The applicant , Mr ORG , is fiscal consultant . He is a NORP national , who was born in DATE and lives in GPE . He was represented before the ORG by Professor M.W.C. PERSON of ORG of ORG , who also works as a fiscal advisor in GPE .

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

In DATE , the applicant ’s employers provided him with a company car . The car ’s catalogue price was ORG . CARDINAL . The applicant used this car DATE a week for transport from his home to his office . The distance between both places was QUANTITY . The applicant further used this car for private purposes . The distances travelled for private purposes in DATE exceeded QUANTITY .

On DATE , ORG issued the income tax assessment ( aanslag inkomstenbelasting ) for DATE in respect of the applicant . In the determination of the applicant ’s taxable income for DATE , ORG had added – pursuant to the DATE LAW ( Wet op de Inkomstenbelasting ; “ FAC ” ) as amended in DATE an amount of ORG . CARDINAL ( i.e. PERCENT of the catalogue price of the applicant ’s company car ) to the applicant ’s taxable income .

On DATE , the applicant filed an objection ( bezwaar ) with ORG against the DATE assessment . He complained that the PERCENT increase of his taxable income instead of PERCENT was contrary to the principle of equality ( gelijkheidsbeginsel ) as guaranteed by , inter alia , LAW . He submitted that , under LAW , there is a difference in treatment between CARDINAL categories of persons who are in a same situation , namely – on the one hand – persons who , because of LAW ITA , have to add to their taxable income PERCENT of the catalogue price of the car placed at their disposal ; these persons are taxed for their private use of this car ( PERCENT ) and for their “ excess ” commuter travel ( where a CARDINAL - way journey from their home to their place of work exceeds a distance of CARDINAL kms ) ( PERCENT ) ; and – on the other hand – persons in identical circumstances apart from the fact that they use their company car for QUANTITY a year for private purposes , and are fully exempted from adding a percentage of the car ’s catalogue price to their taxable income .

Thereby , according to the applicant , the taxation of the “ excess ” commuter travel is made dependent on the number of QUANTITY travelled for private purposes with a company car . He argued that this difference in treatment lacked any objective and reasonable justification and that , therefore , LAW ORG should not be applied . He requested that his taxable income be reduced by ORG . CARDINAL ( i.e. the difference PERCENT of his company car ’s catalogue value ) , which would result in a reduction of ORG . CARDINAL for the income tax due for DATE .

ORG rejected the applicant ’s objection on DATE . On DATE , the applicant appealed to the ‘ sHertogenbosch ORG ( Gerechtshof ) .

In its judgment of DATE , ORG found in favour of the applicant . It held that the reasons stated by the legislator for creating the difference in treatment at issue could not be regarded as constituting an objective and reasonable justification . Consequently , it quashed ORG decision of CARDINAL DATE and reduced the determination of the applicant ’s taxable income accordingly . ORG further ordered ORG to reimburse the applicant ’s legal costs , including the court fees paid by him .

On DATE , the ORG Secretary of ORG ( Staatssecretaris PERSON ) filed an appeal in cassation with ORG ( PERSON ) against the judgment of DATE . In the ORG Secretary ’s first complaint in cassation , it was argued , inter alia , that ORG judgment of DATE created in effect a new and significantly more serious inequality of treatment between , on the one hand , persons living QUANTITY from their place of work and who commute to work either with their own car or with public transport , and , on the other , persons living QUANTITY from their place of work and who commute to work with a company car . In the ORG Secretary ’s third cassation complaint , it was stated that the problems concerning LAW as identified in ORG judgment of CARDINAL DATE , reported in “ Beslissingen in FAC ” ( GPE Fiscal Law Reports – “ LOC ” ) no . CARDINAL , were under discussion in ORG on fiscal - technical reform regarding income tax / wage tax and that , in the light of the signal given by ORG , it was to be expected that the legislative measures resulting from ORG study would also include a termination of the possible inequality of treatment identified by ORG . According to the ORG Secretary , it followed from a ORG judgment of DATE ( ORG , no . CARDINAL * ) that the judicial authorities in cases like the present refrain from interfering where a removal of an inequality in law is to be expected . On this basis , the ORG Secretary argued that there was no need for the judicial authorities to interfere , as there were indications that an amendment , in which the difference in treatment complained of would be removed , was being prepared .

In its judgment of DATE , ORG ruled that the applicant was treated unequally without justification . However , it upheld ORG decision of DATE . Consequently , ORG quashed the judgment of DATE with the exception of the costs order against ORG , and further ordered the ORG Secretary to reimburse the applicant ’s legal costs in the cassation proceedings . This judgment , insofar as relevant , reads as follows :

“ CARDINAL . In objecting to the application of this so - called increased fixed amount for car costs ( verhoogde autokostenforfait ) , the < applicant > has argued before ORG that the legislator unjustly subjects him to different treatment from those taxpayers to whom LAW , fourth paragraph , is not applied , as those taxpayers , unlike the < applicant > , use their company car for private purposes for a distance of QUANTITY per year > but , like the < applicant > , live CARDINAL kms from their place of work and drive with their ORG car to and from work . ...

In answering the question whether it concerns an inequality in treatment prohibited by these Treaties [ including LAW in conjunction with LAW No . CARDINAL ] , it must be stated at the outset that they do not prohibit every inequality in treatment of equivalent cases . The legislator has a certain margin of appreciation in answering the question whether cases , for the purposes of the application of these Treaties , are to considered as equivalent and , if so , whether there is an objective and reasonable justification for nevertheless regulating those cases in a different manner .

The difference in treatment challenged by the < applicant > has been created by LAW DATE ... The aim of this LAW was to make a contribution to both reducing commuter traffic as such ( limitation of mobility ) and reducing the use of cars for commuting purposes ( limitation of car mobility ) . ...

It thus follows from the < legislative > history of the creation of the < PERCENT > addition ... that the legislator , as a basic premise , no longer wished to make a link between the strictly private use of the car and its use for commuting purposes . The legislator did not therefore intend to tax – through the introduction of an increased percentage of the fixed amount for car costs ( autokostenforfait ) – the higher sum of income considered as being derived from employment as an extra advantage , made dependent on the travel distance , on account of private use .

This entails that the addition of PERCENT of the catalogue price of the < company > car , though in form an increase of the fixed amount for car costs , in nature has the character of an independent addition for the cases where tax payers habitually travel DATE a week over a CARDINAL - way distance of QUANTITY between their home and their work place using for this a car placed at their disposal for work purposes . ORG fails to see that , for the application of that independent addition , it is of any relevance whether or not the car , apart from commuter travel , has not or only to a limited extent been used for private purposes .

The considerations set out in CARDINAL . to CARDINAL . lead to the conclusion that the legislator , by not prescribing the addition of PERCENT of the catalogue price in cases where there is no or only a limited private use of the < company > car , has given preferential treatment to a limited group within a category of equivalent cases - in short : commuter travel CARDINAL kms - , and has thus treated equivalent cases unequally .

Members of ORG ( PERSON ) have shown doubts as to the legitimacy of that unequal treatment . It has been stated in justification on the ORG side that , from the point of view of transport arranged by the employer , the employees privileged by the proposed regulation are on a par with employees who , either collectively or not , are transported by their employer in minibuses and the like . That contention is , however , in all reasonability untenable . Within the group of employees whose transport is arranged by the employer , those disposing of a < company > car are in a completely different situation from those who are , either collectively or not , transported by the employer in minibuses and the like . As of old , the legislator itself has not viewed these cases as equivalents . It has long since made a difference within the relevant group of employees by including employees disposing of a < company > car as being liable to income tax for the private use of such a car . The form chosen for this , the fixed amount for car costs , prompted an addition of a fixed amount for private use < of a company car > to the taxable income in all cases where an employer has made a car available , unless the tax payer can convincingly prove that , on an DATE basis , the car has been used for private purposes for less than ( at present ) QUANTITY . In addition , the “ employer ’s car ” in the latter situation is further treated differently from other transport arranged by the employer , as in that situation the value of the real private use is taxed . Also , given this long standing difference , the argument made in an earlier phase of the examination of the draft Act , that the distinction of the employees with a < company > car runs up against practical difficulties , is defective .

Moreover , ORG has not found outside this legislative history any grounds of a fiscal or non - fiscal nature that can justify the unequal treatment at issue .

Further , it can not be said that the unequal treatment results in a quantitatively unimportant advantage as , with the addition of PERCENT of the catalogue price of a < company > car , quickly one finds that an increase in income of ORG . CARDINAL to ORG . CARDINAL is involved .

Even taking into consideration the margin of appreciation of the legislator , the above also leads to the conclusion that the legislator can not in all reasonability have held that it concerns here unequal cases , or that there is a reasonable and objective justification for the unequal treatment of those cases . The < cassation > complaints I and II , insofar as they are based on a different opinion , fail .

