Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award

Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

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

On DATE the applicant and a friend were travelling by train from work to his home in GPE . Supporters of the PERSON football team , who were celebrating their victory in the NORP league , were travelling on the same train . Among the football fans there were some hooligans , who started smashing windows and vandalising the carriages . The train attendants called the police .

Around TIME the train stopped at GPE - Włochy station and the police entered the carriage . The applicant was hit in the face with a truncheon by police officer PERSON and dragged out of the train onto the platform . He was bleeding heavily but was ordered to lie on the ground . The police officer insulted him . Subsequently , the police officers called an ambulance and the applicant was taken to ORG in GPE .

CARDINAL of the supporters , an acquaintance of the applicant , who had protested against the use of force against the applicant , was immobilised by the police officers on the platform and handcuffed .

The certificate from the ambulance team stated that the applicant received assistance on DATE at TIME at GPE - Włochy station . It contained the following description of the applicant ’s injuries : wound to the right side of jaw QUANTITY long , teeth knocked out ( no . CARDINAL upper and nos . CARDINAL lower ) .

On DATE the medical certificate from ORG stated as follows :

“ Condition after being beaten , wound to the jaw . Head injury . Condition after being beaten DATE . He states that he was hit several times with a rubber truncheon on the head . He did not lose consciousness . DATE vertigo and nausea . DATE no complaints . X - ray of the head and face with no changes . Difficulties in opening mouth , individual teeth knocked out . A consultation with a face surgeon is recommended . Further care in the district [ hospital ] . The wound stitched , examination by a surgeon in DATE . Under observation for TIME . ”

A certificate by a dentist , Dr. PERSON , dated DATE , stated :

“ The patient came in DATE after he had been beaten . Left cheek swollen . Fractured teeth nos . CARDINAL , CARDINAL and DATE . Tooth pulp exposed . Teeth loose , second degree . ”

A certificate by a doctor , PERSON , a court expert , dated DATE , provides as follows :

“ [ The applicant ] was examined on DATE and DATE .

Established :

CARDINAL ) Swollen and painful left cheek .

CARDINAL ) Wound to the chin on the right side , QUANTITY long , stitched .

CARDINAL ) Tooth cavities as described in the dentist ’s certificate of DATE .

[ Medical certificates of DATE listed and quoted . ]

On the basis of the examination and the above - mentioned medical certificates it is established that the [ period of ] incapacity exceeds DATE . ”

On DATE the applicant requested ORG ( Prokurator Rejonowy ) to initiate criminal proceedings against the police and in particular police officer PERSON The applicant asserted that on DATE he had been beaten by the police and had sustained serious injuries .

On DATE a doctor , PERSON , submitted a forensic report in which he answered questions put by the prosecutor . The report states as follows :

What injuries did the applicant sustain on DATE ?

I establish on the basis of the medical certificates previously referred to that on DATE the applicant sustained fractures of teeth CARDINAL and CARDINAL on the upper left side and tooth CARDINAL on the lower left side , a chin wound and a swollen left cheek .

Could those injuries have been sustained in the circumstances described by the witnesses ?

Yes , the injuries described above could have been sustained in the conditions and circumstances described by the witnesses , that is , as a consequence of a blow by a blunt and solid object that could have been a truncheon of the “ tonfa ” type .

Could they have been sustained during the arrest by police officers PERSON and C. ?

Yes , those injuries could have been sustained during the arrest by those police officers .

Did those injuries cause incapacity for a period exceeding seven days ?

The above injuries amounted to bodily harm resulting in incapacity for a period exceeding DATE within the meaning of Article PERSON of LAW . ”

On DATE ORG discontinued the investigation into the actions of the police . The prosecutor had questioned several witnesses , including other passengers and police officers PERSON and ORG officer PERSON stated that the applicant had not obeyed an order to show his identification card and had started to struggle with officer C. He had then warned the applicant that he would use a truncheon and had hit him once on the arm . The prosecutor established beyond any doubt that police officer PERSON had used the truncheon against the applicant . It could not be established where exactly on the train the events had taken place . The applicant maintained that he had been hit next to the door of the train , but other witnesses submitted that he had been inside the carriage or outside on the platform . The prosecutor concluded as follows :

“ It appears from the statements of police officers PERSON and PERSON that the passengers on the train , the majority of them football supporters , did not comply with their orders . This gave them a ground to apply coercive measures and to use truncheons or handcuffs . Given the aggressive behaviour of the passengers those coercive measures corresponded to the exigencies of the situation and were necessary to ensure that their orders were obeyed .

[ It should be concluded ] that there is not sufficient evidence that the police officers overstepped their powers in breach of the interest of [ the applicant ] . Since [ the applicant ] sustained the injuries as a consequence of the police actions he could seek damages in civil proceedings , as the limitation period has not yet elapsed . ”

On DATE the applicant lodged an appeal against the decision . He submitted that the prosecutor had failed to analyse the facts of the case and to clarify the circumstances in which he had sustained the injuries . In particular it was not explained how the applicant could have sustained head and facial injuries , since the police officer had admitted only to having hit him once on CARDINAL arm . Moreover , he argued that the police officer had overstepped his powers and that there was no justification for use of the truncheon against him , as he had not provoked it . The applicant also complained that the authorities had failed to take into consideration the fact that he was not a football supporter and had nothing to do with the hooligans who were travelling on the same train .

CARDINAL

“ While it appears from the opinion of the forensic expert that the applicant ’s injuries could have been sustained as a consequence of the intervention of the police officers on DATE , nevertheless , in the light of the evidence collected , it can not be established that police officers C. and PERSON overstepped their powers . They acted within their competence and the use of the coercive measures of truncheons and handcuffs corresponded to the exigencies of the situation ; that is , to the aggressive behaviour of the passengers . The court considers that , contrary to the allegations made in the appeals , all the necessary steps were taken during the investigation in order to establish the objective truth .

The finding of whether or not [ the applicant ] had anything to do with the ORG actions , that is , the vandalism of the train , can not have any bearing on the decision on the merits , in a situation where the police officers were intervening in connection with those events . They were carrying out their duties given the aggressive behaviour of the passengers on the train .

In the light of the above the court found that the impugned decision was correct and decided as in the operative part . ”

On DATE the applicant was indicted before ORG . He was charged with damaging the train carriage and using violence against the police officers .

On DATE ORG acquitted the applicant of both charges . The court established that the applicant had been calm and “ in contrast to other defendants had been sober and had been coming back from work and not from the football match ” . As regards the course of the events the court established that during the intervention of the police , police officer K had ordered the applicant , who was standing by the door , to return to the carriage . The court then stated :

“ In reply [ the applicant ] had asked the police officer : “ would you hit me , sir ? ” As [ the applicant ] had not complied with the order , police officer [ K ] used a coercive measure , i.e. the “ tonfa ” truncheon . A blow to the stomach caused [ the applicant ] to bend forward , and the blows which followed struck his face . Afterwards the applicant was laid out on the platform . ”

On the basis of the testimonies of the applicant and other witnesses , which had been considered consistent and truthful , the court established that during the police intervention the applicant had displayed passive resistance and had not used force against the police officers . The court also dismissed the testimonies of the police officers regarding the circumstances in which they had used the truncheon against the applicant as lacking credibility and unconfirmed by other evidence .

It appears that no appeal was lodged against the judgment and that it is final .

Section CARDINAL of the Ordinance of ORG on the Use of Coercive Measures by the Police ( “ the DATE LAW ) provides :

“ CARDINAL . Physical force shall be used in order to restrain a person , to counter an attack or to make [ a person ] obey an order .

