CASE OF ARVELO APONTE v. THE NETHERLANDS

No violation of Art. 8;No violation of Art. 13

Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

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

On DATE the applicant flew from GPE to GPE . At the airport , NORP officials discovered QUANTITY of cocaine on CARDINAL of the applicant ’s travelling companions , on the basis of which the applicant and her companions were arrested . On DATE the GPE am ORG ( PERSON ) convicted the applicant of participation in the deliberate importation of QUANTITY of cocaine and sentenced her to DATE and DATE imprisonment . The applicant did not appeal the judgment . She was granted early release on DATE and , on DATE , was expelled from GPE to GPE . The NORP authorities did not impose an exclusion order on the applicant .

In DATE the applicant travelled as a tourist to the GPE where she met and started a relationship with a GPE national , Mr T. On DATE , a request for advice on her eligibility for a provisional residence visa ( machtiging tot voorlopig verblijf ) for the purpose of stay with NORP partner was filed on behalf of the applicant . Such a visa entitles the holder to enter the GPE in order to apply for a residence permit for a stay exceeding DATE . An application for a provisional residence visa is in principle assessed on the basis of the same criteria as a residence permit . On DATE , a positive advice was issued .

The applicant subsequently returned to GPE where she applied for a provisional residence visa at the GPE mission . According to the applicant , the question whether she had ever been convicted of a criminal offence was not raised in the procedure on her request for a provisional residence visa and , being unaware that this would be relevant , she had not volunteered this information either .

Following the transmission of a positive advice of ORG ( ORG ) to the GPE mission in GPE , in which the latter were requested to inform the applicant that , in order to quality for a residence permit , she would be required to sign a formal statement to the effect that she had never been the subject of criminal proceedings and/or a criminal conviction ( antecedentenverklaring ; hereinafter “ declaration on criminal antecedents ” ) , the applicant was provided on DATE with a provisional residence visa by the GPE Minister of ORG . According to the applicant , the information about the declaration on criminal antecedents was not given to her when she received the provisional residence visa at the GPE mission in GPE .

On DATE the applicant returned to the GPE where , to date , she has been cohabiting with Mr T.

On DATE the applicant filed a request for a temporary regular residence permit ( verblijfsvergunning regulier voor bepaalde tijd ) for the purpose of stay with her GPE partner Mr T. When she was confronted with the prescribed declaration on criminal antecedents , she refused to sign it and her conviction in GPE came to light .

On DATE , the applicant was informed of the Minister ’s intention ( voornemen ) to declare her an undesirable alien entailing the imposition of an exclusion order ( ongewenstverklaring ) . The applicant was given the opportunity to react to this intention in the course of an interview conducted by ORG ( vreemdelingenpolitie ) on DATE .

On DATE , the prosecution department at ORG ( arrondissementsparket ) was requested to consider whether the facts of which the applicant had been convicted in GPE constituted a criminal offence under NORP law and whether the sentence imposed was comparable to the sentence that would be imposed by a GPE judge if the offence had been committed in the GPE . In its reply of DATE , the prosecution department stated that participation in the deliberate importation of cocaine constituted a serious criminal offence ( misdrijf ) under NORP law , attracting a prison sentence of PERCENT . It further stated that the applicant , if she were convicted in the GPE , would probably be sentenced to CARDINAL to CARDINAL months’ imprisonment on the understanding that a judicial examination and determination of sentence obviously depended on the specific circumstances of each individual case .

By decision of DATE , the Deputy Minister of Justice ( ORG ) rejected the applicant ’s request for a residence permit . The Deputy Minister further declared the applicant an undesirable alien entailing the imposition of a DATE exclusion order , as it had appeared that the applicant had been convicted on DATE by the GPE am ORG of participation in the deliberate importation of cocaine for which she had been sentenced to DATE and CARDINAL months’ imprisonment . Having noted the contents of the letter of DATE of the prosecution department at ORG , the Deputy Minister found that the judgment of the GPE am ORG did not substantially differ from the judgment that would have been passed by a GPE court . While acknowledging that the exclusion order constituted an interference with the applicant ’s right to respect for her family life , the Minister considered that this was justified in the interests of public safety ( openbare orde ) and the prevention of crime , and that the general interests of the ORG thus outweighed those of the applicant .

On DATE , the applicant lodged an objection ( bezwaar ) against the decision . She argued that , as she had been granted a provisional residence visa , she had a legitimate expectation that she would be granted a residence permit as well . She further argued that a NORP court would have passed a much more lenient sentence than the NORP court had done and that forcing her to leave would constitute an unjustified interference with her right to respect for family life now that she had been legally residing in the GPE since DATE .

As a decision to impose an exclusion order is immediately enforceable and an appeal against such a decision does not enjoy automatic suspensive effect , the applicant applied on DATE to ORG ( rechtbank ) of GPE for a provisional measure ( voorlopige voorziening ) in order to stay her expulsion pending the objection proceedings .

The applicant and her partner married in GPE on DATE . On DATE a son was born of this marriage . The applicant had decided that , in view of her age , it would be unwise to wait too long before conceiving a child , despite her uncertain residence status .

In the meantime , on DATE , the applicant was heard on her objection lodged on DATE before an official board of enquiry ( ambtelijke commissie ) . This board also put questions to her husband who attended the hearing , who stated inter alia that he had a reasonable command of NORP but that he did not wish to settle in GPE given the bad economic situation there . The applicant stated inter alia that she was in contact with her mother and CARDINAL brothers who were living in GPE .

On DATE the Minister for ORG ( Minister PERSON ; the successor to the Deputy Minister of ORG ) dismissed the applicant ’s objection on the grounds that the applicant could not claim a legitimate expectation to be granted a residence permit on the basis of the provisional residence visa and that a NORP court would have imposed a sentence approaching the sentence handed down by the NORP court . Furthermore , the Minister held that the interference with the applicant ’s family life was justified in order to protect public safety ( openbare orde ) and to prevent crime in view of the applicant ’s drug - related conviction , and that there were no objective obstacles standing in the way of the applicant ’s husband and child following her to GPE .

On DATE , ORG of The GPE sitting in GPE – unaware of the fact that the applicant ’s objection had been determined on DATE granted the provisional measure that she had requested on DATE . As its requests of CARDINAL DATE and DATE to the Minister for information about the state of affairs in the objection proceedings had remained unanswered , it concluded that apparently the Minister did not attach great weight to the applicant ’s speedy removal from the GPE and therefore granted the provisional measure .

By DATE the applicant had already filed an appeal with ORG of The GPE against the dismissal of her objection , raising largely the same grounds and elaborating her claim that she was unlikely to have been sentenced to CARDINAL months’ imprisonment had she been tried by a NORP court . She based this assertion on a document containing indicative guidelines for the determination of sentences for drug couriers , in use by judges in the GPE . A sentence of DATE in the applicant ’s case would have meant , according to the regulations in force , that she would have been eligible for a residence permit .

On DATE , after a hearing held on DATE , ORG of The GPE sitting in GPE denied the applicant ’s appeal . The court agreed with the Minister that there was no question of a legitimate expectation . It further found that , based on the advice of the public prosecution department , the Minister had correctly estimated the length of the sentence that a NORP court would have handed down . As regards LAW , the court held that the interference with the applicant ’s family life was justified in order to protect public safety and to prevent crime and that there were no objective obstacles to the applicant and her family continuing their family life in GPE . In this context it considered that the conviction concerned a narcotics offence , that DATE although DATE had elapsed since this conviction whereas the applicant had not reoffended since DATE this did not affect the serious nature of this offence and that – unlike the situation in the case of GPE v. GPE , ( no . CARDINAL , ECHR CARDINALIX ) – the applicant had never held a residence permit . It further took into account that the applicant ’s marriage and the birth of her child were posterior to the decision to impose an exclusion order and found that there were no objective obstacles for the applicant and her family to continue their family life in GPE . It therefore concluded that the public interest outweighed the personal interests of the applicant and her family .

On DATE the applicant appealed the judgment of ORG to ORG of ORG ( GPE bestuursrechtspraak PERSON ; “ the NORP ” ) on largely the same grounds . The applicant also argued that ORG had merely carried out a marginal assessment ( marginale toetsing ) by examining the reasonableness of the decision of the Minister to deny the applicant ’s claim under LAW , whereas the matter should have been considered on the merits as well . The applicant further claimed that ORG had misinterpreted the principle of objective obstacles to the family starting anew in GPE .

NORP The applicant also petitioned the President of ORG for a provisional measure on DATE . The President denied the request as there were no grounds on which to assume that the impugned decision would be overturned on appeal .