The < cassation > complaint I ... is however successful insofar it points out that not to apply the rule contained in LAW CARDINAL of the ORG would result in an equally unjustifiable inequality in treatment , namely in respect of employees who habitually commute , involving a CARDINAL - way travel distance of QUANTITY , with their own car or with public transportation without having a public - transport - declaration [ for fiscal deduction purposes ] ( openbaar vervoerverklaring ) . This could only be remedied by the non - application of the entire < regulation on the > “ capping < of the tax allowance for commuters > ” ( “ aftopping ” ) . ORG considers for the time being that such a consequence of the inequality found is disproportionate . It is for legislator to remove the inequality found . ORG assumes that the PERSON announced in the < cassation > complaint III will be presented < to Parliament>. ”

Pursuant to LAW ( Wet op de Inkomstenbelasting ) , employees disposing of a company car provided by their employer must add a fixed amount to their taxable income because of the use of such a car for private purposes . The wording of this provision fixes this amount , the so - called fixed amount for car costs ( autokostenforfait ) , at PERCENT of the catalogue price of the car concerned .

Following the adoption of LAW of DATE amending income tax and salaries tax [ capping of the tax allowance for commuters ] ( PERSON wijziging van de inkomstenbelasting en de loonbelasting [ aftopping reiskostenforfait ] ) , this fixed amount was increased by PERCENT ( i.e. to PERCENT ) in those cases where an employee habitually travels DATE a week between his or her home and work place when the distance of a oneway journey between these CARDINAL places exceeds QUANTITY ( Article CARDINAL § CARDINAL ) .

LAW provides that the rules contained in LAW are not applied where it appears that , on an annual basis , the company car has been used for private purposes for a total distance not exceeding QUANTITY . In that situation no fixed amount for car costs has to be added to the taxable income , but the actual benefit must be added on the basis of a fixed amount per CARDINAL , e.g. QUANTITY at MONEY per kilometre .

The underlying rationale of the LAW of DATE was of an environmental nature , i.e. to reduce commuter traffic by encouraging employees to live closer to their place of work , as well as to reduce the use of cars for commuter travel by encouraging employees to opt either for public transport or other forms of collective transport arranged by the employer .

In the original proposal contained in the PERSON , which resulted in LAW of DATE , the existing possibilities for tax deduction of costs for commuting to work and the exemption from taxes of compensation paid by employers in respect of commuting costs were limited to a maximum ( aftopping ) . Costs for commuting to work for distances in excess of QUANTITY were to be considered as “ private ” and no longer eligible for tax allowances .

As to the application of the fixed amount for car costs in cases concerning a company car , the commuter traffic in excess of QUANTITY was to be considered as “ private “ and lead to the application of a higher percentage . This would only apply , however , where a car was also being used for private purposes . If the car would only be strictly used for work purposes , including commuting , the fixed amount for car costs would not come into play .

As this approach met with the objection that QUANTITY driven by a company car for private purposes could result in the addition to the taxable income of the fixed amount for car costs , the PERSON was amended . The fixed amount for car costs would be applied when a company car was to be used for private purposes involving a distance of QUANTITY or DATE . In the determination of this question , the distance between the home and place of work DATE whether or not it was QUANTITY – would be irrelevant . If the limit of QUANTITY for private use were exceeded , an addition of PERCENT of the car ’s catalogue price would be applied where the commuting to work remained limited to a distance of QUANTITY from the home . For commuting involving a distance between the home and place of work of QUANTITY , a percentage of PERCENT would be applied .

Although some critical questions were put during the parliamentary debate the system as amended was adopted by LAW DATE .

In a judgment of CARDINAL DATE ( BNB no . CARDINAL ) , ORG held that :

“ In the present proceedings , the question has not been raised whether the rules contained in LAW and QUANTITY [ ITA ] entail a prohibited unequal treatment in respect of those case in which a car made available by an employer is used for private purposes for QUANTITY per year . That question must at present , however , remain unresolved , since its answer also requires an investigation of the facts for which there is no scope in cassation proceedings . ”

The rules contained in LAW remained in force until DATE when fiscal reform legislation came into force - LAW DATE . This Act provided that the distance between the home and place of work is no longer relevant in the determination of the addition of the fixed amount for car costs in respect of company cars . Only the distance for private purposes for which the company car is used is relevant . In case this use is less than CARDINAL kms per year , no fixed amount has to be added to the taxable income . For a distance QUANTITY , PERCENT of the car ’s catalogue value must be added to the taxable income , for distances QUANTITY , PERCENT , and for distances exceeding QUANTITY , PERCENT . Commuter travel is considered to be work - related .

LAW ( PERSON ) , provides :

" All persons present in the GPE shall be treated in the same way in similar situations . Discrimination on the ground of religion , philosophical convictions , political leanings , race , sex , or any other ground whatsoever shall not be allowed . "

LAW reads :

" The courts shall not rule on the constitutionality ( grondwettigheid ) of statutes and treaties . "

Under LAW , as interpreted in the constant caselaw of ORG , the judiciary is not permitted to examine the lawfulness of Acts of ORG . The courts can , however , review the lawfulness of subordinate legislation and of all other acts of the administration including the lawfulness of decisions which have a general character such as regulations , plans or directives ( cf . PERSON , DATE , Beslissingen in DATE , no . CARDINAL ) .

LAW provides that provisions of international treaties and decisions of international ( intergovernmental ) organisations which , according to their content , may be binding on anyone shall have binding force after they have been published . Pursuant to LAW , such provisions of international treaties and decisions of international organisations take precedence over domestic statutory rules in case of conflict .

As regards the prohibition on discrimination , ORG recognised in a judgment of CARDINAL DATE ( PERSON “ GPE ” , DATE , no . CARDINAL [ corrected in GPE DATE , no . CARDINAL ] ) , that LAW is a provision of an international treaty which , according to its content , may be binding on anyone , and must therefore in principle be applied directly by the GPE courts .

However , in a number of judgments ORG has declined to construe DATE the LAW in such a way as to deprive national legislation of its effect even if it considered that a given measure constituted unlawful discrimination , holding that – where various options were open to the national authorities to remove such discrimination – the choice should be left to the legislator in view of the social and legal implications attending each possible course of action ( PERSON , DATE , GPE DATE , no . CARDINAL ; and PERSON , DATE , GPE DATE , no . CARDINAL ) .

In its judgment of DATE ( GPE DATE , no . CARDINAL ) , cited in the ORG ’s Kroon and Others v. the GPE judgment of DATE , ORG came to a similar finding with regard to LAW taken together with LAW no CARDINAL-C , p. CARDINAL , § CARDINAL ) .


The applicant , Mr Ramazan Akbulut , is a NORP national , who was born in DATE and lives in GPE .

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

The applicant started his military career in DATE . On DATE ORG ( Yüksek Askeri Şura ) decided to discharge the applicant from the army on grounds of acts of insubordination and immoral conduct pursuant to LAW .

The Government submit the following in the light of the intelligence reports concerning the applicant :

Sergeant Ramazan Akbulut was a member of ORG ( Devrim Yanlısı İslami Görüş ) movement . He was involved in disseminating the ideology of this movement and established contacts with persons who adopted the same ideology . He had an antisocial character and his wife carried NORP scarf . He refused to host women and men in the same room in his house because he believed that men and women should gather in separate rooms .

The relevant provisions of the LAW are as follows :

“ None of the rights and freedoms set forth in the LAW may be exercised with the aim of undermining the territorial integrity of the ORG or the indivisible unity of its people , imperilling the existence of ORG and the Republic , abolishing fundamental rights and freedoms , handing over control of the ORG to a single individual or group or bringing about the dominance of CARDINAL social class over the others , establishing discrimination on the grounds of language , race , religion or adherence to a religious sect or setting up by any other means a ORG order based on such beliefs and opinions . ”

“ Everyone shall have the right to freedom of conscience , faith and religious belief . Prayers , worship and religious services shall be conducted freely , provided that they do not violate the provisions of LAW . No one shall be compelled to participate in prayers , worship or religious services or to reveal his religious beliefs and convictions ; nor shall he be censured or prosecuted because of his religious beliefs or convictions . ...

No one may exploit or abuse religion , religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social , economic , political or legal order of the ORG to be based on religious precepts , even if only in part , or for the purpose of securing political or personal influence thereby . ”

“ All acts or decisions of the administration are subject to judicial review ...

Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of ORG shall not be subject to judicial review .

Article CARDINAL § § CARDINAL , CARDINAL and DATE of the LAW provides that a disciplinary action can not be imposed to the civil servants provided that that the right to defence is respected . Moreover , it lays out that the disciplinary actions , other that the warnings and the reprimands are subject to legal control . The provisions concerning the soldiers are reserved . LAW on ORG stipulates that the disciplinary actions imposed to the soldiers are not subject to legal control .

