CARDINAL of the constitutional guarantees , giving a suspect , an accused or a defendant the opportunity to exercise his or her right to freely choose , as defence counsel in criminal proceedings , an advocate , that is , a person who has the right to provide advocacy .

The following shall be considered not to be in conformity with LAW ( unconstitutional ) :

- a provision of part CARDINAL of LAW which limits the right for a suspect , an accused or a defendant to freely choose as his or her own defence counsel , apart from an advocate , another legal specialist , who , in accordance with the law , is entitled to provide legal assistance [ as a sole practitioner ] or on behalf of a legal person ;

The provisions of part CARDINAL of LAW ... deemed to be unconstitutional , lose their force from DATE that this decision by ORG has been rendered .

“ Defence counsel is the person who , in accordance with the procedure prescribed by law , shall be authorised to protect the rights and legitimate interests of a suspect , an accused , a defendant , a convict or an acquitted person , and to provide them with necessary legal assistance in criminal proceedings .

Persons bearing a licence to exercise the right of advocacy in GPE and other legal specialists , who are entitled by law to provide legal assistance [ as a sole practitioner ] or on behalf of a legal person shall be allowed to act as defence counsel ...

The powers of defence counsel to participate in a case shall be confirmed :

( CARDINAL ) for an advocate who is not a member of ORG by an agreement , for other legal specialists who are entitled by law to provide legal assistance [ as a sole practitioner ] or on behalf of a legal person by an agreement or by the authority of the legal person ... ”

Section CARDINAL of the LAW provides that , in addition to having a university degree in law , an advocate must pass special qualification exams , obtain an advocate ’s licence and be sworn in as an advocate of GPE .

Sections CARDINAL and CARDINAL set forth the professional rights and obligations of the lawyer , including those in respect of evidence gathering and restrictions on representation .

Section CARDINAL of the Act sets out the provisions for advocate - client confidentiality and section CARDINAL sets forth the privileges enjoyed by the advocate in carrying out his professional activities , including the prohibition on the search and seizure of the advocate ’s professional papers without his consent and the special procedure for instituting criminal proceedings against him .

Section CARDINAL of the LAW provides for special qualifications and disciplinary boards that assess the professional competence of advocates and deal with any disciplinary matters in the event of a breach of the requirements of the LAW or other relevant legislation .

The relevant extracts from the ORG of ORG read as follows :

“ In order to ensure the correct and uniformed application by the courts of the legislation that ensures the right of a suspect , an accused , a defendant , a convict or an acquitted person to mount a defence , ORG decides :

The powers of defence counsel to participate in the case should be confirmed : ...

( c ) for any other legal specialist , who , in accordance with the law , is entitled to provide legal assistance [ as a sole practitioner ] or on behalf of a legal person DATE by the documents specified in the specific legislation which confers on these persons the right to participate in criminal proceedings as defence counsel , as well as by a contract or through the authority of the legal person ;

In deciding whether a legal specialist has the authority to conduct the defence in a criminal case , it should also be established by exactly what law the right to participate in criminal proceedings as defence counsel was conferred on him or her . This should be recognised as the proper practice of the courts , which , in the absence of a specific piece of legislation , do not allow such specialists to conduct the defence in criminal cases ... ”


The applicants , Mr PERSON , Mr PERSON , Mr PERSON and Mr PERSON O’Connell , are GPE nationals , who were born in DATE , DATE , DATE and DATE respectively and are currently detained or live in FAC PERSON Yarm , FAC The GPE , GPE ( GPE ) and ORG ( GPE ) , respectively . They are represented before the ORG by Mr PERSON ( GPE and PERSON ) and PERSON PERSON ( GPE and O’Connell ) , solicitors practising in GPE .

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

The applicants are former police officers in the detective branch of ORG in GPE , who were convicted of offences of corruption committed in the course of their police work . PERSON and PERSON were tried together along with CARDINAL other police officers and GPE and O’Connell were tried together along with CARDINAL other police officer .

The convictions of PERSON and PERSON relied , inter alia , on the evidence of CARDINAL witnesses who were also involved in the events at issue and charged with related offences . The first witness , PERSON , was a former police informant who was in prison for drug offences and the second , ORG , was a police officer who had worked with the applicants . The convictions of ORG and O’Connell depended essentially on the evidence given by ORG .

In DATE , PERSON was removed from prison by officers of ORG under the authority of an order under LAW DATE . While held in police custody over a period of DATE , she made detailed allegations of crimes allegedly committed by her with various police officers including PERSON and PERSON . She was detained in various police stations but was removed for the purposes of entertainment , shopping trips , welfare visits etc .

In DATE , ORG home was searched and he subsequently admitted CARDINAL acts of corruption in which he said he had engaged with other police officers including PERSON and PERSON . ORG was charged with these offences and remanded in custody but subsequently removed from prison and detained in police stations on the same basis as PERSON . While in detention , he admitted participation in further offences , also implicating PERSON , PERSON and others . He was periodically brought back before ORG and remanded in custody . He was also removed from the police station for social and welfare visits , entertainment and on CARDINAL occasion to test drive a sports car .

Both witnesses recorded , in letters or a diary , that they were threatened by the police as to the very serious consequences of failing to reveal crimes . During the detention of the CARDINAL witnesses , some conversations were tape - recorded and under formal caution while others were not under caution and/or were not recorded in notes .

In DATE , the CARDINAL witnesses were charged with the criminal offences they had admitted over DATE of detention and were taken to court . On DATE , PERSON and ORG pleaded guilty to various offences and sentence was postponed at the request of the prosecution .

In DATE , PERSON and PERSON were arrested and charged and committed for trial in DATE .

On DATE , the trial of PERSON and PERSON began . Despite the submissions of the applicants to the contrary , the trial judge , Mr Justice PERSON , decided that the CARDINAL witnesses should be sentenced at the end of PERSON and PERSON ’s trial on the basis that he would then be in a better position to assess the relevance of the evidence to any particular defendant .

On DATE , PERSON was called as a witness and stated that she did not wish to give evidence since she had believed that the hearing would be in camera . On DATE , the judge made several orders restricting the disclosure of certain information relating to PERSON .

On DATE , following the receipt of a letter from PERSON requesting that her evidence be heard in camera , the judge ruled that parts of PERSON ’s evidence would be heard in camera . On DATE , ORG overturned the ruling of the trial judge and held that PERSON ’s evidence should not be heard in camera . PERSON subsequently declined to give evidence unless the questioning was limited .

On DATE , the jury were discharged after the judge was told in open court and counsel of the defence were assured privately by the prosecution that PERSON would not be called as a witness in a retrial . Counsel for the prosecution stated to the court that :

“ Publicity relating to the evidence that she has given would potentially prejudice such a re - trial because she [ Fleckney ] would not be a witness in any circumstances . ” ( emphasis added )

On DATE , at a hearing prior to the commencement of the second trial , the prosecution informed the court that PERSON had reconsidered and was willing to give evidence , and that they intended to call her as a witness . Counsel for PERSON and PERSON argued that it was unfair to admit PERSON ’s evidence since they had relied on the undertaking given by the prosecution and the evidence should be excluded under section CARDINAL of ORG . Alternatively , counsel argued that the court should only allow PERSON to be called after a voir dire , asking her for an explanation for her change of position since the defence believed that inducement by the prosecution had caused this volte face . The judge refused the request for a voir dire and ruled that it would not render the trial unfair or constitute an abuse of process for PERSON to be called as a witness and permitted the prosecution to call her . This decision was made on the grounds , inter alia , that the undertaking given by the prosecution was not that there would be no trial as in previous cases where an abuse of process was found and that the evidence of PERSON was capable of being relevant , admissible and probative .

On DATE , counsel for PERSON renewed the application to exclude PERSON ’s evidence and pointed to a statement from PERSON submitted on CARDINAL DATE to the effect that if he had been aware that PERSON might be called at a retrial , he would have decided to continue with the original trial . The judge stated that all these points had been covered in the ruling on DATE and it was not appropriate for him to re - open the matter in the absence of reference to some authority which indicated that ruling to be wrong .