On DATE ORG rejected the further appeal , holding :

“ What has been raised in the grievances does not provide grounds for quashing the impugned ruling ( kan niet tot vernietiging van de aangevallen uitspraak leiden ) . Having regard to LAW , no further reasoning is called for , since the arguments submitted do not raise questions which require determination in the interest of legal uniformity , legal development or legal protection in the general sense . ”

No further appeal lay against this ruling .

The applicant currently still resides in the GPE and has never reoffended .

Until DATE , the admission , residence and expulsion of aliens were regulated by LAW DATE ( Vreemdelingenwet DATE ) . Further rules were laid down in LAW ( Vreemdelingenbesluit ) , the Regulation on Aliens ( Voorschrift Vreemdelingen ) and LAW ( Vreemdelingencirculaire ) . LAW ( PERSON ) applied to proceedings under LAW DATE , unless indicated otherwise in this Act .

On DATE , LAW DATE was replaced by LAW . On DATE , LAW , the Regulation on Aliens and LAW were replaced by new versions based on LAW . Unless indicated otherwise in LAW , LAW continued to apply to proceedings on requests by aliens for admission and residence .

According to the transitional rules , set out in LAW of LAW , an application for a residence permit which was being processed at the time this LAW entered into force was to be considered as an application under the provisions of LAW . Because no transitional rules were set for the substantive provisions of the GPE law , the substantive provisions under LAW took effect immediately .

The Netherlands Government pursue a restrictive immigration policy due to the population and employment situation in the GPE . Aliens are eligible for admission only on the basis of international agreements , or if their presence serves an essential NORP interest , or for compelling reasons of a humanitarian reason ( article CARDINAL of LAW ) . Respect for family life as guaranteed by LAW constitutes an obligation under an international agreement .

As a rule , anyone wishing to apply for a residence permit in the GPE must first apply from his or her country of origin to the GPE Minister of ORG for a provisional residence visa . Only once such a visa has been issued abroad may the holder travel to the GPE and apply for a residence permit for the GPE . An application for a provisional residence visa is in principle assessed on the basis of the same criteria as a residence permit .

The admission policy for family formation ( gezinsvorming ) and family reunion ( gezinshereniging ) purposes is laid down in LAW of LAW DATE . A partner or spouse of a GPE national is in principle eligible for admission , if certain further conditions relating to matters such as public policy and means of subsistence are met .

Pursuant to article CARDINAL of LAW , a residence permit for the purposes of family reunion or family formation can be refused if the alien constitutes a threat to public order or national security . In this respect , article LAW CARDINAL(c ) of LAW reads in its relevant part that a threat to public order exists when :

“ c. the alien has been convicted of a criminal offence and sentenced to either a non - suspended prison sentence or custodial measure , a community service order or non - suspended financial penalty , or if , in relation to a criminal offence , the alien has accepted an out - of - court settlement or if a punishment order has been issued against him by a public prosecutor . ”

LAW CARDINAL of LAW provides that , in applying LAW CARDINAL(c ) , also violations of public order committed outside of the GPE are taken into account , provided that they constitute a serious criminal offence ( misdrijf ) under NORP law .

A past criminal conviction is not permanently held against the person concerned . Like the delays that apply to a request to lift an exclusion order , a past conviction is no longer held against a petitioner for a residence permit once a period of CARDINAL ( for drugs or violent offences ) or CARDINAL ( for other offences ) DATE has elapsed , provided that the petitioner has not reoffended .

Article CARDINAL of LAW DATE provides that a foreign national may be declared an undesirable alien , entailing the imposition of an exclusion order , on the ground , inter alia , that he or she has been convicted of a serious offence carrying a prison sentence of DATE or more , or poses a danger to public order . An exclusion order entails a ban on residing in or visiting the GPE . An exclusion order is immediately enforceable and the person on whom it is imposed is informed at the time of notification of this decision that he or she is obliged to leave the GPE immediately , that is within TIME .

An exclusion order can be challenged in administrative law appeal proceedings under the terms of LAW . Such appeal proceedings do not have automatic suspensive effect .

Article CARDINAL § CARDINAL of LAW DATE provides as follows :

“ If ORG of ORG finds that a complaint raised does not provide grounds for overturning [ the impugned ruling ] , it may , in giving reasons for its decision , limit itself to that finding . ”

Article CARDINAL of LAW ( GPE ) provides that an alien who stays in the GPE while he or she knows that an exclusion order has been imposed on him or her commits a criminal offence punishable by CARDINAL months’ imprisonment or a fine of MONEY .

An exclusion order may be revoked , upon request , if the alien concerned has been residing outside the GPE for an uninterrupted period of DATE ( article DATE of LAW ) . Such revocation entitles the alien to seek readmission to GPE territory subject to the conditions that are applicable to every alien .


Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva

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

The applicant is a GPE who was born in DATE in northern GPE . He arrived in GPE on DATE and on that date claimed asylum on the ground that he feared persecution by the GPE army on account of his involvement with ORG ( “ the NORP ” ) . He submitted that he had been arrested in DATE , after he had left the ORG , in a round - up and identified as an NORP member by a masked man . He was severely tortured during DATE of his detention . He was released after the village headman and his mother intervened , but as a condition of his release he was required to sign on regularly at an army camp .

On DATE the Secretary of ORG for ORG refused the applicant ’s asylum claim . He did not accept that the applicant had been arrested and tortured in DATE or that he genuinely feared that he would be arrested by the army .

The applicant subsequently obtained a medical report which confirmed that he had a number of scars on his scalp , his elbows and his legs caused by shell fragments .

On DATE the applicant ’s appeal against the Secretary of ORG ’s decision was dismissed by an Adjudicator . With no ORG representative present at the hearing to cross - examine the applicant , his evidence was unchallenged . The Adjudicator therefore accepted that the applicant had been a member of the ORG and that he had been detained and ill - treated by the army in DATE . The Adjudicator also accepted that the scars were caused by shell fragments as the applicant claimed . She noted , however , that the applicant ’s scars were not readily visible and would not cause the applicant to stand out ; this was evidenced by the fact that the applicant was able to leave GPE without difficulty , despite having to travel across the country and through checkpoints , which indicated that he was of no interest to the authorities . With regard to the applicant ’s LAW , the Adjudicator noted that although the applicant had a brother and sister in GPE , he had been separated from them for DATE respectively ; neither had been present at the hearing ; and they could visit the applicant in GPE should they so wish .

On CARDINAL DATE the applicant was refused permission to appeal to the then ORG .

The applicant subsequently made further representations to ORG , which , in a decision dated DATE , the Secretary of ORG refused to treat as a fresh asylum claim . On DATE permission to apply for judicial review was refused . Permission was again refused on DATE following an oral hearing . On CARDINAL DATE the applicant once again submitted further representations . On DATE the Secretary of ORG decided not to treat those representations as a fresh asylum claim . On DATE a further application for permission to apply for judicial review was refused .

On DATE the applicant submitted fresh representations requesting that his case be reconsidered in light of the country guidance determination of ORG ( ORG area DATE Colombo – risk ? ) GPE [ DATE ] UKAIT DATE ( see paragraph CARDINAL below ) . The Secretary of ORG responded in a letter dated DATE stating that :

“ It is accepted that your client is of NORP ethnicity as claimed . It is not believed that your client was tortured and as such it is doubtful he was a member of the NORP as claimed ” .

This reasoning led to the conclusion that the applicant ’s only risk factors were his NORP ethnicity and scarring , which the Secretary of ORG pointed out only had significance if combined with other factors likely to bring the applicant to the attention of the authorities .

In ORG ( ORG area DATE Colombo – risk ? ) GPE [ DATE ] UKAIT DATE ( “ LP ” ) , ORG considered the case of a GPE , ORG , from GPE in the north of GPE . He had experienced problems with the NORP and the Sri NORP authorities and had fled GPE on DATE but had been refused asylum in GPE by the Secretary of ORG . In dismissing ORG ’s appeal on asylum grounds but allowing it on the basis of LAW , the ORG gave the following guidance in the headnote to its determination :

“ ( CARDINAL ) NORP are not per se at risk of serious harm from the GPE authorities in GPE . A number of factors may increase the risk , including but not limited to : a previous record as a suspected or actual ORG member ; a previous criminal record and/or outstanding arrest warrant ; bail jumping and/or escaping from custody ; having signed a confession or similar document ; having been asked by the security forces to become an informer ; the presence of scarring ; return from GPE or other centre of NORP fundraising ; illegal departure from GPE ; lack of an ORG card or other documentation ; having made an asylum claim abroad ; having relatives in the ORG . In every case , those factors and the weight to be ascribed to them , individually and cumulatively , must be considered in the light of the facts of each case but they are not intended to be a check list .

