No violation of Art. 3 (in case of expulsion to Afghanistan);No violation of Art. 8

Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre;Mark Villiger

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

On DATE he applied for asylum and a residence permit in GPE . In interviews before ORG ( Migrationsverket ) on CARDINAL DATE and DATE the applicant stated that he was ethnic NORP , NORP and born and raised in a small community consisting of approximately CARDINAL families in the province of LOC . He had never been to school and was illiterate . He claimed that his problems emanated from the fact that his father was of NORP ethnicity and his mother was of NORP ethnicity . As a child of mixed ethnicity , he had not been allowed to play with other children as they had been unkind to him . Since it had not been possible to leave him alone , he had always been with his father at his store in the nearest city . When the ORG had taken power in the province , they had frequently come to the store and taken food without paying , for which reason other people in the city had believed that the family sympathised with the ORG . The fact that his mother was NORP had reinforced this view . Moreover , his father had inherited everything from his grandfather , despite there being an older uncle , as the latter had been disowned due to bad behaviour . The uncle had then become very hostile to the applicant and his family . After the fall of the ORG , the applicant ’s situation had worsened as other villagers looked upon the applicant and his parents as traitors . He had been assaulted and severely beaten on several occasions and twice he had lost consciousness . They had also broken his nose and cut him with a knife . During DATE he had been kidnapped twice and ill - treated . The first time he was locked up in a cellar for DATE , and DATE he was held prisoner for DATE . Each time he had been released when his father had paid a large amount of money . His father had been advised by his business partner to move but he had refused as he thought things would get better over time . Moreover , the applicant did not know if his mother had any relatives as she had never mentioned any , but they could not have moved to her home town since she had married a man from another ethnic group .

NORP In DATE a group of masked men had come to their house and his father had told him to leave the house , which he had managed to do by escaping through the basement . He had seen the assailants kill his mother before he fled . He had then gone to GPE where he had found out from a taxi driver who had a route to his home town that his father had also been killed . His father ’s business partner had helped him to leave the country and he had had contact with no one since he left . The applicant was convinced that he would be killed if returned to GPE and that the authorities neither could nor would help him . As he was of mixed ethnicity he would not be welcome anywhere in the country .

On DATE ORG rejected the application . It found that the general situation in GPE was not such that the applicant could be granted leave to remain in GPE on this sole ground . Turning to the applicant ’s personal circumstances , the ORG observed that it had found no evidence that persons of mixed ethnicities faced specific problems in GPE . According to the applicant ’s own account , ethnicity was passed down by the father , for which reason the applicant was considered a NORP . Thus , the Board did not believe that the applicant had faced such discrimination as claimed because of his mixed ethnicity . Moreover , it noted that , again according to the applicant , everyone in his village had tried to get along with the ORG and had paid to be well treated by them . Therefore the ORG was not convinced that the applicant and his family had been suspected of being collaborators with the ORG and ill - treated on this ground . ORG further questioned the claim that the applicant had no relatives other than his uncle , having regard to the very strong family ties in NORP culture . In any event , his father ’s business partner was still there and had shown a friendly and supportive attitude to the applicant and his family . Consequently , the ORG concluded that the applicant had a social network in GPE which made it possible for him to return . Since there was no other reason to grant the applicant leave to remain in GPE , his application was rejected .

The applicant appealed to ORG ( Utlänningsnämnden ) , and was therefore heard again . He maintained his claims and added that he was not considered a NORP simply because his father was one . Moreover , the suspicion that they had collaborated with the ORG was also based on the fact that his mother was NORP and that the ORG had not touched their home . The family ’s poor reputation had then been used against them by his uncle . His mother had no contact with her family since she had married outside her ethnicity . Moreover , his father ’s business partner had become wealthy thanks to the applicant ’s father and therefore had owed him a favour . In any event , it was money from their business which had paid for the applicant ’s trip .

On DATE ORG rejected the applicant ’s appeal as concerned his asylum application . It noted that ORG had established a military base in LOC to stabilise the area . Against this background , and for the reasons set out in ORG decision , ORG found it unsubstantiated that the applicant would risk persecution upon return .

In DATE the applicant married a NORP woman , who had been granted a residence permit in GPE due to a previous marriage . In DATE the couple had a daughter and therefore , on DATE ORG exempted the applicant from the regulation on family reunification which set out that an applicant must apply for a residence permit on the basis of family from his country of origin . ORG thus granted the applicant a temporary residence permit for DATE . On DATE the applicant was granted a permanent residence permit in GPE on the same grounds . The couple had a son on DATE .

On DATE the applicant ’s wife left him , and , together with the children , went to live at a protected address . The children were at that time CARDINAL and DATE . The estranged wife reported to the police that she had been raped and ill - treated by the applicant for DATE and that he had also hit their daughter . She explained that she had already tried to leave the applicant in DATE after he had threatened her with a knife and the police had to intervene . Criminal proceedings were immediately initiated .

Subsequently , the prosecution authority issued restraining orders against the applicant vis - à - vis his estranged wife and their children , under section CARDINAL of LAW ( lagen ( CARDINAL:CARDINAL ) om besöksförbud ) .

On DATE the applicant was examined by CARDINAL psychiatrists at ORG , who in a medical report of DATE noted that the applicant described having symptoms of PTSD and depression with suicidal thoughts . Should a sentence of imprisonment be considered , an examination of the applicant by a forensic psychiatrist was recommended .

The trial took place before ORG ( tingsrätten ) in GPE , and commenced on DATE , when the applicant , his estranged wife , her mother and CARDINAL neighbours were heard and documentary evidence submitted . The applicant was detained on remand on DATE and submitted for examination by a forensic psychiatrist , who concluded that the applicant was not suffering from a serious mental disturbance and that he had not committed the act of which he was accused due to serious mental disturbance .

By judgment of CARDINAL DATE ORG ( tingsrätten ) in GPE convicted the applicant of rape and aggravated violation of a woman ’s integrity ( grov kvinnofridskränkning ) committed several times a week over a period of DATE , DATE and DATE . The violation included hitting , pushing , hair pulling and threatening to harm or kill the wife and the children , or to take the children away from the wife by taking them to GPE . ORG noted that the wife had made a very composed and credible impression . She had presented her story , which was supported by witness statements , in a calm and balanced way .

The applicant was sentenced to CARDINAL years’ imprisonment and CARDINAL years’ expulsion from GPE , with a prohibition on returning before DATE .

NORP In its decision to expel the applicant ORG had regard , inter alia , to a report dated DATE from the relevant social welfare board relating to the issue of the children ’s need for contact with their father and how they would be affected by his expulsion . It pointed out that the estranged wife was afraid of the applicant and therefore still lived at a secret address . The children had not seen their father since DATE and the mother would only take part in visits if a contact person were present . An expulsion would most likely mean that the children would not have any contact with their father during the expulsion period . Generally , children needed close and good contact with both their parents . However , the courts and the social services also had to take into account the risk of children being subjected to violence , abuse , abduction , etc . Having regard to the crimes at issue , the overall assessment was therefore that the children ’s need for contact with their father , if convicted , should be balanced against the risk of their being subjected to , or becoming witness to , violence or other degrading treatment during access .