NORP When using physical force , no one shall hit a person , unless he has to do so in self - defence or in order to counter an unlawful attack against life , health or property of others . ”

Section CARDINAL of the Ordinance , in so far as relevant , provided at the material time :

“ CARDINAL . It is forbidden to use police truncheons against persons displaying passive resistance unless the use of force turns out to be ineffective .

CARDINAL ( CARDINAL ) It is forbidden to hit or push with a truncheon against a [ person ’s ] head , neck , stomach and non - muscled and particularly delicate parts of the body ... ”


Remainder inadmissible;Violation of Art. 3 (in case of extradition to Kazakhstan);Violation of Art. 13

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

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

At DATE the applicants left GPE , allegedly because of political persecution by the authorities . They arrived in GPE in DATE and have remained there .

By CARDINAL separate decisions of DATE , ORG on Nationalities and Migration granted the ORG requests for refugee status , finding that there were legitimate grounds to fear that the applicants would risk political persecution in GPE for their activities in DATE . In particular , the ORG noted that in DATE several top political and business figures in GPE had formed the opposition group ORG of GPE . The applicants took part in the activities of that group , mainly by providing it with financial and technical support , particularly through a television company owned by DATE applicants . The fourth applicant held posts in the governing body ( political council ) of that group . Shortly afterwards , the NORP authorities arrested the leaders of the group . The authorities also instituted criminal proceedings against the applicants on various charges , including conspiracy to murder , abuse of power and fraud , annulled the broadcasting licence of their television company , and blocked the activities of their other companies . As pressure from the authorities mounted , the applicants fled the country .

By CARDINAL separate requests issued in DATE and DATE and DATE , ORG requested the applicants’ extradition with a view to criminal prosecution for organised crime and conspiracy to murder ( first applicant , Articles CARDINAL , CARDINAL and CARDINAL of LAW of GPE ) , tax evasion and money laundering ( second and third applicants , Articles CARDINAL and CARDINAL of LAW ) and abuse of power ( fourth applicant , Articles CARDINAL and CARDINAL of LAW ) . Pursuant to LAW , murder was punishable by deprivation of liberty for a term of from DATE or by the death penalty , or by life imprisonment with or without confiscation of property . As regards other crimes of which the applicants were accused , the relevant provision of the Criminal Code provided for punishment not exceeding CARDINAL years’ imprisonment . The NORP prosecutors provided assurances that the criminal prosecution of the applicants was not related to their political views , race , nationality or religion , and that the prosecutors would not request the domestic courts to sentence the first applicant to death for the crimes for which he was wanted .

On CARDINAL and DATE the Deputy Prosecutor General lodged objections ( protests ) with ORG on Nationalities and Religion ( the former ORG on Nationalities and Migration ) seeking reconsideration and subsequent annulment of its decisions of DATE . She submitted that the applicants were wanted by the NORP authorities on charges of “ grave ” crimes and that ORG guaranteed that the criminal prosecution of the applicants was not related to their political views , race , nationality or religion .

On DATE the ORG rejected the objections and confirmed its previous findings .

On DATE the Deputy General Prosecutor lodged CARDINAL separate administrative claims with ORG of GPE seeking annulment of the ORG ’s decisions of DATE . The prosecutor also requested the court to suspend the contested decisions . On DATE the court opened the proceedings and informed that it would decide on the prosecutor ’s request for suspension of the ORG ’s decisions at CARDINAL of its next hearings .

On DATE the court dismissed the prosecutor ’s claims . On DATE ORG upheld the first - instance court ’s decision . No copies of the decisions were provided by the parties .

On DATE ORG lodged an appeal in cassation with ORG , the outcome of which is unknown .

By a letter of CARDINAL DATE , the First Deputy General Prosecutor of GPE sent the Deputy General Prosecutor of GPE assurances that in accordance with LAW and Other Cruel , Inhuman or Degrading Treatment or Punishment of DATE , if extradited to GPE the applicants would not be subjected to illtreatment , that they would receive a fair trial , and that if necessary they would be provided with adequate medical aid and treatment .

The Government submitted that they had received assurances from ORG that no decision on the ORG extradition would be taken before ORG had considered the case .

The relevant extracts from the LAW provide as follows :

“ Foreigners and stateless persons who are lawfully in GPE enjoy the same rights and freedoms and also bear the same duties as citizens of GPE , with the exceptions established by the LAW , laws or international treaties to which GPE is a party .

Foreigners and stateless persons may be granted asylum under the procedure established by law . ”

“ Human and ORG rights and freedoms are protected by the courts .

Everyone is guaranteed the right to challenge in court the decisions , actions or omission of bodies exercising ORG power , local self - government bodies , officials and officers .

... After exhausting all domestic legal remedies , everyone has the right of appeal for the protection of his or her rights and freedoms to the relevant international judicial institutions or to the relevant bodies of international organisations of which GPE is a member or participant .

Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law . ”

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

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

( CARDINAL ) the judicial system , judicial proceedings , the status of judges , the principles of judicial expertise , the organisation and operation of the prosecution service , the bodies of inquiry and investigation , the notary , the bodies and institutions for the execution of punishments ; the fundamentals of the organisation and activity of the advocacy ; ... ”

GPE joined the Convention on DATE . The relevant extracts from the ORG provide as follows :

“ For the purposes of the present Convention , the term “ refugee ” shall apply to any person who ... owing to well - founded fear of being persecuted for reasons of race , religion , nationality , membership of a particular social group or political opinion , is outside the country of his nationality and is unable , or owing to such fear is unwilling , to avail himself of the protection of that country ; or who , not having a nationality and being outside the country of his former habitual residence as a result of such events , is unable or owing to such fear , is unwilling , to return to it . ”

“ CARDINAL . GPE shall not expel a refugee who is lawfully in their territory save on grounds of national security or public order .

The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law ... ”

Article CARDINAL

“ CARDINAL . No Contracting State shall expel or return ( refouler ) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race , religion , nationality , membership of a particular social group or political opinion .

NORP The benefit of the present provision may not , however , be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is , or who , having been convicted by a final judgment of a particularly serious crime , constitutes a danger to the community of that country . ”

The Convention entered into force in respect of GPE on DATE . Its relevant provisions read as follows :

“ The Contracting Parties undertake to surrender to each other , subject to the provisions and conditions laid down in this LAW , all persons against whom the competent authorities of the requesting ORG are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order . ”

“ Extradition shall not be granted if the offence in respect of which it is requested is regarded by the requested ORG as a political offence or as an offence connected with a political offence .

The same rule shall apply if the requested ORG has substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race , religion , nationality or political opinion , or that that person ’s position may be prejudiced for any of these reasons .

The taking or attempted taking of the life of a Head of ORG or a member of his family shall not be deemed to be a political offence for the purposes of this Convention .

This article shall not affect any obligations which the Contracting Parties may have undertaken or may undertake under any other international convention of a multilateral character . ”

GPE ’s reservation in respect of LAW contained in the instrument of ratification deposited on DATE reads as follows :

“ GPE reserves the right to refuse extradition if the person whose extradition is requested can not , on account of his / her state of health , be extradited without damage to his / her health . ”

The Convention was ratified by ORG on DATE . It entered into force in respect of GPE on DATE and in respect of GPE on DATE . The relevant extracts from the ORG provide as follows :

“ CARDINAL . The Contracting Parties shall ... on each other ’s request extradite persons who ﬁnd themselves on their territory , for criminal prosecution or to serve a sentence .