( CARDINAL ) NORP If a person is actively wanted by the police and/or named on a Watched or Wanted list held at FAC , they may be at risk of detention at the airport .

( CARDINAL ) Otherwise , the majority of returning failed asylum seekers are processed relatively quickly and with no difficulty beyond some possible harassment .

( CARDINAL ) NORP in GPE are at increased risk of being stopped at checkpoints , in a cordon and search operation , or of being the subject of a raid on a ORG where they are staying . In general , the risk again is no more than harassment and should not cause any lasting difficulty , but NORP who have recently returned to GPE and have not yet renewed their GPE identity documents will be subject to more investigation and the factors listed above may then come into play .

( CARDINAL ) Returning NORP should be able to establish the fact of their recent return during the short period necessary for new identity documents to be procured .

( CARDINAL ) A person who can not establish that he is at real risk of persecution in his home area is not a refugee ; but his appeal may succeed under LAW ORG , or he may be entitled to humanitarian protection if he can establish he would be at risk in the part of the country to which he will be returned .

( CARDINAL ) The weight to be given to expert evidence ( individual or country ) and country background evidence is dependent upon the quality of the raw data from which it is drawn and the quality of the filtering process to which that data has been subjected . Sources should be given whenever possible .

( CARDINAL) The determinations about GPE listed in para CARDINAL [ of the determination – see below ] are replaced as country guidance by this determination . They continue to be reported cases . ”

Following the ORG ’s judgment in ORG . v. the GPE , application no . CARDINAL , DATE ( see paragraph CARDINAL below ) , the ORG issued CARDINAL further Country Guideline determinations . The first , ORG ( NORP – Colombo – risk ? ) GPE [ DATE ] UKAIT DATE ( “ AN & SS ” ) , was published shortly after ORG . and the ORG did not have the benefit of the ORG ’s decision in reaching its conclusions . The ORG gave the following guidance in the head note to the determination :

“ Since the breakdown of the ceasefire , heightened security in the capital has restricted the operations there of the NORP , who are focusing on ‘ high - profile’ targets . The background evidence does not show that NORP in GPE who have stopped supporting the ORG , or who support parties opposed to them , are at real risk of reprisals , absent some feature bringing them to prominence . The conclusion to that effect in ORG internal flight – sufficiency of protection ) GPE [ DATE ] CARDINAL , which this determination updates and supersedes , is thus affirmed .

There is no good evidence that the ORG maintain a computerized database of their opponents , such that new arrivals in GPE can be checked against it . Checks are , on the other hand , run on a computerized database by immigration officers when passengers arrive at FAC , or by members of the security forces when people are detained , but there is no good evidence to show that everyone who has in the past been detained and questioned about possible involvement with the NORP is on that database . On the contrary , it is likely to contain the names only of those who are of serious interest to the authorities .

The CARDINAL ‘ risk ORG listed in ORG ( ORG area DATE Colombo – risk ? ) GPE [ DATE ] UKAIT DATE can usefully be divided into risk factors per se , CARDINAL or more of which are likely to make a person of adverse interest to the authorities , and ‘ background ORG , which neither singly nor in combination are likely to create a real risk , but which in conjunction with risk factors per se will intensify the risk .

A failed asylum seeker who hails from the north or east of GPE and who has no relatives or friends to turn to in GPE will generally be able to relocate there in safety and without undue harshness . Those arriving without their ORG should be able to get a replacement without too much difficulty , while the great majority of those detained at checkpoints and in cordon - and - search operations are released within a short time . A generous support package is available for DATE from ORG to those who return voluntarily . Those who refuse to do so can not pray in aid the prospect of being destitute in GPE .

PR ( medical facilities ) GPE [ DATE ] UKIAT CARDINAL is , owing to its antiquity , no longer to be treated as country guidance on the availability of medical treatment for returnees . The guidance in ORG , however , has been considered and approved by ORG in ORG v GPE , handed down on DATE . ”

In the case of GPE v Secretary of ORG for ORG [ DATE ] EWHC CARDINAL ( Admin ) , however , the High Court Judge noted that :

“ Without seeking to throw any doubt on the decision in AN on its own facts , I reject the defendant ’s submission that it forms a general assessment of the factual background dispositive of the outcome in this case , or that a future tribunal would be bound to apply that case as opposed to the assessment of ORG . The tribunal in AN did not have the benefit of the GPE court ’s assessment of risk in such circumstances and the continuity of risk properly assessed in the light of the criteria used in adjudicating LAW claims . I am unaware of any tribunal decision that has done so since the AN decision . ”

In the second , ORG ( NORP – LP updated ) GPE [ DATE ] UKAIT DATE ( “ ORG ” ) , the ORG found that the risk factors identified in ORG and AN and ORG ( both cited above ) were still relevant but that a subsequent country guidance case was necessary to take account of the recent major changes to the country situation in GPE . In GPE , the ORG held that :

“ The risk categories identified in ORG ( ORG area – NORP - Colombo – risk ? ) GPE [ DATE ] UKAIT DATE and approved by ORG ) in ORG v GPE , ORG . CARDINAL , remain valid .

Events since the military defeat of the ORG in DATE have not aggravated the likely approach of the Sri NORP authorities to returned failed asylum seekers who are NORP ; if anything the level of interest in them has decreased . The principal focus of the authorities continues to be , not NORP from the north ( or east ) as such , but persons considered to be either NORP members , fighters or operatives or persons who have played an active role in the international procurement network responsible for financing the ORG and ensuring it was supplied with arms .

The records the GPE authorities keep on persons with some history of arrest and detention have become increasingly sophisticated ; their greater accuracy is likely to reduce substantially the risk that a person of no real interest to the authorities would be arrested or detained .

The practice of immigration judges and others of referring to “ objective country evidence ” , when all they mean is background country evidence , should cease , since it obscures the need for the decision - maker to subject such evidence to scrutiny to see if it conforms to legal standards for assessing the quality of Country of Origin Information ( ORG ) as identified by the ECtHR in ORG and as set out in LAW ) , Article PERSON ) , CARDINAL ) , CARDINAL ) and CARDINAL ) and ORG ( CARDINAL ) , Article CARDINAL ( b ) and ORG ) . ”

Extensive information about GPE can be found in ORG . , cited above , § § DATE . The information set out below concerns events occurring after the delivery of the said judgment on CARDINAL DATE and , in particular , after the cessation of hostilities in DATE .

Fighting between the Sri NORP army and the NORP intensified in DATE , with the army taking a number of rebel strongholds in the north and east of the country . On DATE , in an address to the country ’s parliament , the President of GPE announced the end of hostilities and the death of the leader of the LTTE , PERSON . It was also reported that most , if not all , of the ORG ’s leadership had been killed .

DATE , ORG for ORG had estimated that CARDINAL people had already reached internally displaced ORG camps , including CARDINAL in DATE . In addition , it was believed that another CARDINAL people were on their way to the camps through the crossing point at GPE , in the northern district of PERSON .

NORP In DATE , ORG reported that the number of killings in GPE in DATE ( including deaths of civilians , security forces and members of the ORG ) was : CARDINAL in DATE ; CARDINAL in DATE ; CARDINAL in DATE and CARDINAL DATE and DATE . CARDINAL people were reported to have been killed in total over the course of DATE conflict .

“ Notwithstanding the cessation of the hostilities , the current protection and humanitarian environment in GPE remains extremely challenging . In the GPE , nearly the entire population from the territory formerly held by the NORP in the LOC ( CARDINAL NORP ) has been confined to heavily militarized camps in the LOC region . Although the government has gradually reduced the military presence in the camps and has pledged to start the progressive return to their villages of origin of the majority of those in the camps , it is clear that this may take a considerable amount of time . The lack of freedom of movement remains the overriding concern for this population restricting its ability to reunite with family members outside the camps , access employment , attend regular schools , and ultimately choose their place of residence . ”

A Human Rights Watch ( “ HRW ” ) press release , dated DATE , reported that :

“ The government has effectively sealed off the detention camps from outside scrutiny . Human rights organizations , journalists , and other independent observers are not allowed inside , and humanitarian organizations with access have been forced to sign a statement that they will not disclose information about the conditions in the camps without government permission . On several occasions , the government expelled foreign journalists and aid workers who had collected and publicized information about camp conditions , or did not renew their visas . ”

A further ORG press release dated DATE set out concerns that CARDINAL NORP civilians remained in detention camps without the freedom to leave .