NORP In its decision to expel the applicant , ORG essentially stated the following . In view of the nature of the crimes and the circumstances of the case , there was reason to fear that the applicant would continue to commit crimes in GPE . Moreover , in view of the illtreatment endured by the estranged wife and caused by the applicant , the crimes were considered to be so serious that the applicant should not be allowed to remain in GPE . He lacked any substantial connection to GPE other than his family , who had to live at a secret address to avoid being persecuted by him . In conclusion , the children ’s need for contact with their father could not be considered to be so significant that an expulsion should be avoided . However , having regard to the children , the expulsion period was limited to DATE . Finally , ORG had been heard and had stated that there were no impediments to the expulsion of the applicant to his home country .

The applicant appealed to ORG ( hovrätten ) , before which the applicant and the estranged wife were heard , as were the witnesses who had been heard before ORG . On DATE ORG upheld the lower court ’s judgment in full .

The applicant requested leave to appeal to ORG ( ORG domstolen ) which was refused on DATE .

Having left the applicant on DATE , on CARDINAL DATE the estranged wife filed for divorce from the applicant and sole custody of the children . She contended that she had been ill - treated by the applicant , that he had also hit the children , and that she had reported the abuse to the police . The applicant agreed to a divorce but requested sole custody of the children . He also demanded access to the children for TIME a month in the presence of a contact person .

On DATE , ORG temporarily granted the estranged wife sole custody of the couple ’s children while the proceedings were pending before it . It further decided temporarily that the applicant should not have physical contact with the children during this time . It noted in that respect that the applicant had been accused of serious crimes , including violence against the daughter . The prosecutor was considering whether to charge the applicant and , while awaiting developments in this regard , ORG found joint custody to be incompatible with the children ’s best interest . Nor should access between the applicant and the children be established under those circumstances .

The applicant ’s appeal against the decision was rejected by ORG on DATE .

As stated above , in the criminal proceedings the applicant was convicted on DATE by ORG .

In the custody and access proceedings , at the request of ORG , the social welfare board submitted a report dated DATE concerning custody and access rights , based on CARDINAL interviews with the estranged wife and CARDINAL interviews with the applicant ( one at home and one at the pre - trial detention centre ) . The social welfare board had also met the children at their home in DATE , and spoken to the children ’s nursery school and to a deaconess involved in the case . In addition , they had had access to relevant written material such as the first instance criminal judgment against the applicant and the examination conducted by the forensic psychiatrist . The report stated that in view of the applicant ’s abuse of his estranged wife and the fact that he had probably also physically abused his daughter , there was a high risk that the children would be harmed if the applicant were to have custody of them . The children were very young when they last had contact with the applicant and they would have no memories of their father that they could express in words . Their need for a relationship with their father would increase when they became older . Access between them and the applicant would involve an increased risk that their secret address would become known to him . This risk should be balanced against the fact that the applicant had subjected his family to abuse and that he would probably be expelled upon release from prison . Thus , it was advised that he should not have access to the children . In order to meet the children ’s need for contact with their origins , it was noted that such could be accommodated through letters . The social welfare board could distribute letters from the applicant to the children via the estranged wife , who in turn could reply within DATE to report on the children ’s development .

The applicant and his estranged wife divorced in DATE .

On DATE the applicant ’s conviction and sentence became final .

NORP In letters of CARDINAL and DATE , and DATE the applicant submitted his observations on the report from the social welfare board . He found that the report was partial to the benefit of the estranged wife and not in the interests of the children .

On DATE , ORG held a hearing in the case . Represented by legal counsel , the applicant and his ex - wife were heard . CARDINAL witnesses were heard at the applicant ’s request . A representative from the social welfare board stated that the aim had been to see both parents an equal number of times during the custody investigation but that this had not been possible because the applicant was detained on remand . In general young children were directly affected by how their mother was treated and it was therefore very likely that the applicant ’s daughter would experience bad memories if she had to see the applicant . Moreover , if the children were to have contact with the applicant , they would be exposed to yet another separation from him when the expulsion order was implemented . Thus , for the moment it was not in the children ’s best interests to see the applicant .

By judgment of DATE , ORG granted the ex - wife sole custody of the couple ’s CARDINAL children and ordered that the applicant should not have visiting rights to the children . The court noted that the ex - wife and the children lived at a secret location and that the children were well and felt safe with their mother . Moreover , the applicant was in prison , and once his sentence was served he would be expelled to GPE with a prohibition on returning until DATE . Against this background , it was most appropriate that the ex - wife be granted sole custody of the children .

As concerned access rights , the court noted that according to several witness statements the applicant had been a good father to his children . However , there was a considerable risk that the children had experienced the violence to which their mother had been subjected and that seeing the applicant could bring back bad memories and disturb the sense of safety that the children now experienced . Moreover , the applicant was now in prison , from where he would only be able to have very restricted access to his children . Furthermore , even if the children were able to create a safe relationship with the applicant during such limited access , the applicant would subsequently be expelled and therefore separated from his children until DATE . ORG therefore found that access was not in the children ’s best interest . It did not rule out that access might be established at a later point in time .

ORG only took a stand on access as requested by the applicant , namely to have physical contact with his children in the presence of a contact person . It did not take any decision regulating or limiting the applicant sending letters to his children . Practically , however , sending letters was complicated by the fact that the children lived with their mother at a secret address . Nevertheless , it was possible to send letters to the children via ORG . Also , the offer by the social welfare board to pass on letters from the applicant to the children via their mother still stood . The applicant availed himself thereof once at DATE when he send gifts to the children . Moreover , on DATE the ex - wife gave detailed information about the children and their everyday life to the social welfare office , and that information was subsequently communicated to the applicant .

The applicant appealed against the ORG judgment of DATE to ORG , stating that he had requested the Government to repeal his expulsion order and that he had lodged a complaint with ORG DATE as he considered that his expulsion to GPE would be in violation of LAW . Consequently , it was not certain that he would be expelled and hence his proposed expulsion was not a reason to deny him access to his children . Moreover , he owned a house and had a job and several friends , for which reason he could offer the children a stable place to visit once he was released from prison . He found it unacceptable that he had no news at all of his children and allegedly was only allowed to send CARDINAL letters per year to them . The ex - wife stated that the applicant could have access to the children when they were older .

On DATE the ORG refused leave to appeal and , on CARDINAL DATE , so did ORG .

On DATE , the applicant requested the Government to repeal his expulsion order and grant him a residence permit in GPE . He submitted essentially that there were problems in GPE between NORP and NORP , that he had been wrongfully convicted and that he had CARDINAL children in GPE .

