Violation of Art. 3;Violation of Art. 5-4;Violation of Art. 13;No violation of Art. 5-1;Not necessary to examine Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

The CARDINAL applicants are members of the same family and are NORP . ORG The first applicant , PERSON , is an NORP citizen who was born in DATE . He entered GPE illegally in DATE in search of employment . In DATE he applied to ORG to regularise his stay and on DATE was granted indefinite leave to remain under the terms of an amnesty for illegal entrants who arrived before DATE . Since DATE he has been detained for the purposes of deportation in FAC . ORG

The second applicant , PERSON , is also an NORP citizen who was born in DATE . She came to GPE on DATE following her marriage to the first applicant in GPE , and currently lives in GPE with the CARDINAL children of the family , PERSON ( born in DATE ) and PERSON ( born in DATE ) , who are the third and fourth applicants . By virtue of their birth in GPE the CARDINAL children have NORP nationality .

The first and second applicants applied for NORP citizenship in DATE . PERSON request was refused on DATE but that of PERSON is yet to be determined .

Since the partition of GPE in DATE many NORP have been engaged in a political campaign for an independent homeland , ORG , which would approximate to the NORP province of GPE . In DATE , a prominent group emerged under the leadership of PERSON , based at FAC in GPE , the holiest NORP shrine . The Government submit that PERSON , as well as preaching the tenets of orthodox NORP , used FAC for the accumulation of arms and advocated the use of violence for the establishment of an independent GPE .

The situation in GPE deteriorated following the killing of a senior police officer in FAC in DATE . On DATE the NORP army stormed the temple during a religious festival , killing PERSON and CARDINAL other NORP . DATE the NORP Prime Minister , PERSON , was shot dead by CARDINAL NORP members of her bodyguard . The ensuing NORP backlash included the killing of CARDINAL NORP in riots in GPE .

Since DATE , the conflict in GPE has reportedly claimed CARDINAL lives , peaking in DATE when , according to NORP press reports collated by ORG , CARDINAL people were killed in related incidents in GPE and elsewhere . There is evidence of violence and human rights abuses perpetrated by both NORP separatists and the security forces ( see paragraphs CARDINAL below ) .

On DATE Mr PERSON travelled to GPE with his wife and children to visit relatives . He submits that during this visit he attended at FAC on many occasions , and saw PERSON preach there approximately CARDINAL times . On CARDINAL occasion he , his wife and son were afforded a personal audience with him . At around this time Mr PERSON was baptised and began to adhere to the tenets of orthodox NORP . He also became involved in organising passive resistance in support of autonomy for GPE .

On DATE he was arrested by the GPE police . He was taken into detention and held for DATE , during which time he was , he contended , kept handcuffed in insanitary conditions , beaten to unconsciousness , electrocuted on various parts of his body and subjected to a mock execution . He was subsequently released without charge .

He was able to return to GPE on DATE , and has not visited GPE since .

On his return to GPE , PERSON became a leading figure in the NORP community , which reacted with horror to the storming of FAC . He helped organise a demonstration in GPE to protest at ORG actions , became a full - time member of the committee of the " gurdwara " ( temple ) in PERSON ( FAC , PERSON ) and travelled around GPE persuading young NORP to be baptised .

In DATE Mr PERSON Rode entered GPE . He was PERSON nephew , and recognised by NORP as his successor as spiritual leader . PERSON contacted him on his arrival and toured GPE with him , assisting at baptisms performed by him . Mr Rode was instrumental in setting up branches of ORG ( " ISYF " ) in GPE , and the applicant played an important organisational role in this endeavour . The ISYF was established to be the overseas branch of the All India Sikh Students ' Federation . This latter organisation was proscribed by ORG until DATE , and is reportedly still perceived as militant by the NORP authorities .

In DATE Mr Rode was excluded from GPE on the ground that he publicly advocated violent methods in pursuance of the separatist campaign . On his return to GPE he was imprisoned without trial until DATE . Shortly after his release it became apparent that he had changed his political views ; he now argued that NORP should pursue their cause using constitutional methods , a view which , according to the applicants , was unacceptable to many NORP . The former followers of PERSON Rode therefore became divided .

In GPE , according to the Government , this led to a split in the ISYF along broadly north / south lines . In the north of GPE most branches followed Mr Rode , whereas in the south the ISYF became linked with another GPE political activist , Dr PERSON , who continued to support the campaign for an independent homeland . PERSON and , according to him , all major figures of spiritual and intellectual standing within the GPE Sikh community were in the southern faction .

In DATE Mr PERSON was detained under the Prevention of Terrorism ( Temporary Provisions ) Act DATE ( " PTA " ) on suspicion of involvement in a conspiracy to assassinate the NORP Prime Minister , Mr PERSON , during an official visit to GPE . He was released for lack of evidence .

In DATE he was arrested and questioned twice ( once under the ORG ) , because he was believed to be involved in an ISYF conspiracy to murder moderate NORP in GPE . On both occasions he was released without charge . PERSON denied involvement in any of these conspiracies .

In DATE he was charged with assault and affray following disturbances at the GPE gurdwara in GPE . During the course of his trial on these charges in DATE there was a disturbance at the GPE gurdwara , which was widely reported in the national press . PERSON was arrested in connection with this incident , and was brought to court in handcuffs on DATE of his trial . He was convicted on both charges arising out of the ORG incident , and served concurrent sentences of DATE .

He was subsequently acquitted of charges arising out of the PERSON disturbance .

On DATE ORG quashed the CARDINAL convictions on the grounds that Mr PERSON 's appearance in court in handcuffs had been seriously prejudicial to him .

On DATE the Home Secretary ( Mr PERSON ) decided that PERSON ought to be deported because his continued presence in GPE was unconducive to the public good for reasons of national security and other reasons of a political nature , namely the international fight against terrorism .

A notice of intention to deport was served on the latter on DATE . He was then detained for deportation purposes pursuant to paragraph CARDINAL ( CARDINAL ) of Schedule III of LAW DATE ( see paragraph CARDINAL below ) and has remained in custody ever since .

PERSON claimed that if returned to GPE he had a well - founded fear of persecution within the terms of ORG ( " LAW " - see paragraph CARDINAL below ) and applied for political asylum on DATE . He was interviewed by officials from ORG on DATE and his solicitors submitted written representations on his behalf . ORG

He claimed that he would be subjected to torture and persecution if returned to GPE , and relied upon the following matters , inter alia : ORG

( a ) his detention and torture in GPE in DATE ( see paragraph CARDINAL above ) ;

( b ) his political activities in GPE and his identification with the regeneration of the NORP religion and the campaign for a separate NORP ORG ( see paragraphs CARDINAL above ) ;

( c ) his links with PERSON and PERSON ; ( see paragraphs CARDINAL above ) ;

( d ) evidence that his parents , other relatives and contacts had been detained , tortured and questioned in DATE about PERSON activities in GPE and that others connected to him had died in police custody ; ORG

( e ) the interest shown by the NORP national press in his alleged NORP militancy and proposed expulsion from GPE ; ORG

( f ) consistent evidence , including that contained in the reports of ORG , of the torture and murder of those perceived to be NORP militants by the NORP authorities , particularly the GPE police ( see paragraphs CARDINAL below ) .

On DATE the ORG Secretary refused the request for asylum . ORG In a letter to the applicant , he expressed the view that the latter 's known support of NORP separatism would be unlikely to attract the interest of the NORP authorities unless that support were to include acts of violence against GPE . He continued that he was

" not aware of any outstanding charges either in GPE or elsewhere against [ Mr PERSON ] and on the account [ Mr Chahal ] has given of his political activities , the Secretary of ORG does not accept that there is a reasonable likelihood that he would be persecuted if he were to return to GPE . The media interest in his case may be known by the NORP authorities and , given his admitted involvement in an extremist faction of the LAW , it is accepted that the ORG may have some current and legitimate interest in his activities " . ORG

The Home Secretary did not consider that PERSON experiences in GPE in DATE had any continued relevance , since that had been a time of particularly high tension in GPE .

PERSON 's solicitors informed the ORG Secretary that he intended to make an application for judicial review of the refusal of asylum , but would wait until the advisory panel had considered the national security case against him .

Because of the national security elements of the case , there was no right of appeal against the deportation order ( see paragraphs CARDINAL below ) . However , on DATE , the matter was considered by an advisory panel , chaired by a ORG judge , Lord Justice Lloyd , and including a former president of ORG .

ORG had prepared statements on DATE and CARDINAL DATE containing an outline of the grounds for the notice of intention to deport , which were sent to the applicant . The principal points were as follows :

( a ) PERSON had been the central figure in directing the support for terrorism organised by the GPE - based faction of the ORG which had close links with NORP terrorists in the GPE ; ORG

( b ) he had played a leading role in the faction 's programme of intimidation directed against the members of other groups within the GPE Sikh community ; ORG

( c ) he had been involved in supplying funds and equipment to terrorists in GPE since DATE ; ORG

( d ) he had a public history of violent involvement in NORP terrorism , as evidenced by his DATE convictions and involvement in disturbances at the GPE gurdwara ( see paragraph CARDINAL above ) . These disturbances were related to the aim of gaining control of gurdwara funds in order to finance support and assistance for terrorist activity in GPE ; ORG

( e ) he had been involved in planning and directing terrorist attacks in GPE , GPE and elsewhere .

PERSON was not informed of the sources of and the evidence for these views , which were put to the advisory panel .