At the close of the prosecution case , counsel for PERSON and PERSON applied to stay the proceedings on the grounds of abuse of process , inter alia , on the basis of section CARDINAL of ORG “ PACE DATE ” ) due to the manner of the detention and the interrogation of PERSON and GPE . On DATE , the trial judge ruled that the relevant part of PACE DATE did not apply to PERSON and GPE since they had both already been remanded in custody by a court . Applying the common law test ( which he believed was identical to that in PACE ) , the judge ruled that the admission of their evidence would not have such an adverse effect on the fairness of the proceedings that he ought not to admit it .

On DATE , PERSON was convicted of CARDINAL counts of conspiracy to supply Class B drugs and CARDINAL counts of perverting the course of public justice . He was acquitted of CARDINAL other counts . On DATE , PERSON was convicted of CARDINAL count of conspiracy to supply Class B drugs and CARDINAL counts of perverting the course of public justice . He was acquitted of CARDINAL other counts .

On DATE , PERSON and PERSON , and PERSON and ORG sentenced . PERSON was sentenced to CARDINAL years’ imprisonment and PERSON was sentenced to DATE . PERSON was convicted of CARDINAL offences and sentenced to DATE ordered to run concurrently with her existing sentence of DATE . PERSON was convicted of CARDINAL offences and sentenced to DATE and QUANTITY months’ imprisonment after the deduction of CARDINAL of the sentence for his guilty plea and a further CARDINAL for his assistance to the prosecution in the cases of PERSON and GPE .

The prosecution case against ORG and O’Connell rested principally on ORG evidence and at the start of the trial , counsel for each of the applicants applied to the judge to exclude the evidence of ORG and/or to stay the proceedings for abuse of process . The trial judge , Judge PERSON , dismissed these applications on the grounds that PACE DATE did not apply and that insofar as there were any breaches of the code of practice which was applicable under the Criminal Procedure and Investigations Act DATE ( “ CPIA Code DATE ” ) in the interrogation of GPE , they went to the weight and reliability of ORG evidence rather than its admissibility .

On DATE , ORG was convicted of conspiracy to supply a Class B controlled drug and O’Connell was convicted of doing an act tending and intended to pervert the course of public justice . They were each sentenced to DATE and CARDINAL months’ imprisonment .

PERSON and GPE both appealed , inter alia , on the grounds that it was an abuse of process for the Crown to call PERSON as a witness in light of the undertaking given at the aborted first trial and that the judge should have allowed a voir dire regarding PERSON ’s change of position . The second ground was that the evidence of PERSON and PERSON was obtained as a result of wrongful detention , inducement , oppression and contraventions of PACE , which together amounted to an abuse of process which should have led the judge to exclude such evidence . ORG and O’Connell both appealed , inter alia , on the grounds that the trial judge erred in failing to exclude the evidence of ORG under section CARDINAL of PACE DATE and that the judge should have stayed the proceedings as an abuse of process for the breaches of the CPIA Code CARDINAL .

On DATE , ORG dismissed the appeals of all of the applicants against conviction but allowed the appeals of PERSON and PERSON against sentence , reducing their sentences by DATE and DATE respectively . In respect of the claim regarding breach of the prosecution ’s undertaking , ORG held that there was no abuse of process on the grounds , inter alia , that the prosecution ’s undertaking was made in good faith , the reversal of position was due to a sudden change in circumstance and the defence did not suffer real prejudice or irremediable disadvantage by PERSON being called . The court stated that even if the applicants had believed that PERSON might be called at the retrial , the judge would not have granted a request to continue with the original trial . Further , a voir dire to discern the reason for PERSON ’s change of position was unnecessary and would have usurped the function of the jury . With regard to the argument that the evidence of PERSON and GPE should be excluded on the grounds of abuse of process , the prosecution conceded that there may have been breaches of LAW and the codes of practice which were applicable under PACE DATE due to the failure of the police to record all the interviews with PERSON and GPE . However , the court held that the police acted in good faith and did not deliberately circumvent the rules in a manner which would make it an affront to the public conscience for the prosecution to proceed . The court stated that the witnesses and their legal representatives consented to the procedure adopted and that the irregularities conceded by the prosecution did not amount to an abuse of process .

On DATE , ORG refused the petitions of GPE , PERSON and GPE for leave to appeal .

Section CARDINAL(CARDINAL ) of the Police and Criminal Evidence Act ( PACE ) DATE provides that :

“ In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that , having regard to all the circumstances , including the circumstances in which the evidence was obtained , the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it . ”

It is possible to stay criminal proceedings on the grounds of abuse of process . In NORP v. PERSON ORG ex parte PERSON [ DATE ] CARDINAL Cr . App . PERSON , ORG stated that it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process , which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed .

In the case of NORP v. GPE [ DATE ] CARDINAL Cr . App . PERSON , ORG found that where an indication had been given coram judice ( in the presence of the judge ) that the prosecution would not proceed with the case and subsequently went back on its undertaking , the proceedings should have been stayed for abuse of process since to allow such practices would bring the administration of justice into disrepute . In the present case , ORG distinguished GPE on the grounds that there , the question was whether or not the prosecution ’s breach of undertaking rendered it an abuse of process for proceedings to be brought at all whereas here , the issue was whether it was an abuse of process for the trial to proceed with , rather than without , PERSON ’s evidence due to the prosecution ’s indication that she would not be called .

In the present case , ORG applied a CARDINAL - prong test to the question of whether it was an abuse of process for PERSON to be called contrary to the prosecution ’s previous indication :

( CARDINAL ) What were the nature and circumstances of the indication ?

( CARDINAL ) What was the reason for the indication ; was it given bona fide and without intention to mislead the defence ?

( CARDINAL ) What was the explanation for the change of position ?

( CARDINAL ) Did the undertaking result in substantial detriment or irremediable prejudice to the defence or otherwise render a fair trial impossible ?

Regarding the holding of a voir dire on possible abuse issues , the decision as to whether this is necessary or appropriate is a matter for the discretion of the judge . A number of cases , cited by ORG , state that it is generally undesirable for a judge to hold a voir dire to decide an issue as to whether evidence is fabricated as it usurps the function of the jury ( e.g. R v. PERSON [ DATE ] CARDINAL Cr . App . CARDINAL ) .

Section CARDINAL of ORG DATE gives effect to Schedule CARDINAL of the Act , which provides inter alia that :

“ CARDINAL(CARDINAL ) If the Secretary of ORG is satisfied , in the case of –

( a ) a person remanded in custody in any part of GPE in connection with an offence ;

( b ) a person serving a sentence of imprisonment in any part of GPE ; or

( c ) a person not falling within paragraph ( a ) or ( b ) above who is detained in a prison in any part of GPE ,

that the attendance of that person at any place in that or any other part of GPE or in any of GPE is desirable in the interests of justice or for the purposes of any public inquiry , the Secretary of ORG may direct that person to be taken to that place . ”

This provision of LAW replaced section CARDINAL of LAW DATE .

Part IV of PACE DATE governs the conditions of police detention but according to section CARDINAL ) , a person is considered to be in police detention if :

“ ( a ) he has been taken to a police station after being arrested for an offence ...

( b ) he is arrested at a police station after attending voluntarily at the station or accompanying a constable to it . ”

This definition does not cover serving prisoners ( PERSON ) or those remanded in custody ( ORG and thus , the PACE safeguards did not apply . Certain parts of LAW ” and all of LAW on ORG with Suspects ” issued under sections CARDINAL and CARDINAL of PACE appear to apply to all persons in police detention . Further , LAW under the ORG DATE applies to all criminal investigations conducted by police officers and section CARDINAL requires the recording of all material relevant to the investigation .