Extradition for criminal prosecution shall extend to offences which are criminally punishable under the laws of the requesting and requested Contracting Parties , and which entail DATE imprisonment or a heavier sentence ... ”

“ CARDINAL . No extradition shall take place if :

a ) the person whose extradition is sought is a citizen of the requested ORG ;

b ) at the moment of receipt of the request [ for extradition ] criminal prosecution may not be initiated or a sentence may not be executed as time - barred or for other reasons envisaged by the legislation of the requested ORG ;

c ) concerning the same crime there has been a judgment or a decision which has entered into the force of law discontinuing the proceedings against the person whose extradition is sought , on the territory of the requested ORG ;

d ) the legislation of the requesting and requested Contracting Parties envisages that criminal prosecution for [ the crimes of which the person is accused ] may be initiated [ only upon a victim ’s complaint ] .

Extradition may be refused if the crime in connection with which it is sought , was committed on the territory of the requested ORG .

In the event of refusal to extradite the requesting Contracting ORG shall be informed of the reasons for the refusal . ”

“ CARDINAL . A request for extradition shall include the following information :

( a ) NORP the title of the requesting and requested authorities ;

( b ) a description of the factual circumstances of the offence , the text of the law of the requesting ORG which criminalises the offence , and the punishment sanctioned by that law ;

( c ) the [ name ] of the person to be extradited , DATE of birth , citizenship , place of residence , and , if possible , a description of his appearance , his photograph , ﬁngerprints and other personal information ;

( d ) information concerning the damage caused by the offence .

A request for extradition for the purpose of criminal prosecution shall be accompanied by a certiﬁed copy of a detention order ... ”

“ CARDINAL . If a request for extradition does not contain all the necessary data , the requested ORG may ask for additional information , for the submission of which it shall set a time - limit not exceeding one month . This time - limit may be extended for DATE at the request of the requesting ORG ... ”

DATE LAW provides that the task of the administrative judiciary is the protection of the rights , freedoms and interests of individuals and the rights and interests of legal entities in the sphere of public law relations from violations by ORG bodies , bodies of local self - government , their officials and other persons in the exercise of their powers . Under the second paragraph of this Article , any decisions , actions or omissions of the authorities may be challenged before the administrative courts .

Pursuant to Article CARDINAL , an administrative court may suspend a disputed decision by way of application of an interim measure , on a party ’s own initiative . This measure may be applied if there exists a real danger of harm to the plaintiff ’s rights , freedoms and interests , or if there are grounds to believe that the failure to apply the measure would render impossible the protection of such rights , freedoms and interests or would require considerable efforts and expense for their restoration . It can also be applied if it is evident that the contested decision is unlawful .

NORP The relevant provisions of LAW provide as follows :

“ An objection to [ the decision ] shall be lodged by a prosecutor or his deputy with the body which issued [ that decision ] or with a higher authority ...

In [ his ] objection a prosecutor raises a question of annulment of [ the disputed decision ] or of bringing it into compliance with the law ...

An objection by a prosecutor suspends [ the decision ] in respect of which it was introduced and must be examined by the relevant authority ... within DATE ...

In case the protest was rejected or was not examined , a prosecutor may challenge [ the decision ] before a court ... [ DATE ... The introduction of such a complaint [ by a prosecutor ] suspends ... [ the decision ] . ”

The relevant extracts from LAW provide as follows :

“ ... a refugee is a person who is not a citizen of GPE and who , due to wellfounded fear of persecution for reasons of race , religion , nationality , membership of a particular social group or political opinion , is outside the country of his nationality and is unable to avail himself of the protection of that country or , due to such fear , is unwilling to avail himself of such protection , or who , not having a nationality and being outside the country of his former permanent residence , is unable or unwilling to return to it because of the said fear ... ”

“ Matters relating to refugees are regulated by LAW , this law , and other normative acts , as well as by international treaties which have been agreed by PERSON of GPE .

If an international treaty which has been agreed to be binding by the Verkhovna Rada of GPE provides for rules other than those envisaged in this law , the rules of the international treaty shall apply . ”

“ No refugee may be expelled or forcibly returned to a country where his life or freedom is endangered for reasons of race , religion , ethnicity , nationality , membership of a particular social group or political opinion .

No refugee may be expelled or forcibly returned to a country where he may suffer torture and other severe , inhuman or degrading treatment or punishment , or [ to a country ] from which he may be expelled or forcibly returned to a country where his life or freedom is endangered for reasons of race , religion , ethnicity , nationality , membership of a particular social group or political opinion .

This article shall not apply to a refugee convicted of a serious crime in GPE . ”

The relevant extracts from the resolution read as follows :

Having regard to the fact that the current legislation does not allow the courts independently to give permission for extradition of persons and that , pursuant to LAW and similar provisions of other international treaties to which GPE is a party , the extradition procedure is regulated solely by the law of the requested ORG ; the courts are not empowered to decide on this issue .

They [ the courts ] can not on their own initiative decide on preventive measures applicable to persons subject to rendition or transfer , including their detention , as these matters are to be decided by the competent NORP authorities ... ”

NORP ... The administrative courts enjoy jurisdiction over all disputes concerning claims by a foreigner or a stateless person challenging decisions , actions or inactivity of the authorities carrying out extradition ... except for cases concerning the authorities’ requests for arrest or detention with a view to extradition ... which fall to be considered in the framework of criminal proceedings ...

NORP Before deciding on an administrative case , the court ... may apply the measures envisaged by LAW ... In particular , [ the measures may be applied ] if there exists a danger of harm to the interests of a foreigner or a stateless person , or if failure to apply the measures would render difficult or impossible the protection of a person ’s rights ...

Given the provisions of part CARDINAL of section CARDINAL of LAW ... the courts should take into account that the introduction of a claim by the prosecutor under the procedure envisaged by this provision has a suspensive effect on the contested decision . Therefore , in such a case there is no need to decide on the application of the [ interim ] measures ...

NORP ... In the course of consideration of a case in which a decision granting refugee status ... is being challenged , the court may find such a decision unlawful , annul it and order the respondent [ authority ] to re - examine a request for refugee status with due regard to the circumstances on the basis of which the court annulled the decision . With the annulment of the decision granting refugee status the person [ concerned ] may not be forcibly removed or extradited before the procedure concerning [ the request for ] refugee status is completed ...

NORP ... In the course of the consideration of a dispute in which a foreigner or a stateless person challenges a decision , actions or inactivity of the authorities carrying out extradition ... the courts should take into account that the prohibition of removal of a person under international law on human rights and protection of NORP rights takes precedence over any obligation to extradite ...

If an extradition is requested by the ORG of origin of a refugee , the courts should take into account that according to LAW DATE no extradition of such a person shall be carried out . In such cases the principle of non - refoulement ... provides for a complete prohibition of extradition , if it has not been established that [ a refugee ’s personal situation ] provided for CARDINAL of the exceptions [ to this rule ] ... ”

The relevant provisions of the instruction read as follows :

“ CARDINAL . General provisions

The procedure ... established by the Instruction ... is aimed at [ introducing ] uniform approaches to [ dealing with ] ... foreign States’ extradition requests [ and ] ensuring appropriate consideration and preparation of necessary documents , securing of rights and lawful interests of persons whose extradition is requested ...

Procedure of consideration of foreign States’ requests

Upon receipt of information concerning an arrest on the territory of GPE of a person wanted for crimes committed in other countries [ the prosecutor responsible for the consideration of a particular request ] shall immediately , and at least within DATE , prepare a relevant notification of the competent body of the foreign ORG , in which he should ask for confirmation of the [ latter ’s ] intention to submit a request for removal of the person . In this context , [ the prosecutor ] must establish the qualification of the unlawful acts , for which extradition ... will be requested , and check whether the criminal proceedings are time - barred in accordance with the legislation of GPE .