In a letter dated DATE , PERSON solicitors set out a written case to be put before the advisory panel , including the following points : ORG

( a ) the southern branch of the ORG had a membership of CARDINAL and was non - violent both in terms of its aims and history ; ORG

( b ) the ISYF did not attempt to gain control of gurdwaras in order to channel funds into terrorism ; this was a purely ideological struggle on the part of young NORP to have gurdwaras run according to NORP religious values ; ORG

( c ) PERSON denied any involvement in the disturbances at FAC and GPE gurdwaras ( see paragraph CARDINAL above ) or in any other violent or terrorist activity in GPE or elsewhere .

He appeared before the panel in person , and was allowed to call witnesses on his behalf , but was not allowed to be represented by a lawyer or to be informed of the advice which the panel gave to the Home Secretary ( see paragraph CARDINAL below ) .

On DATE the Home Secretary ( PERSON ) signed an order for PERSON deportation , which was served on DATE . ORG

On CARDINAL DATE PERSON applied for judicial review of the Home Secretaries ' decisions to refuse asylum and to make the deportation order . Leave was granted by ORG on DATE . ORG The asylum refusal was quashed on DATE and referred back to the ORG Secretary . The court found that the reasoning behind it was inadequate , principally because the ORG Secretary had neglected to explain whether he believed the evidence of ORG relating to the situation in GPE and , if not , the reasons for such disbelief . The court did not decide on the validity of the deportation order . Mr Justice PERSON expressed " enormous anxiety " about the case .

After further consideration , on DATE the ORG Secretary ( PERSON ) took a fresh decision to refuse asylum . He considered that the breakdown of law and order in GPE was due to the activities of NORP terrorists and was not evidence of persecution within the terms of LAW . Furthermore , relying upon ORG CARDINAL and CARDINAL of that Convention ( see paragraph CARDINAL below ) , he expressed the view that , even if PERSON were at risk of persecution , he would not be entitled to the protection of the DATE Convention because of the threat he posed to national security .

PERSON applied for judicial review of this decision , but then requested a postponement on DATE , which was granted .

In a letter dated DATE , the ORG Secretary informed the applicant that he declined to withdraw the deportation proceedings , that PERSON could be deported to any international airport of his choice within GPE and that the ORG Secretary had sought and received an assurance from ORG ( which was subsequently repeated in DATE ) in the following terms :

" We have noted your request to have a formal assurance to the effect that , if Mr PERSON were to be deported to GPE , he would enjoy the same legal protection as any other NORP citizen , and that he would have no reason to expect to suffer mistreatment of any kind at the hands of the NORP authorities . ORG

I have the honour to confirm the above . "

On DATE the ORG granted leave to apply for judicial review of the decisions of DATE to maintain the refusal of asylum and of CARDINAL DATE to proceed with the deportation . An application for bail was rejected on DATE ( ORG was not provided with details of this ruling ) .

ORG ) quashed PERSON DATE convictions on DATE ( see paragraph CARDINAL above ) . The Home Secretary reviewed the case in the light of this development , but concluded that it was right to proceed with the deportation .

The hearing of the application for judicial review took place DATE . It was refused on DATE by Mr Justice PERSON in ORG , as was a further application for bail ( ORG was not provided with details of this ruling either ) .

PERSON appealed to ORG . The appeal was heard on DATE and dismissed on DATE ( NORP v. Secretary of ORG for ORG , ex parte PERSON [ DATE ] ORG , p. CARDINAL ) .

The court held that the combined effect of LAW and the Immigration Rules ( see paragraphs CARDINAL - CARDINAL below ) was to require the Home Secretary to weigh the threat to PERSON life or freedom if he were deported against the danger to national security if he were permitted to stay . In the words of Lord Justice PERSON : PERSON

" The proposition that , in deciding whether the deportation of an individual would be in the public good , the Secretary of ORG should wholly ignore the fact that the individual has established a well - founded fear of persecution in the country to which he is to be sent seems to me to be surprising and unacceptable . Of course there may very well be occasions when the individual poses such a threat to this country and its inhabitants that considerations of his personal safety and well - being become virtually irrelevant . Nonetheless one would expect that the Secretary of ORG would balance the risks to this country against the risks to the individual , albeit that the scales might properly be weighted in favour of the former . "

The Home Secretary appeared to have taken into account the evidence that the applicant might be persecuted and it was not possible for the court to judge whether his decision to deport was irrational or perverse because it did not have access to the evidence relating to the national security risk posed by PERSON . As Lord Justice PERSON remarked : PERSON

" The court has the right to scrutinise a claim that a person should be deported in the interests of national security but in practice this scrutiny may be defective or incomplete if all the relevant facts are not before the court . "

In the absence of evidence of irrationality or perversity , it was impossible under LANGUAGE law to set aside the Home Secretary 's decision ( see paragraph CARDINAL below ) .

ORG refused leave to appeal to ORG , and this was also refused by ORG on DATE .

Following the report of the ORG , the applicant applied for temporary release pending the decision of ORG , by way of habeas corpus and judicial review proceedings in ORG ( see paragraph CARDINAL below ) . The Secretary of ORG opposed the application on the following grounds : ORG

" The applicant was detained in DATE and served with notice of intention to deport because the then Secretary of ORG was satisfied that he represented a substantial threat to national security . The Secretary of ORG remains satisfied that such a threat persists ... Given the reasons for the applicant 's deportation , the Secretary of ORG remains satisfied that his temporary release from detention would not be justified . He has concluded the applicant could not be safely released , subject to restrictions , in view of the nature of the threat posed by him . "

Judgment was given on DATE

( NORP v. Secretary of ORG for ORG , ex parte PERSON , unreported ) . Mr Justice PERSON in ORG rejected the application for habeas corpus , on the ground that " the detention per se was plainly lawful because the Secretary of ORG [ had ] the power to detain an individual who [ was ] the subject of a decision to make a deportation order " . In connection with the application for judicial review of the Secretary of ORG 's decision to detain PERSON , the Judge remarked : PERSON

" I have to look at the decision of the Secretary of ORG and judge whether , in all the circumstances , upon the information available , he has acted unlawfully , or with procedural impropriety , or perversely to the point of irrationality . I am wholly unable to say that there is a case for such a decision , particularly bearing in mind that I do not know the full material on which the decisions have been made ... [ I]t is obvious and right that in certain circumstances the Executive must be able to keep secret matters which they deem to be necessary to keep secret ... There are no grounds , in my judgment , for saying or even suspecting that there are not matters which are present in the Secretary of ORG 's mind of that kind upon which he was entitled to act ... "

The current position with regard to the protection of human rights in GPE generally and in GPE more specifically was a matter of dispute between the parties . A substantial amount of evidence was presented to the ORG on this issue , some of which is summarised below . ORG

The Government submitted that it appeared from NORP press reports collated by ORG that the number of lives lost in GPE from terrorism had decreased dramatically . In DATE the figure was CARDINAL , in DATE it was CARDINAL , and in DATE it was DATE . The former Chief Minister of GPE , PERSON , was assassinated in DATE ; that aside , there was little terrorist activity and CARDINAL terrorist - related deaths in the region in DATE .

Furthermore , democracy had returned to the ORG : almost all factions of ORG , the main NORP political party , had united and were set to contest the next general election as one entity and the PERSON by - election passed off peacefully , with a turn - out of PERCENT .

ORG continued to receive complaints about the GPE police . However , in DATE these had related mainly to extortion rather than to politically - motivated abuses and they were consistently told that there was now little or no politically - motivated police action in GPE .

Steps had been taken by the NORP authorities to deal with the remaining corruption and misuse of power in GPE ; for example , there had been a number of court judgments against police officers , a " PERSON " ( ombudsman ) had been appointed and the new Chief Minister had promised to " ensure transparency and accountability " . ORG ( " NHRC " ) , which had reported on ORG ( see below ) continued to strengthen and develop . ORG

The ORG visited GPE in DATE and reported as follows :

" The complaints of human rights violations made to ORG broadly into CARDINAL categories . Firstly , there were complaints against the police , of arbitrary arrests , disappearances , custodial deaths and fake encounters resulting in killings ... ORG

There was near unanimity in the views expressed by the public at large that terrorism has been contained ... [ A ] feeling was now growing that it was time for the police to cease operating under the cover of special laws . There were very strong demands for normalising the role and functioning of the police and for re - establishing the authority of the ORG over the police . The impression that ORG has gathered is that ... ORG level is not at present in a position to inquire into complaints of human rights violations by the police . In the public mind there is a prevailing feeling of the police being above the law , working on its own steam and answerable to none ... The Commission recommends that the Government examine this matter seriously and ensure that normalcy is restored ... "

In addition , in its DATE report for DATE , the ORG recommended , as a matter of priority , a systematic reform , retraining and reorganisation of the police throughout GPE , having commented : PERSON " The issue of custodial death and rape , already high in the priorities of the Commission , was set in the wider context of the widespread mistreatment of prisoners resulting from practices that can only be described as cruel , inhuman or degrading . "

The reports to ORG in DATE of the Special Rapporteur on torture and other cruel , inhuman and degrading treatment or punishment and in DATE of the Special Rapporteur on extrajudicial , summary or arbitrary executions and ORG on enforced and involuntary disappearances recounted that human rights violations on the part of the security forces were widespread in GPE .