Remainder inadmissible;Violation of Art. 11;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

The applicants were born in DATE and DATE and live in NORP and GPE respectively .

On DATE PERSON , a student at FAC in Bolu ( “ the university ” ) , was killed in an attack . Thereafter , on DATE of every subsequent year students at the university have held a meeting to mark the anniversary of the killing .

On DATE ORG upheld the judgment of the first - instance court in respect of the applicants .

The applicants asked the prosecutor at ORG to apply to that court for rectification of the decision of DATE . In their letter to the prosecutor the applicants also pointed out that none of the injured gendarmes had accused them of inflicting their injuries .

The prosecutor accepted the ORG request and on DATE applied to ORG president for rectification of the decision . In his application the prosecutor noted that none of the injured gendarmes had named the applicants as the persons responsible for their injuries . The prosecutor referred to LAW and argued that university grounds could not be regarded as public places within the meaning of PERSON no . CARDINAL and that the applicants’ and their fellow GPE actions could not therefore be regarded to be in breach of that PERSON . The students’ failure to hold their meeting in a place other than the one for which permission had been granted could only be regarded as a disciplinary issue and dealt with by the university administration and not by courts of law .

The prosecutor also noted that the disturbance in the demonstration had been caused by the gendarmes’ intervention . Moreover , the reports drawn up by the gendarmes who had taken part in the operation ( see paragraph CARDINAL above ) had not made any mention of physical resistance by the students . The trial court had not examined the video footage and had not asked the injured gendarmes to identify the persons responsible for their injuries . As such , the trial court ’s decision to convict the applicants under section QUANTITY of the Law no . CARDINAL had not been in accordance with applicable law and procedure .

NORP In its decision of DATE the Grand Chamber of ORG observed that the transcripts of one of the hearings held by the trial court did not bear the signature of the court ’s clerk , and quashed the decision convicting the applicants . It deemed it unnecessary to examine the points raised by the prosecutor .

A retrial began before the trial court , which rendered its decision on CARDINAL DATE . Having examined the video footage , the trial court observed that TIME had elapsed between the beginning of the gathering and its dispersal by the gendarmes . It also noted that neither the applicants nor any of the other participants in the demonstration had used force against the gendarmes . Nevertheless , the trial court considered that the applicants and the other students had taken part in an unauthorised meeting and had thus acted in breach of section QUANTITY no . CARDINAL . According to the trial court , the gathering had been unlawful because it had not been organised in the canteen but rather had taken place outside . The applicants were sentenced to DATE and CARDINAL months’ imprisonment , but the sentence was suspended .

The applicants appealed . The appeal proceedings are still pending before ORG .

In the meantime , on account of his participation in the demonstration , on DATE the university imposed a disciplinary sanction on the first applicant PERSON , and expelled him from the university for DATE . As the university ’s decision was not quashed by the administrative courts until DATE , the decision was enforced and the applicant ’s graduation from the university was thus delayed for DATE .

Also in the meantime , the first applicant completed his studies and started working as a teacher . Nevertheless , on DATE ORG dismissed him from his post on account of his attendance at the demonstration . He was reinstated in his post in DATE , following the quashing of his conviction by ORG ( see paragraph CARDINAL above ) .

At the material time section CARDINAL of the Meetings and Demonstration Marches Act ( Law no . CARDINAL ) was worded as follows :

“ In order for a meeting to take place , the governor ’s office or authorities of the district in which the demonstration is planned must be informed , during TIME and CARDINAL prior to the meeting , by a notice containing the signature of all the members of the organising board ... ”

Section CARDINAL of the same Act prohibits demonstrations and processions on public streets , in parks , places of worship and buildings in which public services are based . Demonstrations organised in public squares must comply with security instructions and not disrupt ORG movement or public transport . Finally , section CARDINAL provides that demonstrations and processions which do not comply with the provisions of this law will be dispersed by force on the order of the governor ’s office and after the demonstrators have been warned .

Section CARDINAL of the LAW , in so far as relevant , provided as follows :

“ CARDINAL . Unarmed persons taking part in an unlawful meeting or procession who , instead of dispersing of their own motion after having been warned or ordered to do so and who thus have to be forcefully dispersed by government forces , are liable to be sentenced to a term of imprisonment of DATE .

Unless their action breaches another criminal law provision which stipulates a more severe punishment , persons who resort to violence or making threats while being dispersed , or who resist the attempts to disperse them , are liable to be sentenced to a term of imprisonment of DATE .


Remainder inadmissible;No violation of Art. 3 (in case of expulsion to Sri Lanka)

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE in GPE . He is of NORP ethnicity . Currently he lives in a centre for asylum seekers in GPE .

On DATE , with a valid passport and a ORG card , the applicant entered GPE and requested asylum . His eldest son , his daughterin - law , his grandchild and his brother - in - law already lived there and had permanent residence permits .

According to an asylum registration report of CARDINAL DATE the applicant was born and grew up in the north of GPE . His wife died in DATE and his CARDINAL sons , born in DATE and DATE , were brought up by their maternal grandmother . In DATE the applicant and his eldest son moved to a refugee camp . They stayed there until DATE , when the eldest son was sent out of the country and the applicant went to GPE . The applicant stayed in GPE until DATE . Thereafter he lived in GPE . On DATE , with the help of an agent , he went by plane to GPE . The agent had picked him up at the airport in GPE and driven him to a centre where he could request asylum . He could not explain why he was in possession of a train ticket issued on DATE for the town where his brother - in - law lived . The applicant wanted to live in GPE with his son . It was better than living in GPE . The applicant had not had contact with his youngest son since DATE and his brother remained in GPE .

In an asylum application form of CARDINAL DATE , the applicant added that while staying in the refugee camp his eldest son had been arrested CARDINAL times and the applicant had been arrested twice . To leave the camp it had been obligatory to obtain permission from the military . In DATE the applicant helped his eldest son leave the country . While in GPE the applicant was arrested and detained CARDINAL times by the authorities in order to check whether he had permission to stay there . When a peace agreement was concluded in DATE , the applicant went to GPE to live with his brother . The applicant 's nephew in GPE had been killed by the authorities on DATE because he was suspected of being an NORP member . Thereafter the applicant was constantly harassed by the military forces and he also had problems with the NORP .

According to an interview report of CARDINAL DATE prepared by ORG , now ORG ) , the applicant stated that he had not been politically active or member of any political party or organisation . He had no previous convictions and had not been detained , charged , arrested or imprisoned , and was not a wanted person in his country of origin . In DATE he wanted to get away from north GPE due to unrest there . He and his eldest son had to live in a refugee camp because they were unable to obtain an entry permit for GPE . In DATE they received the entry permit and entered GPE . At DATE the applicant 's son went to GPE . Thereafter , the applicant lived on the money his son sent him . DATE the applicant could freely travel between GPE and GPE . He lived permanently in an apartment in GPE , but often travelled to GPE . His brother died from an illness and during DATE in GPE the applicant lived with his brother 's widow and CARDINAL children to save up money and to be with his family until his departure . After the nephew was killed , the military forces came to the house CARDINAL or CARDINAL times and interviewed the applicant about the NORP . The military was mainly looking for his brother 's other children , who were young , while he was an old man . He wanted to get away and live in peace with his son in GPE . He had not had any contact with anybody in his country since his departure .

On DATE the applicant 's request for asylum was refused by ORG , which found that the applicant failed to fulfil the criteria under section CARDINAL of LAW ( GPE ) , notably because his relationship with the ORG was so remote that he would not be of sufficient interest to the authorities or in real and concrete danger of being subjected to treatment contrary to LAW upon return to GPE .

The applicant appealed to ORG ( PERSON ) before which an oral hearing was held on DATE . It appears that the applicant maintained that his brother had moved to GPE ( and not died from an illness as previously stated ) . Also , the applicant explained that he had in fact seen the nephew being shot . The other people in the village and the applicant 's sister - in - law reported to the ORG who had informed the authorities about the nephew 's activities , and consequently the informer , a woman , was killed by the NORP . ORG upheld the decision to refuse to grant the applicant asylum on DATE . It attached importance to the applicant 's statement that the visits by the authorities concerned the young people of the household , and found that the applicant was not himself an object of interest to the authorities .