At the same time , for the purposes of securing the rights of the arrested person ... the relevant ORG offices shall be given instructions to carry out a thorough examination of the lawfulness of the person ’s arrest and to check if there are any circumstances capable of preventing the arrested person ’s removal ...

If in the course of an inquiry it is established that the arrested person is a NORP national or a stateless person permanently residing on the territory of GPE or that there are other circumstances which according to the law render the person ’s extradition impossible , [ the prosecutor ] shall immediately submit to ORG ... a proposal for the person ’s release or for remanding the person in custody and initiating criminal proceedings in GPE . The foreign authority shall be informed of such circumstances and , if there are [ relevant ] grounds , it shall be invited to consider the possibility of transferring the criminal [ case to GPE ] ...

Upon [ submission by ] the regional ORG offices of materials of the inquiry and information concerning any obstacles to extradition ... the prosecutor [ dealing with an extradition request ] shall study all the documents concerning the matter , being mindful of the need to establish certain circumstances , in particular whether :

- it has been established ... which language the wanted person speaks ...

- in the [ written ] explanations of the offender the date and purpose of his arrival in GPE , his place of residence and registration , his nationality , any requests for asylum or refugee status , his state of health , notification of the reasons of his arrest in GPE are mentioned ;

- the lawfulness of his arrest ... has been ensured ...

- information has been received on the arrested person ’s ability to remain in detention ...

- it has been thoroughly checked if if the arrested person is a NORP national , actually residing on a permanent basis in GPE ... [ and if there are ] other circumstances which could constitute an obstacle to removing the person ;

- a reasoned opinion concerning the matter has been received from the ORG body [ responsible for nationality matters ] .

Having examined [ the documents ] the prosecutor ... has prepared a reasoned opinion concerning the decision to be taken by ORG concerning the extradition request ...

NORP The offender ... shall be notified of the decision taken by ORG concerning the extradition request .

NORP If a decision to extradite is taken ... instructions concerning the organisation of the person ’s transfer abroad shall be prepared ...

If the person or his lawyer has lodged with the court a complaint challenging the actions of ORG ... or its decision [ to extradite ] , [ the prosecutor ] shall make available , at the court ’s request , materials confirming the lawfulness and reasonableness of the decision ... ”

At its DATE session ( DATE ) the CAT considered its second periodic report on GPE . The relevant extracts from its concluding observations provide as follows :

“ CARDINAL . While the ORG acknowledges the efforts made by ORG to enact new legislation incorporating the definition of torture of the LAW [ against ORG ] into domestic law , it remains concerned that the definition in the new article CARDINAL - CARDINAL of the Criminal Code [ of GPE ] does not contain all the elements of LAW , restricts the prohibition of torture to acts by “ public officials ” and does not cover acts by “ other persons acting in an official capacity ” , including those acts that result from instigation , consent or acquiescence on the part of a public official . ORG notes further with concern that the definition of Article CARDINAL - CARDINAL of the Criminal Code excludes physical and mental suffering caused as a result of “ legitimate acts ” on the part of officials ...

The ORG is concerned about consistent allegations concerning the frequent use of torture and ill - treatment , including threat of sexual abuse and rape , committed by law enforcement officers , often to extract “ voluntary confessions ” or information to be used as evidence in criminal proceedings , so as to meet the success criterion determined by the number of crimes solved ...

The ORG is particularly concerned about allegations of torture or other illtreatment in temporary detention isolation facilities ( IVSs ) and in investigation isolation facilities ( SIZOs ) under the jurisdiction of ORG or ORG ( ORG ) , especially in the context of national and regional security and anti - terrorism operations conducted by the ORG . ORG notes with particular concern reports that the ORG has used counter - terrorism operations to target vulnerable groups or groups perceived as a threat to national and regional security , such as asylum seekers and members or suspected members of banned NORP groups or NORP parties ...

The ORG is deeply concerned at allegations that torture and ill - treatment of suspects commonly takes place during the period between apprehension and the formal registration of detainees at the police station , thus providing them with insufficient legal safeguards . The ORG notes in particular :

( a ) the failure to acknowledge and record the actual time of the arrest of a detainee , as well as unrecorded periods of pre - trial detention and investigation ;

( b ) ORG access to lawyers and independent doctors and failure to notify detainees fully of their rights at the time of apprehension ;

( c ) The failure to introduce , through the legal reform of DATE , habeas corpus procedure in full conformity with international standards ...

The ORG expresses concern that the right of an arrested person to notify relatives of his / her whereabouts may be postponed for TIME from the time of detention , in the case of so - called “ exceptional circumstances ” ...

The ORG notes with concern the Government ’s acknowledgement of frequent violations of the Code of Criminal Procedure by State party officials as regards the conduct of an interview within a twenty - four - hour period , detention prior to the institution of criminal proceedings , notification of relatives of the suspect or accused person of that person ’s detention within TIME , and the right to counsel . ORG is also concerned that most of the rules and instructions of ORG , ORG and especially ORG are classified as “ for internal use only ” and are not in the realm of public documents . These rules leave many issues to the discretion of the officials , which results in claims that , in practice , detainees are not always afforded the rights of access to fundamental safeguards ...

The ORG is concerned that LAW provides for forced placement of suspects and defendants at the stage of pre - trial investigation in medical institutions in order to conduct a forensic psychiatric expert evaluation . ORG notes with further concern that the grounds for making such a decision are subjective and that the law fails to regulate the maximum duration of forced placement into a medical institution , as well as to guarantee the right to be informed of and to challenge methods of medical treatment or intervention ...

The ORG expresses concern that sentences of those convicted under Part CARDINAL of article CARDINAL - CARDINAL of LAW are not commensurate with the gravity of the offence of torture as required by LAW ...

The ORG is also concerned that despite the criminalisation of torture in DATE in a separate article of LAW , it appears that when prosecuted , law enforcement officials continue to be charged under ORG CARDINAL or CARDINAL of LAW ( “ Excess of authority or official power ” or “ LAW into making a confession ” respectively ) ...

The ORG welcomes the successful reform of much of the NORP penitentiary system through the adoption of programmes conducted in close cooperation with international and national organisations , as well as the enactment of new laws and regulations . It further notes that this reform resulted in a decrease in the rate of pre - trial detention , an increased use of alternative sanctions to imprisonment , more humane conditions of detention , and a marked improvement in the conditions of detention in post - conviction detention facilities . However , the ORG remains concerned at :

( a ) The deterioration of prison conditions and stagnation in the implementation of penal reforms since DATE ;

( b ) Persistent reports of abuse in custody ;

( c ) Poor conditions of detention and persistent overcrowding in detention facilities ;

( d ) Excessive use of isolation with regards to pre - trial detainees and prisoners and lack of regulation of the frequency of such isolation ;

( e ) Instances of group self - mutilation by prisoners reportedly as a form of protest for ill - treatments ;

( f ) Lack of access to independent medical personnel in pre - trial detention centres and reported failure to register signs of torture and ill - treatment or to accept detainee ’s claims of torture and ill - treatment as the basis for an independent medical examination ;

( g ) Persistent high incidence of death in custody , in particular in pre - trial detention ( such as the case of the former KNB General PERSON ) , some of which are alleged to have followed torture or ill - treatment ...

While welcoming the creation in DATE of ORG and in DATE of regional independent public monitoring commissions with the power to inspect detention facilities , the ORG remains concerned that their access to IVSs is neither automatic nor guaranteed and that their access to medical institutions has yet to be considered . Furthermore , it has been reported that the commissions have not been granted the right to make unannounced visits to detention facilities , that they are not always given unimpeded and private access to detainees and prisoners , and that some inmates have been subjected to ill - treatment after having reported to the ORG members ...