In a submission of DATE , the applicant stated that when the ORG came into power in DATE and took control of the NORP area , his father started talking about schools and freedom with others in the NORP group . The ORG perceived from this that his father was dissociating himself from his religion . They tried to capture him but he went into hiding . The applicant was captured instead and imprisoned . He was illtreated for DATE , which included beating and being stabbed in the back with a knife , to get him to reveal his father ’s hiding place , which he refused . His father paid a large ransom for his release after DATE and the applicant was admitted to hospital for DATE . DATE he went with his father to the mosque , where they were captured by the NORP who told the applicant that he was not a NORP since his father was married to a NORP . They wanted him to prove his loyalty to the NORP by walking on burning coals . When he refused , they stabbed him in the shoulder . He walked on the coals and suffered serious burns to his feet . He was left alone and his father came in disguise in the middle of the night to pick him up . His father had to carry him home , where he was treated for his injuries . DATE , he and his father went to the mosque again and there the others decided that his father should kill him and his mother , which his father refused . Then it was decided that the whole family should die and CARDINAL of his father ’s friends warned them of this . The applicant was CARDINAL at the time . He and his parents woke up in the middle of the night to find that the house was on fire and that people were trying to get in through the window . His father fetched a weapon and his mother opened a hatch to an escape tunnel under the house . Before jumping down he saw his mother being injured . They threw down money to him and closed the hatch . He had no choice but to crawl out through the tunnel . He stood and watched while the house burned down and then went to the home of CARDINAL of his father ’s friends who lived in another city . This man helped him leave GPE .

NORP In a submission of DATE , the applicant added that he suffered from post - traumatic stress syndrome ( PTSD ) , that he had tried to commit suicide , and that he had no family other than his children and a new girlfriend in GPE .

On DATE the Government rejected the applicant ’s request . It found that there was no impediment to the enforcement of the expulsion order and no other special reasons to grant the applicant a residence permit in GPE .

In DATE , the applicant submitted a new application , dated DATE , for revocation of the expulsion order . He added that he had not been in contact with his country of origin since he left but knew that his father ’s business partner , who had helped him escape , had been killed . Since his parents had been killed and he himself had been tortured by the ORG , his life was in great danger . He also risked being killed upon return to GPE for having married NORP woman although he was a NORP and for having violated a NORP woman in the acts for which he had been convicted in GPE . Invoking anew his poor mental health , the applicant submitted some medical certificates . CARDINAL certificate was dated DATE and written by a physician at the prison . It stated that the applicant had alleged that he had been imprisoned and tortured on several occasions in GPE and that the physician had seen a large number of scars on his back from cuts . He also had CARDINAL scars from stab wounds to his thigh and his shin . The physician confirmed that the scars might have been caused by torture as alleged by the applicant . A second medical certificate was dated DATE and written by a chief physician and specialist in psychiatry , and by a psychologist at ORG . It stated that the certificate was based on the applicant ’s contacts with the ORG from DATE . He had begun psychotherapy at FAC in DATE to talk about his background and traumatic experiences . The physicians had considered that he was clearly traumatised and had several symptoms of PTSD such as nightmares , flashbacks and anxiety . However , the applicant had been found stable in DATE for which reason the sessions had ended . In DATE the applicant had contacted the physicians again because he had been feeling unwell . When he had been arrested on suspicion of raping PERSON , he had been placed in a cell and had experienced strong flashbacks from when he had been kidnapped and tortured for DATE in GPE . He had been so desperate that he had cut his wrists with a table knife and had then spent TIME in the psychiatric emergency department . He had then resumed his sessions with the psychologist and had received medication to help him sleep . However , he had overdosed on the medication in DATE due to the strain caused by the criminal trial against him . His last session had been in DATE , before being imprisoned , and after the judgment he had again tried to commit suicide by taking an overdose of pills . According to the CARDINAL physicians , the applicant suffered from GPE , depression , anxiety and had a serious stress reaction to his situation . He was therefore in a very fragile state mentally , with a high risk of suicide if the expulsion order were to be enforced . Thus , they concluded that there were medical - psychiatric impediments to the enforcement of the expulsion order .

On DATE the ORG rejected the new request as it found that there was no impediment to the enforcement of the expulsion order and no other special reasons to grant the applicant a residence permit in GPE .

Finally , in DATE the applicant submitted a third application for revocation of the expulsion order based essentially on the same grounds as the previous ones . That case is still pending before ORG .

On DATE the ORG decided to apply Rule CARDINAL of ORG , indicating to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings not to deport the applicant until further notice .

On DATE , following the ORG ’s indication under LAW , the acting Minister of ORG decided to stay the enforcement of the expulsion until further notice .

The Minister also decided that the applicant should be taken into custody upon his conditional release from prison . Accordingly , the applicant was taken into custody on CARDINAL DATE . He was released on DATE by decision of ORG .

In the meantime , the ORG requested additional information from ORG about some of the issues raised in the present case . Having made an investigatory visit to GPE in DATE , ORG concluded , inter alia , that the security situation in GPE was not such that an expulsion thereto in general would entail a violation of LAW . The ORG noted , however , that according to various sources , the ORG had increased their operation in Ghazni province where arbitrary killings and civilian deaths among supporters of Government forces had been reported . In GPE the violence had increased mostly in the NORP - dominated south , while the situation was relatively calm in the NORP - dominated northern part of the province . Thus , at the relevant time , there were impediments to enforcing expulsion orders to GPE , notably due to the unstable security situation , which meant , among other things , that humanitarian organizations could not operate in the province and that there were problems for travellers on the road between GPE and the province .

DATE . On DATE the prosecution authority issued restraining orders against the applicant vis - à - vis his ex - wife and their children , under LAW . The prosecution noted that the applicant had previously been convicted of rape and aggravated violation of a woman ’s integrity regarding his former wife , and found that there was a risk that the applicant would commit a crime against , persecute or in some other way seriously harass his former wife or the children . The orders were in force for DATE , that is until DATE . Violation of restraining orders is a crime under the aforementioned LAW that can result in a fine or a maximum prison sentence of DATE . The applicant failed to bring the decision before the courts .

The provisions concerning the right of aliens to enter and to remain in GPE are laid down in LAW ( Utlänningslagen , GPE hereafter referred to as “ LAW ” ) which replaced , on DATE , the old LAW ( Utlänningslagen , DATE ) . LAW was amended anew on DATE . The following refers to LAW in force at the relevant time .

Under the previous Aliens Act , asylum applications were dealt with by ORG and ORG . Under LAW in force , matters concerning the right of aliens to enter and remain in GPE are normally dealt with by CARDINAL instances , ORG , ORG and ORG . Thus , appeal against a decision or an order for expulsion issued by ORG , which carries out the initial examination of the case , lies to ORG . ORG is , in principle , obliged to review its decision before it forwards an appeal to ORG . Appeal against a judgment or decision of ORG in turn lies to ORG . This instance will , however , only deal with the merits of the case after having granted leave to appeal . Leave to appeal will be granted if ( CARDINAL ) it is considered of importance for the guidance of the application of the law that the appeal is examined by ORG or ( CARDINAL ) there are other exceptional grounds for examining the appeal .