Section CARDINAL ( c ) of ORG provides :

“ Irrespective of length of service , servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on CARDINAL of the grounds set out below , as established in CARDINAL or more documents drawn up during their service in the last military rank they held , shall be subject to the provisions of LAW .

Where their conduct and attitude reveal that they have adopted unlawful opinions . ”

Section CARDINAL ( c ) of LAW provides :

“ Irrespective of length of service , servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of LAW . LAW shall lay down which authorities have jurisdiction to commence proceedings , to examine , monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings . A decision of ORG is required to discharge an officer whose case has been submitted by ORG to ORG . ”

Section CARDINAL ( b ) of LAW provides :

“ ( b ) Discharge from the army for the acts of insubordination and immoral conduct :

Notwithstanding the seniority in the service , the non - commissioned officers whose maintenance is considered to be inappropriate for the acts of insubordination and immoral conduct are subject to PERSON on ORG . The investigation , examination and follow - up of the notation reports and the formalities and the competent authorities fulfilling these duties are subject to the provisions of The Regulations on assessment of officers and non - commissioned officers . The General Staff determines which non - commissioned ORG cases concerning their discharge from the army should be examined by ORG . ”

LAW on assessment of officers and non - commissioned officers provides :

“ Irrespective of length of service , the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on CARDINAL of the grounds set out below , as established in CARDINAL or more documents drawn up during their service in the last military rank they held :

( e ) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful , subversive , separatist , fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions . ”


Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect);Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life)

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

The applicants are :

PERSON , born in DATE ;

PERSON Issayevna Dzhamayeva , born in DATE ;

Ms Kheda Issayevna Dzhamayeva , born in DATE ;

Mr Magomed Ismailovich Dzhamayev , born in DATE .

They live in ORG , GPE .

The first applicant is the mother , the second and third applicants are the sisters and the fourth applicant is the son of Mr PERSON , born in DATE . They lived together in the village of PERSON , LOC . Mr PERSON was a student of mathematics .

According to the applicants , from DATE federal military officers , under the command of ORG , conducted a sweeping operation ( зачистка ) in the village of PERSON involving CARDINAL servicemen , CARDINAL armoured personnel carriers ( “ APCs ” ) and several military helicopters .

NORP Throughout the said period the military besieged PERSON and restricted freedom of movement in the village . They organised a filtering point at the poultry - yard and the mill on the outskirts of PERSON where they kept the residents detained during the operation .

NORP In total CARDINAL men residing in PERSON were apprehended DATE . Whilst some of them were subsequently released , CARDINAL residents disappeared . Relatives of CARDINAL of those who disappeared applied to ORG ( see PERSON and Others v. GPE , no . PERSON ) .

According to the applicants , Mr PERSON was apprehended in the following circumstances . In the morning of DATE the first applicant asked him to go and see his uncle who lived in the same village and buy something for him in the village shop . When Mr PERSON was in the street apparently on the way from the shop to his uncle ’s house , he saw CARDINAL APCs approaching . He got frightened , turned around the corner to FAC and dropped in at Mr B. ’s , his acquaintance . Mr B. ’s mother let him in . As soon as he entered , servicemen ran into the yard after him . They said that there was a sweeping operation in the village and that they would check the house . They searched the house . After the search they took Mr B. and Mr PERSON with them . Mr B. ’s mother asked them not to take the children away since they had all their documents with them . The servicemen checked the documents and then put PERSON and Mr PERSON in an ORG . When PERSON mother tried to intervene , however , the servicemen pushed her aside , hit her against the wall and left her lying on the ground .

DATE Mr B. was released . He said that after they had been apprehended , the servicemen took them around the village in the ORG for CARDINAL while they checked other houses . They were thrown on the floor of the ORG and the servicemen put their feet on them . Then they were taken to the filtration point . PERSON said that he had heard Mr PERSON ’s voice when the latter had been questioned . They had asked him what he had been doing at B. ’s house , and Mr PERSON had explained that he had gone to the shop and had just dropped by . When PERSON heard that Mr PERSON had not returned home he was surprised because he had heard nothing during the night and thought that Mr Dzhamayev had been released .

Upon his release PERSON was barely alive because of the beating he had received from the servicemen . He died DATE .

On DATE the residents of PERSON found several bodies in an abandoned house in the village . The applicants heard others saying that the people had first been blown up and then burned . It was impossible to identify them . However , somebody said that the bodies of some of the persons apprehended on DATE had been seen .

The applicants also heard that a car had been burned on DATE .

On DATE Mr T. Kh . , Mr PERSON and PERSON were apprehended and then held at a mill . They were put in a pit where they saw an inscription on the wall “ PERSON and PERSON were here ” . Although Mr PERSON ’s name was PERSON , everybody had called him PERSON since his childhood . CARDINAL of the servicemen confirmed that PERSON and PERSON PERSON had been held there and said that they had been released in the TIME DATE , DATE .

The applicants concluded that Mr PERSON could not have been one of the persons whose burnt bodies had been found in the burnt house on DATE or in the car burnt on DATE . They alleged that on DATE , instead of being released , he had been transferred elsewhere .

The Government confirmed that a sweeping operation had been conducted in the village of PERSON from DATE . The aim of the operation had been to find and arrest members of illegal armed groups who had abducted and killed CARDINAL servicemen of the ORG on DATE .

On DATE , at TIME , a fight broke out between members of the illegal armed groups and federal servicemen in a house at FAC . As a result of the use of small arms and grenade dispensers , CARDINAL members of the illegal armed group were killed . Since the house was set on fire , bodies were severely burnt ; after an inspection by law - enforcement officers they were handed over to the local administration for burial .

On DATE a group of servicemen of military unit no . CARDINAL at a checkpoint situated within QUANTITY from PERSON was fired at from a car that approached the checkpoint . The servicemen fired back . The explosives contained in the car were blown up , the car was set on fire and the CARDINAL members of an illegal armed group in it were killed . Their bodies were also severely burnt and handed over to the local administration for burial . An ORG machine gun without its wooden parts , PERSON grenades without fuses , a makeshift hand grenade launcher , and other components of ORG machine guns and cartridge cases were found in the car and seized .

After the operation had been completed , village residents lodged applications concerning the apprehension and subsequent disappearance of CARDINAL residents of PERSON , including Mr PERSON .

On DATE , after the special operation was over and the restrictions were lifted , the villagers brought all the unidentified corpses to ORG . It appears that they did not manage to contact the authorities , and later that day they returned the bodies to PERSON .

On DATE officers of the LOC office of ORG ( ORG района ) took the corpses to the village of ORG intending to send them on to PERSON for a forensic examination .

On DATE NORP , an investigator from ORG of GPE , delivered the bodies back to PERSON . The corpses were wrapped in bags and were decomposed . They remained unidentified . PERSON explained to the villagers that the prosecutor ’s office had insufficient funds to conduct the forensic examination of the corpses and that the refrigerators in the forensic examination department in which they had been kept had been out of order .

On DATE the residents of PERSON buried the unidentified bodies .

NORP Immediately after Mr PERSON had been apprehended , the applicants started searching for him . They lodged numerous applications with prosecutors of various levels , public bodies and regional administrative authorities . They also visited a number of ORG bodies . The applicants mainly received formal responses informing them that their requests had been forwarded to various prosecutor ’s offices for examination .

On DATE the Prosecutor ’s Office of the Grozny District ( прокуратура Грозненского района ) instituted a criminal investigation under LAW CARDINAL ( a ) of LAW of GPE ( murder of CARDINAL or more persons ) in respect of the disappearance of CARDINAL residents of PERSON , including Mr PERSON , DATE . The file was assigned no . DATE .

According to the applicants , on an unspecified date PERSON and his mother were questioned . The second applicant went for questioning together with them and the relevant records should be in the criminal file .

According to the Government , on unspecified dates CARDINAL of the applicants were granted victim status in the proceedings .

On DATE the local administration of PERSON ( местная администрация села PERSON ) issued the applicants with a certificate confirming that Mr PERSON and CARDINAL other residents of PERSON had been apprehended and taken away by federal military officers DATE and had then disappeared . The certificate was signed by the acting head of administration of PERSON and bore an official stamp of the administration . It read , in so far as relevant , as follows :

“ [ The present ] certificate is issued by the local administration of the village PERSON in respect of written applications by the village ’s residents , whose children were apprehended and taken for passport check in the period DATE during the special operation conducted by the federal troops .

The local administration thereby confirms that :

The following residents of PERSON were apprehended by the federal troops and taken to an unknown destination : on DATE ... PERSON , born in DATE ...

NORP On DATE the ORG Office instituted criminal proceedings no . CARDINAL in respect of the disappearance of the above - named persons following their relatives’ applications ; the investigation is under way .