The ORG welcomes the creation of the Human Rights Commissioner ( ORG ) in DATE with a broad mandate and notably the competence to consider communications of human rights violations and to conduct visits of places of deprivation of liberty . ORG notes however with concern that the ombudsman ’s competencies are substantially limited and that it lacks independence due to the fact that it does not have its own budget . The ORG notes with further concern that the mandate of the Human Rights Commissioner does not empower it to investigate action taken by the ORG ’s office ...

The ORG notes with concern that the preliminary examinations of reports and complaints of torture and ill - treatment by police officers are undertaken by ORG , which is under the same chain of command as the regular police force , and consequently do not lead to prompt and impartial examinations . ORG notes with further concern that the lengthy period for preliminary examination of torture complaints , which can last DATE , may prevent timely documentation of evidence ...

While noting with satisfaction the introduction of many fundamental legislative amendments , the ORG remains concerned about allegations , as reported by the Special Rapporteur on the independence of judges and lawyers in DATE ( see E / CN.CARDINAL/CARDINAL/CARDINAL/Add.CARDINAL ) , of a lack of independence of judges since the designation of oblast and rayon judges rests entirely with the President ...

While welcoming the adoption of a recent legal amendment transferring the power of issuing arrest warrants to courts solely , the ORG expresses concern , however , at the preeminent role performed by the Procuracy . The ORG reiterates the concerns expressed in its previous concluding observations ( A/CARDINAL/CARDINAL , para . CARDINAL(c ) ) regarding the insufficient level of independence and effectiveness of the Procurator , in particular due to its dual responsibility for prosecution and oversight of proper conduct of investigations and failure to initiate and conduct prompt , impartial and effective investigations into allegations of torture and ill - treatment ...

The ORG notes with concern the report by the Special Rapporteur on the independence of judges and lawyers that defence lawyers lack adequate legal training and have very limited powers to collect evidence , which conspires to hamper their capacity to counterbalance the powers of the Prosecutor and impact on the judicial process . The ORG notes with further concern allegations that the procedure of appointing a lawyer lacks transparency and independence ...

While welcoming the information provided by the delegation that victims of torture have the opportunity to be compensated , the ORG is concerned , nevertheless , at the lack of examples of cases in which the individual received such compensation , including medical or psychosocial rehabilitation ...

While welcoming the assurance given by the delegation that judges reject such evidence in court proceedings , the ORG notes however with grave concern reports that judges often ignore the complaints of torture and ill - treatment , do not order independent medical investigations , and often proceed with the trials , therefore not respecting the principle of non - admissibility of such evidence in every instance ... ”

In its DATE report “ Political Freedoms in GPE ” , ORG made the following observations :

“ ... On DATE , DATE after PERSON lost his bid for control of ORG , he and PERSON founded ORG of GPE ( ORG ) . The new organisation ’s platform included broadening the parliament ’s powers , establishing direct elections of regional political leaders , instituting electoral and judicial reform , and expanding media freedoms . As of DATE , it reportedly had CARDINAL members .

The central government ’s response to the establishment of ORG was to immediately dismiss its members who held government posts and to prosecute others . On DATE , just DATE after ORG ’s formation was announced , PERSON was abruptly dismissed from his post as governor of Pavlodar . Other ORG founding members and principals who were also senior government officials – including a deputy prime minister , the deputy minister of defence , the minister of labour , and a deputy finance minister DATE were also dismissed . LOC ’s CARDINAL deputies from the ORG governor ’s office were immediately fired , and CARDINAL other ORG provincial and local government members perceived as ORG supporters were alleged to have submitted " voluntary " resignations in the wake of the ORG ’s founding .

In DATE , state authorities brought charges of abuse of position against CARDINAL of LOC ’s Pavlodar administration deputies , PERSON and PERSON . DATE , on DATE , the same charges were brought against LOC .

Confrontation between the ORG and the PERSON government was heated during DATE after its founding . On DATE , the ORG joined forces with other opposition groups and led large - scale meetings in GPE , attracting CARDINAL participants . At the meeting , LOC and other prominent political figures delivered speeches that criticized the PERSON government , and LOC called for a referendum on the direct election of regional political leaders . President PERSON countered on DATE with a speech criticising the meeting , and demanded that law enforcement agencies take steps to stop " the buffoonery " .

The government also moved to restrict information about the ORG and its calls for reform . Television stations that had covered ORG activities , including LAW and GPE - based ORG were abruptly taken off the air . Publishing houses came under pressure from the government , and as a result refused to print ORG material . ORG ) and other security officials interrogated meeting participants in CARDINAL provinces . In DATE that followed the LOC gathering , criminal charges of abuse of position and financial mismanagement were brought against PERSON . Then , on DATE , following publication of materials on “ PERSON ” in PERSON - controlled media , PERSON himself was arrested .

DATE , both PERSON and PERSON were convicted on charges of abuse of office and sentenced to CARDINAL and DATE prison terms respectively , during trials that international observers called grossly flawed ... ”

Several ORG reports dating back to DATE referred to politically motivated prosecutions of persons who openly disagreed with and criticised the NORP authorities . In particular , in its report ‘ Concerns in LOC and LOC : DATE , published on DATE , ORG observed that :

“ ... [ In GPE ] [ i]n the period under review , criminal cases were opened on charges of “ abuse of office ” and financial crimes against CARDINAL well - known leaders of the opposition party NORP Choice for GPE ( ORG ) , PERSON - the former Minister of ORG - and PERSON - the former Governor of ORG region . There were reports that the charges were brought to punish them for their peaceful opposition activities . PERSON was detained on DATE ] , and on DATE ] a criminal case was reportedly opened against GPE . GPE subsequently sought refuge in the NORP embassy in GPE from DATE to CARDINAL DATE ] . He reportedly agreed to leave the embassy and be placed under house arrest on condition that he had free access to lawyers and that embassy representatives of ORG states could visit him freely . On DATE ] police transferred him to the town of GPE , where he was also kept under house arrest . ”

Its next report “ Concerns in LOC and LOC : DATE ” , published on DATE , contained the following observations :

“ ... PERSON and GPE , CARDINAL former senior government officials and well - known leaders of the opposition ORG for GPE movement , were sentenced to CARDINAL and CARDINAL years’ imprisonment respectively , on charges of “ abuse of office ” and financial crimes , including misappropriation of state funds . PERSON was convicted on DATE ] by ORG and GPE was convicted on DATE ] by GPE court ... Reportedly , the trials of both men did not conform to international fair trial standards . There were allegations of limited access to both men by lawyers and family members before and after the trial ... Despite a sharp deterioration in GPE health as a result of interrogations in DATE and DATE ] , the investigator had reportedly insisted on continuing interrogating him ... PERSON and GPE were apparently targeted because of their peaceful opposition activities ...