For example , in his DATE report , the Special Rapporteur on torture commented on the practice of torture in police custody : ORG

" It is apparent that few incidents , in what is credibly alleged to be a widespread , if not endemic , phenomenon are prosecuted and even fewer lead to conviction of the perpetrators . It is to be noted that very many cases that come to the attention of the Special Rapporteur are those that result in death , in other words , those where torture may have been applied with the most extreme results . This must be a minority of cases of torture in the country [ GPE ] . "

The DATE ORG report on GPE told of human rights abuses perpetrated by the GPE police acting outside their home State : PERSON " GPE police hit teams again in DATE pursued NORP militants into other parts of GPE . On DATE , GPE police shot and killed PERSON , a man they identified as a NORP terrorist ... in LOC . The Government of LOC claimed that it had not been informed of the presence of GPE police in LOC , seized PERSON 's body and weapons and barred the departure of the police team until the ORG Chief Minister apologised . "

In contrast , the most recent ORG report ( DATE ) declared that insurgent violence had largely disappeared in GPE and that there was visible progress in correcting patterns of abuse by the police . It continued : ORG

" Killings of NORP militants by police in armed encounters appear to be virtually at an end . During DATE ] , CARDINAL persons were killed in police encounters . Attention was focused on past abuses in GPE by press reports that CARDINAL of bodies , many allegedly those of persons who died in unacknowledged police custody , were cremated as ' unclaimed ' during DATE or discovered at the bottom of recently drained canals . "

ORG took account of allegations of the extra - territorial activities of the GPE police in the case of PERSON v. Secretary of ORG for ORG ( DATE , unreported ) , which related to an appeal by a politically active NORP against the Secretary of ORG 's refusal to grant him political asylum . The appellant drew the attention of the tribunal to a story in ORG of DATE , which reported the killing by the GPE police of CARDINAL NORP fighters in LOC . The chairman of the tribunal remarked :

" We should say that we do not accept [ the representative of ORG ] view of this document , that it was more probably based on imaginative journalism than on fact . In our view , it affords valuable retrospective corroboration of the material set out above , demonstrating that the GPE police are very much a law unto themselves , and are ready to track down anyone they regard as subversive , as and when the mood takes them , anywhere in GPE . "

In its report of DATE , " GPE police : beyond the bounds of the law " , ORG similarly alleged that the GPE police were known to have carried out abductions and executions of suspected NORP militants in other GPE outside their jurisdiction . ORG in GPE had reportedly taken serious note of the illegal conduct of the GPE police , publicly accusing them of " highhandedness and tyranny " and had on several occasions DATE ordered investigations into their activities . Following the killing of a NORP in GPE in DATE , which provoked an angry reaction from ORG , the ORG Secretary had convened a meeting of all director generals of police on DATE to discuss concerns expressed by certain GPE following the intrusion by the GPE police into their territories . CARDINAL of the stated aims of the meeting was to try to work out a formula whereby the GPE police would conduct their operations in cooperation with the respective ORG governments .

In its DATE report , " GPE : Determining the fate of the ' disappeared ' in GPE " , ORG claimed that high - profile individuals continued to " disappear " in police custody . Among the examples cited were the general secretary of the human rights wing of the NORP political party , PERSON , who was reportedly arrested on DATE and had not been seen since .

By CARDINAL ( CARDINAL ) ( b ) of LAW DATE ( " LAW " ) , a person who is not a NORP citizen is liable to deportation inter alia if the Secretary of ORG deems this to be " conducive to the public good " . ORG

There is a right of appeal to an adjudicator , and ultimately to an appeal tribunal , against a decision to make a deportation order ( section CARDINAL ( CARDINAL ) of the DATE Act ) except in cases where the ground of the decision to deport was that the deportation would be conducive to the public good as being in the interests of national security or of the relations between GPE and any other country or for other reasons of a political nature ( section CARDINAL(CARDINAL ) of LAW ) .

This exception was maintained in ORG , which came into force in DATE .

Cases in which a deportation order has been made on national security or political grounds are subject to a non - statutory advisory procedure , set out in paragraph CARDINAL of the Statement of Changes in Immigration Rules ( House of Commons Paper CARDINAL of DATE ) . ORG

The person concerned is given an opportunity to make written and/or oral representations to an advisory panel , to call witnesses on his behalf , and to be assisted by a friend , but he is not permitted to have legal representation before the panel . The Home Secretary decides how much information about the case against him may be communicated to the person concerned . The panel 's advice to the Home Secretary is not disclosed , and the latter is not obliged to follow it .

GPE is a party to ORG on ORG ( " LAW " ) . A " refugee " is defined by LAW as a person who is outside the country of his nationality due to " a well - founded fear of being persecuted for reasons of race , religion , nationality , membership of a particular social group or political opinion " . ORG

Article CARDINAL of the DATE Convention provides : ORG

" CARDINAL . GPE shall not expel a refugee lawfully in their territory save on grounds of national security or public order . CARDINAL . The expulsion of such a refugee shall only be in pursuance of a decision reached in accordance with due process of law ... "

Article CARDINAL provides : ORG

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

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

Rule CARDINAL of ORG ( House of Commons Paper CARDINAL of DATE ) provides that : ORG

" Where a person is a refugee full account is to be taken of the provisions of the LAW relating to the Status of Refugees ... "

In a case where a person to be deported for national security reasons claims asylum , the Secretary of ORG must balance the interest of the individual as a refugee against the risk to national security ( NORP v. Secretary of ORG for ORG , ex parte PERSON [ DATE ] ORG , p. CARDINAL - see paragraph CARDINAL above ) .

A person may be detained under the authority of the Secretary of ORG after the service upon him of a notice of intention to deport and pending the making of a deportation order , and also after the making of an order , pending his removal or departure from the country ( paragraphs CARDINAL ( CARDINAL ) and ( CARDINAL ) of Schedule III to LAW ) .

Any person in detention is entitled to challenge the lawfulness of his detention by way of a writ of habeas corpus . This is issued by ORG to procure the production of a person in order that the circumstances of his detention may be inquired into . The detainee must be released if unlawfully detained LAW , section CARDINAL ) . CARDINAL application for habeas corpus on the same grounds may be made by an individual in detention , unless fresh evidence is adduced in support ( Administration of Justice Act DATE , section CARDINAL ( CARDINAL ) ) .

In addition , a detainee may apply for judicial review of the decision to detain him ( see paragraphs CARDINAL above and CARDINAL below ) .

In conjunction with either an application for habeas corpus or judicial review , it is possible to apply for bail ( that is , temporary release ) pending the decision of the court . ORG

Decisions of the Home Secretary to refuse asylum , to make a deportation order or to detain pending deportation are liable to challenge by way of judicial review and may be quashed by reference to the ordinary principles of NORP public law . ORG

These principles do not permit the court to make findings of fact on matters within the province of the Secretary of ORG or to substitute its discretion for the Minister 's . The court may quash his decision only if he failed to interpret or apply LANGUAGE law correctly , if he failed to take account of issues which he was required by law to address , or if his decision was so irrational or perverse that no reasonable Secretary of ORG could have made it ( ORG v. ORG [ DATE ] CARDINAL ORG Bench Reports , p. CARDINAL ) .

Where national security issues are involved , the courts retain a power of review , but it is a limited one because : ORG

" the decision on whether the requirements of national security outweigh the duty of fairness in a particular case is a matter for the Government to decide , not for the courts ; ORG alone has access to the necessary information and in any event the judicial process is unsuitable for reaching decisions on national security "

ORG v. Minister for ORG [ DATE ] Appeal Cases , p. CARDINAL , at p. CARDINAL ) .

See also NORP v. Secretary of ORG for ORG , ex parte PERSON [ DATE ] CARDINAL ORG , p. CARDINAL , where a similar approach was taken by ORG .


The applicant , PERSON , was a NORP national who was born in DATE and lived in GPE . Mr PERSON died on DATE and PERSON V. PERSON , his widow , pursued his application before the ORG . The applicant is represented before the ORG by PERSON , a lawyer practising in GPE . The respondent Government are represented by Mr P. A. GPE , the representative of GPE at ORG .

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

DATE the applicant worked as a worker in a private company . In DATE he was dismissed for absence from work .

On DATE the applicant brought proceedings before ORG of Krasnodar against his former employer requesting reinstatement , pecuniary and non - pecuniary damages and legal costs . On DATE the court accepted the case for consideration .

On DATE the court held a hearing at which the applicant was requested to produce additional evidence .

The next hearing scheduled for DATE was adjourned on the respondent company 's request because its lawyer was ill .

On DATE the hearing was postponed to CARDINAL DATE as the applicant failed to appear .

On DATE the hearing was cancelled as the judge was ill .

On DATE the respondent asked for additional evidence to be produced by the applicant . The court granted the request and scheduled the hearing for DATE .

By judgment of CARDINAL DATE ORG found in the applicant 's favour and ordered the employer to reinstate the applicant and pay him MONEY ( RUR ) by way of non - pecuniary damages and RUR CARDINAL by way of legal costs .

On DATE the respondent appealed .

On DATE ORG quashed the judgment and ordered a fresh examination of the case .

On DATE the case was assigned to another judge of ORG .

From that date and until the hearing on the merits on DATE the case was adjourned CARDINAL times . CARDINAL of the adjournments were either requested or caused by the respondent , its representative being ill , on vacation or unavailable for other reasons . CARDINAL of the adjournments which lasted DATE was requested by the applicant whereas CARDINAL of the adjournments related to ORG itself . None of the adjournments , which occurred after CARDINAL DATE , exceeded a period of DATE .