On DATE the applicant 's request for a residence permit on humanitarian grounds under section CARDINAL b , subsection l , of LAW was refused by ORG . In its decision ORG took account , inter alia , of the applicant 's age and health and found that , according to the information available , the applicant did not suffer from any physical or mental illness of a very serious nature , and that no circumstances otherwise provided any basis for granting a residence permit on humanitarian grounds .

On DATE ORG ( ORG ) , an NGO , requested that ORG reopen the case . It referred to the applicant 's previous explanations and the general deterioration of the security situation in GPE . It also added that , according to the applicant 's eldest son , it was in fact the applicant who had reported to the NORP who it was that had informed the authorities on the nephew 's membership . Allegedly , the authorities were therefore interested in the applicant . The eldest son had also informed the applicant 's representative that the killed nephew 's brother had stated that the authorities were looking for the applicant after his departure . Moreover , the eldest son had been granted asylum status in GPE due to his affiliation with the NORP and because he had been tortured during an investigation in DATE . Thus , according to the applicant 's eldest son , the applicant had been detained because of him .

On DATE , on the applicants ' behalf , ORG also submitted a letter to ORG requesting that it stay the applicants ' deportation .

On DATE , ORG decided to apply Rule CARDINAL of ORG , indicating to the Government that it was in the interests of the parties and the proper conduct of the proceedings that the applicant should not be expelled to GPE pending the ORG 's decision .

Consequently , on DATE ORG extended the time - limit for the applicants ' departure until further notice .

On DATE ORG again refused to reopen the applicants ' asylum case finding that no essential new information or aspects had been submitted . It rejected the information added by the applicant 's son as fabricated for the occasion .

On DATE ORG decided to suspend the examination of asylum cases concerning ethnic NORP from northern GPE , including the applicant 's case .

On DATE , on the basis of the most recent background information concerning GPE including , inter alia , a Memorandum of CARDINAL DATE prepared by ORG , ORG decided to review the suspended cases , including the applicant 's case .

On DATE ORG refused to reopen the applicant 's case as it found that the most recent general background information would not lead to a revised assessment of the case . More specifically in its letter to the applicant 's representative it stated as follows :

“ ... ORG still finds that your client 's fear of the ORG and the Sri NORP authorities does not warrant a residence permit under section CARDINAL of LAW . In that connection , ORG refers to the fact that your client stated during the asylum procedures that he had not been a member of or sympathised with the ORG and that he had not been sought by or had problems with the NORP at any time prior to his departure . He stated that the family had no contact with the NORP while he lived with his brother . On the contrary , the NORP supposedly avenged the murder of your client 's nephew by killing the woman who had allegedly informed on your client 's nephew to the authorities . ORG thus finds itself unable to accept the supposition that your client has outstanding issues with the ORG which , in fact , was defeated in DATE . Your client has also referred to fear of persecution by the Sri NORP authorities . In this connection , ORG refers to the fact that during the asylum procedures your client stated that personally he was not an object of interest to the authorities , that he was solely questioned about his knowledge of other ORG members in connection with the murder of his nephew which took place DATE , and that personally he has not been persecuted or threatened in his country of origin . Your client also left his country of origin without any problems using his own genuine passport . Thus , the ORG finds that it has not been rendered probable that your client would be of interest to the Sri NORP authorities or suspected of supporting the NORP . The possibility that as an ethnic GPE from northern GPE your client risks being questioned and investigated by the authorities upon entry into his country of origin does not lead to a revised assessment of the case under asylum law . The individuals at particular risk of being detained and investigated upon entry in GPE are young NORP , men in particular , from northern and eastern GPE ; those without ID ; those not resident or employed in GPE ; and those recently returned from the LOC , see GPE ORG to GPE , GPE DATE . Regardless of whether it is accepted as a fact that the Sri NORP authorities have suspected your client of supporting the NORP , it does not lead to a revised assessment . In this respect , ORG refers to the fact that it appears from the background material available to ORG that , in general , individuals who have supported the ORG on a lower level are not of interest to the authorities . Thus , generally , only high profile members of the NORP who are still active and wanted , or individuals wanted for serious criminal offences are of interest to the authorities , see ORG , Operational Guidance Note , GPE , DATE , and ORG to GPE , GPE DATE . Your client has also referred to a fear of the general situation of insecurity in GPE and the fact that he is old and wants to live in GPE where there is peace and quiet . Moreover , he has no family in his country of origin to take care of him , but he has agreed with his son living in GPE that he can stay with the son and be provided for . As in the previous decisions in the case , ORG still finds that the general situation for ethnic NORP in GPE is not of such nature that it in itself warrants a residence permit under LAW . Thus , ORG fully relies on the decisions of DATE and DATE . Against that background , the ORG still finds that it has not been rendered probable that , in case of return to GPE , your client would be at concrete and individual risk of persecution as covered by section CARDINAL(CARDINAL ) of LAW , or that your client would be at a real risk of outrages as covered by section CARDINAL(CARDINAL ) of LAW . ORG further states that ORG has no authority to decide whether your client could be granted a residence permit under other provisions of LAW . Such authority lies with ORG and ORG . It should be noted that your client 's time - limit for departure is still postponed on the basis of the request of DATE from ORG . If your client 's lawful stay in GPE lapses , he must leave the country immediately , see section CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW . As appears from the decision of ORG , your client may be forcibly returned to GPE if he does not leave voluntarily , see section GPE , cf . section CARDINAL , of LAW . ”

By virtue of section CARDINAL of LAW ( GPE ) , asylum is granted to aliens who satisfy the conditions of LAW . Applications for asylum are determined in the first instance by the former ORG ( now called ORG ) and in the second instance by ORG .

Pursuant to section DATE , subsection CARDINAL , of LAW , decisions by ORG are final , which means that there is no avenue for appeal against the ORG 's decisions . Aliens may , however , by virtue of LAW ( PERSON ) bring an appeal before the ordinary courts , which have authority to adjudge on any matter concerning the limits to the competence of a public authority .

CARDINAL 's country of origin or first country of asylum . For this purpose , ORG has a comprehensive collection of general background material on the situation in the countries from which GPE receives asylumseekers . The material is up - dated and supplemented on a continuous basis . The background material of ORG is obtained from various authorities , in particular ORG and ORG . In addition , background material is procured from various organisations , including ORG , ORG and other international human rights organisations and the ORG . Also included are the annual reports of ORG ) on the human rights situation in a large number of countries , reports from ORG , reports from the documentation centre of ORG , reports from ORG , reports from ORG ( ORG for Asylum Practitioners ) , reports from the authorities of other countries and to some extent articles from identifiable ( international ) journals . Moreover , the ORG may request ORG to issue an opinion on whether it can confirm information from a background memorandum drafted in general terms . ORG also retrieves some of its background material from the Internet . Internet access also enables the ORG to obtain more specific information in relation to special problems in individual cases .

Usually , ORG assigns counsel to the applicant . Board hearings are oral and the applicant is allowed to make a statement and answer questions . The ORG decision will normally be served on the applicant immediately after the ORG hearing , and at the same time the Chairman will briefly explain the reason for the decision made .

Extensive information about GPE can be found in ORG . v. the GPE , no . CARDINAL , § § DATE . The information set out below concerns events occurring after the delivery of the said judgment on CARDINAL DATE and , in particular , after the cessation of hostilities in DATE .

Fighting between the Sri NORP army and the NORP intensified in DATE , with the army taking a number of rebel strongholds in the north and east of the country . On DATE , in an address to the country 's parliament , the President of GPE announced the end of hostilities and the death of the leader of the LTTE , PERSON . It was also reported that most , if not all , of the NORP 's leadership had been killed .