DATE PERSON – independent journalist and editor of a human rights DATE was arrested by police on DATE ] , accused of having raped a minor . The trial against him opened on DATE ] in GPE district court in GPE region . There were allegations that the rape charge was brought to discredit him and that the case was politically motivated . Reportedly , PERSON had been targeted before to punish him for his independent journalism . He had been interrogated by the security service in GPE on DATE ] and subsequently charged with “ insulting the honour and dignity of the President ” ( Article CARDINAL of LAW of GPE ) , reportedly in connection with an article implicating governmental officials in financial crimes ; on CARDINAL DATE ] he was assaulted by CARDINAL unidentified men in plainclothes and had to be hospitalised ... ”

In DATE ORG submitted its briefing ‘ GPE : Summary of Concerns on Torture and Ill - treatment’ to the CAT to complement the information concerning the human rights situation in GPE provided by various domestic and international NGOs with the aim of assisting the CAT in the examination of the GPE ’s second periodic report under LAW ( see above ) . This briefing covered the period DATE with more emphasis on DATE , and focused on ORG “ most pressing concerns about the failures of the authorities in GPE to implement fully and effectively ORG , DATE , DATE , DATE , DATE , DATE , DATE and DATE of the Convention against Torture ” . The relevant extracts from the briefing read as follows :

“ ... ORG has ... received allegations in some high - profile criminal cases linked to the prosecution and conviction in absentia of the former son - in - law of President PERSON , GPE , for planning an alleged coup attempt and several other charges , that associates or employees of ORG were arbitrarily detained by ORG officers , held incommunicado in pre - charge and pre - trial detention facilities where they were tortured or otherwise ill - treated with the aim of extracting “ confessions ” that they had participated in the alleged coup plot . In CARDINAL case , relatives have alleged that the trial was secret and that the accused did not have access to adequate defense ... ”

The same document also contained more general observations relating to the issue of torture and ill - treatment in GPE :

“ ... ORG remains concerned that despite efforts by the authorities of GPE to fulfill their obligations under the ORG and implement recommendations made by ORG in DATE torture and other ill - treatment remain widespread and such acts continue to be committed with virtual impunity ...

According to reports received by ORG from domestic and international non - governmental organizations ( NGOs ) and inter - governmental organizations ( IGOs ) , lawyers , diplomats , citizens and foreign nationals , beatings by law enforcement officers , especially in temporary pre - charge detention centers , in the streets or during transfer to detention centers , are still routine . From interviews ORG conducted in DATE and DATE with concerned organizations and individuals it has emerged that torture or other ill - treatment in detention continues to be widespread , despite the safeguards against torture or other ill - treatment which the authorities have introduced and the education , reform and training programs for law enforcement forces and the judiciary often run in conjunction and in cooperation with NGOs and IGOs .

While , by all accounts , GPE had implemented a successful reform of its penitentiary system - starting with the transfer of the prison system to ORG in late DATE - with significant improvements in the conditions of detention in post - conviction detention centers , DATE have reportedly seen a decline in prison conditions , and many of the abusive practices reoccurring more and more often .

Comparatively few law enforcement officers DATE even according to official figures – have been brought to trial and held accountable for violations they have committed , including torture , and yet scores of people throughout the country routinely allege that they have been arbitrarily detained and tortured or ill - treated in custody in order to extract a “ confession ” . Evidence based on such “ confessions ” is still routinely admitted in court . Corruption in law enforcement and the judiciary is believed to contribute largely to a climate of impunity . This climate of impunity leads to a lack of public confidence in the criminal justice system . It was reported to ORG that people only rarely lodge complaints as they feel that they will not obtain justice , nor get compensation . Many are not willing to testify against law enforcement officers out of fear of reprisals against themselves or their relatives and associates ... ”

As regards the application of the death penalty in GPE , ORG made the following observations :

“ ... In DATE the scope of the application of the death penalty permitted by the constitution was reduced from CARDINAL " exceptionally grave " crimes to DATE that of terrorism leading to loss of life . The death penalty also remains a possible punishment for " exceptionally grave " crimes committed during times of war . A person sentenced to death in GPE retains the right to petition for clemency . A moratorium on executions , which had been imposed in DATE , remained in force and no death sentences were passed during DATE and DATE . All CARDINAL prisoners on death row had their sentences commuted to life imprisonment ... ”


Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva

The applicant , PERSON , is a NORP national who was born in DATE and lives in the village of ORG , ORG region , GPE . She was represented before the ORG by Ms N. PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON , from ORG .

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

At TIME on DATE the applicant ’s husband was found dead in his home .

DATE the Novotroitskiy District Prosecutor ’s Office ( “ the DPO ” ) instituted proceedings into the murder and ordered a forensic medical examination .

On DATE thirteen neighbours , relatives and friends of the deceased were questioned .

On DATE the forensic examination concluded that the applicant ’s husband had received multiple bodily injuries and had been strangled . His death had occurred during TIME to DATE .

On DATE the ORG questioned a further witness and issued a search warrant in respect of PERSON and Mr D.

On DATE Mr NORP was interrogated .

On DATE CARDINAL more witnesses were questioned .

On DATE the ORG ordered the forensic examination of footprints and fingerprints that had been found at the scene of the crime . The examination reports were completed on DATE ( for the footprints ) and DATE ( for the fingerprints ) .

On DATE Mr NORP was interrogated and a reconstruction was held .

On DATE the investigator granted the applicant aggrieved party status . The applicant was questioned as the aggrieved party .

On DATE Mr D was identified by CARDINAL witnesses as a person who had asked about the deceased ’s place of residence on DATE of the crime – DATE .

On DATE the investigator decided not to prosecute Mr NORP for murder and robbery as he had an alibi for the time of murder . However , the investigator nevertheless considered that Mr NORP , who had arrived at the village with a certain PERSON and PERSON on DATE and had enquired about the deceased ’s place of residence , had to have been aware that this information was wanted by PERSON and PERSON for an illegal purpose , such as burglary . Mr NORP was therefore charged with complicity in burglary .

On DATE Mr NORP was questioned as an accused .

On DATE the investigator arranged for the formal identification of a pair of running shoes by CARDINAL witnesses , who testified that they belonged to PERSON

On DATE another footprint examination was ordered . It was completed on DATE and established that CARDINAL of the footprints at the scene of the crime had been left by a sports shoe belonging to Mr K.

On DATE the investigator issued resolutions to bring charges against PERSON and PERSON of murder for financial gain . The prosecutor issued an arrest warrant with respect to PERSON and PERSON and placed them on a wanted list .

On DATE the investigation was suspended since the whereabouts of the suspects were unknown .

On DATE the investigator ordered a search of PERSON home . The search was carried out DATE .

On DATE the investigator issued a warrant to monitor the telegraphic and postal correspondence of PERSON relatives . On DATE the warrant was sent to the Head of ORG .

On DATE Mr NORP surrendered voluntarily to the prosecutor and was interrogated . At DATE the investigator decided to discontinue the criminal proceedings against Mr R for burglary and murder for lack of evidence . However , on DATE that decision was quashed .

According to the applicant , on the advice of the investigator , she paid MONEY to a lawyer PERSON to represent her in the proceedings but never signed a formal agreement with the lawyer .

On DATE the ORG examined the case against Mr NORP and remitted it for additional investigation ; it instructed the investigator to arrange a confrontation between PERSON and PERSON NORP was released on condition that he did not abscond . The applicant was not present at the hearing but the lawyer PERSON acted on her behalf , allegedly without her authorisation .

On DATE ORG appealed against the decision of DATE . They maintained , in particular , that it was not possible to arrange for a confrontation between Mr NORP and PERSON since PERSON had absconded .

On DATE ORG upheld the decision of ORG .

On DATE an additional medical forensic examination was ordered . The report was completed by DATE .

On DATE Mr NORP was interrogated again . On DATE the investigator decided not to initiate criminal proceedings against Mr NORP for destruction or damage of property with intent .

On DATE Mr NORP was interrogated further and a confrontation was staged between him and PERSON

On DATE the investigator decided not to pursue the prosecution of PERSON on the ground that he had an alibi for the murder that was supported by CARDINAL witnesses . According to PERSON on the eve of the murder Mr D. had asked him to take PERSON and PERSON to the village where the applicant ’s husband lived . He had done so . He had waited for them for TIME and then taken them back to the town of GPE . PERSON denied , and there was no evidence to the contrary , that he had been aware of the true intentions of PERSON and PERSON with respect to the applicant ’s husband .