NORP In DATE , the first post - war local elections were held in northern GPE . The ORG reported that voter turn - out was low due to the number of people who were still displaced . The governing party , the ORG , took the majority of seats in the biggest city in the region , GPE . However , ORG , a party sympathetic to the defeated ORG , took the majority of seats in PERSON , the other town where polling took place .

On DATE , PERSON , the official spokesman for ORG in GPE was ordered to leave GPE because of adverse remarks that he had made to the media about the plight of NORP in the government - run camps .

On DATE the Sri Lankan Official Government News Portal announced that the motion to extend ORG ( under which the authorities have extensive anti - terrorism powers and heightened levels of security including checkpoints and road blocks ) by DATE had been passed by ORG with a majority of CARDINAL votes .

In a report dated CARDINAL DATE , GPE ORG published a report entitled “ Report to ORG on Incidents During the Recent Conflict in GPE ” , which compiled incidents from DATE , when the fighting intensified , until DATE . Without reaching any conclusions as to whether they had occurred or would constitute violations of international law , it set out extensive reports of enforced child soldiers , the killing of captives or combatants trying to surrender , enforced disappearances and severe humanitarian conditions during the hostilities .

On DATE , ORG announced their decision that all internally displaced persons would be given freedom of movement and allowed to leave the detention camps from DATE .

In its Global Appeal DATE , the ORG reported that :

“ The Government - led military operations in northern GPE which ended in DATE displaced CARDINAL people , most of whom fled their homes in DATE of the fighting . The majority of these internally displaced persons ( IDPs ) now live in closed camps in Vavuniya district , as well as in camps in GPE , GPE and PERSON . CARDINAL IDPs , some of whom have been displaced since DATE , are also in need of durable solutions .

The IDPs originate mainly from the NORP , PERSON , PERSON , GPE and GPE districts in northern GPE , as well as from some areas in the east of the country . Though the end of hostilities has paved the way for the voluntary return of displaced people , some key obstacles to return remain . For instance , many of the areas of return are riddled with mines and unexploded ordnance . Not all are considered to be of high risk , particularly those away from former frontlines , but mine - risk surveys and the demarcation of no - go areas are urgently needed .

Other key obstacles to return include the need to re - establish administrative structures in areas formerly held by ORG ; the destruction or damaged condition of public infrastructure and private homes ; and the breakdown of the economy - including agriculture and fisheries .

The Government of GPE is planning the return framework , and it has called on ORG for support with return transport , non - food items , return shelter , livelihoods support and assistance in building the capacity of local authorities .

With some progress having been recently achieved , it is hoped that a substantial number of IDPs will be able to return to their places of origin in DATE , but a large portion of new IDPs are also likely to remain in the camps and with host families until well into DATE . ”

In a Human Rights Report DATE , dated DATE , the GPE ORG stated that ORG accepted assistance from NGOs and international actors for the ORG camps but management of the camps and control of assistance were under the military rather than civilian authorities . Food , water , and medical care were all insufficient in DATE after DATE war , but by DATE the situation had stabilised and observers reported that basic needs were being met . In DATE the military withdrew from inside the camps but continued to provide security around the barbed wire - enclosed perimeter . The IDPs in the largest camp , ORG , were not given freedom of movement until DATE , when a system of temporary exit passes was implemented for those who had not yet been returned to their districts of origin . Some observers said that this exit system still did not qualify as freedom of movement .

GPE on GPE of DATE ( “ the DATE ORG ” ) stated as follows :

“ CARDINAL The International Crisis Group ( ORG ) report GPE : A Bitter Peace , CARDINAL DATE , also referred to ‘ extra - legal detention GPE maintained by the military and observed : ‘ These detained have had no access to lawyers , their families , ICRC or any other protection agency , and it is unclear what is happening inside the centres . In addition , the grounds on which the ex - combatants have been identified and the legal basis on which they are detained are totally unclear and ORG . Given the well - established practice of torture , enforced disappearance and extra - judicial killing of ORG suspects under the current and previous NORP governments , there are grounds for grave concerns about the fate of the detained . The government has announced that of those alleged ex - combatants currently detained , CARDINAL will be put on the trial ; most will be detained for a further period of ‘ rehabilitation’ and then released . ”

CARDINAL Referring to the ‘ CARDINAL people’ detained ‘ in so - called ‘ rehabilitation centers’ because of their alleged association with the ORG , ORG Legal Limbo , The Uncertain Fate of ORG in GPE , released on DATE , observed : “ The government has routinely violated the GPE fundamental human rights , including the right to be informed of specific reasons for arrest , the right to challenge the lawfulness of the detention before an independent judicial authority , and the right of access to legal counsel and family members . The authorities’ consistent failure to inform families of the basis for the GPE arrest and their whereabouts raises serious concerns that some detainees may have been victims of torture and ill - treatment , which are more likely to take place where due process of law is lacking and which have long been serious problems in GPE . Given the lack of information about some detainees , there is also a risk that some may have been ‘ disappeared’ . ”

CARDINAL The ORG ‘ Eligibility Guidelines for Assessing the International Protection Needs of Asylum - Seekers from GPE , DATE reported that ‘ In the wake of the conflict , CARDINAL persons suspected of NORP links were arrested and detained in high - security camps’ adding that ‘ According to a ORG survey , as of DATE , CARDINAL ORG cadres were being held at CARDINAL centres . Among the detainees were CARDINAL males and CARDINAL females,’ and noted that ‘ Some of the adult detainees have ... been released after completing rehabilitation programmes or because they were no longer deemed to present a risk , including some persons with physical disabilities.’ ”

The DATE ORG also set out :

“ CARDINAL The ORG ( ORG ) , ORG , GPE , DATE reported : ‘ The ORG has warned that GPE faces losing trade advantages under LAW ( GSP - Plus ) scheme from DATE , unless the Government commits itself in writing to improving its human rights record . The ORG has put forward CARDINAL conditions that it says the Government needs to promise to meet within DATE . These include : ensuring that the CARDINALth amendment to the constitution , which requires that appointments to public positions be impartial and reflect the country ’s ethnic and religious mix , is enforced ; repealing parts of LAW that are incompatible with GPE covenants on political and human rights ; reforming the criminal code to allow suspects immediate access to a lawyer on arrest ; and allowing journalists to carry out their professional duties without harassment . However , the Government has rebuffed the ORG , stressing that the issues that it has raised are internal political matters that should not be linked to trade . The ORG is not the only international body currently putting pressure on the government . GPE has also rejected the ORG ’s appointment of a CARDINAL - member panel to examine possible human rights violations during the island ’s civil war . The Sri Lankan authorities have warned that they will not provide visas for panel members to enter the country.’ ”

CARDINAL The ORG , ORG , GPE , DATE noted that : ‘ The decision by the ORG secretary - general , Ban PERSON [ on DATE ] , to appoint a panel to examine accountability issues stemming from the final stages of the island ’s civil war , which ended in DATE , has prompted a strong reaction in GPE ... ’

CARDINAL On DATE ORG reported that ‘ Secretary - General Ban Kimoon has held his first meeting with the panel of experts set up to advise him on accountability issues relating to alleged violations of international humanitarian and human rights law during the final stages DATE of the conflict in GPE The source also noted that the role of the experts was to examine “ the modalities , applicable international standards and comparative experience with regard to accountability processes , taking into account the nature and scope of any alleged violations in GPE . ”

GPE on GPE of DATE ( “ the DATE ORG ” ) sets out a series of letters from ORG , GPE , ( “ LOC ” ) on arrival procedures at FAC . In its letter of DATE , the ORG observed :

“ ( T)he correct procedure for ( ORG ( DIE ) ) officers is to record the arrival of these persons manually in a logbook held in the adjacent Chief Immigration Officer ’s office . The name , date and time of arrival and arriving flight details are written into the log . It records why the person has come to their attention and how the case was disposed of . I have had the opportunity to look at the log , and it appears that the CARDINAL ways of disposal are to be passed to ORG ( ORG ) , or allowed to proceed .