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

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

Pursuant to LAW , LAW ( ORG , FAC ) a crime may , apart from ordinary sanctions , result in special consequences defined by law . Expulsion on account of a criminal offence constitutes such a consequence and the decision in this respect is made by the court in which the criminal proceedings take place .

Provisions on expulsion on this ground are laid down in LAW . According to LAW , sections CARDINAL and DATE , an alien may not be expelled from GPE on account of having committed a criminal offence unless certain conditions are satisfied and the person ’s links to NORP society have been taken into account .

NORP Moreover , the court must have regard to the general provisions on impediments to the enforcement of an expulsion decision . Thus , pursuant to LAW , LAW , of LAW , there is an absolute impediment to expelling an alien to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment . Furthermore , a risk of persecution generally constitutes an impediment to enforcing an expulsion decision .

If the Government find that a judgment or decision to expel a person on account of having committed a criminal offence can not be executed or if there are otherwise special reasons not to enforce the decision , by virtue of LAW , section DATE CARDINAL Act , the Government may repeal , in part or completely , the judgment or decision of the court . When considering whether to repeal an expulsion order , the Government shall above all take into account any new circumstances , namely circumstances that did not exist at the time of the courts’ examination of the criminal case . In the travaux préparatoires to this provision ( Government Bill CARDINAL/CARDINAL:CARDINAL , p. CARDINAL ) , strong family ties and severe illness are given as examples of such “ special reasons ” that may warrant revocation of an expulsion order . The ORG may also , in accordance with LAW , LAW , of ORG ( Regeringsformen ) , pardon or reduce a penal sanction or other legal effect of a criminal act .

Rules concerning rights of access to children are primarily to be found in LAW of the Children and Parents Code ( ORG CARDINAL:CARDINAL ; hereinafter the Code ) . The best interests of the child must be the determining factor in all decisions concerning custody , residence and access . In the assessment of what is in the best interests of the child , particular attention shall be paid to the risk of the child or another member of the family being exposed to abuse or of the child being unlawfully abducted , retained or otherwise harmed . Particular attention shall also be paid to the child ’s need for close and good contact with both parents . Regard should also be given to the wishes of the child while taking into account the age and maturity of the child ( LAW , LAW a , of the LAW ) .

A child shall have the right to access with a parent with whom he or she is not living . Access may take place by the child and the parents seeing each other or by other kinds of contact . The child ’s parents have a joint responsibility to ensure that , as far as possible , the child ’s need for access to a parent with whom he or she is not living is met . If both parents have custody of the child and the child is to have access to a parent with whom he or she is not living , the other parent shall provide such information about the child as will promote access , unless there are special reasons to the contrary . If the child is to have access to a parent who does not have custody or with some other person who is particularly close to the child , the information referred to in the previous sentence shall be provided by the person with custody ( LAW , LAW , of the LAW ) .

The courts may decide that particular conditions or directions shall apply to the right of access , such as the presence of a contact person or where the contact should take place . However , according to ORG such directions shall be decided only in exceptional cases since too detailed directions may lessen the GPE will to cooperate . Directions may be given if , without them , the contact would not take place at all or would only take place to a lesser extent contrary to the child ’s interests .

Prior to DATE it was not explicitly stated in the LAW that access could take place by means of contact other than direct contact between the child and parent , such as telephone or letters . Normally , the parents should be able to agree on the extent of such indirect contact . The municipalities also assist in reaching agreements on such contact . However , through the introduction of the new provision in LAW , LAW , of the LAW , the courts have been enabled to decide that access is to take place in some other way than by the child meeting with the parent . The aim is to provide , in exceptional cases , a way of bringing about contact between a child and a parent when direct access is not an option . This may be the case for instance when the child and the parent live a considerable distance from each other or when the freedom of movement of the parent is restricted as a result of a prolonged hospital stay or similar circumstance ( see Government PERSON , p. CARDINAL . )

According to the rules on right to access , it is in the child ’s best interests to have close and good contact with both parents in most cases . However , that does not mean that the child must have contact with a parent in all circumstances . A child must have an absolute right not to be subjected to violence , abuse or other degrading treatment . It is also well known that a child ’s psychological health may be endangered if the child has to see or hear domestic violence . Accordingly , the courts and social authorities shall pay particular attention to the risk of violence and other kinds of abuse directed against a child or other members of the family , and the finding of such a risk shall weigh heavily in the overall assessment of what is in the best interests of the child in a particular case . The result of the assessment may be that it is best for the child not to have any contact at all , to have contact , inter alia , in the presence of a contact person or that access should be established when the child has reached a mature age ( see Government Bill CARDINAL/CARDINAL:CARDINAL . p. CARDINAL . )

ORG from GPE , DATE ( “ ORG DATE GPE Guidelines ” ) observed , inter alia , under “ I. Introduction ” :

“ ... In light of the worsening security environment in certain parts of the country and the increasing number of civilian casualties ORG considers that the situation can be characterized as CARDINAL of generalized violence in GPE , GPE , GPE , and parts of GPE and GPE provinces . Therefore , NORP asylum - seekers formerly residing in these areas may be in need of international protection under broader international protection criteria , including complementary forms of protection . In addition , given the fluid and volatile nature of the conflict , asylum applications by NORP claiming to flee generalized violence in other parts of GPE should each be assessed carefully , in light of the evidence presented by the applicant and other current and reliable information on the place of former residence . This latter determination will obviously need to include assessing whether a situation of generalized violence exists in the place of former residence at the time of adjudication .

ORG generally considers internal flight as a reasonable alternative where protection is available from the individual ’s own extended family , community or tribe in the area of prospective relocation . Single males and nuclear family units may , in certain circumstances , subsist without family and community support in urban and semi - urban areas with established infrastructure and under effective Government control . Given the breakdown in the traditional social fabric of the country caused by DATE of war , massive refugee flows , and growing internal migration to urban areas , a case - by - case analysis will , nevertheless , be necessary .

In light of the serious human rights violations and transgressions of international humanitarian law during GPE ’s long history of armed conflicts , exclusion considerations under LAW may arise in individual claims by NORP asylum - seekers . Careful consideration needs to be given in particular to the following profiles : ( i ) members of the security forces , including ORG agents and high - ranking officials of the communist regimes ; ( ii ) members and commanders of armed groups and militia forces during the communist regimes ; ( iii ) members and commanders of the ORG , PERSON and other armed anti - Government groups ; ( iv ) organized crime groups ; ( v ) members of NORP security forces , including the NDS ; and ( vi ) pro - Government paramilitary groups and militias . ”

“ It is widely documented that ethnic - based tension and violence have arisen at various points in the history of GPE . Since DATE of the ORG regime in DATE , however , ethnically - motivated tension and violence have diminished markedly in comparison to earlier periods . Notwithstanding the foregoing and despite constitutional guarantees of “ equality among all ethnic groups and tribes ” certain concerns remain . These include , inter alia , ethnic discrimination and clashes , particularly in relation to land use / ownership rights .