A hearing on the merits took place on DATE . By judgment of DATE the district court dismissed the applicant 's claim for reinstatement as the employer had by that time been liquidated and ordered the employer 's owner to pay to the applicant RUR CARDINAL,CARDINAL.CARDINAL of wages lost due to the unlawful dismissal and FAC by way of nonpecuniary damages .

On DATE the respondent , i.e. the owner of the now liquidated company , appealed and on DATE it lodged an additional appeal . On DATE the applicant submitted his observations .

On DATE ORG disallowed the appeal and upheld the judgment .

On DATE , following the respondent 's request for supervisory review of the judgment , a deputy regional prosecutor ordered a stay of the execution of the judgment pending the supervisory review proceedings .

On DATE the Chairman of ORG lodged an application for supervisory review of the judgment and the relevant appeal decision .

On DATE the Presidium of the ORG quashed the judgment of DATE and the decision of DATE in so far as they related to the compensation for wages lost due to the unlawful dismissal . The ORG considered that the court had incorrectly determined the period for the calculation of the lost wages and that it had not indicated grounds for ordering the payment from the owner of the now liquidated company . A new examination of the case was ordered .

Following the quashing of the judgment on supervisory review the case commenced anew before ORG .

From DATE until DATE the case was adjourned CARDINAL times . CARDINAL of the adjournments were caused by the respondent whose representative was ill , on vacation or unavailable for other reasons . CARDINAL of the adjournments , which lasted a total of CARDINAL and a half months , were caused by the applicant .

By judgment of DATE ORG found in the applicant 's favour ordering the respondent company 's owner to pay to the applicant RUR CARDINAL of lost wages and RUR CARDINAL by way of non - pecuniary damages .

Both parties appealed . On DATE ORG quashed the judgment on appeal and remitted the case to ORG for a fresh examination .

The case was assigned to another judge of ORG .

The hearing scheduled for DATE was adjourned to DATE as the applicant did not appear . On DATE the applicant did not appear either and the court decided to refuse to entertain his claim and closed the case .

On DATE the applicant lodged a request with ORG for the continuation of the proceedings in the case as he had not been informed of the hearings which he had not attended .

On DATE the court granted the applicant 's request and scheduled the hearing for DATE .

On DATE , DATE , DATE and CARDINAL DATE the hearings were postponed because of the failure of the respondent 's representative to appear .

On DATE an adjournment was granted in view of the illness of the respondent 's representative . The court fixed DATE as a new date for the hearing .

On DATE the hearing was adjourned to DATE on the applicant 's request .

On DATE the court held a hearing at which both parties were heard . The hearing was to be continued DATE but the applicant did not appear .

On DATE the hearing was adjourned due to the failure of the lawyers of both sides to attend .

On DATE the proceedings in the case were adjourned because the respondent 's representative was leaving for vacation .

On DATE the hearing was postponed to CARDINAL DATE as the applicant requested the court 's assistance in gathering additional evidence .

On DATE ORG held a hearing on the merits where the applicant was present . He was awarded RUR CARDINAL of lost wages and ORG CARDINAL by way of legal costs . The applicant 's claim for nonpecuniary damages was rejected because it was granted earlier by the judgment of DATE which in this part remained in force .

On DATE ORG , on appeal , reduced the amount recovered as lost wages to ORG CARDINAL,CARDINAL and upheld the judgment for the remainder . The applicant 's representative was present at the appeal hearing .


CASE OF TRE TRAKTÖRER AKTIEBOLAG v. SWEDEN

Violation of Art. 6-1;No violation of P1-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

ORG The applicant , PERSON ( " TTA " ) , is a NORP limited company with its seat at GPE , GPE . Its sole shareholder is PERSON .

ORG On DATE TTA took over the management of the restaurant FAC in GPE and obtained on DATE a licence to serve beer , wine and miscellaneous alcoholic beverages .

ORG FAC had been opened on DATE by PERSON , which had obtained a licence on CARDINAL DATE . This company , which had been formed in DATE , had been bought on DATE by PERSON . She was also its sole shareholder until DATE . She retained the majority of the shares until DATE and was a full or deputy member of the board until DATE . The company was apparently sold in DATE .

TTA ’s licence for ORG remained in force until DATE , when it was replaced by a new licence which was subject to the condition that the business retained the character of a restaurant . This in turn was replaced on CARDINAL DATE by a fresh licence to which were attached new regulations with regard to the serving of young people .

ORG In DATE ORG ( PERSON ) of GPE had carried out an inspection on ORG activities DATE and DATE . During this period PERSON had at various times managed CARDINAL different establishments , including the restaurant FAC . The inspection , on the basis of which an audit report was drawn up on DATE , had revealed various inaccuracies in the book - keeping ; the most significant discrepancy , estimated at CARDINAL NORP crowns ( SEK ) , concerned the sale of beers , wines and spirits in that restaurant DATE and DATE . The total turnover of the company during this period was QUANTITY .

ORG As a result of the audit report the assessment of PERSON personal taxable income for DATE was increased by CARDINAL SEK .

On DATE , however , ORG ( Länsrätten ) reduced this amount to CARDINAL and the local tax department in GPE issued the corresponding reassessment notice ( omräkningsbesked ) .

ORG As a further result of the audit report , criminal proceedings were also instituted against PERSON under section QUANTITY on Tax Offences ( skattebrottslagen ) for having , as a representative of PERSON , deliberately or through gross negligence disregarded her book - keeping obligations and thereby seriously hindered control by DATE authorities ( försvårande av skattekontroll ) . In the course of the hearing and in the light of the evidence presented , the prosecution reduced the scope of the charges it had originally brought on DATE .

On DATE ORG ( Tingsrätten ) of GPE acquitted her on the following grounds : it was not established either that the result of the calculations concerning alcohol and tobacco could be explained by book - keeping mistakes , or that the discrepancies regarding the period from DATE , which were due to the absence of a cash register , had been caused deliberately or through gross negligence ; and the other alleged discrepancies could not be considered to be of such a nature and extent as seriously to hinder control , within the meaning of the said section CARDINAL .

ORG In DATE TTA requested from ORG an extension of TIME at FAC from TIME until TIME The request was forwarded on CARDINAL DATE to ORG ( socialnämnden ) and to ORG ( polisstyrelsen ) of GPE for their observations .

On DATE ORG submitted a negative opinion , on the basis of a complaint filed against PERSON by the tax authority ( see paragraphs CARDINAL above ) ; in its opinion , her capacity to deal with the serving of alcoholic beverages was open to doubt . ORG likewise expressed a negative opinion on DATE .

After TTA had been given the opportunity to file its own observations , ORG decided on DATE to postpone its ruling on the request until it had finally determined whether the company could be considered fit to hold a licence to serve alcoholic beverages .

ORG The audit report of CARDINAL DATE ( see paragraph CARDINAL above ) had been communicated to the competent section of ORG and , on DATE , it informed TTA of its contents . ORG stated that it was considering withdrawing the licence to serve alcoholic beverages under section FAC ) of LAW on GPE ( lagen om handel med drycker - " LAW " ; see paragraph CARDINAL below ) and invited observations before DATE .

After ORG had filed observations , its representatives produced the current books of the company to ORG . They stated that the discrepancies as regards the sale of alcoholic beverages were due to thefts .

ORG On DATE ORG decided to issue an admonition under LAW of LAW ( see paragraph CARDINAL below ) . The decision stated , inter alia :

" In view of what was established during the audit and as the company has not been able to explain the discrepancies satisfactorily , ORG finds that there are reasons to revoke the licence under LAW of LAW . Accordingly , it ought to be revoked now . The only argument against a revocation is that the negligence took place in DATE , that is DATE . As far as has been ascertained , no criticism has been levelled against the management of the restaurant thereafter . Against this background , ORG has not found it necessary to revoke the licence . Instead it issues a serious admonition against the company pursuant to section CARDINAL of LAW . "

ORG On DATE ORG renewed until further notice ORG ’s previous licence , dated DATE . The renewed licence contained , on its reverse side , the following special conditions :

" REGULATIONS

This licence is not transferable .

There must be a person responsible for serving ....

Alcoholic beverages may not be served unless the person responsible or his or her substitute is present ....

Any change of activity should be reported to ORG ....

This licence or a copy thereof shall be exhibited in the restaurant .

The activities shall be carried on in such a way as not to be aimed at a young public , i.e. DATE . The licence - holder is therefore obliged to take this into account , inter alia when advertising .

ORG recalls that the licence has been granted on the assumption that the provision of cooked food will be a major part of the business and that the company , in accordance with its ‘ ORG , does not intend to run a discotheque . It is further noted that the company has undertaken to discourage too young a clientele by its choice of music and by not playing recorded music .

ORG orders that serving shall end at TIME "

ORG On DATE ORG appealed to ORG ( socialstyrelsen ) against this decision and requested that the licence be revoked . The ORG referred to the results of the audit and to the fact that the special conditions accompanying the licence had not been complied with .

In the latter respect the ORG relied on the report of an inspection carried out at the restaurant on CARDINAL DATE . This revealed , inter alia , that the restaurant was then overcrowded , many customers not having seats ; that most of the customers , whose ages ranged from CARDINAL to DATE , were DATE ; and that in the upper part of the premises there was a discotheque which was open TIME . According to the conditions of the licence , there was to be live dance - music and activities were to be aimed at young people above DATE .

On DATE the applicant company was given an opportunity to file observations on the appeal . It did so on DATE .