The office of ORG ( SIS ) is in the immigration arrivals hall and an officer from ORG usually patrols the arrivals area during each incoming flight . Invariably , if they notice a person being apprehended they approach IED ( ORG ) and take details in order to ascertain in ( sic ) the person may be of interest to them . Their office contains CARDINAL computer terminals , CARDINAL belonging to the airport containing flight information and CARDINAL stand - alone terminals . If an apprehended person is considered suitable to be passed to ORG , they are physically walked across the terminal building to the ORG offices . A ORG officer should then manually record the arrival of the person in a logbook held in their office ... often persons shown in the ORG logbook to have been handed to ORG are never actually recorded as being received in the ORG logbook . It is believed that ORG has allowed these persons to proceed and no action has been taken against them . ”

The same letter also noted that ORG offices at the airport contained CARDINAL computers , which were not linked to any national database . Any checks on persons detained or apprehended were conducted over the phone with colleagues in central GPE . There were no fingerprint records at the airport . CARDINAL computer contained records of suspects who had been arrested and charged with offences , and court reference numbers . It continued as follows :

“ Were a Sri NORP national to arrive at FAC having been removed or deported from GPE , they would be in possession of either a valid national NORP passport , or an emergency travel document / temporary passport , issued by ORG in GPE . The holder of a valid passport would have the document endorsed by the immigration officer on arrival and handed back to him / her . A national passport contains the national ORG card number on the laminated details page . I have made enquiries with the DIE at FAC , and with ORG who meet certain returnees at the airport , and both have confirmed that a person travelling on an emergency travel document is dealt with similarly . They too have the document endorsed by the immigration officer on arrival and returned to them . Before issuing an emergency travel document , ORG in GPE will have details of an applicant confirmed against records held in GPE and will thus satisfactorily confirm the holder ’s nationality and identity . If a returnee subsequently wishes to obtain a national identity card , they have to follow the normal procedures . ”

In a letter dated DATE , the ORG reported that an official had spent TIME observing the return of failed asylum seekers from GPE , including those who were in possession of emergency travel documents , issued by ORG in GPE . In the official ’s opinion , the fact that certain returnees had been issued with emergency travel documents by ORG in GPE did not seem to make any difference to their treatment upon arrival .

The Report of Information Gathering Visit to GPE on DATE , conducted jointly by ORG and ORG ( “ the Report of Information Gathering Visit , DATE ” ) , concluded that all enforced returns ( of whatever ethnicity ) were referred to the ORG at the airport for nationality and criminal record checks , which could take TIME . All enforced returns were wet - fingerprinted . Depending on the case , the individual could also be referred to the ORG and/or ORG for questioning . Anyone who was wanted for an offence would be arrested .

The report set out that those with a criminal record or ORG connections would face additional questioning and might be detained . In general , non - government and international sources agreed that NORP from the north and east of the country were likely to receive greater scrutiny than others , and that the presence of the factors below would increase the risk that an individual could encounter difficulties with the authorities , including possible detention :

- Outstanding arrest warrant

- Criminal record

- Connection with the LTTE

- Bail jumping / escape from custody

- Illegal departure from GPE

- Scarring

- Involvement with media or NGOs

- Lack of an ORG card or other documentation

The DATE ORG report set out the following :

“ CARDINAL The ORG letter of CARDINAL DATE went on to observe that : ‘ At DATE , partly due to the large numbers of NORP being returned from around the world and causing logistical problems , ORG procedures were relaxed in that they no longer had to detain returnees until written confirmation was received from the local police . All returnees are still interviewed , photographed and wet fingerprinted . The main objective of these interviews is to establish if the returnee has a criminal record , or if they are wanted or suspected of committing any criminal offences by the police . The photographs are stored on a standalone computer in the ORG office at the airport . The fingerprints remain amongst paper records also in the ORG office at the airport . Checks are initiated with local police , but returnees are released to a friend or relative , whom ORG refers to as a surety . This surety must provide evidence of who they are , and must sign for the returnee . They are not required to lodge any money with ORG . The main ORG offices at FAC , which are housed on the ground floor adjacent to the ORG embarkation control , are currently undergoing a complete refurbishment funded by the NORP government . The CARDINAL completed office suite has CARDINAL purpose built interview rooms , and facilities where returnees can relax and eat meals.’

CARDINAL A ORG letter of DATE reported : ‘ There is strong anecdotal evidence that scarring has been used in the past to identify suspects . Previous conversations with the police and in the media , the authorities have openly referred to physical examinations being used to identify whether suspects have undergone military style training . More recent claims from contacts in government ministries suggest that this practice has either ceased or is used less frequently . At the very least it appears that the security forces only conduct these when there is another reason to suspect an individual , and are not looking for particular scars as such , but anything that may indicate the suspect has been involved in fighting and/or military training . There is no recent evidence to suggest that these examinations are routinely carried out on immigration returnees.’ ”

On DATE , Tamilnet reported that CARDINAL NORP youths were taken into custody by ORG of the Sri Lanka Police at FAC in CARDINAL separate incidents whilst trying to leave GPE . It was also reported that since DATE , special teams of ORG and police had been deployed in the airport to monitor the movement of NORP who try to go abroad .

ORG , DATE , stated that the frequency of cordon and search operations had not reduced significantly in DATE , though there were fewer large - scale operations than in DATE . In general , young male NORP originating from the north and east of the country were most at risk of being detained following cordon and search operations , with the presence of the risk factors set out above increasing that risk . Those without employment or legitimate purpose for being in GPE were also likely to be seen as suspect . The same report also noted that most sources agreed that there had been few , if any , abductions or disappearances since DATE . There was not a great deal of available information about the profile of NORP targeted for abduction , although it appeared that people linked to the media might be more vulnerable . Police did not generally carry out effective investigations . It went on to note that most sources agreed that there had not been any significant reduction in the number of checkpoints in GPE , whose stated purpose remained to detect and prevent terrorist activity . In general those most likely to be questioned were young NORP from the north and east ; those without ID ; those not resident or employed in GPE ; and those recently returned from the West . However , most sources said that arrests at checkpoints were rare and none had been reported since DATE . It was reportedly fairly likely that someone would be stopped at a checkpoint en route from the airport to GPE . Finally , it clarified that people who wished to live in GPE but did not originate from there were required to register with the local police station with a national ID card or full passport , and give details of planned length and purpose of stay . In theory , whilst anyone was entitled to register to stay in GPE , some sources suggested that young NORP men originally from the north or east of the country could encounter difficulties and face closer scrutiny . The presence of any of the risk factors set out above would also attract greater attention from the police .

“ The significant majority of reported cases of human rights violations in GPE involve persons of NORP ethnicity who originate from the LOC and LOC ... In Government - controlled areas , NORP who originate from the LOC and the LOC , which are , or have been under ORG control , are frequently suspected as being associated with the NORP . For this reason , NORP from the LOC and the LOC are at heightened risk of human rights violations related to the implementation of anti - terrorism and anti - insurgency measures . While this risk exists in all parts of GPE , it is greatest in areas in which the ORG remains active , and where security measures are heaviest , in particular the LOC and parts of the LOC , and in and around GPE . ”

“ The country of origin information that ORG has considered indicates that NORP from LOC continue to face a significant risk of suffering serious human rights violations in the region ( and elsewhere in the country ) because of their race ( ethnicity ) or ( imputed ) political opinion . NORP in the LOC are still heavily targeted in the security and anti - terrorism measures described in LAW . Wide scale detention and confinement of NORP from the LOC remains a serious concern . ORG paramilitary elements also continue to operate with impunity against NORP in the LOC . ”

ORG from GPE of DATE ( “ the DATE Guidelines ” ) , which superseded the April CARDINAL Guidelines , contained information on the particular profiles for which international protection needs may arise in the current context . It was stated that :

“ Given the cessation of hostilities , NORP originating from the north of the country are no longer in need of international protection under broader refugee criteria or complementary forms of protection solely on the basis of risk of indiscriminate harm . In light of the improved human rights and security situation in GPE , there is no longer a need for group - based protection mechanisms or for a presumption of eligibility for NORP of NORP ethnicity originating from the north of the country . It is important to bear in mind that the situation is still evolving , which has made the drafting of these LAW particularly complex . ”

In summary , the following were ORG ’s recommendations : all claims by asylum seekers from GPE

( i ) persons suspected of having links with ORG ( NORP ) ; ( ii ) journalists and other media professionals ; ( iii ) civil society and human rights activists ; ( iv ) women and children with certain profiles ; and ( v ) lesbian , gay , bisexual and transgender ( NORP ) individuals .

A report commissioned by the applicant ’s representatives from Dr PERSON ( “ PERSON report ” ) and dated DATE , includes the following relevant paragraphs :

“ Given the treatment of NORP , the authorities would question as to why any GPE would want to come back and a significant exodus from the LOC is anticipated . The authorities may well conclude that , given their second class status , the only reason to return would be to lend support to the ORG or whatever comes in its place . As such , returnees are likely to face a difficult time , especially at the airport .