A governmental commission headed by the deputy chairman of ORG , ORG , was created ( by governmental decree no . DATE ) [ to investigate ] the events . ” .

On DATE ORG informed the first applicant that , since so far the investigation had failed to establish her son ’s fate , ORG of the ORG was engaged in the search for him .

On DATE a report of a forensic molecular - genetic expert examination was drawn up according to which Mr PERSON body was among the remains of CARDINAL bodies found at the cemetery .

On DATE the investigation was discontinued on account of the absence of any indication of a crime allegedly committed by servicemen .

In their submissions the parties referred to the information provided in relation to the above case . The ORG shall set out below the facts relevant to the present case .

On DATE ORG of GPE answered a request received from ORG , stating that on DATE a criminal investigation had been instituted under LAW ( a ) of LAW into the disappearance of CARDINAL residents of PERSON , including Mr PERSON , DATE . The letter also stated that :

“ On DATE , at TIME , a ORG CARDINAL vehicle approached a checkpoint of military unit CARDINAL situated QUANTITY away from the outskirts of PERSON on the road between NORP - Aul and PERSON . In response to [ the servicemen ’s ] order to stop the car and produce identity papers , shots were fired from the car . During the shoot - out CARDINAL passengers were killed and the car was burnt . During the examination of the vehicle the remains of a ORG machine gun , a hand grenade launcher and RGD-CARDINAL grenades without fuses were found and seized . In this connection , on DATE ORG of the LOC initiated criminal proceedings in case no . DATE under LAW . The identities of the persons killed in the car have not yet been established . ”

On DATE the military prosecutor of military unit no . CARDINAL informed the applicants that their allegations that Mr PERSON and other residents of PERSON had disappeared during the sweeping operation had been investigated and that criminal proceedings in criminal cases nos . CARDINAL/CARDINAL/CARDINAL - CARDINAL and DATE had been instituted in connection with the combats between the servicemen and the members of the illegal armed groups and as regards the discovery of QUANTITY bodies bearing signs of a violent death in a burnt car on the road from NORP - Aul to PERSON . The letter continued as follows :

“ The preliminary investigation established that on DATE , during the special operation in the village of PERSON , the servicemen of military unit no . CARDINAL under the command of Senior Lieutenant PERSON were checking vehicles going out of the village of PERSON , since , in accordance with intelligence received , members of illegal armed groups stationed in PERSON were planning an attack on this road .

At TIME a VAZ CARDINAL car approached the servicemen of military unit no . CARDINAL under the command of PERSON In reply to the servicemen ’s order to stop , machine - gun fire was opened from the car . The servicemen opened return fire with the result that the car started burning . Subsequently CARDINAL burnt corpses of unidentified persons were found in it .

On DATE the criminal proceedings brought in connection with the servicemen ’s use of firearms were discontinued ...

Accordingly , no involvement on the part of the servicemen in the abduction of [ the applicants’ relatives ] has ever been established ... ”

On DATE ORG of LOC sent the case file to the military prosecutor of military unit no . DATE for investigation . The case file was given the number CARDINAL/CARDINAL/CARDINAL - CARDINAL .

On DATE the military prosecutor of military unit no . CARDINAL suspended the investigation on account of the failure to establish the identity of the culprits . The decision read , in particular :

“ During the period from DATE , in the course of a special operation in the village of PERSON , unidentified servicemen abducted CARDINAL residents of the village : PERSON , PERSON , PERSON , PERSON , PERSON , PERSON . ORG , PERSON , PERSON . ORG , GPE , [ V. NORP ] , [ R. D. ] , PERSON .

Upon the completion of the operation on DATE [ V. D. ] and [ R. D. ] were released . The whereabouts of the other residents of PERSON who were apprehended has not been established ...

In the course of the investigative actions ... person(s ) who had committed the offence were not identified ... ”

The applicants and relatives of other disappeared persons were notified of the decision to suspend the investigation .

On DATE ORG of ORG ( UGA ) quashed the decision to suspend the investigation for the following reasons :

“ The decision was unfounded since in the course of the preliminary investigation not all the investigative measures aimed at identifying persons involved in the disappearance of the named residents of PERSON were taken . [ In particular , ] the military units that had conducted the special operation in the village were not identified , the commanders of these units were not questioned , the persons who had conducted a check and apprehended the [ disappeared residents ] were not identified . Therefore , the preliminary investigation should be reopened . ”

On DATE the case was taken up again by the military prosecutor of military unit no . CARDINAL . Relatives of the disappeared persons were notified of the reopening of the investigation .

NORP On DATE the military prosecutor of military unit no . CARDINAL suspended the investigation on account of the failure to identify persons to be charged with the offence . Relatives of the disappeared persons were notified of the decision to suspend the investigation .

By letter of CARDINAL DATE the military prosecutor of military unit no . CARDINAL replied to a query lodged by the PERSON on the ORG behalf and stated that in the file of criminal case no . DATE opened in relation to the abduction of Mr PERSON and other persons there was no indication that the federal servicemen had been involved in the alleged offence .

On DATE the military prosecutor of military unit no . CARDINAL notified the SRJI that the case file of the investigation instituted in connection with the disappearance of Mr PERSON and other persons had been returned to ORG of GPE , as the military prosecutor had no competence over the case in the absence of evidence of the military personnel ’s involvement in the alleged offence .

On DATE the military prosecutor of military unit no . CARDINAL quashed the decision of DATE and reopened the investigation . Relatives of the disappeared persons were notified of the reopening .

On DATE the military prosecutor of military unit no . CARDINAL suspended the investigation on account of the failure to identify persons to be charged with the offence . Relatives of the disappeared persons were notified of the decision .

On DATE the ORG applied to ORG of the ORG requesting , inter alia , exhumation of the remains of the unidentified bodies buried by the residents of PERSON in a common grave and a forensic examination with a view to their identification .

On DATE ORG of the ORG quashed the decision of DATE to suspend the investigation on the ground that the whereabouts of unspecified witnesses had been established which required further investigative actions . Relatives of the disappeared persons were notified of the reopening .

On DATE ORG of the ORG suspended the investigation . The decision read , in particular :

“ During the period from DATE servicemen from the internal troops of ORG and ORG , officials of ORG and the ORG conducted a special operation in the village of PERSON ... aimed at the identification , arrest and extermination of members of an illegal armed group and the search for CARDINAL servicemen of the ORG who had gone missing .

During the period when the special operation was being conducted unidentified persons in camouflage uniform accompanied by cars and armoured vehicles abducted [ the following ] residents of PERSON : PERSON , PERSON , PERSON , PERSON , PERSON , PERSON . ORG , PERSON , PERSON . ORG , GPE , PERSON .

Taking into account that the term of the preliminary investigation has expired and that the investigative measures that could be taken in the absence of a suspect have been completed , [ the investigation should be suspended ] . ”

Relatives of the disappeared persons were notified of the decision to suspend the investigation .

DATE . On DATE ORG of the ORG quashed the decision and reopened the investigation . Relatives of the disappeared persons were informed accordingly .

On DATE ORG of the ORG again suspended the investigation . The decision read , in so far as relevant :

At TIME on DATE in PERSON servicemen of military unit CARDINAL killed CARDINAL members of the illegal armed group who were in a car . [ Their ] bodies were severely damaged and burnt . No measures were taken to identify them .

At the same time , according to applications and statements by residents of PERSON , during the period when the special operation was being conducted unidentified persons in camouflage uniform accompanied by cars and armoured vehicles abducted PERSON , PERSON , PERSON , PERSON , PERSON , PERSON . ORG , ORG Magomadov , PERSON . ORG , GPE , A. N. GPE .

In the course of the investigation the bodies of the members of the illegal armed groups buried in the cemetery of PERSON were exhumed and body tissue taken from them ; blood samples were taken from relatives of the abducted persons . According to the medical opinion no . CARDINAL/CARDINAL , the forensic ( molecular - genetic ) expert examination showed that the remains found at the cemetery were those of I. A. GPE , A. Sh . ORG , LAW , PERSON , PERSON and GPE ...

On DATE ORG of the ORG quashed the decision and reopened the investigation . Relatives of the disappeared persons were informed accordingly .

On DATE ORG of the ORG suspended the investigation again . Relatives of the disappeared persons were notified of the decision .

On DATE ORG of the ORG quashed the decision of DATE and reopened the investigation on the following grounds :

“ In the course of the investigation significant discrepancies between statements by residents of PERSON and servicemen concerning the detention of the [ disappeared ] persons and their possible death as a result of the fighting on DATE ... were not resolved . Witness statements in this regard were not duly verified and recorded .

The investigating authorities did not take comprehensive measures in order to establish the specific places where the bodies of PERSON , PERSON , PERSON , ORG ORG . ORG , and ORG , who , according to their relatives , had been apprehended together with the other residents of the village , had been found .