DATE , ORG for ORG had estimated that CARDINAL people had already reached internally displaced persons ' camps , including CARDINAL in DATE . In addition , it was believed that another CARDINAL people were on their way to the camps through the crossing point at GPE , in the northern district of PERSON .

In DATE , ORG reported that the number of killings in GPE in DATE ( including deaths of civilians , security forces and members of the ORG ) was : CARDINAL in DATE ; CARDINAL in DATE ; CARDINAL in DATE and CARDINAL DATE and DATE . CARDINAL people were reported to have been killed in total over the course of DATE conflict .

“ Notwithstanding the cessation of the hostilities , the current protection and humanitarian environment in GPE remains extremely challenging . In the GPE , nearly the entire population from the territory formerly held by the NORP in the LOC ( CARDINAL NORP ) has been confined to heavily militarized camps in the LOC region . Although the government has gradually reduced the military presence in the camps and has pledged to start the progressive return to their villages of origin of the majority of those in the camps , it is clear that this may take a considerable amount of time . The lack of freedom of movement remains the overriding concern for this population restricting its ability to reunite with family members outside the camps , access employment , attend regular schools , and ultimately choose their place of residence . ”

A Human Rights Watch [ HRW ] press release , dated DATE , reported that :

“ The government has effectively sealed off the detention camps from outside scrutiny . Human rights organizations , journalists , and other independent observers are not allowed inside , and humanitarian organizations with access have been forced to sign a statement that they will not disclose information about the conditions in the camps without government permission . On several occasions , the government expelled foreign journalists and aid workers who had collected and publicized information about camp conditions , or did not renew their visas . ”

A further ORG press release dated DATE set out concerns that CARDINAL NORP civilians remained in detention camps without the freedom to leave .

In DATE , the first post - war local elections were held in LOC . ORG reported that voter turn - out was low due to the number of people who were still displaced . The governing party , ORG , took the majority of seats in the biggest city in the region , GPE . However , ORG , a party sympathetic to the defeated ORG , took the majority of seats in PERSON , the other town where polling took place .

On DATE , PERSON , the official spokesman for ORG in GPE was ordered to leave GPE because of adverse remarks that he had made to the media about the plight of NORP in the government - run camps .

On DATE the Sri Lankan Official Government News Portal announced that the motion to extend ORG ( under which the authorities have extensive anti - terrorism powers and heightened levels of security including checkpoints and road blocks ) by DATE had been passed by ORG with a majority of CARDINAL votes .

In a report dated DATE , GPE ORG published a report entitled “ Report to ORG on Incidents During the Recent Conflict in GPE ” , which compiled incidents from DATE , when the fighting intensified , until DATE . Without reaching any conclusions as to whether they had occurred or would constitute violations of international law , it set out extensive reports of enforced child soldiers , the killing of captives or combatants trying to surrender , enforced disappearances and severe humanitarian conditions during the hostilities .

On DATE , ORG announced its decision that all internally displaced persons would be given freedom of movement and allowed to leave the detention camps from DATE .

In its Global Appeal DATE , the ORG reported that :

“ The Government - led military operations in northern GPE which ended in May DATE displaced CARDINAL people , most of whom fled their homes in DATE of the fighting . The majority of these internally displaced persons ( IDPs ) now live in closed camps in Vavuniya district , as well as in camps in GPE , GPE and PERSON . CARDINAL IDPs , some of whom have been displaced since DATE , are also in need of durable solutions .

The IDPs originate mainly from the NORP , PERSON , PERSON , GPE and GPE districts in northern GPE , as well as from some areas in the east of the country . Though the end of hostilities has paved the way for the voluntary return of displaced people , some key obstacles to return remain . For instance , many of the areas of return are riddled with mines and unexploded ordnance . Not all are considered to be of high risk , particularly those away from former frontlines , but mine - risk surveys and the demarcation of no - go areas are urgently needed .

Other key obstacles to return include the need to re - establish administrative structures in areas formerly held by ORG ; the destruction or damaged condition of public infrastructure and private homes ; and the breakdown of the economy - including agriculture and fisheries .

The Government of GPE is planning the return framework , and it has called on ORG for support with return transport , non - food items , return shelter , livelihoods support and assistance in building the capacity of local authorities .

With some progress having been recently achieved , it is hoped that a substantial number of IDPs will be able to return to their places of origin in DATE , but a large portion of new IDPs are also likely to remain in the camps and with host families until well into DATE . ”

In a Human Rights Report DATE , dated DATE , GPE State Department stated that ORG accepted assistance from NGOs and international actors for the ORG camps but management of the camps and control of assistance were under the military rather than civilian authorities . Food , water , and medical care were all insufficient in DATE after DATE war , but by DATE the situation had stabilised and observers reported that basic needs were being met . In DATE the military withdrew from inside the camps but continued to provide security around the barbed wire - enclosed perimeter . The IDPs in the largest camp , ORG , were not given freedom of movement until DATE , when a system of temporary exit passes was implemented for those who had not yet been returned to their districts of origin . Some observers said that this exit system still did not qualify as freedom of movement .

DATE . ORG , in their report , ORG DATE , estimated that DATE after the main fighting ended , the ORG continued to hold CARDINAL people ( CARDINAL of them women and girls ) in the camps . CARDINAL of these were children . The camps were severely overcrowded , many of them holding twice the number recommended by the ORG . As a result , access to basic requirements such as food , water , shelter , toilets and bathing , had been inadequate . These conditions imposed particular hardships on the elderly , children and pregnant women . The camps were under military administration , and effective monitoring by humanitarian agencies was lacking . The authorities failed to provide camp residents with sufficient information about the reason for their continued detention , the whereabouts of relatives , or the criteria and procedure for their return home .

NORP GPE on GPE of DATE ( “ the DATE ORG ” ) stated as follows :

CARDINAL ORG ( ORG ) report GPE : A Bitter Peace , CARDINAL DATE , also referred to “ extra - legal detention centres ” maintained by the military and observed : “ These detained have had no access to lawyers , their families , ORG or any other protection agency , and it is unclear what is happening inside the centres . In addition , ' the grounds on which the ex - combatants have been identified and the legal basis on which they are detained are totally unclear and arbitrary ' . Given the well - established practice of torture , enforced disappearance and extra - judicial killing of ORG suspects under the current and previous NORP governments , there are grounds for grave concerns about the fate of the detained . The government has announced that of those alleged ex - combatants currently detained , CARDINAL will be put on the trial ; most will detained for a further period of ' rehabilitation ' and then released . ”

CARDINAL Referring to the “ CARDINAL people ” detained “ in so - called ' rehabilitation centers ” because of their alleged association with the ORG , the ORG [ document Legal Limbo , The Uncertain Fate of ORG in GPE , released on DATE , observed : “ The government has routinely violated the detainees ' fundamental human rights , including the right to be informed of specific reasons for arrest , the right to challenge the lawfulness of the detention before an independent judicial authority , and the right of access to legal counsel and family members . The authorities ' consistent failure to inform families of the basis for the detainees ' arrest and their whereabouts raises serious concerns that some detainees may have been victims of torture and ill - treatment , which are more likely to take place where due process of law is lacking and which have long been serious problems in GPE . Given the lack of information about some detainees , there is also a risk that some may have been ' disappeared ' . ”

CARDINAL The ORG ' Eligibility Guidelines for Assessing the International Protection Needs of Asylum - Seekers from GPE , DATE reported that “ In the wake of the conflict , CARDINAL persons suspected of NORP links were arrested and detained in high - security camps ” adding that “ According to a ORG survey , as of DATE , CARDINAL ORG cadres were being held at CARDINAL centres . Among the detainees were CARDINAL males and CARDINAL females . ” and noted that “ Some of the adult detainees have ... been released after completing rehabilitation programmes or because they were no longer deemed to present a risk , including some persons with physical disabilities . ”

The DATE ORG also set out :