GPE is a complex mix of ethnic groups with inter - relationships not easily characterized . For different historical , social , economic and security - related reasons , some members of ethnic groups now reside outside areas where they traditionally represented a majority . This has resulted in complex ethnic mosaic in some parts of the country , notably the northern and central regions , and in the major cities in the west , north and centre of GPE . Consequently , an ethnic group can not be classified as a minority by simply referring to national statistics . A person who belongs to a nationally dominant ethnic group - such as NORP and NORP - may still face certain challenges relating , at least in part , to his or her ethnic association , in areas where other ethnic groups predominate . Conversely , a member of an ethnic group constituting a minority at the national level is not likely to be at risk in areas where the ethnic group represents the local majority . The issue of ethnicity may feature more prominently where tensions over access to natural resources ( such as grazing land and water ) and political / tribal disputes occur , or during periods of armed conflict ...

As an example , CARDINAL of the groups affected are the NORP , who have been uprooted in large numbers by ethnic violence in the north and the west of the country following the collapse of the ORG regime . NORP throughout northern GPE , where they constitute an ethnic minority , have since been subject to discrimination , arbitrary arrests , violence and reprisal killings by non - NORP militias and groups because of their ( perceived ) association with the former ORG regime , whose leadership consisted mostly of NORP from southern GPE . Political power in the north reportedly still rests with local powerbrokers associated with the ( NORP - dominated ) ORG , who are reluctant to allow the sustainable reintegration of NORP returnees or provide for their protection . As such , formerly displaced NORP may be unable to recover their land and property upon return to their area of origin ...

Marginalized during the ORG rule , the NORP community continues to face some degree of discrimination , despite significant efforts by the Government to address historical ethnic tensions . Notwithstanding the comparatively stable security situations in provinces and districts where the NORP constitute a majority or a substantial minority , such as GPE , GPE and NORP districts in GPE , the security situation in the remainder of the province , including on access routes to and from these districts , has been worsening ...

However , the mere fact that a person belongs to an ethnic group constituting a minority in a certain area does not automatically trigger concerns related to risks on the ground of ethnicity alone . Other factors including , inter alia , the relative social , political , economic and military power of the person and/or his and her ethnic group in the area where fear is alleged may be relevant . Consideration should also be given to whether the person exhibits other risk factors outlined in these Guidelines , which may exacerbate the risk of persecution . In the ever - evolving context of GPE , the potential for increased levels of ethnic - based violence will need to be borne in mind . ”

In respect of “ ORG Alternative ” it was set out , among other things :

“ A detailed analytical framework for assessing the availability of an internal flight or relocation alternative ( IFA / IRA ) is contained in LAW . CARDINAL : “ Internal Flight or Relocation Alternative ” Within ORG CARDINALA(CARDINAL ) of LAW and/or DATE Protocol Relating to the Status of Refugees ...

Whether an IFA / IRA is “ reasonable ” must be determined on a case - by - case basis , taking fully into account the security , human rights and humanitarian environment in the prospective area of relocation at the time of the decision . To this effect , the following elements need to be taken into account : ( i ) the availability of traditional support mechanisms , such as relatives and friends able to host the displaced individuals ; ( ii ) the availability of basic infrastructure and access to essential services , such as sanitation , health care and education ; ( iii ) ability to sustain themselves , including livelihood opportunities ; ( iv ) the criminality rate and resultant insecurity , particularly in urban areas ; as well as ( v ) the scale of displacement in the area of prospective relocation ...

In light of the foregoing , ORG generally considers ORG as a reasonable alternative where protection is available from the individual ’s own extended family , community or tribe in the area of intended relocation . Single males and nuclear family units may , in certain circumstances , subsist without family and community support in urban and semi - urban areas with established infrastructure and under effective Government control . A case - by - case analysis will , nevertheless , be necessary given the breakdown in the traditional social fabric of the country caused by DATE of war , massive refugee flows , and growing internal migration to urban areas . ”

According to ORG Mental Health Atlas , DATE , on GPE , mental health was not covered by the primary health care system . ORG had been established in the capital and there were CARDINAL general psychiatric rehabilitation centres with CARDINAL . There were only very few trained psychiatrists . Most doctors working as psychiatrists had either had in - service training or had attended short courses abroad . Psychologists were trained at ORG . Much of the qualified manpower and technical expertise had left the country . NGOs were involved with mental health in the country . The following therapeutic drugs were generally available at the primary health care level of the country : carbamazepine , phenobarbital , amitriptyline , hlorpromazine , diazepam and haloperidol . The cost of medicines kept fluctuating due to the effect of war on the stability of the local currency . Over - the - counter sales of psychotropic drugs occurred .

In an article published by NORP ORG in GPE in DATE ( http://www.cwCARDINALwafghan.ca/MentalHealth ) it was stated , inter alia :

“ GPE reportedly has CARDINAL psychologists and psychiatrists in the entire country . In the capital , ORG manages ORG , founded DATE , which also includes inpatient services for men and women , and a drug treatment centre called ORG . In DATE , this centre saw CARDINAL inpatients suffering from drug addiction , mainly heroin and opium addiction ( ORG , GPE , DATE ) . The hospital , long notorious for its dilapidated and unhygienic state , has CARDINAL beds ; while experts say at least a CARDINAL-bed facility is needed . It was also criticized in a DATE assessment by the GPE for not providing follow - up treatment post - discharge and for the high relapse rates of addicts and mental health patients . In DATE , CARDINAL patients were admitted to the hospital and CARDINAL patient consultations took place ( of which CARDINAL were treated for depression and CARDINAL treated for psychosis ) , which remains the only mental health hospital in the country , despite announcements by the Minister of Public Health back in DATE that CARDINAL-bed mental health hospitals would be opened in every region of the country , in addition to CARDINAL-bed hospitals in every province , and CARDINAL-bed clinics in every district . As of DATE , ORG had no plans in place to construct a new hospital in GPE ; however , in DATE , ORG moved ahead with plans to design a program to support the existing hospital and to build the capacity of the CARDINAL hospital personnel . The program will be implemented by the international NGO , ORG .

... tertiary care facilities like the CARDINAL-bed mental health Hospital and CARDINAL-bed PERSON detox center , which are mandated to accept patients from across GPE , lack the resources , space , qualified personnel and internal systems to provide appropriate , humane care for patients . ” – ORG in GPE , DATE .

ORG currently operates a mental health training program with funding from ORG and ORG , with plans to expand it to CARDINAL hospitals in the northern region of the country in DATE . In GPE , there is no dedicated university faculty to train mental health personnel ; however , ORG announced in DATE its plans to work with ORG “ to improve advanced psychiatric education at medical universities in GPE ” ( GPE website ) .