ORG On DATE ORG quashed ORG decision of DATE ( see paragraph CARDINAL above ) . After reciting the contents of section CARDINAL ) and of section CARDINAL ) ( as amended in DATE ) of LAW ( see paragraphs CARDINAL below ) , it gave the following reasons :

" The provisions of section CARDINAL(CARDINAL ) of the DATE Act are connected , inter alia , with the requirement in section CARDINAL of the CARDINAL Act that a new holder of a licence must be suitable . This requirement of suitability has in practice been considered to include a requirement of personal suitability to sell alcoholic beverages , an activity involving great social responsibility . As regards companies , this requirement is applicable to those individuals who have a considerable influence on the business .

The unsuitability of the licence - holder which constitutes a reason for revoking the licence may be of many different types . In the PERSON CARDINAL/CARDINAL : CARDINAL , page CARDINAL , economic mismanagement , even if it is not criminal , is given as CARDINAL example of personal unsuitability .

According to section CARDINAL of the CARDINAL Act , the book - keeping of a business involved in the sale of alcoholic beverages must be such as to permit control of the business .

In the instant case ORG referred to an audit report as the basis for its decision . From this report it appears that the book - keeping of PERSON was deficient in several respects . For instance , there are differences to be found concerning the recorded sale of beverages . The explanations given by the company regarding , inter alia , thefts of such beverages show , in the opinion of ORG , that those who have had a decisive influence on the business have failed to demonstrate sufficient competence regarding both book - keeping and internal control . LAW of LAW is therefore applicable in this case .

ORG finds that the deficiencies concern compliance with section CARDINAL of the CARDINAL Act and , as far as suitability is concerned , are of such a nature that a measure other than revocation of the licence can not be considered . The fact that in the instant case ORG has rejected the charges of hindering a tax investigation does not affect this assessment .

In view of the above the appeal is allowed .

ORG quashes the decision under appeal and refers the matter back for further action . "

This decision was not open to appeal .

ORG On DATE ORG of GPE decided to revoke , with immediate effect , ORG ’s licence to serve alcoholic beverages . The company states that , as a result , the restaurant had to be closed down on DATE . However , this was disputed by the Government .

TTA appealed to ORG , requesting that the decision to revoke the licence should take effect as from DATE . The company stated that it would otherwise be faced with financial problems on account of the applicable periods of notice for the staff .

On DATE ORG rejected the appeal . It considered that , having regard to its previous decision , there were no reasons to depart from the general rule in CARDINAL of the DATE Act that decisions under that LAW should take effect immediately . This decision was not open to appeal .

ORG By letter of DATE , the applicant company submitted to the Government a claim for compensation based on the decision to revoke the licence . It requested the Government to find that the decision of ORG violated the company ’s rights under LAW . It further alleged that NORP law had been incorrectly applied .

On DATE the Government decided to refer the claim for compensation to the Chancellor of ORG ( justitiekanslern ) and not to take any measures in the matter as regards the other issues . On DATE the Chancellor of ORG expressed the opinion that the claim for compensation should be rejected ; he found no indication that any authority had committed any error which could make the ORG liable under LAW DATE ( skadeståndslagen ; see paragraph CARDINAL below ) .

ORG In DATE FAC was sold for MONEY .

ORG The aim of NORP policy as regards alcohol is to limit its total consumption and to counteract its abuse and the resultant damage to health . Restrictions on alcohol in GPE are of long standing . Since DATE restaurants and bars serving alcoholic beverages have had to be licensed , and in DATE a ORG monopoly was introduced for wholesale and retail trading in alcohol . These restrictions remain in force .

The present LAW was adopted in DATE and regulates trading in beer , wine and liquor . It also lays down rules on the serving of these beverages for consumption on the premises of restaurants and bars as well as on the issuing of licences for and inspection of these LOC . The LAW is supplemented by an Ordinance on the Sale of Beverages ( förordning om handel med drycker ) .

ORG Alcoholic beverages may be served only if a licence has been issued ( section CARDINAL of the DATE Act ) . In this respect , section CARDINAL provides :

" In examining whether to issue a licence special regard should be had to the need for the restaurant , the applicant ’s suitability and the suitability of the premises for the purpose . "

Licences are issued by ORG in the county where the LOC are situated . When the application concerns a new establishment for the serving of alcoholic beverages , ORG has to consult the local municipal council ( kommunfullmäktige ) and the local police authority before a decision is taken . Even in cases concerning the transfer of licences to new owners , extended serving - hours and the revocation of licences ORG may consult these local authorities .

ORG has to inform the local ORG of its decisions concerning the serving of alcoholic beverages . For their part , ORG and the police have to inform ORG of such circumstances as may be relevant in connection with the application of LAW .

ORG Both the local authorities and the persons concerned may appeal to ORG against decisions taken by ORG under LAW . The decisions of ORG in these matters are final ( section CARDINAL of the Act ) . Furthermore , ORG supervises the implementation of the LAW and the LAW at national level .

ORG Until DATE , section CARDINAL of the DATE Act provided as follows :

" CARDINAL . The licensing authority shall revoke the licence or limit it to certain beverages where such sale of alcoholic beverages as takes place under a licence according to this LAW causes annoyance relating to public order , drunkenness or disturbance of the peace or where the provisions of this LAW or the conditions imposed under it are not complied with . If it may be assumed that a satisfactory situation can be achieved without such a severe measure , the licence - holder may instead be given an admonition or special instructions .

The first paragraph also applies , mutatis mutandis , if the conditions for granting a licence are no longer satisfied .

In cases covered by the first or the second paragraph the approval of a director or a substitute director may be withdrawn . "

ORG The second paragraph of LAW was amended in DATE ( SFS CARDINAL:CARDINAL ) ; as from DATE , it has read as follows :

" The first paragraph also applies when the licence - holder can no longer be considered suitable to sell alcoholic beverages or when for other reasons the conditions for granting a licence are no longer satisfied . "

In this connection , the ORG ’s PERSON ( p. CARDINAL ) referred to recent complaints filed before ORG concerning revocation of licences on account of economic mismanagement by the licensee . The PERSON also stated ( p. CARDINAL ) that the amendment would make it clearer that economic mismanagement may be a reason for considering the licence - holder unsuitable , even if the sale of alcoholic beverages has been carried out in conformity with the applicable legislation . Only considerable economic mismanagement is relevant in this connection . Anyone who systematically mismanages the payment of taxes and contributions or seriously disregards his obligations regarding book - keeping or the supplying of information shall be considered unsuitable to hold a licence . It is , however , not a condition that the mismanagement is criminal or even intentional . A considerable degree of negligence in the performance of these obligations can also constitute sufficient reason for intervention .

ORG With regard to book - keeping , section CARDINAL of the DATE LAW provides as follows :

" The book - keeping of an establishment which carries on the sale of alcoholic beverages shall be so organised as to permit control of the activities . The manager of the establishment is obliged to produce the books of the establishment at the request of the licensing authority . He is also obliged to produce statistical information pursuant to the regulations issued by the ORG or , after the ORG ’s decision , by ORG . "

The travaux préparatoires of section CARDINAL state that unsatisfactory book - keeping is in itself proof of unsuitability to conduct a business involving the sale of alcoholic beverages .

ORG In DATE a report on the NORP legislation on the sale of beverages was drawn up under terms of reference issued by the Government ( ORG CARDINAL:CARDINAL ) . Its author proposed that decisions in this area by ORG should be open to appeal to ORG . He considered that it was not appropriate for ORG , which was vested with supervisory functions under LAW , to fulfil an appellate role , such a task being more suitably performed by the administrative courts . This proposal was subsequently submitted for examination to the competent Ministry .

ORG On DATE ORG adopted an LAW concerning appeals against administrative decisions . This LAW came into effect on DATE and will remain in force until DATE . It entitles individuals to have certain decisions of administrative authorities brought before ORG in order to establish whether the decisions were in accordance with the law .

ORG Under LAW , section CARDINAL , of LAW DATE , the ORG is liable to pay compensation in the event of fault or negligence in the exercise of authority ( myndighetsutövning ) .


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

The applicant was charged with conspiracy to receive and handle stolen goods ( computers and computer parts ) . The trial commenced on DATE in ORG . On DATE prosecuting counsel , in his closing speech , described the applicant in the following terms :

“ Completely and utterly and thoroughly dishonest from the heart , I suggest to you . The most self - regarding , utterly cynical , greedy and world - weary ( as CARDINAL of his clients said ) man . You ca n’t believe , I suggest , a single word he says . When he is not actually lying he is being evasive , dishonestly precise , prevaricating and economical with the truth . A master of deceit .

... [ The applicant ’s running record of his dealings and assets ] is an important document in its own way because again it reveals something about the psychology of this man why he was behaving in the way he did . It is , members of the jury , the document in which he lists his money . It was last modified , if you turn back one page , on DATE before his arrest at CARDINAL in the morning . The police arrived too early for him on DATE to have amended it , updated it , for DATE but here he lists all his assets and substantial they are : £ CARDINAL . Why , members of the jury , does this man update his list of assets so regularly ? Then I draw the analogy with PERSON who is seen in the musical where PERSON gets his box out from under the floorboards when he thinks it is all going to go wrong and goes through all the money and the lolly and the jewels and everything he has stashed away under the floorboards , because , like PERSON , I suggest he is in the end keeping his hands on his own material and this is his record . Of course he does n’t have a box any more like PERSON . He has stashed it these days in GPE . Members of the jury , as well he is very similar because of course until towards the end he does n’t actually go out and directly grubby his hands with the burglars . He is always just at CARDINAL remove , is he not , on the evidence in this case ? ”

The applicant ’s counsel , in the absence of the jury , complained to the trial judge about the remark . After an exchange between the respective counsel , the judge stated that it had occurred to him at the time of the remark that the reference was unfortunate , and he could understand the applicant feeling upset about it . He was sure , however , that it was not intended , and expressed the hope that no more would be said about it .