Up until now the whereabouts and the fate of other residents of PERSON who have been missing since the operation was conducted in DATE have not been established .

In such circumstances the decision to suspend the preliminary investigation should be quashed and the investigation resumed . ”

On DATE ORG of the ORG ordered another forensic molecular - genetic expert examination aimed at establishing the fate of several other disappeared persons . The order contained the following passage :

“ ... In the course of the operation a house situated in FAC was shelled and blown up , a red ORG CARDINAL car with members of an illegal armed group in it was burned and crushed by an ORG . ... ”

Despite specific requests made by the ORG to submit a copy of the file in criminal case no . MONEY ( at present no . CARDINAL/CARDINAL/CARDINAL - CARDINAL ) , the Government did not provide any documents from the case file . They stated that the investigation was in progress and that disclosure of the documents would be in violation of LAW of LAW , since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings . At the same time the Government suggested that a ORG delegation could have access to the file at the place where the preliminary investigation was being conducted , with the exception of documents of a confidential nature and without the right to make copies .

Until DATE criminal - law matters were governed by LAW RSFSR ( NORP Federative Socialist Republic ) . On DATE the old Code was replaced by LAW .

Article CARDINAL of the new ORG lays down a judicial procedure for the consideration of complaints . Orders of an investigator or prosecutor refusing to institute criminal proceedings or to terminate a case , and other orders and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede a citizen ’s access to justice may be appealed against to a local district court , which is empowered to check the lawfulness and grounds of the impugned decisions .

Article CARDINAL of the new ORG prohibits the disclosure of information from the preliminary investigation file . Under part CARDINAL of the LAW , information from the investigation file may be divulged only with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the parties to the criminal proceedings or prejudice the investigation . Divulging information about the private lives of parties to criminal proceedings without their permission is prohibited .

Federal Law no . CARDINAL of DATE on ORG закон от CARDINAL июля DATE г. № CARDINAL « О борьбе с терроризмом DATE ) provides as follows :

“ For the purposes of the present ORG the following basic concepts shall be applied :

... ‘ suppression of ORG shall refer to activities aimed at the prevention , detection , suppression and minimisation of the consequences of terrorist activities ;

‘ counter - terrorist operation’ shall refer to special activities aimed at the prevention of terrorist acts , ensuring the security of individuals , neutralising terrorists and minimising the consequences of terrorist acts ;

‘ zone of a counter - terrorist operation’ shall refer to an individual terrain or water surface , means of transport , building , structure or LOC with adjacent territory where a counter - terrorist operation is conducted ; ... ”

“ CARDINAL . In the zone of an anti - terrorist operation , the persons conducting the operation shall be entitled :

... ( CARDINAL ) to check the identity documents of private persons and officials and , where they have no identity documents , to detain them for identification ;

( CARDINAL ) to detain persons who have committed or are committing offences or other acts in defiance of the lawful demands of persons engaged in an anti - terrorist operation , including acts of unauthorised entry or attempted entry to the zone of the anti - terrorist operation , and to convey such persons to the local bodies of ORG of GPE ;

( CARDINAL ) to enter private residential or other LOC ... and means of transport while suppressing a terrorist act or pursuing persons suspected of committing such an act , when a delay may jeopardise human life or health ;

( CARDINAL ) to search persons , their belongings and vehicles entering or exiting the zone of an anti - terrorist operation , including with the use of technical means ; ... ”

“ ... CARDINAL . Information that can not be released to the public includes :

( CARDINAL ) information disclosing the special methods , techniques and tactics of an anti - terrorist operation ; ...

( CARDINAL ) information on members of special units , officers of the operational centre managing an anti - terrorist operation and persons assisting in carrying out such operation .

In accordance with the legislation and within the limits established by it , damage may be caused to the life , health and property of terrorists , as well as to other legally - protected interests , in the course of conducting an anti - terrorist operation . However , servicemen , experts and other persons engaged in the suppression of terrorism shall be exempted from liability for such damage , in accordance with the legislation of GPE . ”

Federal Law no . CARDINAL - CARDINAL of DATE on the Police governs various aspects of the police service .

Presidential Decree no . CARDINAL of DATE on Measures Enhancing the Efficiency of Counter - Terrorist Operations in the Territory of the GPE provides for the creation of the ORG and contains general provisions concerning its structure and operation . It also provides for additional measures to be taken by local authorities and the ORG to maintain public order and security in the region .


David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Vincent A. De Gaetano;Zdravka Kalaydjieva

NORP The applicant , Mr PERSON , is a NORP national . He is currently held in immigration detention in GPE . He is represented before the ORG by PERSON of ORG , a firm of lawyers practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of ORG .

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

NORP The applicant was born in GPE in DATE . He arrived in GPE in DATE , at DATE , with his father , step - mother , uncle and siblings , having spent DATE in a refugee camp in GPE immediately prior to his arrival . He was , together with his family , granted refugee status on DATE and indefinite leave to remain on DATE .

On DATE , the applicant made an allegation of child abuse , claiming that since he was DATE , his father had regularly beaten him and deprived him of food . He was placed with foster carers but , as the local authority ’s investigations into his allegations were inconclusive and the applicant ’s father agreed not to use force against him , he was returned home DATE . However , following further allegations of violence against his father , the applicant was placed with foster carers in DATE . He returned home for DATE but , following further allegations , was placed with foster carers in DATE . He absconded , and in DATE was placed in a residential children ’s home . A medical examination conducted on DATE indicated that the applicant had old injuries consistent with his account of abuse at the hands of his father and was extremely thin . He went to live with his uncle in DATE , until DATE when his uncle stated that he could no longer care for him and the applicant was placed back in a residential children ’s home .

NORP Throughout the period DATE there were problems with the applicant ’s behaviour . He used drugs , including crack cocaine , and stole to finance his drug use , accumulating CARDINAL criminal convictions as a minor . He frequently absconded from his residential placements and was excluded from school . In DATE the residential children ’s home terminated his placement , on the grounds that his behaviour was beyond their control , and in particular that he was bullying residents and threatening staff . At DATE , he moved into bed and breakfast accommodation . In the Autumn of CARDINAL the applicant persuaded his father to pay for him to travel to GPE to visit his grandmother , where he remained until DATE ( by which time he was aged CARDINAL ) . Thereafter he received support , including with accommodation , from the social services “ leaving care team ” , although from DATE he spent substantial periods in custody .

DATE and DATE the applicant was convicted of CARDINAL offences , including theft , affray , common assault , possession of Class A and В drugs , burglary , robbery , handling stolen goods and failing to surrender to bail . In DATE he received a DATE custodial sentence for robbery . In DATE , whilst still under supervision by the probation service following his release , he committed further offences and on DATE he was convicted of robbery and offering to supply a Class В drug and sentenced to DATE imprisonment . The applicant had forced the DATE he was supplying with drugs to strip and was verbally and physically aggressive towards him because he was unable to pay . On his release , in DATE , the applicant failed to attend probation appointments and was recalled to prison . He was re - released on DATE . On DATE he committed a further robbery , for which he was convicted on DATE . He was initially sentenced to life imprisonment with a tariff based on a determinate sentence of DATE , but on appeal this was reduced to a sentence of CARDINAL years’ imprisonment . In the course of that period of detention he received CARDINAL in - prison adjudications for misconduct , including fighting and disobeying orders . The applicant was released on DATE , but was recalled to prison on CARDINAL DATE following a fight with another resident of the hostel where he was living .

On DATE the applicant was informed that the Secretary of ORG had decided to deport him to GPE , as conducive to the public good . However , this decision was subsequently withdrawn as the applicant ’s refugee status had not been considered . On DATE the applicant was informed that the decision had been taken to revoke his refugee status . On DATE , his prison sentence ended , and he was immediately transferred into immigration detention .