Preliminary objection dismissed (victim);Preliminary objection dismissed (non-exhaustion);Violation of Art. 8;Violation of Art. 13;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

The applicant , who was born in DATE , was a lawyer by profession . He is now retired and lives in GPE .

In DATE , after the communist regime had been established , the applicant , who was then a student , was refused permission by the prefect of the county of Vaslui to publish CARDINAL pamphlets , “ Student Soul ” ( Suflet de student ) and “ NORP ” ( PERSON ) , on the ground that they expressed antigovernment sentiments .

Dissatisfied with that refusal , the applicant wrote CARDINAL letters to the prefect in which he protested against the abolition of freedom of expression by the new people 's regime . As a result of these letters , the applicant was arrested on DATE . On DATE ORG convicted the applicant on a charge of insulting behaviour and sentenced him to DATE imprisonment .

In DATE , after the communist regime had been overthrown , the new government caused Legislative Decree no . PERSON to be passed , which granted certain rights to those who had been persecuted by the communist regime and who had not engaged in NORP activities ( see paragraph CARDINAL below ) .

On DATE the applicant brought proceedings in the ORG against ORG , ORG and ORG , seeking to have the prison sentence that had been imposed in the DATE judgment taken into account in the calculation of his length of service at work . He also sought payment of the corresponding retirement entitlements .

NORP The court gave judgment on DATE . Relying on , among other things , the statements of witnesses called by the applicant ( P.P. and PERSON ) , the DATE judgment and depositions from ORG , it noted that DATE the applicant had been persecuted on political grounds . It consequently allowed his application and awarded him the compensation provided for in Legislative Decree no . PERSON .

As part of its defence in those proceedings , ORG submitted to the court a letter of DATE that it had received from ORG ( Serviciul Român de Informaţii – “ the RIS ” ) . The letter read as follows :

“ In reply to your letter of DATE , here are the results of our checks on PERSON , who lives in GPE :

( a ) during his studies in ORG at ORG the aforementioned person was a member of ORG , a ' legionnaire ' [ legionar]-type [ ] movement .

( b ) in DATE he applied to the ORG censorship office for permission to publish CARDINAL pamphlets entitled ' Student Soul ' and ' NORP ' but his request was turned down because of the anti - government sentiments expressed in them ;

( c ) he belonged to the youth section of ORG , as appears from a statement he made in DATE ;

( d ) he has no criminal record and , contrary to what he maintains , was not imprisoned during the period he mentions ;

( e ) in DATE he was summoned by the security services on several occasions because of his ideas and questioned about his views ... ”

The applicant brought proceedings against the RIS , stating that he had never been a member of the NORP legionnaire movement , that he had not been a student in ORG at ORG but in LAW and that some of the other information provided by the RIS in its letter of DATE was false and defamatory . Under the Civil Code provisions on liability in tort he claimed damages from the RIS for the non - pecuniary damage he had sustained . He also sought an order , without relying on any particular legal provision , that the ORG should amend or destroy the file containing the information on his supposed legionnaire past .

In a judgment of DATE ORG Instance dismissed the applicant 's application on the ground that the statutory provisions on tortious liability did not make it possible to allow it .

The applicant appealed .

On DATE ORG found that the information that the applicant had been a legionnaire was false . However , it dismissed the appeal on the ground that the RIS could not be held to have been negligent as it was merely the depositary of the impugned information , and that in the absence of negligence the rules on tortious liability did not apply . The court noted that the information had been gathered by the ORG 's security services , which , when they were disbanded in DATE , had forwarded it to the ORG ( ORG ) , which had in its turn forwarded it to the ORG in DATE .

On DATE ORG dismissed an appeal by the applicant against the judgment of DATE in the following terms :

“ ... the ORG finds that the applicant 's appeal is ill - founded . As the statutory depositary of the archives of the former ORG security services , the ORG in letter no . DATE forwarded to ORG information concerning the applicant 's activities while he was a university student , as set out by the ORG security services . It is therefore apparent that the judicial authorities have no jurisdiction to destroy or amend the information in the letter written by the ORG , which is merely the depositary of the former ORG security services ' archives . In dismissing his application , the judicial authorities did not infringe either LAW but stayed the proceedings in accordance with the jurisdictional rules laid down in LAW . ”

On DATE the applicant brought an action for damages against all the judges who had dismissed his application to have the file amended or destroyed . He based his action on LAW , relating to denials of justice , and LAW . According to the applicant , both ORG and ORG refused to register his action .

In this connection , the applicant lodged a fresh application with the ORG on CARDINAL DATE , which was registered under file no . MONEY and is currently pending before the ORG .

NORP In DATE the Minister of ORG informed the Director of the RIS that ORG had declared the applicant 's present application admissible . The Minister consequently asked the Director of the RIS to check once again whether the applicant had been a member of the legionnaire movement and , if that information proved to be false , to inform the applicant of the fact so that he could subsequently make use of it in any application for review .

On DATE the Director of the RIS informed the Minister of ORG that the information in the letter of DATE that the applicant had been a legionnaire had been found by consulting their archives , in which a table drawn up by the Iaşi security office had been discovered that mentioned , in entry CARDINAL , CARDINAL PERSON , a “ science student , rank - and - file member of ORG , legionnaire ” . The Director of the PERSON mentioned that the table was dated DATE and expressed the view that “ since at that date Mr PERSON was only CARDINAL , he could not have been a student in ORG . [ That being so , ] we consider that there has been a regrettable mistake which led us to suppose that Mr PERSON of GPE was the same person as the one who appears in that table as a member of a legionnaire - type organisation . Detailed checks made by our institution in the counties of GPE and ORG have not provided any other information to confirm that the CARDINAL names refer to the same person . ”

A copy of that letter was sent to the applicant , who on DATE applied to ORG to review its decision of DATE . In his application he sought a declaration that the defamatory documents were null and void , damages in the amount of CARDINAL leu in respect of non - pecuniary damage and reimbursement of all the costs and expenses incurred since the beginning of the proceedings , adjusted for inflation .

The PERSON submitted that the application for review should be dismissed , holding that , in the light of the RIS Director 's letter of DATE , the application had become devoid of purpose .

NORP In a final decision of CARDINAL DATE ORG quashed the decision of DATE and allowed the applicant 's action , in the following terms :

“ It appears from letter no . CARDINAL of DATE from ORG ... that in the archives ( shelf - mark DATE , vol . CARDINAL , p. CARDINAL ) there is a table which lists the names of the members of legionnaire organisations who do not live in GPE , entry CARDINAL of which contains the following : ' PERSON – science student , rankand - file member of ORG , legionnaire ' . Since the applicant was DATE when that table was drawn up , on DATE , and since he did not attend lectures in ORG , and since it appears from subsequent checks in the documents listing the names of the members of legionnaire organisations that the name ' PERSON does not seem to be connected with an individual living in GPE whose personal details correspond to those of the applicant , ORG considers that a regrettable mistake has been made and that the person mentioned in the table is not the applicant .