CARDINAL The ORG [ ORG ] , ORG , GPE , DATE reported : “ The ORG has warned that GPE faces losing trade advantages under LAW ( GSP - Plus ) scheme from DATE , unless the ORG commits itself in writing to improving its human rights record . The ORG has put forward CARDINAL conditions that it says the Government needs to promise to meet within DATE . These include : ensuring that the CARDINALth amendment to the constitution , which requires that appointments to public positions be impartial and reflect the country 's ethnic and religious mix , is enforced ; repealing parts of LAW that are incompatible with GPE covenants on political and human rights ; reforming the criminal code to allow suspects immediate access to a lawyer on arrest ; and allowing journalists to carry out their professional duties without harassment . However , the ORG has rebuffed the ORG , stressing that the issues that it has raised are internal political matters that should not be linked to trade . “ The ORG is not the only international body currently putting pressure on the government . GPE has also rejected the ORG 's appointment of a CARDINAL - member panel to examine possible human rights violations during the island 's civil war . The Sri Lankan authorities have warned that they will not provide visas for panel members to enter the country . ”

CARDINAL The ORG , ORG , GPE , DATE noted that : “ The decision by the ORG secretary - general , Ban PERSON [ on DATE ] , to appoint a panel to examine accountability issues stemming from the final stages of the island 's civil war , which ended in DATE , has prompted a strong reaction in GPE ...

CARDINAL On DATE ORG reported that “ Secretary - General Ban Kimoon has held his first meeting with the panel of experts set up to advise him on accountability issues relating to alleged violations of international humanitarian and human rights law during the final stages DATE of the conflict in GPE . ” The source also noted that the role of the experts was to examine “ the modalities , applicable international standards and comparative experience with regard to accountability processes , taking into account the nature and scope of any alleged violations in GPE . ”

GPE on GPE of DATE ( “ the DATE ORG ” ) sets out a series of letters from ORG – hereafter “ LOC ” , GPE , on arrival procedures at GPE airport . In its letter of DATE , the ORG observed :

“ [ T]he correct procedure for [ ORG and Emigration [ DIE ] ] officers is to record the arrival of these persons manually in a logbook held in the adjacent Chief Immigration Officer 's office . The name , date and time of arrival and arriving flight details are written into the log . It records why the person has come to their attention and how the case was disposed of . I have had the opportunity to look at the log , and it appears that the CARDINAL ways of disposal are to be passed to ORG [ ORG ] , or allowed to proceed .

The office of ORG [ SIS ] is in the immigration arrivals hall and an officer from ORG usually patrols the arrivals area during each incoming flight . Invariably , if they notice a person being apprehended they approach IED [ ORG ] and take details in order to ascertain in [ sic ] the person may be of interest to them . Their office contains CARDINAL computer terminals , CARDINAL belonging to the airport containing flight information and CARDINAL stand - alone terminals . If an apprehended person is considered suitable to be passed to ORG , they are physically walked across the terminal building to the ORG offices . A ORG officer should then manually record the arrival of the person in a logbook held in their office ... often persons shown in the ORG logbook to have been handed to ORG are never actually recorded as being received in the ORG logbook . It is believed that ORG has allowed these persons to proceed and no action has been taken against them . ”

The same letter also noted that ORG offices at the airport contained CARDINAL computers , which were not linked to any national database . Any checks on persons detained or apprehended were conducted over the phone with colleagues in central GPE . There were no fingerprint records at the airport . CARDINAL computer contained records of suspects who had been arrested and charged with offences , and court reference numbers . It continued as follows :

“ Were a Sri NORP national to arrive at FAC having been removed or deported from GPE , they would be in possession of either a valid national NORP passport , or an emergency travel document / temporary passport , issued by ORG in GPE . The holder of a valid passport would have the document endorsed by the immigration officer on arrival and handed back to him / her . A national passport contains the national ORG card number on the laminated details page . I have made enquiries with the DIE at FAC , and with ORG who meet certain returnees at the airport , and both have confirmed that a person travelling on an emergency travel document is dealt with similarly . They too have the document endorsed by the immigration officer on arrival and returned to them . Before issuing an emergency travel document , ORG in GPE will have details of an applicant confirmed against records held in GPE and will thus satisfactorily confirm the holder 's nationality and identity . If a returnee subsequently wishes to obtain a national identity card , they have to follow the normal procedures . ”

In a letter dated CARDINAL DATE , the LAW reported that an official had spent TIME observing the return of failed asylum seekers from GPE , including those who were in possession of emergency travel documents , issued by ORG in GPE . In the official 's opinion , the fact that certain returnees had been issued with emergency travel documents by ORG in GPE did not seem to make any difference to their treatment upon arrival .

The Report of Information Gathering Visit to GPE on DATE , conducted jointly by ORG and ORG ( “ the Report of Information Gathering Visit , DATE ” ) , concluded that all enforced returns ( of whatever ethnicity ) were referred to the ORG at the airport for nationality and criminal record checks , which could take TIME . All enforced returns were wet - fingerprinted . Depending on the case , the individual could also be referred to the ORG and/or ORG for questioning . Anyone who was wanted for an offence would be arrested .

The report set out that those with a criminal record or ORG connections would face additional questioning and might be detained . In general , non - government and international sources agreed that NORP from the north and east of the country were likely to receive greater scrutiny than others , and that the presence of the factors below would increase the risk that an individual could encounter difficulties with the authorities , including possible detention :

- Outstanding arrest warrant

- Criminal record

- Connection with the LTTE

- Bail jumping / escape from custody

- Illegal departure from GPE

- Scarring

- Involvement with media or NGOs

- Lack of an ORG card or other documentation

GPE on GPE of DATE set out the following :

CARDINAL The ORG letter of CARDINAL DATE went on to observe that : “ At DATE , partly due to the large numbers of NORP being returned from around the world and causing logistical problems , ORG procedures were relaxed in that they no longer had to detain returnees until written confirmation was received from the local police . All returnees are still interviewed , photographed and wet fingerprinted . The main objective of these interviews is to establish if the returnee has a criminal record , or if they are wanted or suspected of committing any criminal offences by the police . The photographs are stored on a standalone computer in the ORG office at the airport . The fingerprints remain amongst paper records also in the ORG office at the airport . Checks are initiated with local police , but returnees are released to a friend or relative , whom ORG refers to as a surety . This surety must provide evidence of who they are , and must sign for the returnee . They are not required to lodge any money with ORG . “ The main ORG offices at FAC , which are housed on the ground floor adjacent to the ORG embarkation control , are currently undergoing a complete refurbishment funded by the NORP government . The CARDINAL completed office suite has CARDINAL purpose built interview rooms , and facilities where returnees can relax and eat meals . ”

CARDINAL A ORG letter of DATE reported : “ There is strong anecdotal evidence that scarring has been used in the past to identify suspects . Previous conversations with the police and in the media , the authorities have openly referred to physical examinations being used to identify whether suspects have undergone military style training . More recent claims from contacts in government ministries suggest that this practice has either ceased or is used less frequently . At the very least it appears that the security forces only conduct these when there is another reason to suspect an individual , and are not looking for particular scars as such , but anything that may indicate the suspect has been involved in fighting and/or military training . There is no recent evidence to suggest that these examinations are routinely carried out on immigration returnees . ”

On DATE , Tamilnet reported that CARDINAL NORP youths were taken into custody by ORG of the Sri Lanka Police at FAC in CARDINAL separate incidents whilst trying to leave GPE . It was also reported that since DATE , special teams of ORG and police had been deployed in the airport to monitor the movement of NORP who try to go abroad .