On DATE , owing to changes in the procedural legislation that required any arrest order to be approved by the court , the investigator submitted a request to ORG for a warrant for Mr K ’s arrest . On DATE the court ordered PERSON to be taken into custody as a preventive measure .

On DATE the proceedings were suspended since the accused ’s whereabouts were unknown . Thereafter the investigation was suspended and resumed several times .

By a letter of DATE the applicant was informed that Mr NORP had absconded and that the criminal proceedings against him were suspended .

Owing to changes in the legislation on criminal procedure , on DATE the investigator requested authorisation from ORG to survey the telegraphic and postal correspondence of PERSON relatives and friends . On DATE the court issued the authorisation .

On DATE the investigator issued a resolution for PERSON property to be seized . The investigator reported , however , that PERSON had no property .

By a letter of CARDINAL DATE ORG informed the applicant that they were still looking for PERSON , who had been identified as a suspect . The investigators also checked the possible involvement of PERSON and PERSON in the murder of the applicant ’s husband , but as their was no proof of their guilt , ORG declined to prosecute them and ORG upheld its decisions .

By a letter of DATE ORG informed the applicant that the law - enforcement authorities were still looking for PERSON and that the decisions to close the criminal proceedings against PERSON and PERSON were well - founded

The investigator systematically issued orders to establish PERSON whereabouts on DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , CARDINAL DATE , DATE , and DATE .


CASE OF B. v. THE UNITED KINGDOM (ARTICLE 50)

Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

ORG The case was referred to the ORG on DATE by ORG ( " the Commission " ) . It originated in an application ( no . CARDINAL/CARDINAL ) against GPE and GPE lodged with the ORG in DATE by a NORP citizen .

ORG On DATE , the ORG constituted to examine the case relinquished jurisdiction in favour of ORG ) . By judgment of CARDINAL DATE ( " the principal judgment " ) , ORG held , inter alia , that the applicant had been the victim of breaches of ORG CARDINAL and CARDINAL § CARDINAL ( article CARDINAL , article DATE ) of the LAW by reason of the procedures followed and the insufficiency of the remedies available in connection with decisions relating to her child in the care of a local authority ( Series A no . CARDINAL-B , paragraphs CARDINAL of the reasons and points CARDINAL and CARDINAL of the operative provisions , pp . CARDINAL and DATE ) .

The only outstanding matter to be settled is the question of the application of LAW ) in the present case . Accordingly , as regards the facts , reference should be made to paragraphs CARDINAL of the principal judgment ( ibid . , pp . CARDINAL - CARDINAL ) .

ORG At the ORG ’s hearing on DATE , the Government of GPE ( " the Government " ) reserved their position on the applicant ’s claim for just satisfaction , which claim had not then been quantified .

In the principal judgment , the ORG therefore reserved the whole of this question ; it invited ( a ) the applicant to submit , within DATE , full written particulars of her claim ; and ( b ) the Government to submit , within DATE of receipt of those particulars , their written comments thereon and , in particular , to notify ORG of any agreement reached between them and the applicant ( paragraphs CARDINAL of the reasons and point CARDINAL of the operative provisions , pp . CARDINAL - CARDINAL ) .

ORG In accordance with the foregoing invitation and the President ’s directions , there were filed at the registry :

- on DATE , memorial of the applicant ;

- on DATE and CARDINAL DATE , memorials of the Government ;

- on DATE , observations of ORG .

These documents revealed that no agreement had been concluded between the ORG and the applicant .

ORG Having consulted the Agent of the Government , ORG and the representative of the applicant , the ORG decided , on DATE , that there was no need to hold a hearing .


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;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger

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

The applicant , a former military serviceman brought proceedings against military unit PERSON , where he had served before retirement , claiming compensation for his uniform . On DATE ORG found for the applicant and awarded him CARDINAL,CARDINAL.CARDINAL NORP hryvnias ( ORG ) .

On DATE the Ivano - Frankivsk Bailiffs ' Service initiated enforcement proceedings .

On an unspecified date the above military unit was liquidated and the judgment debt was transferred to its legal successor , military unit A-CARDINAL .

Following this event the enforcement writ was transferred to ORG . On DATE the latter instituted enforcement proceedings in respect of the judgment .

On DATE the enforcement writ was returned to the applicant . The judgment has not been enforced due to the debtor 's lack of funds .

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


The applicants , PERSON , PERSON , PERSON , PERSON , PERSON and PERSON , are GPE nationals , living in GPE , GPE . They are represented by Mr PERSON , President of ORG . The respondent Government are represented by PERSON of ORG .

Until DATE the CARDINAL applicants and their families were living in caravans on a privately owned site at Cressing . On an unspecified date ORG informed the owner that there were too many caravans on the site . As a result the applicants had to move .

On an unspecified date the applicants , or some of them , purchased a small plot of land , QUANTITY away from the site at Cressing , and stationed their caravans there . The applicants then sought retrospectively planning permission for the site ’s change of use to a residential caravan site for CARDINAL families . This was refused by ORG on DATE . On DATE the applicants were served with CARDINAL enforcement notices which required them inter alia to demolish all unauthorised structures such as fences , sheds and street - lighting appliances and to cease using the site for the siting of their caravans .

The applicants appealed to the Secretary of ORG for the Environment . An Inspector appointed by him held a public inquiry on DATE and visited the site . On DATE the ORG dismissed the appeal .

The Inspector considered that the principal issues were : ( i ) the resulting impact on the appearance and character of the local countryside ; ( ii ) the resulting impact on road safety ; and iii ) the degree of need for the accommodation .

The ORG noted that one of the applicable policies was to protect the countryside from developments unless related to agriculture , mineral extraction , forestry or outdoor recreational uses or other uses compatible with the rural areas . Another policy , contained mainly in Circular DATE and earlier relevant circulars intended to ensure that the planning system recognised the need for accommodation consistent with gypsies’ nomadic lifestyle , but also reflected the importance of a plan - led system in relation to site provision .

The Inspector further found that the area where the applicants’ caravans were located was not covered by any specific protective planning designation . However , the landscape was predominantly arable and the development sought would detract from the area ’s open rural character . To reach this finding the ORG took into account that the site was exposed to wide public view ; that the development included fences , telephone poles and lighting columns which together with the caravans inherently looked out of place ; that permission was sought for a permanent and not temporary development and for CARDINAL pitches , whereas the normal policy was to limit them to CARDINAL .

The ORG further concluded that “ the impact on road safety [ was ] CARDINAL of the principal issues ” in the appeal . The site was accessible through an unmade green lane , branching off a primary route with heavy traffic where the speed limit was QUANTITY and was often exceeded . The road had seen serious and fatal accidents . The use of the access to the site by the occupants of CARDINAL dwellings would appreciably increase the likelihood of accidents .

The ORG also considered the applicants’ need for a caravan site . He noted that the available bi - DATE counts showed that there had been a continuing , albeit decreasing , unmet need for authorised accommodation within GPE . He accepted that the applicants were in need of accommodation when they lost their pitches at the site at Cressing . He considered that these facts were powerful considerations in support of the development sought , but that on balance the benefits were outweighed by the indefinite harmful effects resulting from the choice of the particular site .

On DATE , the applicants again applied to ORG for a planning permission for the site . The application was dismissed on CARDINAL DATE . The ORG appeal was dealt with by written representations and the ORG dismissed it by letter dated DATE . In his decision , he considered whether certain changes proposed to the site would overcome the objections . He found however that the fence remained a prominent intrusive feature in the open rural area , with the tops of the caravans rising above it and that screening could only be achieved by planting after some considerable period during which the site would continue to damage the rural landscape . He also noted that the road was heavily used by fast - moving traffic and considered that movement of vehicles in and out of the site would add to the dangers of the type already a feature of this section of the road . He concluded , having carefully considered the applicants’ representations about their links with the area and their children ’s schooling that this relatively large scheme twice the size of those normally considered appropriate in the local plan was still harmful to the character and appearance of the area and prejudicial to highway safety .

On DATE , CARDINAL of the applicants were convicted by ORG for , inter alia , failure to comply with the enforcement notices and were ordered to pay fines QUANTITY costs . The Chairman noted that a wilful refusal to comply with an enforcement notice was a serious offence . Taking into account however the applicants’ previous good character and expressing sympathy for the applicants’ situation , he hoped that the planning authorities would find a way round their difficulties but stated that for a satisfactory outcome of the planning problem the applicants’ cooperation was necessary .

The representative of the applicants and ORG exchanged correspondence and had meetings for the purpose of exploring the possibilities for the applicants’ moving to other sites . The applicants were urged to identify CARDINAL other sites , each for CARDINAL pitches , and to apply for planning permission . Also , since finding sites was difficult , the applicants were urged to be prepared to apply and accept whatever vacancies for caravan pitches would arise . The applicants objected stating that buying a plot and applying for planning permission without a guarantee that such permission would be granted would involve serious costs . They suggested that compliance with the enforcement notice should not be required or should be delayed . By letter of CARDINAL DATE the ORG indicated that ownership of a site was not a pre - requisite for applying for planning permission . Also , in the ORG ’s view the applicants had made no serious effort to find other suitable sites . The letter also addressed the applicants’ argument that the caravan policies were discriminatory . It stated that insofar as there were provisions applicable specifically to gypsy caravans , these discriminated in their favour , by providing for exceptions to the normal restrictive planning policies .

On DATE , the applicants were fined GBP CARDINAL and GBP CARDINAL costs for failure to comply with the enforcement notices .

ORG as amended by ORG DATE ) ( “ the DATE LAW ) consolidated pre - existing planning law . It provides that planning permission is required for the carrying out of any development of land ( section CARDINAL of LAW ) . A change in the use of land for the stationing of caravans can constitute a development ( ORG v. Secretary of ORG for the Environment and GPE [ DATE ] ORG Law CARDINAL ; PERSON v. Secretary of ORG for the Environment and South Hertfordshire District Council [ DATE ] ORG ) .

An application for planning permission must be made to the local planning authority , which has to determine the application in accordance with the local development plan , unless material considerations indicate otherwise ( section CARDINALA of LAW ) .

The DATE Act provides for an appeal to the Secretary of ORG in the event of a refusal of permission ( section CARDINAL ) . With immaterial exceptions , the Secretary of ORG must , if either the appellant or the authority so desire , give each of them the opportunity of making representations to an inspector appointed by the Secretary of ORG . It is established practice that each inspector must exercise independent judgment and must not be subject to any improper influence ( see the PERSON the GPE judgment of CARDINAL DATE , Series A no . CARDINAL-A , p. CARDINAL , § DATE ) . There is a further appeal to ORG on the ground that the Secretary of ORG ’s decision was not within the powers conferred by LAW , or that the relevant requirements of LAW were not complied with ( section FAC ) .

If a development is carried out without the grant of the required planning permission , the local authority may issue an “ enforcement notice ” if it considers it expedient to do so having regard to the provisions of the development plan and to any other material considerations ( section CARDINAL ( CARDINAL ) of LAW ) .

There is a right of appeal against an enforcement notice to the Secretary of ORG on the grounds , inter alia , that planning permission ought to be granted for the development in question ( section CARDINAL ) . As with the appeal against refusal of permission , the Secretary of ORG must give each of the parties the opportunity of making representations to an inspector .

Again there is a further right of appeal on a point of law to ORG against a decision of the Secretary of ORG under section CARDINAL ( section CARDINAL ) . Such an appeal may be brought on grounds identical to an application for judicial review . It therefore includes a review as to whether a decision or inference based on a finding of fact is perverse or irrational ( NORP v. Secretary of ORG for ORG , ex parte PERSON [ DATE ] Appeal Cases CARDINAL , CARDINAL ORG ) . ORG will also grant a remedy if the inspector ’s decision was such that there was no evidence to support a particular finding of fact ; or the decision was made by reference to irrelevant factors or without regard to relevant factors ; or made for an improper purpose , in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument . However , the court of review can not substitute its own decision on the merits of the case for that of the decision - making authority .

Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice , the local authority may enter the land and take the steps and recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so ( section CARDINAL of LAW ) .

New guidance on gypsy sites and planning , in the light of LAW , was issued to local authorities by the Government in Circular CARDINAL/CARDINAL ( DATE ) .

Councils were told that :

“ In order to encourage private site provision , local planning authorities should offer advice and practical help with planning procedures to gypsies who wish to acquire their own land for development . ... The aim should be as far as possible to help gypsies to help themselves , to allow them to secure the kind of sites they require and thus help avoid breaches of planning control . ” ( paragraph CARDINAL )

However :

“ As with other planning applications , proposals for gypsy sites should continue to be determined solely in relation to land - use factors . Whilst gypsy sites might be acceptable in some rural locations , the granting of permission must be consistent with agricultural , archaeological , countryside , environmental , and LOC policies . ... ” ( paragraph CARDINAL ) .

It was indicated that as a rule it would not be appropriate to make provision for gypsy sites in areas of open land where development was severely restricted , for example Areas of Outstanding Natural Beauty , Sites of Special Scientific Interest . Nor were gypsy sites regarded as being among those uses of land normally appropriate in a Green Belt ( paragraph CARDINAL ) .

Further guidance issued by the Secretary of ORG dated DATE concerned the unauthorised camping by gypsies and the power to give a direction to leave the land ( LOC above ) . Paragraphs CARDINAL - CARDINAL required local authorities to adopt “ a policy of toleration towards unauthorised gypsy encampments :

“ CARDINAL . ... Where gypsies are camped unlawfully on council land and are not causing a level of nuisance which can not be effectively controlled , an immediate forced eviction might result in unauthorised camping on a site elsewhere in the area which could give rise to greater nuisance . Accordingly , authorities should consider tolerating PERSON presence on the land for short periods and could examine the ways of minimising the level of nuisance on such tolerated sites , for example by providing basic services for gypsies e.g. toilets , a skip for refuse and a supply of drinking water . ...

Where gypsies are unlawfully camped on Government - owned land , it is for the local authority , with the agreement of the land - owning ORG , to take any necessary steps to ensure that the encampment does not constitute a hazard to public health . It will continue to be the policy of the Secretaries of ORG that Government Departments should act in conformity with the advice that gypsies should not be moved unnecessarily from unauthorised encampments when they are causing no nuisance .

The Secretaries of ORG continue to consider that local authorities should not use their powers to evict gypsies needlessly . They should use their powers in a humane and compassionate fashion and primarily to reduce nuisance and to afford a higher level of protection to private owners of land . ”

Paragraphs CARDINAL further require local authorities to consider their obligations under other legislation before taking any decisions under LAW . These obligations include their duties concerning pregnant women and newly - born children , the welfare and education of children and the housing of homeless persons . In a judgment of CARDINAL DATE ( NORP v. ORG , ex parte Atkinson , NORP v. ORG , ex parte GPE and NORP v. ORG , ex parte GPE , unreported ) , ORG held that it would be an error of law for any local authority to ignore those duties which must be considered from the earliest stages .