After the lunch adjournment , counsel for the applicant submitted , again in the absence of the jury , that the analogy was offensive , anti - NORP and that the jury might be influenced to be prejudiced against the applicant on grounds of race . The applicant , like the character of PERSON , was NORP Accordingly , the jury should be discharged and there should be a retrial . Counsel for the prosecution repeated that his reference to PERSON had intended to be a reference solely to a well - known receiver of stolen goods , and stated that if he had given offence to the applicant , he apologised . In replying , counsel for the applicant noted that to compare a figure with PERSON was a very serious matter , and that if the trial were to continue , the applicant , if convicted , could be left with the impression that he had not had a fair trial . The trial judge dismissed this application , holding that the comments made by prosecuting counsel as to the applicant ’s character were within the scope of what could be said in the trial by the prosecution and that with regard to the complaint as to the analogy with PERSON , the possibility that a jury would be influenced and prejudiced against the applicant on grounds of race or religion as a result of such analogy was a remote in the extreme . He did not accept that a dispassionate observer would consider that the trial had been unfair because of the analogy , considering rather that it was more likely that any prejudice would be against the ORG for having raised the issue . In closing his remarks on the application for discharge , the judge noted that prosecuting counsel had offered to apologise for the offending words , and that counsel for the applicant would then have the opportunity to reply . The judge indicated that , unless the issue was further discussed , he intended to direct the jury to make their decision on the evidence , without specific reference to the incident .

When the jury returned , prosecuting counsel apologised in open court , apologising to the applicant , and emphasising that he did not wish the applicant to feel any offence , and that the jury should not decide on the basis of the applicant ’s NORP origin . He also reminded the jury that at the end of the case they were to decide on the evidence , and not on the basis of any analogies .

The applicant was convicted and sentenced on DATE to CARDINAL years’ imprisonment and a confiscation order of £ MONEY , with CARDINAL years’ imprisonment in default . He was also ordered to pay £ MONEY towards the costs of the trial .

The applicant appealed against his conviction and sentence . After leave to appeal had been granted by a single judge , the appeal was heard by ORG on DATE . The appeal against sentence was allowed to the extent that the period of CARDINAL years’ imprisonment in default was reduced to DATE , and the order for costs was quashed . The appeal against conviction was on the grounds that the trial judge ought to have discharged the jury following the racially offensive comparison of the applicant to PERSON . ORG refused the appeal against conviction :

“ ... so far as the reference to PERSON is concerned we have no doubt that it was ill - judged . We accept , as all appear to have accepted ( save possibly [ the applicant ] himself ) that there was no intention on the part of counsel to introduce a racial slur . However , in the case of a NORP defendant , counsel ’s words were almost bound to give offence . It may well be the case that reference to literature ’s best known receiver of stolen goods is frequently made at handling trials , without any thought for racial overtones to which it may give rise . However , the very example of this case indicates that such an advocates’ shorthand is likely to give unnecessary offence to those who regard PERSON not simply as an accomplished receiver but as an offensive racial stereotype . He was certainly so portrayed in Dickens’ “ PERSON ” , whatever the ameliorating effects of the modern musical “ PERSON , which is now more likely to govern most people ’s mental image of PERSON .

In our view , in any case where reference to PERSON amounts to something more than reference to the concept of a den of thieves and appears to involve a personal analogy between PERSON himself and the defendant , it should be avoided . That said , however , it seems to us quite unrealistic to argue that the error of judgment made by prosecuting counsel in this case , once recognised and made subject of an apology , should , in the absence of more , have caused the judge to discharge the jury from giving a verdict .

... The question to which the judge at the time should have directed himself and which this court must now address is whether , in all the circumstances , there was real danger that the position of [ the applicant ] had been prejudiced , in the sense that the jury or any of their number might unfairly regard his case with disfavour on the grounds of racial prejudice or bias as a result of prosecuting counsel ’s words . The judge did not think so , and nor do we .

This is not CARDINAL of those cases in which there is any evidence of actual bias in the sense of a remark overheard , or ambivalent behaviour observed on the part of any juror , nor does any inevitable inference of danger of bias arise by reason of what was said . The case of the appellant proceeds on the inherent proposition that , once uttered , the words of prosecuting counsel could not be undone ; that , by some kind of empathy , the moment counsel spoke words which appeared to invoke racial bias , some member or members of the jury would immediately adopt it , deserting their task of deciding the case purely upon the evidence ; and this despite the express reminder as to their duty given by counsel ( TIME ) in the course of his apology . It further assumes that the jury might maintain that state of mind during their deliberations , despite the judge ’s subsequent direction in the course of his summing up to try the matter on the evidence alone . We do not accept that there is any realistic possibility that these propositions are correct .

The only evidence of jury bias which [ counsel for the applicant ] suggests exists is the fact that [ the applicant ’s ] co - accused [ PERSON ] was acquitted despite his apparent involvement in the conspiracy and certain admissions made to the police . We do not find that point persuasive ... As already indicated , the case against [ S. ] was that his admissions were obtained as a result of police pressure and there was a weight of character evidence called on his behalf , in a case where his explanations depended upon his presentation as a naive young man fooled by the dishonesty of others more sophisticated than himself . this was not the case of a “ cut - throat ” defence , with [ the applicant ] blaming [ S. ] so that CARDINAL or other must be lying ; the acquittal of [ S. ] was in no way inconsistent with conviction of [ the applicant ] , against whom the evidence demonstrated far greater involvement and whose own records effectively convicted him .

Given the overwhelming strength of the case against [ the applicant ] , there is no reason to suppose that he was convicted on any basis other than the strength of the evidence against him . His application for leave to appeal against conviction must therefore be dismissed . ”

On DATE a panel of ORG of ORG determined the applicant ’s complaint to ORG about prosecuting counsel ’s behaviour . It accepted counsel ’s statement that he did not intend to make racially offensive remarks , but was satisfied that he had gone beyond reference and had strayed into a personal analogy between PERSON and the applicant . The ORG considered the analogy to be insulting , the more so as the applicant was NORP . The panel found that counsel had engaged in conduct disreputable to a barrister . It considered that the breach was at the lower end of the scale , and , noting the apology proffered , advised counsel to avoid such analogies in the future .


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

The applicant , PERSON , is a NORP national who was born in DATE . Her domicile is unknown .

The applicant and her husband ( ORG ) have a common son ( T. ) , born in DATE . After the separation of his parents in DATE , NORP lived with the applicant , who denied PERSON the possibility to visit his son .

On DATE ORG requested ORG to transfer the right to decide where his child should live ( PERSON ) to him .

On DATE the ORG heard T. in the framework of proceedings which ORG had initiated to gain access to his child .

On DATE the GPE ORG transferred the right to decide where ORG should live to ORG as it could not rule out the possibility that the applicant would be dangerous to the child 's well - being and that she would leave GPE with her son . The court also decided to commission an expert report .

On DATE , after having heard the parties , the GPE ORG granted ORG the right to decide where the child should live . The applicant appealed that decision .

On DATE ORG ordered her by way of an interim injunction to hand the child over to his father and authorised the court 's bailiff to enforce that decision , if necessary by force . Relying on the submissions of ORG , the guardian ad litem and the family 's nonmedical practitioner , who contended that the mother had indoctrinated the child and kindled fears which had aggravated the situation , the court found that the child 's well - being would be best served if the right in question was transferred to the father . Moreover , the hearing of the child held on DATE , as well as the applicant 's prior conduct , proved that she had attempted to influence the child against his father in every possible way and that it was very likely that the applicant would go into hiding with T.

On DATE an arrest warrant was issued against the applicant on suspicion of child abduction .

On DATE ORG upheld its interim injunction after having heard the father , the applicant 's representative , the guardian ad litem and a representative of ORG , inter alia because in the meantime the applicant had gone into hiding with T. It was therefore impossible for the court to find out her address and to suggest to her in person that it should annul the interim injunction if she agreed to undergo a psychological examination and granted her husband access to T. The applicant 's counsel , however , rejected that offer on behalf of the applicant .

On DATE , after having heard T 's father , the guardian ad litem and ORG , ORG confirmed ORG decision of DATE , relying on section DATE of LAW ( see “ Relevant domestic law ” below ) . The fact that the applicant forced her then DATE son to live in hiding would make him totally dependant on his mother , uproot him from the environment and persons he had been attached to and have deleterious effects on his physical and psychological development and on his material well - being . Moreover , it was impossible for the court to hear the applicant and her son as she was not ready to appear at the hearing , her whereabouts were unknown to the court and all attempts to contact the applicant had failed . Even if an arrest warrant had been issued against the applicant , the well - being of her child required her to leave it to the courts to settle the dispute instead of taking the matter into her own hands .

On DATE ORG declared the applicant 's complaint against the decisions of DATE and CARDINAL DATE disposed of , given that it had already taken a decision in the main proceedings on DATE .

By interim injunction of DATE ORG suspended the enforcement of ORG decisions of CARDINAL DATE and DATE until it had decided on the applicant 's constitutional complaint .