The applicant was held for DATE and the severity of his ill - treatment indicates that he was of adverse interest to the authorities who detained him . As such , his record will most likely have been included on the central database , particularly since he was released on reporting conditions which he subsequently violated . He has visible scars which could trigger adverse interest at the airport and , furthermore , the fact that he left GPE using false documentation will further contribute to risk and vulnerability at the airport . As such , it is very likely that the applicant will be detained on arrival and this will place him at considerable risk of ill - treatment , torture and , even , sexual abuse . ”


Preliminary objection joinded to merits and dismissed (six-month period);Violation of Art. 6-1;Not necessary to examine Art. 6 (length of the proceedings);Remainder inadmissible;Pecuniary damage - financial award;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in the town of GPE , the GPE region .

In DATE ORG charged the applicant ( a former inspector of the GPE city market ) with corruption , and ordered his detention on remand . In DATE the applicant was released against his undertaking not to abscond . In DATE his case was closed given the lack of any corpus delicti . This decision was subsequently quashed by ORG and the investigation was reopened . On DATE the criminal proceedings against the applicant were ultimately terminated given the absence of any corpus delicti .

On DATE the applicant instituted proceedings against ORG of GPE , seeking monetary compensation for unlawful prosecution .

On DATE ORG ( hereafter “ the ORG ” ) granted this claim and awarded the applicant UAH CARDINAL,CARDINAL . In assessing the amount of moral compensation , the court took account of medical certificates attesting to the fact that subsequent to his release the applicant had suffered a nervous breakdown . On DATE this judgment became final and binding .

On DATE ORG lodged an supervisory appeal with the ORG of ORG against the judgment of DATE . On DATE the court , sitting in a closed session in the presence of a prosecutor , quashed this judgment and remitted the case for a new consideration .

On DATE ORG , in the resumed proceedings , allowed the applicant 's claim . Having regard to the medical documents , the forensic psychological report and statements from a number of witnesses , the court found , inter alia , that the applicant 's nervous breakdown had been caused by his detention , and ordered ORG to pay the applicant LAW in moral and material damages . On DATE this judgment acquired legal force .

On DATE ORG challenged this judgment under the new cassation procedure ( see “ Relevant domestic law ” , paragraph CARDINAL below ) .

On DATE ORG declared unconstitutional LAW on the State Budget CARDINAL , which provided that compensation for unlawful criminal prosecutions was to be deducted from the funds allocated to the relevant law - enforcement agencies . ORG decided that the relevant amounts should be paid directly from ORG held by ORG .

On DATE a judge of ORG returned the prosecutor 's appeal to ORG , indicating that it had to examine the issue of the reopening of the proceedings on the ground of new circumstances .

On DATE ORG , on a request from ORG , reopened the proceedings in the case due to new circumstances , namely the annulment of LAW on the State Budget CARDINAL by the aforementioned decision of ORG .

On DATE ORG partly allowed the applicant 's claim , ordering ORG to pay him UAH CARDINAL in compensation for unlawful prosecution . The court held that the criminal proceedings against the applicant had been unlawful but found the claim for moral damages excessive :

“ With respect to the remainder of the claims [ the court notes that ] the claimant has failed ... to provide any corroborating evidence ; nor did he submit to the court any calculation of the amount of compensation for moral damage .

No reliable link could be seen between the claimant 's nervous breakdown and his criminal prosecution and arrest . ”

The applicant appealed .

On DATE ORG upheld this judgment , indicating , inter alia , that , according to the forensic psychological report , the nervous breakdown , suffered by the applicant in DATE , could result either from his unlawful detention or from his general poor state of health , thus finding that the amount of UAH CARDINAL,CARDINAL constituted sufficient compensation for damages suffered due to unlawful prosecution .

On DATE ORG rejected the applicant 's request for leave to appeal under the cassation procedure .

On an unknown date in DATE the applicant applied to ORG for compulsory enforcement of the DATE judgment . The warrant of execution was on several occasions sent to ORG of ORG . However on DATE the enforcement proceedings were suspended pending the outcome of the prosecution 's extraordinary appeal ( paragraph CARDINAL above ) .

On DATE ORG refused the applicant 's request to initiate the enforcement proceedings for the judgment of DATE , ruling that its enforcement was time barred . The court found that LAW envisaged that the writs of execution should be lodged with the relevant authority within DATE after the judgment acquired legal force . The judgment in the applicant 's case had become final on DATE upon the decision of ORG , whereas the applicant requested the issuance of the writ of execution on DATE , i.e. after the expiry of the statutory limitation . The applicant did not appeal against this decision .

The judgment of DATE has not been enforced to date .

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

Article CARDINAL - CARDINAL of the Code provides that , having examined the request for reopening of the case on the ground of new circumstances , the competent court delivers the ruling , whereby it either quashes the relevant judgment or rejects the above request . If the judgment is quashed the case is examined on the merits according to the general rules contained in this Code .

The Constitutional Court held :

The relevant provisions of the PERSON are read as follows :

Article CARDINAL

Persons having the right to lodge a cassation appeal

“ Parties and other persons who participate in court proceedings , and the prosecutor and other persons who have not participated in the proceedings in which the court has decided on their rights and obligations , may lodge a cassation appeal against judgments and rulings adopted by the court of first instance , only in relation to a violation of the substantive or procedural law and rulings and judgments of an appeal court .

The basis for such an appeal is the incorrect application of the norms of substantive law or infringement of the norms of procedural law . ”

Section CARDINAL

The deadlines for lodging an application for annulment

“ The deadline for lodging an application by the prosecutor is DATE from the date of delivery of the ruling or judgment of ORG , or DATE from the date of delivery of the ruling or judgment of the court of first instance , if these rulings or decisions have not been appealed against . ”

LAW . Transitional Provisions

“ CARDINAL . This PERSON shall enter into force as from DATE .

Laws and other normative acts adopted before this PERSON entered into force are effective in so far as their provisions do not conflict with LAW and this PERSON .

Appeals in civil cases lodged before DATE shall be considered in accordance with the procedure adopted for the examination of appeals against local courts ' decisions .

Protests against judicial decisions lodged before DATE shall be sent to ORG of GPE for consideration in accordance with the procedure for consideration of cassation appeals ( касаційних скарг ) .

Decisions that have been adopted and have entered into force before DATE can be appealed against within DATE in accordance with the procedure for consideration of cassation appeals ( to ORG ) . ”


Violation of Art. 6-1;Violation of Art. 13

Mirjana Lazarova Trajkovska;Rait Maruste;Zdravka Kalaydjieva

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

On DATE the applicant ’s husband , who worked as an electrician at the construction site , died as a result of a work - related accident . On DATE the applicant instituted proceedings in the Dzerzhynsky District Court of ORG against a joint stock company “ T.”(“the company ” ) claiming compensation for pecuniary and non - pecuniary damage sustained as a result of his death .

On DATE the case was transferred to ORG , which on DATE allowed in part the applicant ’s claims .

On DATE ORG upheld this judgment . It became final .

On DATE the amendments to the Code of Civil Procedure entered into force . They provided a right to lodge a cassation appeal within a DATE period with ORG against court decisions adopted before DATE and which had entered into force before that date . On DATE the company lodged an appeal in cassation .

On DATE ORG quashed the decisions of the lower courts and remitted the case for a fresh consideration to the first instance court .

In the course of the proceedings before the first instance court CARDINAL other companies and the local department of ORG ( “ the Fund ” ) were joined as co - defendants .

On DATE the ORG of ORG found in part for the applicant . The court awarded her , inter alia , ORG ( about EUR CARDINAL,CARDINAL ) to be paid by the Fund .

The ORG appealed against that judgment ; however , on DATE ORG declined its appeal as lodged out of time . The ORG appealed in cassation . On DATE ORG , sitting as a court of cassation , quashed that decision and remitted the matter of the admissibility of the appeal for a fresh consideration .

On DATE ORG partly allowed the appeal by the ORG and ruled that the above amount of ORG ORG should be paid by the company and not by the ORG . It upheld the remainder of the judgment .


The applicant , Mr Eyyub Zakir oglu PERSON ( Eyyub PERSON oğlu PERSON ) , is an NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE . The respondent Government was represented by Mr C. Asgarov , Agent of GPE before the ORG .

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

On DATE an article called “ LOC Deputy Prosecutor – A ORG ” was published in a local newspaper DATE , of which the applicant was the chief editor . The article depicted the prosecutor , ORG , as an incompetent and unprofessional prosecutor who was able to hold high - ranking posts in the prosecution authorities only due to his good personal contacts with top - level officials . The article stated , inter alia , that ORG “ had no idea of the working methods of the prosecutor ’s office , and his work was limited to wandering around corridors ” .