The Report of Information Gathering Visit , DATE , stated that the frequency of cordon and search operations had not reduced significantly in DATE , though there were fewer large - scale operations than in DATE . In general , young male NORP originating from the north and east of the country were most at risk of being detained following cordon and search operations , with the presence of the risk factors set out above increasing that risk . Those without employment or legitimate purpose for being in GPE were also likely to be seen as suspect . The same report also noted that most sources agreed that there had been few , if any , abductions or disappearances since DATE . There was not a great deal of available information about the profile of NORP targeted for abduction , although it appeared that people linked to the media might be more vulnerable . Police did not generally carry out effective investigations . It went on to note that most sources agreed that there had not been any significant reduction in the number of checkpoints in GPE , whose stated purpose remained to detect and prevent terrorist activity . In general those most likely to be questioned were young NORP from the north and east ; those without ID ; those not resident or employed in GPE ; and those recently returned from the West . However , most sources said that arrests at checkpoints were rare and none had been reported since DATE . It was reportedly fairly likely that someone would be stopped at a checkpoint en route from the airport to GPE . Finally , it clarified that people who wished to live in GPE but did not originate from there must register with the local police station with a national ID card or full passport , and details of planned length and purpose of stay . In theory , whilst anyone was entitled to register to stay in GPE , some sources suggested that young NORP men originally from the north or east of the country could encounter difficulties and face closer scrutiny . The presence of any of the risk factors set out above would also attract greater attention from the police .

“ The significant majority of reported cases of human rights violations in GPE involve persons of NORP ethnicity who originate from the LOC and LOC ... In Government - controlled areas , NORP who originate from the LOC and the LOC , which are , or have been under ORG control , are frequently suspected as being associated with the NORP . For this reason , NORP from the LOC and the LOC are at heightened risk of human rights violations related to the implementation of anti - terrorism and anti - insurgency measures . While this risk exists in all parts of GPE , it is greatest in areas in which the ORG remains active , and where security measures are heaviest , in particular the LOC and parts of the LOC , and in and around GPE . ”

“ The country of origin information that ORG has considered indicates that NORP from LOC continue to face a significant risk of suffering serious human rights violations in the region ( and elsewhere in the country ) because of their race ( ethnicity ) or ( imputed ) political opinion . NORP in the LOC are still heavily targeted in the security and anti - terrorism measures described in LAW . Wide scale detention and confinement of NORP from the LOC remains a serious concern . ORG paramilitary elements also continue to operate with impunity against NORP in the LOC . ”

ORG from GPE of DATE , which superseded the DATE Guidelines contained information on the particular profiles for which international protection needs may arise in the current context . It was stated that :

“ given the cessation of hostilities , NORP originating from the north of the country are no longer in need of international protection under broader refugee criteria or complementary forms of protection solely on the basis of risk of indiscriminate harm . In light of the improved human rights and security situation in GPE , there is no longer a need for group - based protection mechanisms or for a presumption of eligibility for NORP of NORP ethnicity originating from the north of the country . It is important to bear in mind that the situation is still evolving , which has made the drafting of these LAW particularly complex . ”

In summary , the following were ORG 's recommendations : All claims by asylum seekers from GPE

( i ) persons suspected of having links with ORG ( NORP ) ;

( ii ) journalists and other media professionals ;

( iii ) civil society and human rights activists ;

( iv ) women and children with certain profiles ; and

( v ) lesbian , gay , bisexual and transgender ( ORG ) individuals .

It was also stated that in the light of GPE DATE internal armed conflict , and a record of serious human rights violations and transgressions of international humanitarian law , exclusion considerations under LAW may arise in relation to individual asylum seeker claims by GPE asylum seekers .

The ORG reported in DATE that the Colombo Police force had opened CARDINAL special units in GPE suburbs able to take statements in GPE , with plans for more . Previously , GPE - speaking NORP had to rely on a friend to translate their complaints into NORP .


Partly admissible;Violation of Art. 6-1;Violation of Art. 8;Violation of Art. 14+8;Violation of Art. 13 (excessive length of the criminal proceedings);No violation of Art. 13 (monitoring of the applicant's correspondence);Non-pecuniary damage - award

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych

On DATE the applicant and a Mr S.V. were arrested in GPE on suspicion of having stolen a car . They were charged by a military investigator , who was competent because at the time Mr GPE was an army private , and placed in pretrial detention .

In DATE Mr S.V. managed to escape during a transfer from CARDINAL detention facility to another . In DATE the applicant was released on bail .

On DATE the applicant was arrested in GPE on charges of theft . The case was assigned to ORG on account of Mr GPE ’s being in the army . There it was joined to other cases pending against Mr GPE , some of which also concerned the applicant .

On DATE the proceedings were stayed as Mr S.V. ’s whereabouts were unknown . According to the applicant , Mr S.V. had settled in GPE , but during DATE had come back to GPE every summer without ever having been stopped or bothered by the authorities , and had even renewed his identity documents .

In DATE the applicant enquired about the state of the proceedings against him . He was informed that Mr S.V. had not been found yet and that the proceedings were still stayed .

On DATE the investigation was taken up by ORG . On DATE this ORG disjoined the cases against the applicant and assigned them to the GPE , GPE , GPE and ORG , in accordance with their territorial competence , and to LOC .

On DATE ORG discontinued the investigation against the applicant because the relevant limitation period has expired . On DATE the ORG discontinued its investigation for the same reason .

On DATE ORG dropped certain charges against the applicant and indicted him for a number of others . The case was heard by FAC , which convicted the applicant in a judgment of DATE . It seems that applicant did not appeal . Certain other charges against the applicant were dropped by ORG on DATE .

It is unclear whether the cases against the applicant handled by ORG and ORG have been discontinued or are still pending .

On DATE the applicant was taken to FAC to serve a sentence of DATE years’ imprisonment imposed in DATE . Later this sentence was aggregated with several other punishments meted out in separate proceedings . He was released on DATE .

During his stay in prison , the applicant was not allowed to write to his lawyer representing him in various criminal proceedings and in the proceedings before ORG in sealed envelopes , or to talk to her on the telephone . His mail , including the letters to and from his lawyer , was systematically opened and checked . This was confirmed by a letter written on DATE by the head of the “ Execution of Punishments ” directorate of ORG and produced by the ORG before the ORG . The letter said that pursuant to section CARDINAL(CARDINAL)(c ) of the CARDINAL Execution of Punishments Act ( see paragraph CARDINAL below ) ORG correspondence was subject to monitoring by the prison administration . It further said that as the applicant had been an inmate , his correspondence had been monitored to ensure the proper implementation of section CARDINAL(CARDINAL ) of the Regulations for the application of the LAW ( see paragraph CARDINAL below ) .

In DATE a telephone booth was installed in the prison and the inmates were allowed to use it to call their relatives DATE . They were told that this facility concerned parents , brothers and sisters , children and spouses . At the request of several inmates the warden apparently informally accepted to extend it to unmarried partners . At first the applicant , who before his incarceration had lived for DATE with PERSON and had had a child with her just DATE before going to prison , was also able to benefit from the opportunity to call his partner on the telephone . However , in DATE the warden refused to allow him to avail himself of this facility . The applicant objected , but the warden replied that the law provided for a right to call spouses only and that if the applicant was so attached to his partner and their child , he could always marry her . In DATE , following an intervention by ORG , which the applicant ’s lawyer had contacted about the matter , he was once again allowed to have telephone conversations with his partner .

Articles DATE and CARDINAL of the DATE LAW , as relevant :

“ Everyone has the right to meet in confidence with the person who defends him . The confidentiality of their communication shall be inviolable . ”

“ CARDINAL . NORP The freedom and secret of correspondence and other communications shall be inviolable .

NORP This rule may be subject to exceptions only with the permission of the judicial authorities when necessary for uncovering or preventing serious offences . ”

Section CARDINAL of the DATE Execution of Punishments Act ( ORG за изпълнение на наказанията ) , as in force at the relevant time , read , in so far as relevant :

“ CARDINAL . Prisoners are entitled ... to :

( c ) correspondence and food parcels , which are subject to inspection by the [ prison ] administration . ”

Section CARDINAL(CARDINAL ) of the regulations for the application of the LAW , as in force at the relevant time and until present , provides that if the contents of a letter are such that for security , prison regime or disciplinary reasons it can not be delivered to the prisoner or dispatched by mail , the inmate must be informed of this and the letter must be put in his file .