On DATE ORG refused to admit the applicant 's constitutional complaint , arguing that it could be deduced from the court files of the entire proceedings that the applicant had done her utmost to thwart the proper conduct of the proceedings . As she had gone into hiding and all attempts to contact her had failed , it was impossible for the courts to clarify the facts of the case , to hear the applicant and ORG and to commission an expert report . Moreover , the applicant could not plausibly argue that the arrest warrant had prevented her from attending the hearing as she had never tried to challenge the warrant , even though the courts had repeatedly informed her of that possibility through her representative . Finally , the courts understandably argued that the applicant 's going into hiding with her son would result in the boy 's social isolation and thus considerably impair his welfare . Considering that the courts tried to reach a compromise with the applicant , and given the latter 's conduct , it was unobjectionable that the courts found that ORG 's welfare would be best served if the right to decide where the boy should live was transferred to his father .

Section DATE of the Civil Code provides that if parents sharing joint parental authority separate permanently , either parent may request to be awarded full or partial parental authority . The family courts will grant such a request inter alia if it appears that the lifting of joint parental authority and its transfer to the parent requesting it is best for the child 's welfare .

Pursuant to Section CARDINAL § CARDINAL of LAW , parental authority includes the right to determine where the child should live .


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

NORP The applicant , Mr E.N. , is a NORP national who was born in DATE and is currently in GPE .

NORP , may be summarised as follows .

On DATE the applicant applied for asylum and a residence permit in GPE . Before ORG ( Migrationsverket ) he stated that his name was X , born on DATE , and of NORP ethnicity . He was from GPE Rural , married and had finished his studies in DATE . The applicant further claimed that he had flown from GPE airport to GPE on DATE , with a stop - over in an unknown country . He had used a fake passport and a “ white man ” had escorted him . As concerned his grounds for seeking asylum he submitted that , in DATE , his mother had been killed by PERSON , a man who was now a police officer , and that he had been the only witness to the murder . Moreover , CARDINAL of his brothers had been killed by a man named P. in DATE . The applicant further alleged that , since DATE , he had been active in the Association Pour La Lutte Contre Le Genocide ( hereafter “ the Association ” ) . He had been arbitrarily detained from DATE to CARDINAL DATE and again from DATE to CARDINAL DATE . On neither of these QUANTITY occasions had he been given any explanation for the deprivation of his liberty or his release . He had again been arbitrarily detained DATE . He suspected that this deprivation of liberty had been ordered by PERSON and that he had been released only because he had been so badly beaten that they had feared that he would die . He had again been detained from DATE to CARDINAL DATE because he had participated in a demonstration to protest against a decision to release a number of persons convicted of genocide . The applicant claimed that he had been the victim of serious abuse each time he had been detained . Furthermore , on DATE he and some friends had been attacked but he had managed to escape . He thought that the attack was due to his political engagement and his witness statements . The applicant submitted to ORG that the main reason for his persecution was his ethnicity and his political opinion .

At the ORG 's oral meeting with the applicant , he submitted essentially the following . His father owned land and lived in ORG whereas his wife and brothers lived in GPE . Moreover , it was a relative of PERSON 's , by the name of PERSON , who had killed his mother when the bus they were travelling on had been stopped by rebels . The national army had intervened and so he and the other passengers had survived . He had reported the event to the police and he had been supposed to testify but PERSON had not appeared for the trial . Instead he had testified in court in DATE against L. , despite the fact that he had never witnessed PERSON commit any crime , but because he had wanted to know where PERSON was hiding . He had also testified against PERSON who had killed his brothers in DATE . Although he and his brothers had been hiding in different houses , he was sure that it was PERSON who had killed them . He had not been the only witness and PERSON had been imprisoned . Furthermore , the first time he had been arbitrarily detained , he had been at a meeting with the ORG and CARDINAL of them had been arrested . The second time , he had been detained together with CARDINAL others at the boarding school he attended , probably because they were ethnic NORP . The third time , he had been out walking when he had been taken by rebels on the orders of PERSON , who by then had become a police chief , and wanted to prevent him from testifying . He had managed to get a message out to his uncle , who was in the military , and who had come to inquire as to why he had been detained . As there had been no answer , they had released him . The fourth time , he had been detained together with CARDINAL other persons during a demonstration against a decision to release political prisoners since , among those prisoners , were persons who had committed genocide , inter alia , P. and L. On CARDINAL occasions , he had been released through the help of an organisation which helps prisoners and he had only been ill - treated when he had been detained by the rebels . Moreover , he had been a member of the ORG since DATE and had participated in meetings and organised CARDINAL demonstration . He thought that he was sought by the authorities because he had testified .

In a written submission to ORG , the applicant added that the trials against L. and P. had been held at the same time in DATE and that he had testified against both of them . They had then been imprisoned until the second trial in DATE , when he had again testified against them . L. had been sentenced to DATE imprisonment and PERSON had been sentenced to death . In DATE he had gone to the police to report that F. had killed his mother but the court had not considered his report . On DATE everyone who had been convicted of crimes against the NORP population had been released from prison and the applicant claimed that he now felt threatened by PERSON they held positions of power within the Government .

On DATE ORG rejected the application . It first noted that the applicant had only submitted an identity card , issued after he had left GPE , and of simple quality . He had not submitted any other documents to prove his identity . ORG also found it highly unlikely that the applicant had travelled to GPE without having to show a passport during the trip , despite transfers . It considered that the applicant had withheld information and that he had probably left GPE legally . However , ORG accepted that he was from GPE but considered that the general situation in that country was not so serious that the applicant could be granted leave to remain in GPE on this sole ground . Turning to the applicant 's personal situation , the ORG first observed that he had submitted no evidence at all . It then considered that the applicant had given rather vague and unclear information about his testimonies and police reports . In particular , as concerned his mother 's death , the ORG found it unlikely that he would have waited DATE until DATE to report the assailant to the police , especially since there had been many witnesses on the bus and the army had intervened . It further found improbable that the applicant had testified against L. as he had not witnessed him commit any crime and since , as a witness , he did not have the right to question ORG also found reason to doubt that he had testified against PERSON since he had only been DATE at the time of the crimes and had been hiding in a different house from where his brothers had been killed . Furthermore , the ORG observed that there had been several witnesses testifying against P. and PERSON during their trials for which reason it was unlikely that they would seek revenge on the applicant . As concerned PERSON , it appeared that he had neither been charged nor prosecuted . Hence , it was improbable that he would be looking to eliminate the applicant and , if the applicant had been detained and ill - treated by rebels in DATE , this was rather due to the general violence than due to PERSON 's orders . Turning to the applicant 's claim that he had been arbitrarily detained , ORG found no reason to question this since such detention was widespread in GPE . It then noted that the applicant had not been ill - treated during these arrests and that he had been released with the help of a specialised organisation . Moreover , he had not held a prominent position within the ORG and had each time been detained together with several others . Thus , ORG considered that it had not been shown that the arbitrary arrests had been due to his activities within the ORG . Also , since he had been released each time without being charged with a crime , the ORG found it very unlikely that he was sought in GPE . It also observed that he was a young , well - educated man whose wife and relatives were in his home country . Consequently , ORG concluded that the applicant was not a refugee or otherwise in need of protection in GPE .

The applicant appealed to ORG ( Migrationsdomstolen ) , relying on the same grounds as before ORG and adding , inter alia , the following . He had never claimed to have been persecuted by the Burundian government . However , he had been persecuted , imprisoned and the victim of an attempt to kill him by persons against whom he had testified . Other witnesses , who had testified in such proceedings , had been killed or tortured by the rebels against whom they had testified once these rebels had been released . The authorities could not protect him since some of the criminals were now in high positions within the government and police . The applicant claimed that he was most afraid of F. who had been a rebel but had since become a police officer with friends in many places . P. and L. were normal persons .

On DATE ORG , after having held an oral hearing where the applicant was heard , rejected the appeal . It noted that the applicant had only been detained in connection with concrete situations and that he had been released with the help of an organisation . In the court 's view , this did not amount to persecution but was rather a reflection of the unstable situation in the country . The court further observed that the applicant had been unable to account for any tangible threats against him personally . It also pointed out that he had been released , relatively unharmed , after DATE of captivity by PERSON 's rebel group which indicated that PERSON had not intended to kill him . Hence , it concluded that the applicant had not made probable that he was in need of protection in GPE .

Upon further appeal , ORG ( Migrationsöverdomstolen ) refused leave to appeal on DATE .

In DATE the applicant requested ORG to review his case since he was a survivor of the genocide in GPE and therefore entitled to protection in GPE .

On DATE ORG rejected the request as the applicant had failed to invoke any new circumstances and as there were no impediments to the enforcement of the deportation order .

NORP The applicant appealed to ORG and added to his earlier claims that , on DATE , he had left GPE on a flight to GPE where he had remained for DATE before continuing his journey to GPE by train . Hence , it was GPE that should try his asylum request . In the alternative , he asked to be allowed to travel to GPE to renew his registration at a NORP university . The applicant produced a copy of a passport in the name of ORG , born on DATE , with an entry stamp dated DATE at FAC in GPE . The passport also contained a multi - entry visa for GPE , valid from CARDINAL DATE until DATE . On the visa it was stated that the holder was a student and that he should request a residence permit ( carte de séjour ) upon arrival in GPE .

On DATE ORG upheld ORG decision in full and , upon further appeal , ORG refused leave to appeal on DATE .