On DATE ORG filed a lawsuit against the newspaper , claiming that the article was defamatory and damaging his reputation . He asked the court to close the newspaper , order it to pay compensation and institute criminal proceedings against the persons responsible for the article ’s publication .

The newspaper , represented by the applicant , filed a counterclaim , contending that ORG , by filing an allegedly abusive and frivolous lawsuit against the newspaper , damaged the newspaper ’s professional reputation .

On DATE the ORG partially upheld ORG ’s claim and dismissed the newspaper ’s counterclaim . The court held that the article contained defamatory material and that the newspaper had been unable to prove its truthfulness . It ordered the newspaper to pay compensation to ORG and to “ terminate the publication and distribution ” of the newspaper in accordance with ORG .

The applicant , on behalf of the newspaper , filed an appeal . He claimed that the termination of the newspaper ’s publication in fact amounted to a liquidation of the newspaper as a legal entity . He further claimed that such closure of the newspaper was unlawful , because the court could not order a liquidation of a legal entity based on a defamation complaint made by an individual . Instead , in accordance with LAW , the court could order such liquidation only upon an application by the relevant government or local authority .

By a judgment of DATE , ORG dismissed the applicant ’s appeal and upheld the first - instance judgment as lawful . At this point , in accordance with the domestic civil procedure law , the judgment entered into legal force and the enforcement proceedings were instituted . On DATE the Head of ORG ( PERSON və ORG ) sent a letter to the applicant , requesting the newspaper to comply with the judgment voluntarily within a DATE period . It appears that the newspaper ’s management complied with this request in a timely manner . Accordingly , the production and distribution of the newspaper was terminated and the moral compensation was paid to ORG by DATE .

On DATE the applicant , on behalf of the newspaper ’s editorial board , filed a cassation appeal with ORG . He claimed that ORG had committed the same errors of fact and law as the district court . On DATE ORG dismissed the applicant ’s appeal and upheld ORG judgment .

According to the Government , although the production and distribution of the NORP newspaper had been terminated , the newspaper ’s editorial staff continued their activities through GPE ’s legal successor , a newspaper called NORP CARDINAL . The applicant noted that Femida CARDINAL was simply an addendum to the newspaper and not its legal successor .

“ CARDINAL . A [ first - instance ] judgment enters into legal force after DATE from the date of its delivery , unless an appeal has been filed against it [ with the appellate court ] .

A judgment , which [ has been appealed but ] has not been quashed on appeal , enters into legal force upon the delivery of the appellate court ’s judgment [ upholding the first - instance judgment ] . ...

“ A judgment is subject to execution after its entry into legal force ... ”

“ A judgment of the appellate - instance court enters into legal force from the moment of its delivery . ”

“ CARDINAL . Upon a petition by a party to the case , the cassation - instance court may suspend , until the end of the cassation proceedings , the execution of the appellate court ’s judgment and the related judgment of the first - instance court ... ”


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

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

On DATE the applicant , who was a civil servant employed as a customs officer at a border crossing point , was placed in pre - trial detention by a decision of the public prosecutor ’s office . Along with CARDINAL other colleagues working at the same customs office , he was suspected of having abused his office contrary to ORG interests , which is an offence under LAW . By a decision of DATE , ORG extended the applicant ’s pre - trial detention to DATE , when he was released .

On DATE , by a decision of ORG , the applicant was dismissed under LAW ( j ) of LAW , which authorised employers to dismiss an employee who had been placed in pre - trial detention for DATE , irrespective of the grounds for detention .

The applicant appealed against his dismissal to ORG .

In a ruling of DATE on a preliminary question of law , ORG applied to ORG of its own motion for examination of an objection on grounds of constitutionality , namely , whether LAW ( j ) of LAW was compatible with the applicant ’s constitutional right to respect for the presumption of innocence . ORG held that LAW ( j ) of LAW infringed the right to be presumed innocent because it allowed consequences to be drawn for the purposes of labour law even before guilt had been established by a final decision and did so entirely independently of the grounds for placing the suspect in pre - trial detention .

NORP In a decision of DATE , ORG dismissed the objection on grounds of unconstitutionality , holding that an employer ’s right to dismiss an employee who had been placed in pre - trial detention for DATE was justified by an objective fact , namely , his prolonged absence from work , and not by considerations linked to whether or not he was guilty of an offence that had justified imposing a custodial measure on him . In ORG view , the primary purpose of LAW j ) of LAW was to protect the employer from the potentially adverse effects of an employee ’s prolonged absence from work and resulting failure to fulfil his contractual obligations .

In the written grounds of appeal lodged with ORG by his lawyer , the applicant agreed with ORG view , considering , for his part , that LAW ( j ) of LOC was contrary to the right to respect for the presumption of innocence , guaranteed by LAW . While not denying that a custodial measure of DATE had been imposed on him , the applicant pointed out that greater respect for the principle of the presumption of innocence would have been achieved by merely suspending his employment contract pending the relevant court ’s final decision regarding his guilt , which was a measure available under LAW no . CARDINAL on the status of civil servants .

In a decision of CARDINAL DATE , ORG dismissed the applicant ’s appeal . It held that his dismissal had been in conformity with the law and was not contrary to the LAW , having regard to the decision of ORG and the provisions of LAW . It noted that PERSON no . CARDINAL on the status of civil servants , which provided that a civil servant could be suspended from service if he had been committed for trial for an offence that was incompatible with his duties , expressly provided that the provisions of LAW supplemented that PERSON . Accordingly , LAW was also applicable to civil servants such as the applicant .

In a final judgment of DATE , ORG dismissed an appeal by the applicant against ORG decision , upholding it on the merits .

After DATE , when the decision of CARDINAL DATE of ORG extending the applicant ’s pre - trial detention expired , the applicant was released . He remained free throughout the remainder of the criminal proceedings against him .

NORP In a judgment of DATE , ORG sentenced the applicant to DATE and CARDINAL months’ imprisonment , suspended . It deducted from that period the time the applicant had spent in pre - trial detention from DATE to DATE . The court found , after hearing submissions from the applicant , who was represented by a lawyer , and at the end of public and adversarial proceedings , that the applicant and CARDINAL of his colleagues also employed as customs officials had committed the offences of abusing their office contrary to ORG interests and giving false data for inclusion in a document , contrary to ORG CARDINAL and CARDINAL of the Criminal Code respectively , thereby causing ORG , through their illegal customs activities , to incur a loss of CARDINAL NORP lei ( MONEY ) in tax and excise duty not collected by the ORG .

On appeal by the applicant and his co - defendants , who sought an acquittal on grounds that ORG had wrongly interpreted the applicable laws , ORG gave judgment on DATE upholding the lower court ’s judgment on the merits .

In a judgment of DATE , ORG remitted the case to ORG . The applicant sought a finding by that court that the offences of which he was accused were statute - barred . He nonetheless asked the court to continue with his criminal trial under LAW § CARDINAL of LAW , in order to secure an acquittal .

In a decision of DATE , ORG set aside the judgment of DATE . While noting that the offences were statute - barred , it granted the applicant ’s request to continue his criminal trial under LAW of LAW . Having re - examined all the evidence adduced in the case ( statements of witnesses and co - accused , expert technical reports , various documents , and so forth ) , the court found that the applicant could not be acquitted of the charges against him as the prosecution evidence adduced in the case proved his guilt . The court then ordered the trial to be discontinued on all counts , in accordance with LAW , thus bringing into effect the applicable special time bar .

On an appeal by the applicant , who sought an acquittal , ORG delivered a final judgment on DATE upholding the decision of CARDINAL DATE of ORG on the merits .

Article CARDINAL ( j ) of the Labour Code provided , at the material time , that an employer could dismiss an employee if his detention exceeded DATE . The new FAC , which came into force on DATE , initially contained a similar provision , in LAW ( b ) , providing that an employer could dismiss an employee if he was in pre - trial detention for DATE , in the conditions set forth in LAW . The DATE period was reduced to DATE by Government Ordinance no . CARDINAL amending LAW .

Regarding pre - trial detention , LAW in force at the relevant time provided that over and above a period of DATE , during which the public prosecutor ’s office had power , at that time , to issue a detention order , any extension of the period of pre - trial detention had to be ordered exclusively by a court . At the material time Article CARDINAL of the Code of Criminal Procedure was worded as follows :

“ The investigation file shall be lodged by the prosecutor [ with the court ] DATE prior to the hearing and may be consulted by the lawyer on request . The defendant shall be brought before the court , assisted by a lawyer . ... If the court allows a request to extend [ the period of detention ] , this shall not exceed DATE . The prosecutor or accused may appeal against a decision on a preliminary question of law in which the court has ruled on an extension of the period of pre - trial detention . The time - limit for appealing is DATE and shall run from the date of delivery of judgment for those who are present at trial and from the date of service for those who are not . An appeal against a decision extending the period of pre - trial detention shall not have suspensive effect ... The court may allow further requests for an extension of the period of pre - trial detention , but no period shall exceed DATE . ”

Since the adoption of Government Emergency Ordinance no . CARDINAL of CARDINAL DATE the public prosecutor ’s office no longer has power to order the pre - trial detention of a person accused of having committed an offence . Only an independent and impartial tribunal may order pre - trial detention or an extension thereof , by a reasoned decision , amenable to appeal , taken after hearing submissions from the accused in the presence of his lawyer .


Violation of Art. 10;Non-pecuniary damage - award

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

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He is a Doctor of Philosophy and a political science professor , who also holds leading positions in FAC , ORG in GPE , and ORG .

In DATE the applicant took part in a round table organised by the association “ For FAC and GPE in GPE ” on the occasion of the International Week against Racism .

On DATE the newspaper GPE and ORG ( Україна і світ сьогодні ) published selected excerpts ( compiled by its journalist PERSON L. ) from statements by certain participants , including the applicant , under the headline ' PERSON at the political level ? ' ( ' Юдофобія на рівні політики ? ' ) . CARDINAL of the arguments ascribed to the applicant read as follows :

“ Unfortunately , judaeophobia may be observed not only in social behaviour , but also in politics . For example , the self - styled ORG [ « Партія української єдності ORG ] , which professes the aim of instilling in people an ideology and a psychology of national extremism , is kicking off its activities in GPE . ”

On DATE CARDINAL members of the founding committee of ORG brought defamation proceedings against the applicant and the newspaper 's editorial office before the Zaliznychnyy ORG ( “ the Zaliznychnyy Court ” ) . They alleged , in particular , that the applicant 's statement , as cited above , was untruthful , defamatory and injurious to their honour , dignity and reputation , as well as debasing the future party 's image . The plaintiffs sought a public disclaimer and apologies by the applicant and the editorial office , as well as compensation for non - pecuniary damage .

On DATE the court requested the plaintiffs to specify their claim concerning the non - pecuniary damage and to submit additional documents , which they did on DATE .

On DATE the court further requested the plaintiffs to submit some other documents concerning the party 's registration .

On DATE the judge dealing with the case sent the defendants a copy of the above claim for comments . The same letter informed them that the hearing of the case was scheduled for DATE .

According to the judge 's explanation given to the applicant in DATE on the latter 's request , the claim remained unexamined during the period from DATE to DATE “ due to the pre - judicial preparations ” . It was also noted in the aforementioned letter that the judge , by virtue of his status , was under no obligation to provide the applicant with further explanations .

The applicant objected to the claim , contending that the impugned sentence was the journalist 's own interpretation of his words taken out of context . Relying on his right to freedom of expression enshrined in LAW , the applicant submitted that during the round table he had expressed his view of a political scientist as regards an emerging political force . He also brought to the attention of the court several publications concerning the foundation of ORG in GPE , which had appeared in the local newspapers in DATE and which contained , according to him , an indication of that party 's extremist trends .

ORG heard one of the round table 's organisers , who stated that the journalist had paraphrased and edited the applicant 's original statement to make it appear harsher .

Mr L. , who had prepared the impugned publication , was questioned as a witness and submitted that it was a verbatim record of the applicant 's statement made at the round table . He noted however that the audio tape had been destroyed on the expiry of the DATE statute of limitations period established for bringing defamation proceedings .

During the hearings some of the plaintiffs used the word “ yid ” referring to NORP , which the applicant found pejorative and protested against its usage . The court allowed his complaint and directed the plaintiffs to avoid using that term .

By a judgment of DATE the court allowed the plaintiffs ' claim in part . It considered it established , firstly , that the impugned statement had indeed been made by the applicant , and , secondly , that it had been untruthful and defamatory . The court ruled as follows :

“ To oblige PERSON and the editorial office of the newspaper GPE and ORG to publish ( ... ) a disclaimer worded as follows : “ The statement of PERSON published in the article ' PERSON at the political level ? ' of DATE : “ For example , the self - styled ORG , which professes the aim of instilling in people an ideology and a psychology of national extremism , is kicking off its activities in GPE ” is untruthful . The editorial office and the author sincerely regret having published it and offer their apologies to the founders of ORG ” .

The court held that publication of the aforementioned disclaimer and apologies would constitute sufficient compensation to the plaintiffs for any non - pecuniary damage sustained .

On an unspecified date in DATE the court issued additional reasoning to the above judgment , which reflected its findings as follows .

Having examined the statute and the programme of the party in question , the court noted the absence of any provisions inciting racial hatred or disparaging attitudes towards national minorities and held that the applicant 's statement was inconsistent with the true facts and therefore injurious to the plaintiffs ' dignity and reputation .

Furthermore , the court made reference to the testimony of Mr L. , who claimed to have reproduced the impugned statement literally and without omission . It also referred to some extracts from a book co - authored by the applicant , which contained arguments similar in style and wording to the statement complained of .

Regarding the applicant 's allegation that his words had been misrepresented and that they were a value judgment , the court “ assessed them critically , having regard to the explanations given at the hearing by the witness [ Mr L. ] and to the assessment of the other evidence adduced ” .

Finally , with regard to the background publications in other newspapers invoked by the applicant , the court concluded that they could not be considered as providing basis for absolving him from his responsibility in the examined defamation case .

The applicant appealed . He also subsequently lodged some comments on TIME of the hearings before the first - instance court , which were allegedly dismissed in his absence .

On DATE ORG found against the applicant , upholding the judgment of DATE and reproducing almost literally its reasoning .

The applicant brought a cassation appeal , in which he argued that his statement had been a value judgment made in the context of a free political debate He submitted that the mentioned value judgment had a factual basis , as the extremist tendencies had indeed been shown by the plaintiffs in some publications ( which he had invoked earlier ) and by their usage of the pejorative term “ yid ” during the hearings . Lastly , the applicant brought to the attention of the cassation court the fact that the plaintiffs ' claim had been stayed without any procedural steps in the first - instance court for DATE , which had led to the loss of a crucial piece of evidence ( the audio tape of the round table ) .

On DATE the disclaimer and apologies were published in the newspaper GPE and ORG in enforcement of the judgment of ORG .

On DATE ORG dismissed the applicant 's cassation appeal as unsubstantiated .

The relevant domestic law and practice concerning the freedom of expression and defamation proceedings are summarised in the judgment ORG v. GPE , no . CARDINAL/CARDINAL , § § CARDINAL and CARDINAL - CARDINAL , DATE .

According to LAW repealed with effect from DATE ) , pre - judicial preparations by a judge dealing with a newly registered civil claim may include the following , depending on the particularities of each case : requesting additional evidence from the plaintiff , explanation of the procedural rights and duties to the plaintiff and/or the defendant , taking decisions about participation of third persons , representatives of non - governmental organisations or prosecution authorities , as well as summoning witnesses , requesting evidence from state or other institutions , and ordering measures for securing the claim . After the registration of a civil claim , the first - instance court has DATE for the aforementioned preparations , or , in exceptional cases , DATE ( Article CARDINAL of the Code ) .


David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON .

Since DATE the applicant rented an apartment owned by the GPE .

NORP In DATE the building in which the apartment was situated was damaged with the result that it was formally declared to be no longer fit for habitation . The GPE therefore decided to provide all the inhabitants with other accommodation .

DATE the applicant requested the GPE on numerous occasions to provide her with other accommodation , but to no avail .

On an unspecified date in DATE the applicant instituted civil proceedings against the LOC . On DATE ORG granted the application and ordered that the applicant be provided with alternative accommodation . On DATE ORG upheld the judgment of ORG and the judgment became final .

Since the final judgment was not complied with by the LOC , the applicant lodged an action with ORG seeking a change in the manner in which the enforcement of the judgment was to be carried out . In particular , she claimed money from the GPE in lieu of alternative accommodation .

On DATE ORG upheld the applicant 's action and ordered the GPE to pay her the price of the apartment in the amount of MONEY ( ORG ) . However , that decision was also not enforced . On DATE the applicant lodged her application with the ORG , complaining of the non - enforcement of the judgment of DATE . On DATE , ORG quashed the judgment of DATE following a revision request lodged by the ORG and reinstated the judgment of DATE .

The judgment of DATE has not been enforced to date and the applicant continues to live in her old apartment .

According to the Government an apartment building in which the applicant 's apartment will be located is currently under construction by GPE .