The applicant appealed against both the decision to revoke his refugee status and the decision to deport him , and his appeal was heard by the then ORG on DATE . The ORG took note of the applicant ’s claims to have been drug - free since DATE , and to have been let down by social services in failing to investigate the abuse he had suffered at the hands of his father and in failing subsequently to provide him with adequate support . However , the ORG found that , while the local authority should have investigated the applicant ’s allegations of abuse more rigorously , he had , in fact , received considerable support from social services and had on occasion abused this help by running away from care homes or failing to attend appointments . In his evidence to the ORG , the applicant claimed not to believe in God and not to be a practising NORP but , undermining his credibility , this contrasted with his complaint to the local authority that he was placed in a drug rehabilitation unit which did not meet his cultural needs as a NORP . According to a forensic psychiatric report , the applicant presented a moderate risk of violent recidivism , which would be increased if he returned to substance abuse or was subjected to negative peer influences . It appeared to the ORG that , if released , the applicant was likely to return to the same area where he had previously committed crimes ; that he had no employment prospects ; and that he had previously failed to comply with supervision in the community . Given these facts and the seriousness of his offence , particularly when combined with his “ appalling record ” of previous convictions , the ORG concluded that the applicant was a danger to the community and that deportation was appropriate . The ORG considered a number of recent country guidance cases and the expert reports submitted by the applicant ( see paragraphs CARDINAL below ) and concluded that the revocation of his refugee status was also appropriate . There was evidence that his father had been born in GPE in GPE , which meant that the applicant would be allowed entry by the NORP authorities . He was of the PERSON clan , which was the majority clan in GPE , and would be able to seek clan protection . The objective evidence indicated that the situation in PERSON was reasonably stable . The grant of asylum to the applicant was no longer necessary . The tribunal also rejected the applicant ’s claim to protection under LAW , concluding :

“ There is no evidence to support the appellant ’s view that he faces a real risk of illtreatment upon return to NORP . The appellant is a young single male with no dependants who would be able to establish himself in northern GPE and obtain protection from his clan . ”

The applicant sought reconsideration of the ORG ’s decision , which was refused by a Senior Immigration Judge on DATE . Pending his application to ORG he was granted bail by ORG on DATE , on conditions including twice DATE reporting . The applicant failed to comply with the bail conditions and did not report at all during DATE . His application for reconsideration was refused by ORG on DATE . ORG found that the ORG had been entitled to hold that the applicant ’s removal to GPE would not breach LAW and that his deportation would not amount to a disproportionate interference with his LAW . The ORG had plainly had regard to all the applicant ’s arguments and there was no realistic possibility that another ORG would reach a different conclusion .

Meanwhile , on DATE the applicant was arrested on a charge of theft and remanded to prison . On DATE he was sentenced to CARDINAL days’ imprisonment , and , following completion of his sentence , a decision was made to detain him under immigration powers . On DATE , while in immigration detention , the applicant was involved in a fight with another detained person , and on DATE he was convicted and fined for resisting or obstructing a person assisting a constable , which incident had taken place on DATE . In DATE the applicant was , with others , involved in a serious disturbance whilst in immigration detention , resulting in injury to a number of individuals , including staff . He was placed in a segregation unit , and transferred to prison on DATE .

A report published by ORG on CARDINAL DATE , “ Eligibility Guidelines for assessing the international protection needs of asylumseekers from GPE ” , stated as follows :

“ The self - declared Republic of NORP , which has not been recognized by the international community as an independent sovereign state , has been relatively peaceful and secure with the exception of the problematic presidential elections process ...

ORG considers that a situation of generalized violence or events seriously disturbing public order does not exist to the extent that an individual present in either GPE or PERSON would be at risk of serious harm . ”

NORP In a report published on DATE , “ Human Rights Challenges : NORP ” , ORG observed :

“ While overall human rights and humanitarian conditions have continued to worsen in southern and central GPE , as well as in GPE , a stable NORP has devoted attention to democratization , institutional capacity - building , stability and development in its CARDINAL-year pursuit of international recognition of self - declared independence . While ORG takes no position on GPE ’s claim to independence , the international community should provide the de facto authorities of the Government of NORP with necessary support to promote the rights of its people , and to ensure its capacity to firmly establish broad human rights protections . ”

In their DATE Report on GPE , published on CARDINAL DATE , ORG found in relation to NORP that :

“ Presidential elections were held on DATE in GPE . PERSON , a former opposition politician , was declared the new President in DATE . According to independent observers , the elections were generally free , fair and peaceful . However , media freedom organizations reported some instances of restrictions on journalists in the lead - up to the elections .

Tensions flared in the border areas of NORP and PERSON claimed by GPE . A new armed group clashed with NORP security forces from DATE . CARDINAL of people were reportedly displaced by the clashes .

Displaced people from southern and central GPE continued to live in difficult conditions .

Minority groups continued to suffer discrimination . ”

In a report published on DATE , “ Hostages to Peace : Threats to ORG in NORP ” , ORG reported as follows :

What PERSON has accomplished over DATE is both improbable and deeply impressive . While much of south / central GPE remains mired in chaos and bloodshed , GPE has built a hard - won peace that it has now maintained for DATE . That peace has sheltered PERSON from the horrific abuses that have destroyed so many lives across GPE . At the same time , GPE has done much to build the foundations of democratic governance grounded in respect for fundamental human rights . In DATE and DATE it held competitive and credible national elections , including parliamentary polls that put the territory ’s ORG firmly in the hands of the political opposition . There is a vibrant print media and an active and independent civil society . NORP has accomplished these things primarily on its own , in one of the world ’s most volatile regions . ”

ORG ’s more recent “ World Report DATE GPE ” , published on DATE , stated :

“ After DATE of delay , NORP finally held its presidential election on DATE . International observers deemed the polls reasonably free and fair despite an isolated incident in the NORP region , where CARDINAL person was killed . The incumbent President PERSON accepted defeat and peacefully ceded power to an opposition candidate , further advancing hopes for stability in the northern region .

The situation remains unstable in the contested regions of NORP , Sanag , and PERSON , which lie between GPE , in GPE ’s northwest , and the autonomous state of GPE in the northeast . CARDINAL of civilians were displaced by clan - based clashes and conflicts over resources in the disputed area in DATE . ”

The most recent Operational Guidance Note on GPE , published on DATE , provided :

“ NORP and GPE , are in general relatively safe . A long - standing dispute exists over the territories of PERSON , NORP and Sanag , with both PERSON and GPE claiming them and the Sool - Sanag - Cayn alliances fighting to remain part of the original state of GPE . General insecurity resulting from armed violence continues to be the main protection concern in the LOC regions of GPE and there has also been an increase in violence and assassinations in GPE , since DATE , mostly in GPE , PERSON and areas around GPE .

There are major protection concerns around [ internally displaced person ] settlements both in GPE and GPE , which include overcrowding , severe levels of malnourishment , economic exploitation of children and a lack of physical security , rapes , gang rapes and other instances of sexual and gender - based violence .

The authorities in GPE will only admit failed asylum seekers returning from NORP countries who originate from their territory or those who have close affiliations to the territory through clan membership . In the case of majority clan affiliates , this means those associated with the GPE in GPE . In NORP taxis and CARDINAL vehicles can easily travel from GPE , ORG and PERSON . The main transportation between GPE and LOC is by lorry . People travel by air between GPE and PERSON . The ORG in ORG and others ... also found that a person from GPE will not , in general , be able without real risk of serious harm to travel overland from FAC to a place where he or she might be able to obtain an unofficial travel document for the purposes of gaining entry to NORP , and then by land to GPE . This is particularly the case if the person is female . A proposed return by air to PERSON , GPE ( whether or not via FAC ) will in general involve no such risks . ”

In NORP ( PERSON ) v. the Secretary of ORG for ORG [ DATE ] EWHC CARDINAL ( Admin ) , heard by ORG on DATE , reference was made to a Memorandum of Understanding between the Government of GPE and the NORP authorities concluded in DATE and renewed in DATE , which dealt with the question of returns . The Memorandum of Understanding provided that the NORP authorities would accept the return of persons who had no right to remain in GPE and had a right of return to NORP . Such return might be voluntary or enforced as regards the individual , but required the prior consent of the authorities . Such consent would be granted only after the provision of bio - data to satisfy the NORP authorities that the individual in question had a sufficient connection to GPE , which would generally entail that the person came from a clan with a sizeable representation in the region , and/or had been born or had parents who had been born in the region , and/or had family currently residing there . If a returnee were to be rejected by the NORP authorities at the point of entry , he or she would be brought back to GPE at the Government ’s expense .

During the domestic proceedings and in his application to this ORG , the applicant relied on CARDINAL reports , dated DATE and DATE , by PERSON , from ORG . Mr Höhne had learnt the NORP language and had carried out research on NORP history , culture and politics since DATE , including extensive field research throughout DATE in GPE and GPE .

In his first report , Mr Höhne gave an overview of events in GPE from DATE onwards . He noted that warlord rule prevailed in southern GPE , but that in LOC the situation developed differently , since ORG , a guerrilla organisation predominantly supported by the PERSON clan , seized control early in DATE . The guerrillas entered into peace negotiations with the various other clans in the region and NORP was declared a secessionist republic in DATE . Over DATE PERSON developed as a peaceful de facto State , with a clan - based political system . In DATE , democratic reforms had been introduced and elections were held in DATE and DATE . However , the effectiveness of ORG was limited by lack of resources , non - recognition by the international community and military challenges from other clans , who opposed a separate NORP .

Mr Höhne referred to the ORG ’s conclusions in PERSON v. the GPE , no . CARDINAL , DATE that individuals without ties to NORP would risk being turned back at the airport or subjected to harassment and abuse by the authorities . Although it appeared that the applicant originated from NORP , it was unclear from which clan he descended , and without any contacts to arrange his reception and arrival at FAC , he might face rejection by the authorities . If he were allowed to enter , he might face severe problems in finding proper accommodation and meeting his other basic needs . Individuals who stood out because they dressed or spoke differently from the general population were subject to verbal harassment on the street , possibly escalating into physical attacks . NORP was strictly NORP and any person who failed to conform to NORP norms would be stigmatised and excluded from access to work , health care and other basic services . There was no welfare state or free access to health care , and people with serious illnesses had to rely on their families for support . Educational facilities were poor and unemployment was high . In most cases , it was necessary to rely on assistance from relatives in order to get a job . The reaction of the local population to the applicant would , therefore , depend on his ability to conform to the local culture . If he did become stigmatised because of his inability to fit in , he would face exclusion from employment and basic social services .

NORP In his DATE report , Mr Höhne referred to a report by ORG that the ongoing instability and armed conflict in southern and central GPE had had an impact in GPE . There were CARDINAL camps for displaced persons in PERSON , populated by refugees from elsewhere in GPE and GPE , and members of minority groups originating in GPE . Living conditions in the camps were harsh , with no running water or electricity and problems with security . Religious extremism had increased in NORP in DATE , due in part to radical NORP groups such as ORG increasing their following , with the result that much of the population took great pains to follow NORP rules and norms in all areas of DATE life , and practices which had previously been tolerated , particularly in the urban centres of the region , were now completely unacceptable . Such practices included the wearing of light clothes or even trousers by women , and smoking by men . The applicant ’s lack of knowledge of and adherence to the principles of ORG would , in the light of the increasingly strict and intolerant religious context , be an even more worrying issue for him . Furthermore , the fact that it had now emerged that the applicant was from the majority ORG clan did not alter Mr PERSON ’s view that , without contacts or family connections in GPE , the applicant would face severe difficulties in establishing himself . Housing , employment and other services were usually organised within family networks ; unemployment was high and it was extremely hard to find a job without good qualifications and family support . An individual would need detailed knowledge about clan relations and other social structures in order to find his way through daily life .


The applicants , Mr PERSON , and PERSON , are NORP nationals , who were born in DATE and DATE respectively and live in GPE . The respondent Government are represented by Mr L. GPE , Deputy ORG - Secretary , ORG .

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

On DATE the applicants requested that a payment order be issued against the community of the inhabitants of the building in which they lived . On DATE the respondent objected to the order .

Consequently , on DATE the applicants filed an action for a settlement of accounts .

ORG held hearings on DATE , DATE and DATE , CARDINAL May and DATE . After another hearing on DATE , on DATE the applicants requested a DATE interruption of the proceedings . Further hearings took place on DATE and DATE . On DATE , none of the parties appeared so the proceedings were stayed . On DATE the applicants requested that the proceedings be resumed . They made final submissions to the court on DATE .

On DATE ORG dismissed the applicants’ claims .

On DATE ORG dismissed their appeal .


Preliminary objection rejected (non-exhaustion of domestic remedies);No violation of Art. 6-1;Not necessary to examine Art. 14+6-1

ORG In DATE Mr PERSON and his wife moved into a flat on the second floor of no . CARDINAL , FAC , GPE . He subleased the flat from a property - management company , ORG ( " ORG " ) , itself the tenant of a property company , SI Chrysanthemum SA ( " Chrysanthemum " ) , the owner of the building .

ORG In the autumn of DATE Mr PERSON became PERSON ’s main shareholder .

ORG On DATE the property - management company ORG ( " Naef " ) , which managed the building in which the flat in issue was located , informed the applicant that renovation and building work was going to be carried out on the block .

ORG In a letter of CARDINAL DATE PERSON gave ORG - which was in liquidation - notice to quit the flat with effect from DATE , the date of expiry of the lease , and requested them to terminate the subtenancy agreement with PERSON .

ORG It would appear that ORG asked ORG to collect the rent direct from Mr GPE . On DATE ORG allegedly sent Mr NORP receipts relating to the payment of rent from DATE and - what is denied by the applicant - specified that in collecting the sums in question they were not recognising the existence of any direct legal relationship between Mr GPE and GPE .

ORG In a registered letter of CARDINAL DATE ORG informed PERSON that they were terminating the subtenancy agreement with effect from its expiry . The applicant then applied to the Rents and Leases Conciliation Board for an extension of the agreement . No settlement having been reached , he applied to the Rents and Leases Tribunal but subsequently withdrew the application .

ORG From DATE the management of the block was taken over by ORG agency ( " ORG " ) . The latter notified the applicant of their bank account number . In an unanswered letter of CARDINAL DATE Mr GPE confirmed to the agency that he would in future pay the rent into that account . He maintains that he did so DATE from DATE to DATE , taking care to write " rent " on the payment advice slips , without meeting any objection .

ORG On DATE the applicant and his wife had an interview - the terms of which are disputed DATE with PERSON , the director of ORG ( see paragraph CARDINAL below ) .

ORG On DATE Chrysanthemum brought an action for possession in the Canton of ORG , alleging that the applicant was occupying the premises unlawfully since his subtenancy agreement had been terminated .

PERSON argued that the court had no jurisdiction ratione materiae , maintaining that he had an orally agreed lease from the plaintiff .

The court thus had to determine whether the conduct of the protagonists amounted to an agreement to enter into a lease after the termination of the subtenancy .

ORG The court held a hearing on DATE . It heard Mr PERSON ( ORG ) , Mr FAC ( Naef ) and PERSON ; Mr PERSON ( Chrysanthemum ) and the applicant also gave evidence . Only the first CARDINAL were heard as witnesses on oath .

The transcript of the testimony reads as follows :

Mr PERSON ...

When I resumed [ the management of the building in DATE ] , PERSON was occupying the premises but he had no written or oral lease or even a tacit one .

It is true that I had an interview with PERSON on my own initiative ... I wanted to know what Mr GPE ’s position was . I made it clear to him that in my view he did not have a lease .

Mr PERSON said that he very much wished to remain in the flat on sentimental grounds , having , so he said , written a book there . He may have told me that he had earlier supposedly been granted an oral lease , but I can not state that with certainty . At all events , PERSON did not ask me to have a lease drawn up for him .

At the end of the interview Mr PERSON suggested to me that he pay a higher rent in order to be able to stay in the flat . I suppose that implies that he was asking to be given a lease .

I told the defendant that I would pass on his request to the landlord . I told him clearly , both at the beginning and at the end of the interview , that I could not take a decision myself .

I consequently informed the landlord of the conversation I have just described . He told me that he did not wish to proceed in the matter and he did not give me the reasons .

I did not myself communicate the shareholder ’s position to PERSON but , on the other hand , I did send the file to our lawyer , who must have informed him of the shareholder ’s position .

My office staff must , it would seem , have communicated our account number to Mr LOC when we took over from GPE .

I heard about an agreement that had earlier been made between ORG and PERSON to the effect that PERSON should pay the rent direct to ORG .

Mr GPE ...

I have worked for ORG since DATE .

We knew that PERSON was in de facto occupation of the premises ...

... In DATE or DATE Mr LOC came to see me and told me that his position vis - à - vis ORG was a rather special one . I can not remember now the exact reasons . The defendant asked that we should draw up a lease in his name .

At the same time ORG had asked us to collect the rent direct from Mr GPE ... I myself handed the file over to another property - management company on DATE , and at that time , as far as we were concerned , Mr GPE ’s position remained as we had described in our letter of DATE ...

It is true that on DATE we had informed PERSON about the proposed works in the building . That was because we could not ignore his presence in the building .

PERSON ...

I was present at the interview with PERSON in DATE . Mr PERSON asked us what our intentions were regarding this flat and we told him that we wanted to stay in it . He then explained to us that the building was going to be made higher and asked whether the works would not inconvenience us . We replied that the works might perhaps inconvenience us but that we would put up with it since we wanted to stay . Mr PERSON added that at all events the process would be a long one , because the architect ’s plans had not been approved by ORG . He also told us that during the building work we could occupy another flat in the block and that after the work was completed we could occupy a newly built flat at the top of the house . Or else we could move back into our second - floor flat .

When we left , PERSON told us that he would keep us informed . When we came out we were really reassured and optimistic .

PERSON never asked us to look for a flat elsewhere and he did not indicate that we had to leave within a given time .

I can not remember if PERSON said that he was going to consult the landlord . I myself had the impression that he had some freedom of action .

Mr PERSON : I have myself been the director of the plaintiffs since DATE . I have never set eyes on PERSON until DATE . I once replied to a letter he had sent me asking for an interview and I told him that his case was being dealt with by GPE ’s legal department .

... It is true that I told PERSON that I refused to give PERSON a lease . We had never accepted that PERSON had a tenancy and I did not wish us to agree to it . I knew from the beginning that PERSON was occupying the LOC . He is up to date with the rent .

I would not have been opposed to a settlement at the outset but relations with Mr LOC have become difficult . I have already allowed PERSON DATE .

Mr NORP : When I concluded the lease with ORG , I did not realise that it was a subtenancy . I had consulted a lawyer before signing it .

Mr PERSON says DATE that it is not easy to get on with me , but he said before that he wanted us out because he wanted to renovate his building . "

ORG On DATE the court held that there was no lease agreement between the parties and ordered Mr GPE to move all property and persons from the flat and restore it to the plaintiffs in good condition . The judgment reads as follows :

Mr GPE , an employee of [ Naef ] , told the ORG that the tenant , ORG , had asked ORG to collect the rent direct from Mr GPE .

This arrangement was accepted , the payments being received as an indemnity for unlawful occupation , as appears from a letter of DATE ...

On DATE the new management , the ORG agency , wrote to ORG , asking that in future the company should pay the indemnity for Mr LOC ’s unlawful occupation to their own office .

PERSON , an employee of the new management , told the ORG that he had had an interview with PERSON and had made it clear to him that in his view Mr GPE did not have a lease .

PERSON , he said , implicitly requested that a lease should be drawn up , to which Mr PERSON said he had replied that it was not for him to decide .

PERSON , the director and shareholder of the plaintiffs , told the ORG that he had never agreed , and did not wish to agree , to enter into a lease with the defendant .

However , ... PERSON had been supplied personally with ORG account number and wrote to that company on CARDINAL DATE to inform them that in future he would pay the rent into their account ...

That letter does not appear to have been answered , except that , DATE , the lawyer instructed by the landlord wrote to enquire when PERSON would be leaving .

The defendant ’s wife - who was present at her husband ’s interview with Mr DATE recalled from that interview that the property - management company had been contemplating offering them another flat in the building for the duration of the works , and that when they had left Mr PERSON , the couple had had every reason to be reassured , seeing that they were not being asked to leave the LOC .

In law the only issue which it is necessary to resolve is whether the defendant , since his sublease was terminated , has been given a lease by the landlord .

A lease may be entered into orally , although it is to be noted that property - management companies customarily draw up a written agreement .

In the instant case no lease has been signed since the termination of the sublease .

None of the documents produced discloses any agreement by the plaintiffs to enter into a lease .

It remains to be determined whether , by not immediately or clearly replying to the defendant ’s letter of CARDINAL DATE or by allowing an employee of the property - management company to tell the defendant that he was going to refer back to the landlord , the plaintiffs DATE under the doctrine of good faith – have agreed to enter into a lease .

The ORG reaches the conclusion that , in the circumstances of this case , no lease was entered into orally ( the existence of an oral agreement has not been proved ) or even implied by the clear conduct of the parties .

While it is true that the defendant wishes to remain in the flat , it is not even apparent from the evidence that he has clearly asked for a lease to be drawn up .

Despite the unambiguous letters from the plaintiffs , the defendant did not take the trouble to reply in writing .

He therefore could not truly suppose DATE in good faith – that the plaintiffs were implicitly granting him a lease .

He had all the less reason to assume a tacit agreement of this kind as , since the termination of the head lease , and accordingly of the sublease , proceedings had been pending for an extension of the lease , during which the landlord had clearly denied being contractually bound to the defendant or wishing to be .

Consequently , there is no lease between the parties .

... it must be held that the defendant is on the LOC unlawfully .

Article CARDINAL para . CARDINAL [ of LAW ] applies in this case ... "

ORG In a judgment of DATE the GPE of ORG dismissed an appeal by Mr GPE on the following grounds :

" The ORG can not but agree with the court below that there was no contractual relationship between the landlord , ORG , and PERSON . It is bold to argue that the existence of a lease is evidenced by the conduct of the landlord or of the landlord ’s representatives , who , on the contrary , always emphasised their determination not to enter into a lease with ORG for flat at no . CARDINAL , FAC , second floor . The fact of having handed over rent receipts accompanied by the letter of DATE or of not having replied to the appellant ’s letter of CARDINAL DATE can not be construed as meaning that a lease was in existence . It follows , in the absence of any lease , that ORG had jurisdiction ratione materiae .

... According to this ORG ’s case - law , a landlord is entitled to raise his ownership against a subtenant and to rely on Article CARDINAL para . CARDINAL [ of LAW ] , in the absence of any legal relationship between the parties ...

The sublease is a lease between the tenant and the subtenant ...

Having been given notice for DATE , PERSON , from DATE , no longer has any right to remain on the LOC .

ORG The applicant lodged a public - law appeal with ORG against ORG judgment . In his pleading he relied , in particular , on Articles CARDINAL and CARDINAL of the Convention ( article CARDINAL , article CARDINAL ) and argued :

" ... the fact that [ the cantonal courts ] allowed the representative of a party to be heard as a witness on oath created a flagrant inequality vis - à - vis the other party , who by the force of circumstance was not able to call witnesses to whom the oath could be administered . The equality of arms guaranteed both in LAW and in LAW was not ensured . Such inequality is all the more flagrant where the court dealing with the case has not taken the slightest account in its decision of statements made by a witness , even if heard purely for information purposes . This was a gross breach of the law , which expressly provides , even if it precludes taking the oath , that a spouse may testify and therefore implies that the court dealing with the case will consider that evidence . "

ORG of ORG delivered its judgment on DATE . It declared inadmissible - in particular - the complaint based on a violation of Articles CARDINAL and CARDINAL of the Convention ( article CARDINAL , article CARDINAL ) , as follows :

" ... On a public - law appeal , ORG will consider only the complaints adequately pleaded ... the notice of appeal must contain , inter alia , a succinct statement of the constitutional rights or legal principles violated , specifying in what the breach consists ( section CARDINAL ( CARDINAL ) ( b ) of LAW ) .

... In many respects , the present appeal does not comply with this requirement that reasons must be given .

This is true ... of the ground based on a breach of Articles CARDINAL and CARDINAL ( article CARDINAL , article DATE ) [ of the ] NORP Convention on Human Rights , of which the appellant makes a bald assertion without providing any explanation . "

ORG Dismissing the remainder of the appeal , ORG said :

" The appellant also submitted that ORG had made an arbitrary assessment of the evidence taken by the court below .

... If the appellant ’s argument , which is not very clear , has been understood correctly , the cantonal appellate court inadmissibly took into account the interview that PERSON had with the appellant in DATE in the presence of the appellant ’s wife , in that it completely ignored her statements and only took Mr PERSON ’s statement into consideration .

In this connection it must be pointed out that the appellant ’s wife was heard only for information purposes and without taking the oath , in accordance with LAW [ of the ] LAW [ of GPE ] . According to commentators on GPE ’s LAW , however , hearing a witness for information purposes is of purely informative import and has no probative value ... There was therefore nothing arbitrary in the instant case in not taking account of the explanations provided by PERSON . The appellant did not , moreover , show in what way the cantonal appellate court had unsustainably interpreted the statements made by the sworn witness PERSON . Contrary to what he appeared to be arguing , the court below did not infer from those statements that the witness had indicated to the appellant that he would have to leave the flat . It merely found that Mr PERSON ` confirmed that he would pass on to the landlord ORG ’s wish to enter into a new FAC . The appellant did not attack that finding .

The present appeal is manifestly ill - founded , and it must accordingly be dismissed in so far as it is admissible . "

Mr and PERSON left the flat in issue on DATE .

ORG The relevant provisions of ORG of DATE , which came into force on CARDINAL DATE , are the following :

" Unless otherwise laid down by law , the court shall freely assess the results of measures taken to obtain evidence . "

" Anyone of sound mind who has been lawfully summoned shall be required to appear as a witness to give evidence on oath . "

" CARDINAL . The following can not be heard as witnesses :

( a ) lineal relatives of CARDINAL of the parties ;

( b ) brothers and sisters ;

( c ) uncles and nephews ;

( d ) relatives of the same degree by marriage ;

( e ) spouses , even if divorced .

The parties may , however , have these persons heard as witnesses , with the exception of descendants , in proceedings for withdrawal of parental authority , in matters concerning personal status and in cases concerning judicial separation , divorce and measures to preserve marital union . "

" The persons referred to in LAW para . CARDINAL may be heard as witnesses in other cases without distinction , but without taking the oath and solely for information purposes .

ORG LAW of LAW of DATE provides :

" CARDINAL . In addition to identifying the order or decision being appealed against , the notice of appeal must contain :

( a ) the appellant ’s submissions ; and

( b ) a statement of the main facts and a succinct statement of the constitutional rights or legal principles violated , specifying in what the breach consists .