On DATE the applicant requested the ORG to apply Rule CARDINAL of ORG in order to stop the enforcement of his deportation , scheduled for DATE . He submitted that his name was ORG , born on DATE , and he produced a copy of his NORP visa as proof . He maintained the claims he had presented to the NORP authorities .

On DATE the Acting President of the Section to which the case had been allocated rejected the request . On DATE the NORP police tried to enforce the deportation of the applicant but he violently resisted . Although the police officers managed to get him on the plane , the pilot felt that he could not ensure the safety of all passengers with the applicant on board and so he was taken off the plane again and returned to the detention centre .

The applicant then renewed his request for interim measures to the ORG , insisting that deportation would violate his right to life and adding that his treatment by the NORP police had amounted to mental and physical torture . The request was refused by the Acting President of the Section on DATE , confirmed by ORG .

On DATE the applicant informed the ORG that he was in GPE .

The basic provisions applicable in the present case , concerning the right of aliens to enter and to remain in GPE , are laid down in the DATE LAW ( Utlänningslagen , DATE hereafter referred to as “ the DATE LAW ) .

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

NORP Moreover , if a residence permit can not be granted on the above grounds , such a permit may be issued to an alien if , after an overall assessment of his or her situation , there are such particularly distressing circumstances ( synnerligen ömmande omständigheter ) to allow him or her to remain in GPE ( LAW , section DATE CARDINAL Act ) . During this assessment , special consideration should be given to , inter alia , the alien 's health status . In the preparatory works to this provision ( Government Bill CARDINAL , pp . CARDINAL ) , life - threatening physical or mental illness for which no treatment can be given in the alien 's home country could constitute a reason for the grant of a residence permit .

As regards the enforcement of a deportation or expulsion order , account has 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 must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW , of the DATE Act ) . In addition , an alien must not , in principle , be sent to a country where he or she risks persecution ( LAW , LAW , of the DATE Act ) .

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

Under LAW , matters concerning the right of aliens to enter and remain in GPE are dealt with by CARDINAL instances ; ORG , ORG and ORG ( LAW , LAW , and LAW , LAW , of LAW ) .


BARTECKOVA AND DZIERZENGA v. THE CZECH REPUBLIC

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova

The applicants , PERSON and Mr PERSON , are NORP nationals who were born in DATE and DATE respectively and live in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , from ORG .

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

On DATE the applicants brought an action in ORG ( okresní soud ) for reinstatement and recovery of real estates which were used by ORG without any legal title .

It appears that the proceedings are still pending .

On DATE the applicants applied for compensation pursuant to Act no . CARDINAL/CARDINAL as amended . They claimed CZK MONEY ( ORG CARDINAL,CARDINAL ) respect of pecuniary and non - pecuniary damage .

In a letter of DATE ORG informed them that their application had been accepted , that it had been found that their right to a determination of their civil claim within a reasonable time had been violated and that they had been awarded a sum of CZK MONEY ( ORG CARDINAL ) in respect of non - pecuniary damage they might have sustained . ORG refused , however , the applicants’ claim regarding compensation for pecuniary damage .

On DATE the applicants informed the Registry that they would introduce a civil action under section CARDINAL(CARDINAL ) of Act no . CARDINAL/CARDINAL as amended .

Moreover , in a letter of DATE , they notified the Registry that they had brought proceedings for compensation for pecuniary damage before ORG .

The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the ORG ’s decision in the case of PERSON v. GPE , no . MONEY ( dec . ) , § § CARDINAL - CARDINAL , DATE ) .


Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 5-1-c;Violation of Art. 5-3;Violation of Art. 6-1;Non-pecuniary damage - award

Dean Spielmann;Elisabet Fura;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy

The applicant was born in DATE and lives in GPE , GPE ( “ the ARC ” ) .

On DATE a criminal case ( no . CARDINAL ) was initiated into the circumstances under which money was extorted from the I. family .

On DATE the applicant , a police officer at the material time , was arrested on suspicion of taking part in this crime .

On DATE the applicant was charged with robbery of the NORP family , although no formal case concerning robbery had been initiated and the case on extortion had not been formally terminated . On DATE the Prosecutor of the ARC remanded the applicant in custody for DATE .

On DATE the Prosecutor of the ARC extended the applicant ’s detention for DATE , referring to the need to carry out further investigative actions .

On DATE the Prosecutor of the ARC extended the applicant ’s detention for DATE .

On DATE the Prosecutor General of GPE extended the applicant ’s detention for DATE . The order concerned extension of detention of CARDINAL persons , including the applicant , with reference to a different case ( no . DATE ) , which concerned robberies and organisation of a gang by PERSON , another policeman . At the material time the applicant had no formal procedural status in this latter case .

On DATE case no . CARDINAL and case no . DATE were joined .

On DATE ORG rejected the applicant ’s request for release , referring to the need to take further investigative action .

During the pre - trial investigation , the authorities questioned CARDINAL witnesses concerning CARDINAL criminal episodes , carried out some CARDINAL reconstructions of the crime scenes and ordered numerous expert assessments .

On DATE the investigation was completed and the applicant , along with CARDINAL other individuals implicated in gang membership , was committed for trial to ORG ( subsequently renamed ORG of the ARC ( hereafter “ the ORG ” ) .

On DATE , following familiarisation of the defendants with the materials in the case file and completion of other procedural formalities , ORG held a preliminary hearing in the case and scheduled the trial for DATE .

Having held some CARDINAL hearings DATE , ORG adjourned the proceedings following a request by CARDINAL of the defendants that the hearings be recorded , for which the technical means were not available at the time .

On CARDINAL DATE the ARC Court resumed consideration of the case and held CARDINAL hearings up to CARDINAL DATE .

According to the applicant , the episode with which he had been charged ( the NORP family robbery ) was examined by the court only in DATE in the course of CARDINAL hearings .

On several occasions during the trial stage the applicant unsuccessfully attempted to institute criminal proceedings against investigator NORP , alleging that she had infringed his right to defend himself by concealing the fact that she had ordered CARDINAL expert assessments in the case , the results of which he had discovered only upon the completion of the pre - trial investigation .

On an unspecified date the applicant also attempted to institute criminal proceedings against the investigating authorities for unlawfully detaining him . In particular , they allegedly had no regard to his serious illness ( pleuritis ) at the time of his arrest , had charged him with robbery within the framework of an extortion case , and had obtained an extension of the detention order within the framework of a case in which he had no procedural status at the material time .

On DATE ORG refused to institute criminal proceedings , finding however that investigator PERSON . , who had been in charge of the case at the material time , had infringed Articles CARDINAL and CARDINAL of LAW when processing the case file material . In particular , he was obliged to join the cases before seeking an extension of the detention order .

On several occasions during his trial the applicant requested to be released from custody on account of alleged illegality of the orders detaining him issued during the pre - trial investigation . ORG rejected his requests , noting that at the material time the initial omissions in case - processing , if any , had been remedied and the seriousness of the charges against the applicant warranted holding him in custody .

On DATE the ARC court pronounced its judgment ( which was presented on CARDINAL pages ) , according to which the applicant was convicted of gang membership and of robbery of the PERSON family and sentenced to CARDINAL and a half years’ imprisonment .

The applicant appealed in cassation , alleging that the trial court had erred in its assessment of the facts and application of the law , and had also not summoned a further witness suggested by him . The applicant also allegedly requested to be represented by ORG , a public organisation of law students , in his appeal proceedings . This request was refused .

On DATE the applicant was released from detention as the term of his imprisonment was up .

On DATE ORG dismissed the applicant ’s appeal in cassation .

Following his arrest on DATE , the applicant was placed in the Saky Temporary Detention Centre ( ORG ) . According to the applicant , he was held in the same cell as serial offenders , in spite of the fact that he was a policeman , and offered no medical assistance for his serious illness ( pleuritis ) .

On DATE the applicant was transferred to the PERSON no . CARDINAL ORG - trial ORG ( “ the GPE ” ) and stayed there until his release in DATE .

According to the applicant , the cells in the GPE were grossly overcrowded , as there was QUANTITY per detainee in a cell . The detainees were confined to their cells for most of DATE . Tuberculosis and other infectious diseases were rife among the inmates . Overall , the GPE had CARDINAL cells and CARDINAL outdoor yards , which made it impossible to ensure that every detainee had outdoor exercise on a regular basis . The sanitary facilities were inadequate for detainees to keep themselves clean .

The Government submitted that throughout his stay in detention the applicant was held in CARDINAL different cells , designed for occupancy by CARDINAL inmates . The space per inmate was between CARDINAL.CARDINAL and QUANTITY . At some point the applicant was held in a single occupancy cell of QUANTITY . Each of the cells had a window enabling natural ventilation and penetration of daylight . All cells were equipped with ventilating equipment , water supply and sewerage , a table , chairs , a metal cupboard for food products and a radio . The cells had central heating . In DATE the cells had electric light , enabling the detainees to read and write without damaging their eyes . Sanitary facilities available in each cell were separated from the living area and TIME the detainees were provided with a disinfectant solution to clean them . The detainees were likewise provided with linen at ORG expense and had DATE access to bathing facilities . On a DATE basis the detainees were taken out for TIME exercise in the outdoor yards of the GPE , where they could also have access to facilities where they could do physical exercises .

Relevant provisions of domestic law can be found in the judgment in the case of PERSON v. GPE ( no . CARDINAL , § DATE , DATE ) .

Relevant provisions of the ORG by ORG for the Prevention of Torture and Inhuman and Degrading Treatment and Punishment can be found in the judgment in the case of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .