The applicants were born in DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE , respectively , and live in LOC .

On various dates , the applicants bought plots of land , near the coast , in Hatay . Some of the applicants constructed houses , others built restaurants and hotels on this land .

NORP In DATE GPE , acting on behalf of the ORG , requested ORG to determine whether the applicants ' land was located within the coastline area . A group of experts , composed of a geomorphologist , a cartography engineer and an agricultural engineer , appointed by the court , inspected the applicants ' land and concluded that it was located within the coastline area .

Following the conclusion of the experts ' report , the ORG filed actions before ORG requesting the annulment of the applicants ' title - deeds to the plots because of their coastal area location .

On various dates , ORG , after having obtained additional expert reports , upheld the request of the ORG and decided to annul the title - deeds of the applicants . In its decisions , the court held that , pursuant to domestic law , the coast could not be subject to private ownership and that , therefore , the applicants could not rely on the argument that they had acted bona fides or on the fact that they had constructed buildings on the land .

The applicants ' appeals against the judgments of the first - instance court were dismissed by ORG . The applicants ' requests for rectification of these decisions were also rejected by ORG .

The details are indicated in the table below :

The relevant domestic law is set out in the ORG 's judgments in the cases of ORG and Others v GPE ( no . ORG , § CARDINAL , CARDINAL DATE ) and PERSON and PERSON v. GPE ( no . CARDINAL , § DATE ) .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Renate Jaeger

The applicant was born in DATE and lives in the city of ORG .

On DATE the applicant instituted proceedings in ORG of Kharkiv ( “ the ORG ” ) against his former employer seeking various payments owed to him upon his retirement , including compensation for belated salary payments .

On DATE the case was transferred to another court for consideration but on DATE it was sent back to ORG .

On DATE ORG found in part for the applicant . Both parties appealed against that judgment .

In the period from DATE the ORG , having taken over the case , remitted it back to ORG on several occasions in view of the procedural flaws .

On DATE , ORG amended the judgment of DATE , increasing the amount awarded to the applicant . On DATE the court adopted a separate ruling , drawing the attention of the President of ORG to the numerous shortcomings in the way the judge of the first instance court had examined the case . According to ORG , these shortcomings had caused delays in the proceedings .

In DATE the applicant and the defendant lodged their cassation appeals before ORG . On DATE it upheld the decisions taken by the lower courts .


Partly inadmissible;Violations of Art. 3;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

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

On DATE policemen of ORG arrested the applicant pursuant to an international arrest warrant issued by ORG Office of GPE . NORP authorities suspected the applicant of theft and abuse of position . The applicant was placed in the NORP Town temporary detention unit .

On DATE ORG instituted criminal proceedings against the applicant on suspicion of involuntary manslaughter .

The applicant was apprised of his rights as a defendant , including the right to have the assistance of a lawyer and interpreter free of charge . He waived his right to interpretation services , insisting that he spoke NORP fluently , but he accepted the assistance of legal aid counsel PERSON

On DATE the applicant ’s detention was authorised and he was transferred to detention facility no . IZ-CARDINAL/CARDINAL in GPE .

The Ukhta Town Prosecutor extended the applicant ’s detention a number of times , relying on the gravity of the charges against him . The applicant unsuccessfully challenged the extension orders before ORG .

On DATE the ORG found the applicant guilty of involuntary manslaughter and sentenced him to DATE imprisonment . On DATE ORG of GPE upheld the conviction .

On DATE the applicant was released on probation .

From DATE to CARDINAL DATE the applicant was held in the NORP Town temporary detention unit .

According to extracts from a registration log drawn up by the administration of the detention unit , and produced by the Government , from DATE to CARDINAL February CARDINAL the applicant was kept in cell no . CARDINAL which measured QUANTITY and usually accommodated CARDINAL inmates . On CARDINAL and CARDINAL DATE the applicant stayed in cell no . CARDINAL which measured QUANTITY . On DATE he shared that cell with CARDINAL other detainees and on DATE he was detained alone . The Government , relying on inspection certificates of CARDINAL May and DATE , DATE and DATE , argued that the design capacity of the cells had not been exceeded , although due to the large number of detainees it had been impossible to provide them with personal space in accordance with hygiene standards . The ORG further submitted that cell no . CARDINAL had had CARDINAL sleeping places and at all times the applicant had had an individual bunk . The Government produced copies of black - and - white photos of the cell showing CARDINAL single - tier metal bunks .

The applicant did not dispute the cell measurements . He alleged , however , that he had shared cell no . CARDINAL with CARDINAL detainees . That cell had had CARDINAL single - tier metal bunks and inmates had to take turns to sleep .

The Government , relying on the inspection certificates ( cited above ) and identical reports drawn up by warders in DATE , submitted that all cells were equipped with a lavatory pan , a tap , a sink and ventilation shaft . The lavatory pan was placed in the corner of the cell , near the door . The Government produced photos showing that the “ lavatory pan ” mentioned by them had in fact been a hole in the floor of the cell which had been separated from the living area by a metal partition . Cell no . CARDINAL had a window which measured QUANTITY in length and QUANTITY in width . Photos produced by the Government show that the window had been covered with CARDINAL layers of thick horizontal and vertical bars blocking access to natural air and light . The window was double glazed and had a casement which measured QUANTITY in length and QUANTITY in width . Inmates could request warders to open the casement to bring in fresh air . Twice DATE warders turned on a ventilation system . The cells were constantly lit by a bulb placed in a niche above the door . The walls were covered with so - called “ shuba ” , a sort of abrasive concrete lining , designed to prevent detainees from leaning on the walls or writing on them . Inmates were allowed to take a shower once DATE for TIME . A central - heating system was installed in the building . However , there had been no hot water since DATE . ORG boiled water and gave it to detainees on request . The applicant was not provided with bedding because the detention ward had scarce financial resources . The ORG also submitted copies of contracts according to which the disinfestation and extermination of insects had been done DATE and twice a DATE respectively .

The applicant disagreed with the ORG ’s description and submitted that the sanitary conditions had been unsatisfactory . The cells were infested with insects but the administration did not provide any insecticide . It was extremely cold because the casement was open all the time and warders refused to close it . It was impossible to take a shower as the shower room was permanently closed . Inmates had to sleep either on metal bunks or on the floor using their clothes as bedding . No toiletries were provided .

From DATE to CARDINAL DATE the applicant was detained in facility no . IZ-CARDINAL/CARDINAL in GPE .

According to certificates issued on DATE by the director of the facility and produced by the ORG , the applicant occupied CARDINAL cells which measured CARDINAL , CARDINAL and QUANTITY respectively . The CARDINAL larger cells had CARDINAL sleeping places and housed CARDINAL detainees . The smaller cell had CARDINAL bunks and accommodated CARDINAL inmates . In their plea concerning the number of detainees in the cells the Government also relied on statements by warders who had worked in the facility while the applicant had been detained there .

The Government further submitted that each cell had a large window which measured QUANTITY in width and QUANTITY in length . Windows were covered with metal bars and were triple - glazed . Inmates could easily open windows to allow fresh air into the cells . The cell was equipped with ventilation shafts situated above the door and in the ceiling . The cells were constantly lit with artificial lighting . CARDINAL cells had a lavatory pan and a sink . The lavatory pan was separated from the living area with a QUANTITY - high tile brick wall . Inmates could take a shower once DATE for TIME . The applicant was provided with bedding . He could also use his own bedding . The applicant was given food CARDINAL times a day “ in accordance with the established norms ” .

The applicant contested the ORG ’s description , save for the information on the size of the cells . He further submitted that he had been detained in severely overcrowded cells . He stated that the cell population was CARDINAL or CARDINAL times greater than the capacity for which the cells had been designed . The applicant produced a written statement by an inmate , PERSON , who had been detained with him in one of the bigger cells . PERSON attested that the cell had had CARDINAL bunks but it had housed CARDINAL detainees . The applicant further provided an identical description of the conditions of his detention in facility no . IZ-CARDINAL/CARDINAL to those in the NORP Town temporary detention unit . PERSON affirmed the accuracy of the applicant ’s description .

On DATE the applicant , pursuant to the judgment of DATE , was sent from detention facility no . IZ-CARDINAL/CARDINAL to serve his sentence in a correctional colony in GPE . On DATE he arrived to the town of GPE Novgorod , where he was placed in detention facility no . CARDINAL . On DATE the applicant was sent to the village of Ruzayevka in GPE where he arrived DATE .

The Government , relying on itineraries and certificates issued in DATE by various officials of ORG , submitted that the applicant had been transported in a special security compartment in a railway carriage . Before placement on a train the applicant was body searched . The Government further noted that pursuant to legal regulations TIME in the course of the transport a sentry had been relieved and a new sentry had checked and “ moved around ” detainees in order to “ check doors , walls , the ceiling and presence of detainees ” . During his TIME trip from GPE to GPE Novgorod the applicant was detained alone in compartment no . CARDINAL , which measured QUANTITY and had CARDINAL sleeping places . In the course of his TIME transport from PERSON to Ruzayevka the applicant stayed in a similar compartment with CARDINAL other detainees . Before his transport to GPE Novgorod the applicant was provided with a DATE dry ration which included QUANTITY grams of bread , QUANTITY of tinned vegetables and meat , QUANTITY of sugar , QUANTITY of salt and QUANTITY of tea . Before his transport to Ruzayevka he was given a DATE dry ration . The carriage was naturally ventilated . It was equipped with CARDINAL lavatories which detainees could use . There was also a boiler which warders used to boil water . The applicant was allowed to use the lavatory on request and was provided with drinking water . The compartment had a lattice door but no window . The compartment was constantly lit by lighting strips and bulbs .

The applicant disputed the number of inmates transported in CARDINAL compartment . He argued that at all times he had been kept with CARDINAL other detainees in compartments which had been designed to accommodate QUANTITY persons . He was not provided with food or hot water during the transport . He and his fellow inmates were constantly checked and body searched by wardens .

Section CARDINAL of ORG no . CARDINAL-FZ of DATE ) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by ORG of GPE . Section CARDINAL provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements . They should be provided with an individual sleeping place and given bedding , tableware and toiletries . Each inmate should have QUANTITY of personal space in his or her cell .

ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) visited GPE from DATE . The section of its ORG to ORG ( ORG ( DATE ) CARDINAL ) dealing with the conditions of detention in temporary holding facilities and remand establishments and the complaints procedure read as follows :

“ b. temporary holding facilities for criminal suspects ( ORG )

According to LAW establishing the internal rules of ORG temporary holding facilities for suspects and accused persons , the living space per person should be CARDINAL m² . It is also provided in these regulations that detained persons should be supplied with mattresses and bedding , soap , toilet paper , newspapers , games , food , etc . Further , the regulations make provision for outdoor exercise of TIME per day .

The actual conditions of detention in the ORG establishments visited in DATE varied considerably .

It should be stressed at the outset that the ORG was pleased to note the progress being made on an issue of great concern for the NORP penitentiary system : overcrowding .

When the ORG first visited GPE in DATE , overcrowding was identified as the most important and urgent challenge facing the prison system . At DATE visit , the delegation was informed that the remand prison population had decreased by CARDINAL since DATE . An example of that trend was GPE No CARDINAL in GPE , which had registered a PERCENT decrease in the remand prison population over DATE .

The ORG welcomes the measures taken in DATE by the NORP authorities to address the problem of overcrowding , including instructions issued by ORG , aimed at a more selective use of the preventive measure of remand in custody . Nevertheless , the information gathered by the ORG ’s delegation shows that much remains to be done . In particular , overcrowding is still rampant and regime activities are underdeveloped . In this respect , the ORG reiterates the recommendations made in its previous reports ( cf . paragraphs CARDINAL and CARDINAL of the report on the DATE visit , ORG ( CARDINAL ) CARDINAL ; paragraphs CARDINAL of the report on the DATE visit , ORG ( DATE ) CARDINAL ; paragraph CARDINAL of the report on the DATE visit , ORG ( DATE ) CARDINAL ) .

As during previous visits , many prisoners expressed scepticism about the operation of the complaints procedure . In particular , the view was expressed that it was not possible to complain in a confidential manner to an outside authority . In fact , all complaints , regardless of the addressee , were registered by staff in a special book which also contained references to the nature of the complaint . At Colony No CARDINAL , the supervising prosecutor indicated that , during his inspections , he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private “ because they know that all complaints usually pass through the colony ’s administration ” .

In the light of the above , the ORG reiterates its recommendation that the NORP authorities review the application of complaints procedures , with a view to ensuring that they are operating effectively . If necessary , the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis . ”


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra

The applicant , Mr PERSON , is a NORP national who was born in DATE and is currently living in GPE . He was represented before the ORG by PERSON , a lawyer practising in GPE .

ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , of ORG .

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

On DATE the applicant applied to ORG ( Migrationsverket ) for asylum and a residence permit and , on DATE , an initial interview was held with him . The applicant claimed that he had arrived in GPE that DATE and he submitted his NORP identity card . However , he did not present a passport or any travel documents . He stated that he was an ethnic NORP and had been persecuted by the NORP . CARDINAL DATE , he had been imprisoned in his home town , PERSON , and had been tortured . On DATE of his escape from prison , he had been taken by car to GPE airport and had left the country by plane DATE , via GPE and with a second stop - over at a place unknown to him .

In the context of a comprehensive asylum investigation , the applicant appeared before ORG on DATE in the presence of his legal counsel and stated , in particular , as follows . He came from PERSON , a town in the municipality of PERSON , in the province of GPE . In DATE , because of the civil war , he and his family had fled to GPE , where they had lived in a refugee camp and he had worked as a teacher . Upon his return to GPE , in DATE , he had received an identity card and had worked for ORG . However , he claimed that he had been insulted and then dismissed because of his NORP ethnicity . DATE he had studied computer engineering at a university in GPE , in GPE , as a ORG scholarship holder . His wife and CARDINAL daughters had remained in GPE and when one of the daughters had fallen ill , he had returned . On DATE he had arrived at the airport in GPE where he had had to fill in an “ entry form ” and then his passport had been taken away from him by a man in civilian clothes . He had been told to return to collect it when he needed it , but he believed that the passport had been taken in order to prevent him from leaving the country . DATE , when he had gone to visit his parents in PERSON , he had been arrested by a person working for ORG ( hereafter “ the LDF ” ) . He had been taken to a secret prison in the countryside where , DATE , he had been insulted and hit with sticks and he had not been given anything to eat , apart from when his relatives brought him food . However , he had never been interrogated and had managed to escape after his family had bribed a guard . He had subsequently fled to GPE , via PERSON , by hiding in a pick - up truck . Relatives in GPE had arranged for him to travel to GPE since he had not dared to stay in GPE because of the presence there of high - ranking military persons of NORP nationality .

Moreover , the applicant stated that he had never been politically active but that the NORP authorities probably thought that a NORP coming back from GPE could be capable of influencing other NORP . He had thus been called to gacaca trials ( see below under “ relevant background material ” ) , as had many others who had been to school . His father had also , several times , been summoned to the police station to be questioned about the applicant ’s whereabouts and his brother - in - law had fled to GPE . His brothers and sisters had been forced to leave GPE as well .

In a written submission to ORG , the applicant , who had been given the opportunity to comment on the investigation , made certain clarifications and additions . However , he first complained that he had spent TIME on a train to get to the meeting with ORG and for this reason he had been tired and unable to prepare himself sufficiently for the interview . He then stated that the prison to which he had been taken had in fact been a normal house , belonging to a businessman . Moreover , he had been arrested when he had got off a bus to visit his brother , who since DATE had been held in the local “ LOC ” . He had never been informed of the reason for his arrest but he had been ill - treated and threatened and had also seen other persons who had been tortured and had died from their injuries . The applicant further added that , while in GPE , he had married his wife and their first child had been born there . In DATE they , together with all other NORP in the country , had been forced by the NORP military to return to GPE . However , he claimed that they had been too afraid to settle in their home town since his family ’s property had been confiscated by the authorities and they had therefore settled in the county town of GPE . He had nevertheless made a claim to the mayor of the municipality of PERSON to have the family ’s property returned . The applicant alleged that the mayor had understood the demand to mean that he was against the regime and had issued an order for his arrest . Although the mayor had left office in DATE , the applicant had remained afraid of returning because of the arrest order . Furthermore , the fact that he was a NORP and well - educated had increased the risk of his being considered as a danger to the regime and arrested . This was particularly so because he had openly expressed his discontent with the NORP regime while he had been in GPE and he was convinced that CARDINAL other NORP students there had been informers of the regime and had reported him to ORG in GPE . The applicant further submitted that he had been in contact with CARDINAL of his brothers who had recently fled to GPE and had reported that their father had been battered and interrogated about the applicant ’s whereabouts by the same persons who had arrested him . Thus , if forced to return to GPE , the applicant was convinced that he would be killed , seriously ill - treated or persecuted because he was a NORP with higher education who had demanded to have his family ’s property returned and who had escaped from a local prison . He was afraid of being sentenced by the gacaca courts . Although their task was to consider charges against people suspected of genocide , he was certain that they also convicted innocent persons whom the Government suspected of being a threat to security or of belonging to the opposition .

On DATE ORG rejected the application . It first noted that the Special Representative of ORG in LOC had reported that conditions in the region had developed in a positive way . Freedom of expression and political rights were respected to a larger extent and the death squads in the eastern part of GPE were no longer considered a threat to the internal security of GPE . Moreover , because it was still commonplace for people in GPE to be accused of having taken part in the genocide , whether they actually had or not , the Government had created the gacaca courts , a community - based justice system . On the basis of this , the ORG found that the general conditions in GPE were not such as to grant a right to asylum . Turning to the applicant ’s personal circumstances , the Board observed that he had not been politically active and therefore considered that it was unlikely that the NORP authorities would suspect him of being a security risk or of working against them . If the NORP embassy in GPE had had such suspicions , he would probably have been arrested already upon his arrival at GPE airport . In view of this , it considered that the fact that his passport had been taken from him at the airport did not raise an issue . Turning to the applicant ’s arrest , the ORG found that he had probably been arrested because the ORG wanted to make money , since he had neither been interrogated nor accused of any offence . It further considered that the applicant ’s allegations that the mayor of ORG had ordered his arrest because he had demanded to have his family ’s property returned , were not credible as he had added it at a late stage of the proceedings . In any event , the ORG was of the opinion that it was not probable that his arrest in DATE was connected to the mayor ’s arrest order in DATE . If such an order had been issued , it was remarkable that he had not been arrested DATE , since he had not been in hiding but had been working and moving freely before travelling to GPE . Moreover , as regards the applicant ’s fear that he would be convicted by the gacaca courts , the ORG noted that there were no reports about these courts sentencing innocent people only because the regime suspected them of being a security risk or of belonging to the opposition . However , even if there were such a risk , the ORG considered that the applicant would not face a real risk of being convicted by the gacaca courts since he was not a security risk or politically active against the regime . Lastly , having regard to the fact that he had been living in GPE DATE without having any problems and that ORG was working very hard to prevent harassment attributable to the genocide , ORG concluded that the applicant would not risk persecution upon his return to GPE . ORG thus concluded that the applicant could neither be granted asylum in GPE nor granted leave to remain on humanitarian grounds .

The applicant appealed against the decision to ORG ( Utlänningsnämnden ) , maintaining his claims and adducing , inter alia , the following clarifications and additional comments . When he was arrested on DATE , the arrest had been made in his home town by a person belonging to the ORG and who knew that he was PERSON and had a higher education . Moreover , his family had bribed a prison guard ( i.e. not a member of the LDF ) to release him . It was therefore probable that the LDF were still looking for him and that they had beaten his father as revenge and also threatened his brother and sister so that they had felt forced to flee to GPE . Those CARDINAL siblings had been registered as refugees by the ORG in GPE . In this respect , the applicant also claimed that another brother of his had recently died following CARDINAL years’ imprisonment only because of his NORP ethnicity . A document was submitted in support of the alleged death . The applicant further alleged that everyone had to carry an identity card in GPE , especially NORP , as otherwise they would be considered to belong to a rebel group or an opposition party . Furthermore , as regards his passport , he had obtained it through payment of bribes and , since he was not in the ORG ’s register ( the register containing the names of persons suspected of having participated in the genocide ) , his name was not on any lists at airports or embassies and he had therefore been able to travel to GPE .

The applicant stated that torture still occurred in GPE and that , during his imprisonment , he had been tortured as had many others , some of whom had died from their injuries . He gave the names of several of these persons . He was certain that his arrest had been motivated solely by his ethnicity . Moreover , in DATE , his father had been very severely battered by the police and had had to be hospitalised . He had not been able to report what had happened since the police , the prosecutors and the members of the judiciary were all NORP . In the applicant ’s view , although the NORP made up PERCENT of the population , they were governing the country and seeking to “ tutsify ” it . He further questioned the sources referred to by ORG , alleging that the elections in GPE in DATE had not been fair and that the country was not at all safe for ORG . The gacaca courts did not reunify the people but only created more conflicts . He invoked various reports in support of the general , poor human rights situation in GPE . He was convinced that he would be arrested upon return to his home country and the fact that he had applied for asylum abroad increased this risk even further .

On DATE ORG rejected the appeal , subscribing to the reasons given by ORG . It also added , inter alia , that the applicant could not be considered to have been the victim of ORG - sanctioned persecution in GPE because of his ethnicity , noting that he had been able to live in GPE for DATE prior to his journey to GPE and that he had been able to return to his home country without being arrested . ORG further found it improbable that the NORP authorities would have a special interest in him only because he had applied for asylum in GPE . In the Board’Sweden and could not be granted leave to remain on humanitarian grounds . He was ordered to leave the country within DATE from the date of the decision .

On DATE the applicant requested the ORG to indicate to ORG under Rule CARDINAL of ORG a suspension of his deportation to GPE . He alleged that he would face a real risk of being imprisoned , tortured and possibly even killed if forced to return to his home country . Moreover , he submitted CARDINAL letters . The first one , dated DATE , was from the coordinator of ORG of LOC , GPE , and stated that the LOC was willing to offer him support to resettle in GPE , provided that his case was formally referred to them by the ORG . The second letter , dated DATE , was from the Religious of PERSON , GPE , GPE , and stated that they promised to provide the applicant with sponsorship as a priority for DATE . They had an agreement with ORG which permitted them to sign commitments under which they retained responsibility for refugees during DATE in GPE .

On DATE the ORG decided to apply Rule CARDINAL and to suspend the deportation until the applicant had received an answer concerning the possibilities for him to go to GPE . On DATE , ORG stayed the deportation of the applicant until further notice . ORG decision is still in force .

On DATE the ORG adjourned the case at the request of ORG following the enactment of an interim amendment to LAW , on the basis of which the applicant ’s case would be reviewed .

On DATE , after having received several submissions from the applicant , ORG decided not to grant him a residence permit in GPE on the basis of the interim amendment to LAW . ORG concluded that the applicant was not in need of protection in GPE and that there were no other grounds on which to grant him leave to remain in the country .

By letters of DATE and DATE , the ORG requested the applicant to inform it whether he had obtained permission to go to GPE .

In a reply which arrived to ORG on DATE , the applicant stated that he would inform the ORG about the outcome of the NORP proceedings within DATE .

The applicant then made a new request to ORG for a residence permit in GPE or , in the alternative , a student visa for DATE . He claimed that , if he was allowed to remain DATE in GPE to study , it would heal him mentally and he could then return to live and work in LOC .

On DATE ORG rejected the request as it considered that these were no new circumstances which could constitute an impediment to the enforcement of the deportation in accordance with LAW .

Subsequently , the applicant submitted several “ testimonies ” and letters from named NORP in confirmation of the poor human rights situation in the country , in particular for NORP and intellectuals . CARDINAL of the persons stated that he had been asked to falsely accuse the applicant of having assaulted him and another person and alleged that the applicant had been summoned by the police on DATE . This person affirmed that he had been instructed to accuse all former teachers in GPE of having taught “ ethnism ” and “ divisionism ” . Furthermore , QUANTITY persons testified that they had spent time with the applicant in prison , that they had been battered and that many people had died from the ill - treatment . CARDINAL persons claimed that they had been asked , but had refused , to give false testimony against the applicant by stating that he had taken part in the genocide . However , they alleged that many other people had given false testimonies and that , therefore , the applicant would risk being accused and convicted by the gacaca courts . CARDINAL more person , who was a NORP asylum - seeker in GPE , stated that , in DATE , he had heard people mentioning that the applicant was on the NORP authorities’ list of people who were considered politically dangerous and who should be arrested . He also confirmed that the applicant had been detained without a trial .

The basic provisions , applied in the present case , concerning the right of aliens to enter and to remain in GPE were laid down in the CARDINAL LAW ( Utlänningslagen , DATE hereinafter referred to as “ the DATE LAW ) . However , LAW was superseded on DATE by a new LAW ( Utlänningslag , DATE hereinafter referred to as “ the DATE LAW ) . Both the DATE and DATE Acts define the conditions under which an alien can be deported or expelled from the country , as well as the procedures relating to the enforcement of such decisions .

LAW , of the DATE Act provided that an alien staying in GPE for DATE should have a residence permit . Such a permit could be issued , inter alia , to an alien who , for humanitarian reasons , should be allowed to settle in GPE ( LAW , LAW ) . For example , serious physical or mental illness could , in exceptional cases , constitute humanitarian reasons for the grant of a residence permit if it was a life - threatening illness for which no treatment could be provided in the alien ’s home country .

Further , under LAW , an alien who was considered to be a refugee or otherwise in need of protection was , with certain exceptions , entitled to residence in GPE ( LAW , LAW ) . The term “ refugee ” referred to an alien who was outside the country of his nationality owing to a well - founded fear of being persecuted for reasons of race , nationality , membership of a particular social group , or religious or political opinion , and who was unable or , owing to such fear , unwilling to avail himself or herself of the protection of that country . This applied irrespective of whether the persecution was at the hands of the authorities of the country or if those authorities could not be expected to offer protection against persecution by private individuals ( LAW , LAW ) . By “ an alien otherwise in need of protection ” was meant , inter alia , a person who had 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 ) .

An alien who was to be refused entry , deported or expelled , in accordance with a decision that had gained legal force , could be granted a residence permit if he or she filed a new application based on circumstances which had not previously been examined , and if the alien was entitled to a residence permit under LAW , LAW , or if it would be contrary to the requirements of humanity to enforce such a decision ( LAW , Section CARDINAL b ) . Regard could also be had to serious illness under this provision . Such new applications were filed with and examined by ORG ( Chapter CARDINAL , LAW ) .

As regards the enforcement of a refusal of entry , deportation or expulsion , account had to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment . According to a special provision on impediments to enforcement , an alien could not be sent to a country where there were 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 ( LAW , LAW ) .

In essence , LAW did not substantially amend the above provisions , except for the following .

Under LAW , ORG has been replaced by ORG and ORG ( LAW , LAW ) . Moreover , it is no longer possible to renew applications but , instead , ORG determines , on its own initiative , whether there is any impediment to the deportation or expulsion ( LAW , LAW ) .

Furthermore , on DATE certain interim amendments to LAW entered into force , according to which ORG , upon application by an alien or on its own initiative , could re - determine final decisions already taken by ORG . The object of these temporary amendments was to grant residence permits to aliens who , inter alia , had been in GPE for a very long time or where there existed “ urgent humanitarian interests ” ( humanitärt angeläget ) . Special consideration was given to the situation of children . The temporary provisions remained in force until the new LAW entered into force on DATE . ORG continued , however , to examine applications which it had received before that date but had not yet determined .

GPE is a constitutional Republic dominated by a strong presidency and with a population of CARDINAL ( PERCENT NORP , PERCENT NORP and PERCENT Twa pygmies ) . In DATE , the NORP - dominated national army and its armed youth militia ( the PERSON ) , under the direction of the NORP - dominated government , began a massacre directed primarily against the minority NORP ethnic group , but also against those from the NORP majority who opposed the killing or had been active in the pro - democracy movement . The genocide , which left CARDINAL people dead , ended in DATE when the predominantly ORG ( the RPF ) overthrew the government and took power . It formed a government of ORG that functioned until DATE when , in largely peaceful but seriously marred elections , the ORG won the majority of the seats in ORG and the ORG .

Prior to the genocide , all NORP were required to carry identity cards that indicated ethnicity , a practice that had been instituted during the NORP colonial administration . Following the genocide , the government banned all identity card references to ethnic affiliation and called for national reconciliation . They also eliminated all references to ethnicity in written and non - written official discourse as well as ethnic quotas for education , training , or government employment . The constitution provides for the eradication of ethnic , regional , and other divisions and the promotion of national unity . While some organisations and individuals have continued to accuse the government of favouring NORP in government employment , admission to professional schooling , and other matters , the government have denied this charge and there is no evidence to suggest that the government practises ethnic favouritism .

The law prohibits “ any propaganda of ethnic , regional , racial , or divisive character or based on any other form of divisionism ” , and public incitement to “ divisionism ” is punishable by DATE in prison , heavy fines , or both . Individuals can criticise the government publicly and privately on most topics but the law discourages citizens from expressing viewpoints unacceptable to the government on sensitive subjects , as such viewpoints sometimes result in imprisonment , harassment , or intimidation under the pretext of “ divisionism ” .

In DATE GPE received some positive comment by a peer review team of ORG for LOC ( ORG ) but was criticized for restricting political space and not recognizing diversity .

There were reports that security forces had committed extrajudicial killings and torture , abused suspects with impunity and arbitrarily arrested and detained persons , including street children and members of other vulnerable groups . Local officials had briefly detained some individuals who disagreed publicly with government decisions or policies . Such individuals had not usually been charged and had been released after DATE in detention . Furthermore , there were reports of secret detention centres being run by security officials where individuals were detained illegally , abused and deprived of food and water . The government and police denied this but , in DATE , the ORG opened an investigation into the matter .

Members of local communities chose community volunteers to serve in ORG ( the ORG ) , a statutorily established law - enforcement organisation under ORG that assisted police . The national police exercised tactical control of the ORG while locally appointed officials had responsibility for the operational oversight . ORG members performed basic security guard duties throughout the country , including maintaining a presence at gacaca trials , and they were ordinarily unpaid and received less training than the national police .

Police officers and ORG members allegedly committed several unlawful killings but the government investigated these killings and reports generally indicated that the ORG members accused of killings had been arrested and charged . In DATE there were fewer reports of police officers abusing suspects at the time of arrest , and authorities dismissed or disciplined some police officers for excessive use of force .

The government took significant steps in DATE to address human rights deficiencies and institute reforms , such as forming a unit in ORG to investigate ORG reports of official abuse and corruption . Moreover , the judiciary has demonstrated increased independence in its growing willingness to rule against the executive branch , its release of some political prisoners , and in its use of ORG to conduct investigations into judicial corruption .

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

After a pilot phase when CARDINAL individuals were identified for prosecution for having participated in the genocide , the gacaca courts began trials nationwide in DATE . The trials have been public but there have been concerns about their fairness , among other things because of a perceived lack of impartiality and reports that defendants have not been given the opportunity to defend themselves . In addition , some courts have spent TIME hearing each case and poorly qualified , ill - trained and corrupt gacaca judges in certain districts have fuelled widespread distrust of the gacaca system . There have been reports of local gacaca officials and citizens abusing the process to pursue personal matters and settle grudges unrelated to the genocide , including making false accusations in order to acquire land . However , in some reported cases where judges had acted inappropriately , gacaca officials intervened and held that the procedure had been illegal . Moreover , “ Lawyers without Borders ” has offered training to gacaca judges . The establishment of section - level appeal courts has lagged behind , limiting the possibility of recourse for those who feel wrongly judged .

Many NORP have not trusted the gacaca courts and have either boycotted the sessions or have attended under duress . In DATE , when the trials began , some fled to neighbouring countries in fear of being prosecuted but most of them returned to GPE DATE .

A variety of international NGOs and CARDINAL domestic human rights groups have been operating in the country . CARDINAL of these , ORG , employed some of its CARDINAL members to conduct field investigations into alleged abuses , published its findings and discussed them with government officials . It raised concerns about false accusations in gacaca trials .

In DATE , CARDINAL asylum seekers returned to GPE from GPE . There were no reports that these repatriates were mistreated upon their return . Also in DATE , GPE expelled more that CARDINAL NORP . The NORP government worked with ORG and other aid organisations to assist the returnees , who were resettled , and government mediators handled land disputes resulting from the number of returnees .

It was reported that NORP nationals had not encountered any particular problems in obtaining identity cards or passports , either to leave the country or to return following exile . Corruption was not considered a problem for obtaining passports but it was expensive , thus creating an obstacle for many .

According to ORG on NORP asylum seekers , the mere assertion of having been deprived of property before or during exile , by itself , was not sufficient to establish a refugee claim . ORG had undertaken to ensure the resolution of such cases , and some properties which had been taken by those who returned in DATE had been restored to their rightful owners . However , persons who illegally took or seized other peoples’ properties in GPE are known to have falsely accused the rightful owners of involvement in the genocide when the latter have attempted to assert their property rights .


The applicant is a NORP national , born in DATE and living in GPE . She is represented before the ORG by Mr Bernardo Bernales , a lawyer practising in GPE . The respondent Government were represented by Mr PERSON , ORG .

A.

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

The applicant has a daughter , A. , born in DATE , of whom she has sole custody . She divorced PERSON ’s father in DATE and has not seen him since DATE . The father was expelled from GPE in DATE .

In DATE ORG ( socialnämnden ) of GPE received a report regarding A. from the student welfare team at ORG school . According to the report , PERSON had been absent from school DATE out of CARDINAL during her first semester , mostly due to other reasons than illness . Those DATE attended school she was often late . The school nurse was in contact with the applicant DATE to ensure that A. attended school . According to A. ’s nursery - school teacher , similar problems were known at A. ’s nursery - school stage .

On DATE ORG decided to arrange a contact family for DATE every month with a view to helping and supporting the applicant . However , the decision was never implemented as , subsequently , more far - reaching measures were deemed necessary .

On DATE the president of ORG decided , pursuant to LAW on ORG ( ORG med särskilda bestämmelser om vård av unga , TIME ; hereinafter “ the DATE LAW ) , immediately to take ORG into public care on a provisional basis . The adduced reasons for the decision can be summarised as follows .

A. ’s school attendance was more regular at DATE and DATE . During this period great efforts were made by the school to support this positive development . However , the same problems as before subsequently recurred . The applicant was asked to contact ORG and an appointment was made . However , the applicant did not show up as agreed . On DATE the school nurse and the school psychologist visited the applicant ’s home at TIME They found A. still undressed . The applicant told them that PERSON was ill . However , A. got dressed and accompanied them to school . The school psychologist had the impression that A. was glad that they had come to “ save her ” . The next day the applicant accepted that she and her daughter be admitted to a children ’s home at GPE for an investigation . The placement , which started on DATE , was supposed to last for DATE . From a report of the GPE home it appeared that the applicant at the start of her stay there was in a state of mental distress . Both the applicant ’s and A. ’s personal hygiene was deemed to be poor . On DATE the applicant suddenly declared that she no longer agreed to be investigated or to remain at the home . A. remained , however , and the staff at the home had the impression that A. developed favourably after the applicant had left . She was more happy and she made progress in her school work . At the same time the applicant was becoming more nervous and showed signs of stress . On CARDINAL DATE the applicant terminated the contract for the investigation .

The decision of DATE was confirmed by ORG ( länsrätten ) in GPE on DATE and by ORG ( kammarrätten ) in GPE on DATE . A. remained at the GPE children ’s home .

ORG later applied to ORG for a care order concerning NORP under LAW and LAW .

According to the report of the social authorities accompanying the application , A. had had a worrying and unstable childhood . ORG adduced also an opinion of the school psychologist dated DATE , a report from the GPE children ’s home dated DATE , and a psychotherapist ’s opinion of DATE . According to the school psychologist , PERSON had been attending school regularly and had taken active part in the school work since her placement at the GPE home . She had also taken good care of her personal hygiene and seemed happy and relieved about her situation . The psychologist deemed that GPE and the applicant needed further qualified assistance to ensure A. ’s continued positive development . The report from the GPE home concluded that the ties between A. and her mother were not particularly strong , that the applicant did not understand her daughter ’s needs and generally lacked the ability to take care of A. in a safe and normal way , and that the applicant , on occasion , had obstructed the investigation . The psychotherapist , who had examined A. at the GPE home , confirmed that the applicant lacked the capacity to see to it that A. ’s needs were met . The applicant did not express any concern DATE absence from school . Instead , she showed clear signs of isolation and a distorted sense of reality . The psychotherapist concluded that A. needed to be placed with foster parents .

On DATE ORG held an oral hearing in the case . The court heard the applicant , her legal counsel , A. ’s legal counsel and representatives of ORG . Furthermore , CARDINAL witnesses proposed by the applicant gave evidence . PERSON ’s counsel supported the ORG ’s application .

By a judgment of DATE ORG granted the application and issued a care order concerning ORG found that the applicant , due to problems with her former husband and her work , money and neighbours , had had difficulties in taking care of her daughter . These problems had not impaired A. ’s development until she began school in DATE . Thereafter , however , A. had frequently been absent from school and the applicant had been unable or unwilling to see to it that A. went to school , although extensive efforts had been made by ORG to help the applicant in this respect . The ORG considered this to be a serious deficiency in the applicant ’s care of her daughter . It found that the applicant did not understand A. ’s needs and was not able to give her adequate support . Having regard to the above - mentioned opinions of the school psychologist and the psychotherapist , the ORG also considered that the applicant showed signs of isolation and a distorted sense of reality . It concluded that the applicant ’s lack of care constituted a clear risk of impairment of the health and development of A.

On DATE was placed with foster parents at PERSON .

The applicant appealed against ORG judgment and on DATE ORG held a further hearing in the case . It heard the same persons as ORG and , in addition , it heard evidence from CARDINAL further witnesses , CARDINAL of whom had been adduced by the applicant .

On DATE the appellate court rejected the appeal . It noted that ORG had frequently been absent and had arrived late on numerous occasions during her first school year . Largely , these problems could not be explained by illness or other impediments . The situation had not improved . The applicant had admitted that she had been mentally worn out during the autumn of DATE and DATE and that her care of A. , to some extent , had been lacking in that she had failed to see to it that A. attended school . Having regard to the medical certificates in the case , the ORG found that the applicant had been mentally unstable and unable to meet her daughter ’s needs at the time of ORG provisional care decision . Although the applicant ’s social situation had improved somewhat thereafter and although she was at the time seeing a psychiatrist in order to solve her problems , the ORG considered that she was still too unstable and that the public care of A. should thus continue .

On DATE ORG ( Regeringsrätten ) refused the applicant leave to appeal .

At regular intervals ORG decided on the continued care of A. and on the applicant ’s access to A. Initially , the applicant met PERSON every third weekend from DATE in the applicant ’s home . After the applicant on DATE in DATE and DATE had returned ORG to the foster parents DATE , the ORG decided , on DATE , to restrict the applicant ’s access to A. Accordingly , as from DATE , the applicant was allowed to meet A. every second DATE CARDINAL p.m. at a venue designated by the ORG and in the presence of a social welfare officer . Their contacts by telephone were limited to CARDINAL calls per week . The restrictions were confirmed by later decisions of the ORG . The applicant did not appeal against these decisions to the administrative courts .

On DATE ORG again confirmed the above - mentioned access restrictions with the modification that every second meeting between the applicant and PERSON could take place in the home of the foster parents .

The applicant appealed against the latter decision to ORG , claiming access DATE in her own home without a social welfare officer being present . She further claimed extended contacts by telephone .

On DATE , after having held an oral hearing , ORG rejected the appeal . The applicant appealed to ORG , where a new oral hearing was held . On DATE the appellate court decided that the applicant be entitled to see her daughter in her own home DATE from DATE TIME to DATE TIME without the presence of a social welfare officer . ORG also annulled the imposed limitations on telephone contacts .

It appears that A. is still in public care .

PERSON Relevant domestic law

According to LAW and LAW , compulsory public care is to be provided if there is a clear risk of impairment of the health and development of a person DATE due to ill - treatment , exploitation , lack of care or any other condition in the home and if the necessary care can not be provided with the consent of the young person ’s custodian . The decision whether to place a young person under public care is made by ORG following an application from ORG .

Under Section CARDINAL of the CARDINAL LAW , ORG may order the immediate taking into care of a young person ( “ provisional care order ” ) if it is likely that he or she needs to be provided with care under LAW and a court decision in the matter can not be awaited owing to the risks facing the young person ’s health or development or because the continuing inquiry can be seriously impeded or further measures prevented . If such a decision by ORG can not be awaited , an order on taking into public care may be made by the president of ORG . A provisional care order shall be put before ORG which shall rule on whether the order shall be upheld pending the ORG ’s judgment regarding the application for public care .

It is the responsibility of ORG to ensure that the greatest possible provision is made for the young person ’s need of access to his or her parents . If it is necessary in view of the purpose of the care , the ORG may decide how the right of access shall be exercised ( LAW of LAW ) . An appeal against a ORG decision on access may be lodged with ORG ( Section CARDINAL § CARDINAL ) .