NORP In DATE new provisions regarding persons detained on remand were added to the Act . Subsection CARDINAL of the newly enacted section CARDINALd read as follows :

“ The correspondence of the accused and the indicted is subject to inspection by the [ prison ] administration . ”

NORP In a decision of DATE ( реш. № CARDINAL от CARDINAL април DATE г. по конституционно дело № DATE г. , обн. , GPE , бр. CARDINAL от DATE г. ) ORG , acting pursuant to a request by Chief Prosecutor , declared this provision unconstitutional . After analysing in detail the relevant constitutional and LAW provisions and making , inter alia , reference to the cases of ORG v. the GPE ( judgment of DATE , Series A no . CARDINAL ) , PERSON v. GPE ( judgment of DATE , Reports of Judgments and Decisions DATE ) and ORG v. GPE ( judgment of DATE , Reports CARDINALVII ) , the court held that a blanket authorisation to inspect the correspondence of all inmates without regard to their particular circumstances and the threat which they allegedly posed to society through such correspondence was contrary to Articles CARDINAL § CARDINAL and CARDINAL of the DATE LAW .

The subjectmatter of the case was limited to reviewing the constitutionality of section CARDINALd(CARDINAL ) of the CARDINAL Execution of Punishments Act . For this reason section CARDINAL(CARDINAL)(c ) of the LAW , despite having almost identical wording , was not reviewed for constitutionality .

Under NORP law , the decisions of ORG declaring a statutory provision contrary to LAW have effect only for the future ( ex nunc ) .

Section CARDINALa(CARDINAL ) of the Regulations for the application of the CARDINAL Execution of Punishments Act , added in DATE , provides that inmates may use a payphone installed in the prison in accordance with regulations issued by the head of the “ Execution of Punishments ” directorate of ORG . Subsection CARDINAL provides that inmates may use the telephone to call only their relatives by direct ascending or descending line , their brothers , sisters and spouses . The telephone conversations are carried out under the supervision of a prison staff member , who makes sure in advance that the conversation is indeed with its purported addressee ( subsection CARDINAL ) .

Section CARDINAL(CARDINAL ) of the DATE LAW ( ORG за адвокатурата ) , presently superseded by section ORG ) of the CARDINAL Bar Act , provided that the correspondence between lawyers and their clients was inviolable , could not be subject to interception and could not be used as evidence in court .


Anatoly Kovler;David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi

The applicant , Mr PERSON , is a NORP national who was born in GPE and lives in GPE / PERSON ( a town on the territory of GPE , but which , since DATE , is under the control of the self - proclaimed “ GPE ( the “ FAC , see more details in ORG and Others v. GPE and GPE [ ORG ] , no . CARDINAL , § § DATE and CARDINAL - CARDINAL , ORG CARDINALVII ) ) .

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

Starting from DATE the applicant deposited MONEY in the ORG situated in GPE / PERSON . He claimed that the value of his personal savings , which he had deposited with ORG , had dropped significantly following economic reforms , and that the ORG had not properly discharged its obligation to revalue the deposits in ORG in order to offset the effects of inflation .

The applicant lodged an action with the “ FAC ” asking for compensation for the loss of value of his deposits . On DATE the court informed him that it was not competent to deal with such actions and that he should address the regular “ FAC courts ” .

The applicant lodged an action with “ Bender county court ” ( which is part of the “ FAC court system ” ; there exists another GPE / PERSON county court under GPE jurisdiction and located in GPE ) . On DATE the court left the action unexamined , finding that it was incomplete since he had failed to fully identify the respondents and to provide evidence in support of his action , and omitted other necessary information . Following the applicant ’s failure to submit the missing documents , on DATE his action was returned to him unexamined .

The applicant complained to ORG , which on DATE informed him of his right to lodge an action with the GPE / PERSON county court located in GPE . On an unknown date the applicant lodged an action with that court . On DATE the court informed him that his action was incomplete , in particular lacking the necessary documentary evidence and proof of payment of court fees . It appears that the applicant submitted no further documents to the GPE / ORG .

The applicant also complained to ORG of GPE about the loss of value of his deposits . His complaint was forwarded to the GPE / PERSON prosecutor ’s office . On DATE the GPE / PERSON prosecutor ’s office informed the applicant that GPE and the unrecognised “ FAC had separate budgetary systems and that he should address any claim for compensation to the “ FAC authorities ” under applicable local legislation .

The applicant states that in DATE he attempted to obtain compensation for the loss of value of his deposits from a NORP bank in GPE . This was refused since the law did not allow the payment of compensation to persons who had deposited money in the ORG outside GPE .

As concerns NORP legislation regarding compensation for losses caused by inflation , on DATE ORG adopted LAW the indexing of ORG savings in ORG ” ( ORG DATE privind indexarea depunerilor băneşti ale cetăţenilor ORG ) ( hereinafter “ the Moldovan Savings Act DATE ” ) .

LAW that law reads as follows :

“ LAW Object of the law .

The present law establishes the ORG ’s obligations in respect of citizens of GPE who had savings in ORG as of DATE , and establishes the basic principles regarding the indexation , quantum and manner of payment of indexed amounts . ”

As concerns NORP legislation concerning compensation for losses caused by inflation , the Law on Revaluation and Protection of the Savings of Citizens of GPE was enacted on DATE ( Федеральный закон « О восстановлении и защите сбережений граждан Российской PERSON ) ( hereinafter “ MONEY DATE ” ) .

LAW that law reads as follows :

“ LAW . The ORG guarantees the restoration and preservation of the value of financial assets created by citizens of GPE by depositing monies with ORG of GPE ( before that the ORG savings banks of GPE which worked on the territory of the NORP Socialist GPE ) before DATE ; ... ”

According to a letter from ORG “ Concerning ORG to the NORP Federation ” , dated DATE ( no . CARDINAL - CARDINAL - CARDINAL ) :

“ ... Restoration shall apply to deposits , which by [ DATE ] were kept in ORG . However , the above - mentioned law [ LAW DATE ] does not apply to deposits made with the savings banks of other GPE , which earlier were part of the former GPE . ”


Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

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

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

By its judgment of DATE , LOC awarded the applicant CARDINAL NORP hryvnyas ( ORG ) in compensation for pecuniary and non - pecuniary damage caused to her by PERSON Y. It appears that this judgment became final and the enforcement proceedings were initiated . No further information about enforcement of this judgment is available .

In DATE the applicant lodged a claim with ORG against FAC ( відділ державної виконавчої служби Богунського районного управління юстиції PERSON ) , alleging the latter ’s inactivity in respect of the enforcement of the judgment of DATE and claiming compensation for pecuniary and non - pecuniary damage she had sustained as a result .

On DATE the court found in part for the applicant and ordered the defendant to pay her a total of UAH CARDINAL . The applicant did not appeal against this judgment .

On DATE FAC instituted enforcement proceedings . Subsequently , the latter transferred the enforcement writ to ORG ( відділ примусового виконання рішень державної виконавчої служби PERSON області ) for enforcement .

In the course of these enforcement proceedings ORG requested ORG to replace FAC with the local department of ORG of GPE , as the debtor under the judgment of CARDINAL DATE . On DATE the court rejected this request . The applicant did not attend this hearing .

On DATE ORG of GPE replied , upon the applicant ’s request , that the DATE ORG did not provide funds for payment of compensation for damage caused by officials of ORG .

DATE and DATE ORG several times terminated and resumed the enforcement proceedings in respect of the judgment of CARDINAL DATE . By the decision of DATE , ORG terminated the enforcement proceedings of the judgment of CARDINAL DATE on the ground that the debtor had been liquidated . Apparently the applicant did not appeal against this decision .

The judgment of CARDINAL DATE remains unenforced .

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