Having regard to this letter , the ORG holds that it satisfies the requirements of LAW as it is such as to completely alter the facts previously established . The document contains details which it was not possible to submit at any earlier stage in the proceedings for a reason beyond the applicant 's control .

That being so , the date on which the ORG was formed and the way in which the former security services were organised are not relevant factors . Similarly , the fact , albeit a true one , that ORG is only the depositary of the archives of the former security services is irrelevant . What matters is the fact that letter no . DATE of DATE from ORG no . DATE ) contains details which do not relate to the applicant , so that the information in that letter is false in respect of him and , if maintained , would seriously injure his dignity and honour .

In the light of the foregoing and in accordance with the aforementioned statutory provision , the application for review is justified and must be allowed . It follows that the earlier decisions in this case must be quashed and that the applicant 's action as lodged is allowed . ”

The court did not make any order as to damages or costs .

The relevant provisions of the LAW read as follows :

“ ( CARDINAL ) The constitutional provisions on citizens ' rights and liberties shall be interpreted and applied in accordance with LAW and with the covenants and other treaties to which GPE is a party .

( CARDINAL ) In the event of conflict between the covenants and treaties on fundamental human rights to which GPE is a party and domestic laws , the international instruments shall prevail . ”

“ ( CARDINAL ) Anyone may apply to the courts for protection of his rights , liberties and legitimate interests .

( CARDINAL ) The exercise of this right shall not be restricted by any statute . ”

The relevant provisions of LAW are worded as follows :

“ A judge who refuses to adjudicate , on the pretext that the law is silent , obscure or defective , may be prosecuted on a charge of denial of justice . ”

“ Any act committed by a person who causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it . ”

“ Everyone shall be liable for damage he has caused not only through his own act but also through his failure to act or his negligence . ”

The relevant provision of LAW reads as follows :

“ An application may be made for review of a final decision ... where written evidence which has been withheld by the opposing party or which it was not possible to submit for a reason beyond the parties ' control is discovered after the decision has been delivered ... ”

The relevant provisions of Decree no . CARDINAL of DATE on natural and legal persons are worded as follows :

“ ( CARDINAL ) Anyone whose right ... to honour , reputation ... or any other non - economic right has been infringed may apply to the courts for an injunction prohibiting the act which is infringing the aforementioned rights .

( CARDINAL ) Similarly , anyone who has been the victim of such an infringement of rights may ask the courts to order the person responsible for the unlawful act to carry out any measure regarded as necessary by the court in order to restore his rights . ”

“ If a person responsible for unlawful acts does not within the time allowed by the court perform what he has been enjoined to do in order to restore the right infringed , the court may sentence him to pay a periodic pecuniary penalty to the ORG ... ”

At the material time , the relevant provisions of Legislative Decree no . PERSON read :

“ The following periods shall be taken into account in determining seniority and shall count as such for the purpose of calculating retirement pension and any other rights derived from seniority : periods during which a person , after DATE , for political reasons –

( a ) NORP served a custodial sentence imposed in a final judicial decision or was detained pending trial for political offences ;

“ A committee composed of a chairman and at most CARDINAL other members shall be set up in each county ... in order to verify whether the requirements laid down in DATE have been satisfied ...

The chairman must be legally qualified . The committee shall include CARDINAL representatives from the employment and social - welfare departments and a maximum of CARDINAL representatives from the association of former political detainees and victims of the dictatorship .

“ The persons concerned may establish that they satisfy the conditions laid down in DATE by means of official documents issued by the relevant authorities or ... of any other material of evidential value .

“ The provisions of this decree shall not be applicable to persons who have been convicted of crimes against humanity or to those in respect of whom it has been established , by means of the procedure indicated in DATE , that they engaged in NORP activities within a NORP - type organisation . ”

The relevant provisions of Law no . CARDINAL of DATE on the organisation and operation of ORG , which was published in ORG on DATE , read as follows :

“ ORG shall organise and carry out all activities designed to gather , verify and utilise the information needed for discovering , preventing and frustrating any actions which , in the eyes of the law , threaten GPE 's national security . ”

“ ORG shall be authorised to hold and to make use of any appropriate resources in order to secure , verify , classify and store information affecting national security , as provided by law . ”

“ All internal documents of ORG shall be secret , shall be kept in its own archives and may be consulted only with the consent of the Director as provided in law .

Documents , data and information belonging to ORG shall not be made public until DATE after they have been archived .

ORG shall , in order to keep and make use of them , take over all the national - security archives that belonged to the former intelligence services operating on NORP territory .

The national - security archives of the former ORG shall not be made public until DATE after the date of the passing of this LAW . ”

The relevant provisions of PERSON no . CARDINAL of DATE , which came into force on DATE , are worded as follows :

“ ( CARDINAL ) All NORP citizens , and all aliens who have obtained NORP nationality DATE , shall be entitled to inspect the files kept on them by the organs of the PERSON ... This right shall be exercisable on request and shall make it possible for the file itself to be inspected and copies to be made of any document in it or relating to its contents .

( CARDINAL ) Additionally , any person who is the subject of a file from which it appears that he or she was kept under surveillance by the ORG shall be entitled , on request , to know the identity of the ORG agents and collaborators who contributed documents to the file .

( CARDINAL ) Unless otherwise provided by law , the rights provided in subsections ( CARDINAL ) and ( CARDINAL ) shall be available to the surviving spouses and relatives up to the second degree inclusive of a deceased . ”

“ ( CARDINAL ) In order to provide for a right of access to information of public interest , all NORP citizens ... , the media , political parties ... shall be entitled to be informed ... if any of the persons occupying the following posts or seeking to do so have been agents or collaborators of the PERSON :

( a ) NORP the President of GPE ;

( b ) member of ORG or of the ORG ;

“ A ORG for the Study of the Archives of the ORG ... ( hereinafter ' the ORG ' ) , with its headquarters in GPE , shall be set up to apply the provisions of this Act .

The ORG shall be an autonomous body with legal personality , subject to supervision by ORG . ... ”

“ The ORG shall consist of a college of CARDINAL members .

The members of the college of the ORG shall be appointed by ORG , on a proposal by the parliamentary groups , according to the political composition of the CARDINAL Chambers ... for a term of office of DATE , renewable once . ”

“ ( CARDINAL ) The beneficiaries of this LAW may , in accordance with section CARDINAL(CARDINAL ) , request the Council –

( a ) to allow them to consult the files ... compiled by the ORG CARDINAL DATE ;

( b ) to issue copies of ... these files ... ;

( c ) NORP to issue certificates of membership or non - membership of the ORG and of collaboration or non - collaboration with it ;

“ ( CARDINAL ) The content of certificates under LAW ) may be challenged before the college of the Council ... ”

“ ( CARDINAL ) The right of access to information of public interest shall be exercisable by means of a request sent to the ORG . ...

( CARDINAL ) In response to requests made under LAW , the ORG shall verify the evidence at its disposal , of whatever form , and shall immediately issue a certificate ... ”

“ ( CARDINAL ) Any beneficiary or person in respect of whom a check has been requested may challenge before the college of the ORG a certificate issued under LAW . ...

The college 's decision may be challenged ... in ORG ... ”


The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON . The respondent Government are represented by PERSON , their Agent .

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

The applicant is of fragile health . He was considered by ORG ( ORG ) as partially incapacitated for work .

On DATE the ORG ( ORG súd ) found the applicant guilty of ill - treatment and causing bodily harm to a dependant ( his son ) contrary to LAW and CARDINAL ( b ) and LAW . The applicant was sentenced to CARDINAL years’ imprisonment . On DATE the Banská Bystrica Regional Court ( Krajský súd ) upheld the judgment on the applicant ’s appeal .

The applicant had had CARDINAL previous criminal convictions : in DATE for illtreatment of a dependant and in DATE for causing grievous bodily harm .

On DATE , at TIME , the applicant began his sentence in the LOC prison . On his admission to the prison , the applicant refused to communicate with the prison personnel . At TIME he declared that he would not obey orders and prison rules and went on hunger strike . He explained his actions orally and later also in writing as a protest against his conviction , which he considered unjust .

On DATE the applicant was brought to the prison doctor who recommended that he be examined by a psychologist .

On DATE the applicant was examined by the prison psychologist who concluded that the applicant ’s behaviour was of a primitive self - serving nature and had a pre - morbid psychopathic origin .

On DATE the applicant was brought to the prison doctor for an examination in connection with his hunger strike . The circumstances of the applicant ’s escort after that examination are disputed .

According to the applicant he was escorted by a single warder who , at TIME , insulted and severely assaulted him . As a result the applicant lost consciousness and only awoke DATE in the PERSON prison hospital .

According to the Government the applicant was escorted by CARDINAL warders , there had been no abuse and the loss of consciousness was a fiction .

On DATE the applicant was again examined by a doctor . According to the ORG , the applicant was moving around without assistance and came to the examination on foot . The applicant claims that he was unconscious and had to be wheeled on a gurney .

On DATE the applicant was admitted to the psychiatric ward of the Trenčín prison hospital . According to the Government , when escorted to hospital , the applicant was able to walk on his own and without any assistance . The applicant disagrees . He further submits that on DATE he complained to the head physician of physical ill - treatment .

As indicated in the report on his hospitalisation , the applicant initially refused to communicate , lay passively in bed and reverted to his original position when moved . On DATE of his stay in hospital the applicant started communicating , stopped his protest and claimed that he had been in a “ special state ” of which he remembered nothing . He was diagnosed with “ combined personality disorder with hysteric manifestations ” and received pharmacological treatment .

The applicant stayed in hospital until DATE when he was moved to the LOC nad Váhom prison .

On DATE the applicant was again admitted to a prison hospital in GPE . He was placed in the internal medicine unit where he was kept under observation , underwent examinations and tests and received pharmacological treatment . The applicant was released from hospital and was moved back to the Dubnica nad Váhom prison on DATE .

In DATE the ORG found that the applicant was no longer partially incapacitated for work and withdrew the corresponding benefits . He appealed against this decision and , in connection with the appeal , had to undergo medical examinations on CARDINAL occasions .

On DATE the applicant requested release on parole , arguing that the serving of the sentence had negative effects on his health and on his relationship with his children . The prison authorities commented on the request in a report and concluded that release was not recommended .

On DATE ORG dismissed the request taking into account inter alia the above report . On DATE ORG upheld the decision on the applicant ’s appeal .

On DATE the applicant again unsuccessfully requested parole .

On DATE and DATE , respectively , the LOC nad Váhom prison administration decided that the applicant was to pay the costs of the medical examinations carried out in connection with the abovementioned disability benefits appeal as well as the costs of his escort to hospital on DATE .

Further details concerning the serving of the applicant ’s sentence are disputed .

Without submitting any documents in support of these allegations , the applicant claims that he was made to perform physical work ; that he was often mocked and verbally abused by the prison personnel ; that his correspondence , which included CARDINAL letters from relatives , was regularly interfered with ; that it was not possible for him to see his children ; that he did not receive adequate medical care and his general health had deteriorated ; and that his attempts to raise his situation with the public prosecution service went unanswered .

Relying on reports from the prison administration , the prison hospital and the public prosecution service , the Government claim that the applicant had performed no work at all ; that he had avoided leisure activities ; that there had been no incidences of ill - treatment ; that the monitoring of the applicant ’s correspondence had been carried out in accordance with the applicable rules ; that none of his official correspondence had been interfered with ; that while in prison the applicant had sent CARDINAL private letters and that there was no indication that they had been interfered with in any way ; that the prison authorities had encouraged the applicant on several occasions to contact his children ; that his visits to them could not take place because the applicant had not been prepared to pay the costs of his transfer to the children ’s home where they were placed ; that he had been examined numerous times by an internist , a neurologist and a psychiatrist ; that he had consulted the prison doctor CARDINAL times ; that he had been provided with all necessary medicines and medical aids ; that he had contacted the prosecution service on CARDINAL occasions complaining of the inactivity of his lawyer and the report in reply to his request for release on parole ; and that he had never made any other complaints to the prosecution service . None of the reports submitted contained any indication that the applicant had complained of any abuse or that any abuse had been established .

On DATE the applicant was released after having served his sentence .

The applicant appealed against the decisions of DATE and DATE to the Director General of ORG . The Director dismissed his appeals as unfounded on DATE and DATE respectively . As regards the escort to hospital on DATE , the Director found that it had been prompted by the applicant ’s selfinflicted health condition ( the hunger strike ) and that his allegations about injuries caused by a beating were unsubstantiated .

After his release , the applicant lodged a detailed complaint with the Director about the conditions of his imprisonment and his alleged illtreatment .

On DATE the Director dismissed the complaint , finding wholly unsubstantiated the applicant ’s allegations of the beating and subsequent loss of consciousness on DATE , which was alleged to have been the reason for his hospitalisation . The medical attention given to the applicant in the prison hospital and elsewhere during his imprisonment had been adequate . No breach of any regulation had been established . Similar conclusions were drawn by ORG in their letter of DATE in response to the applicant ’s renewed complaints .

The lex generalis governing execution of prison sentences is LAW ( Law no . CARDINAL Coll . , as amended ) .

Supervision of legality in prisons is regulated by its LAW . It is primarily carried out by the public prosecution service ( section CARDINAL ) , the courts ( section CARDINAL ) and ORG ( section CARDINAL ) . Public prosecutors , judges and members of parliament have inter alia unrestricted access to prisons and the right to speak with prisoners without a third person being present .

Subsidiary supervision is entrusted to religious organisations and ORG associations ( section DATE ) .