No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Togo)

Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

On DATE the applicant arrived at GPE airport and applied for asylum .

During the asylum proceedings , the applicant was heard on CARDINAL DATE and DATE , and on DATE . In the course of those interviews he submitted that he was a member of the political party ORG ( ORG ) , which was at the time an opposition party in GPE . In DATE , he was attacked by soldiers and members of the ruling party of GPE and thereupon fled to GPE , where he stayed until DATE . He then returned to GPE .

In DATE , areas of GPE were flooded and the applicant and his family lost their house and their possessions . They thus moved to a camp for flood victims . The applicant claimed that relief items sent by international organisations were unequally distributed in the camp , which was why he and a group of other young members of the ORG criticised the distribution methods and attempted to distribute the goods themselves . However , soldiers threatened the applicant by saying , inter alia , that after the DATE elections , the applicant and other ORG party members “ would see what would happen . ” This was the reason why the applicant decided to leave GPE and fled to LOC .

When making further statements on DATE , the authorities told the applicant that since the DATE elections , the ORG held CARDINAL seats in the NORP parliament . The applicant replied that he was aware of this . When asked who exactly had persecuted him , he repeated that during his stay in the camp for flood victims , he and other members of the ORG had organized demonstrations to demand fair distribution of the relief supplies , as some members of the ORG had not received any of the food donations . On CARDINAL or DATE the police came to the camp and told them they “ would see what would happen ” . The applicant left the camp on DATE and stayed with a friend in PERSON for DATE . Subsequently , he went on to GPE .

The applicant stated that he was afraid that upon his return , the police would kill him because of his membership of the ORG . To the asylum authorities’ reminder that the ORG was now an active and official part of the government , the applicant replied that the de facto regime of DATE was still in power and that there was no democracy in GPE .

On DATE , ORG ( Bundesasylamt ) rejected the applicant ’s request for asylum and subsidiary protection and ordered his expulsion to GPE . It held that the fear of persecution described by the applicant was not credible and that the applicant ’s story seemed to have been fabricated around real events . In the event of his return the applicant would not face a real risk of a violation of ORG or CARDINAL or of Protocols Nos . CARDINAL or DATE to the Convention .

With reference to the relevant country reports , ORG stated that on DATE , parliamentary elections were held in GPE in which the former president ’s party , RPT , won CARDINAL seats , the UFC CARDINAL seats and the party of the former prime minister , CAR , CARDINAL seats in parliament . Despite the elections having been described as generally fair and free , PERSON could not yet be considered a representative democracy . The DATE presidential elections were considered rigged and had been accompanied by severe outbursts of violence . With regard to respect for human rights in GPE , ORG held that although the situation had improved slightly , serious violations of human rights persisted , such as inhuman treatment of prisoners , impunity for illegal acts committed by the authorities , arbitrary arrests , prolonged detention pending trial , and similar . Freedom of opinion , freedom of the press and freedom of assembly were not generally respected . No violence on the part of state organs or government forces against opposition members had been recorded since DATE . Opposition parties , media , associations of civil society and religious faiths were free to act .

Turning to the applicant ’s arguments , ORG held that while the applicant ’s account of the flood and the tensions with the security forces in the camp were credible , the alleged threats by the police and the resulting fear of the applicant were not , and the fact that the police had apparently not used violence against the inhabitants of the camp was in contradiction with the applicant ’s statements . Furthermore , since the DATE parliamentary elections the ORG had held CARDINAL seats in parliament . Lastly , according to ORG information , returned asylum seekers had not been subjected to systematic persecution . Therefore , the authority concluded that the applicant ’s claim for asylum was based on a fabricated story and that he had only submitted speculations on what could happen to him upon his return to GPE , and provided no indication of actual persecution against him on grounds recognized in LAW DATE United Nations Convention Relating to LAW . ORG also rejected the applicant ’s application for subsidiary protection , holding that he would not be exposed to a risk of persecution if returned .

The applicant appealed and complained that he had been informed that it was not possible for the authority to collect CARDINAL different pieces of evidence and had refused to take all the evidence the applicant had put forward . He had also had difficulty understanding the interpreter properly and was never given a chance to tell his story , as he had only been asked questions to which he could answer “ yes ” or “ no ” . Thus , the authority should not be allowed to claim that the applicant ’s account was too vague and unsubstantiated , as it had never given him the opportunity to substantiate his story . The applicant claimed that due to a translation error , it was not recorded that he had been beaten up by the police several times after he had participated in demonstrations in the wake of the DATE presidential elections . In addition , the fact that he had fled to GPE and stayed there until DATE had not been taken into account , and nor had the fact that the police had searched for him several times . The applicant had also been beaten up together with the other protestors when they had organised a demonstration in the camp for flood victims . He stated that even though the ORG was represented in parliament , regular ORG members were still subject to persecution , and in the event of his return to GPE , the authorities would “ make him disappear ” and probably kill him .

ORG ( Asylgerichtshof ) held a hearing on DATE . The applicant submitted a ORG membership card and confirmation that he had been an active member and had returned to GPE on DATE after having fled to GPE . He also provided a newspaper article from the paper “ Express ” of DATE , according to which his cousin ’s whereabouts after having been arrested were unknown , and the police were also looking for the applicant on account of his involvement in the demonstrations in the camp for victims of the floods in DATE and DATE . Finally , the applicant submitted a newspaper article about a protest march in DATE during which protestors were ill - treated by state forces .

In the course of the hearing , the ORG emphasised contradictions in the applicant ’s statement , for example , in relation to his school education , which he had allegedly followed until DATE in GPE , although he claimed to have fled to GPE in DATE . The applicant replied that he had spent DATE in GPE to go to school , but the weekends in GPE for safety reasons and to avoid arrest in GPE . The ORG also noted that the applicant had at CARDINAL point stated that he had never been beaten up by the police , only verbally threatened , whereas he had then claimed to have been beaten up by the police in the course of the demonstrations in the camp for flood victims . The applicant referred to language problems in the drafting of his appeal to ORG . He repeated that he had never been beaten up by the police , but that they had wanted to arrest him because of the demonstrations about the unfair distribution of food in the camp . He had fled on DATE , after the soldiers had threatened to arrest him and the other demonstrators . The applicant also mentioned that another organizer of the demonstrations , PERSON , had in the meantime been granted asylum in GPE .

On DATE , ORG dismissed the applicant ’s claim for asylum or subsidiary protection , and ordered his expulsion to GPE . It held that the applicant ’s claims were not credible , and the contradictions in his statements were not – as the applicant had claimed DATE due to translation errors . It stated that the newspaper article from the paper “ Express ” appeared to be a fake which had been paid for , as it was not probable that DATE after the demonstrations in the camp a newspaper would still publish such a story . In addition , the statement of the ORG according to which the applicant had fled GPE and only returned in DATE was in contradiction with his statements that he had returned at DATE .

The applicant lodged a complaint with ORG ) against that decision and applied for suspensive effect , which was granted on DATE . However , on DATE , ORG rejected the applicant ’s request for legal aid and refused to deal with the complaint .

The applicant applied for the proceedings to be re - opened ( PERSON des PERSON ) , submitting a newspaper article from the paper “ FAC ” dated DATE which stated that due to the demonstrations in the camps , a clash between the police and a group of young people – among which the applicant was mentioned by name – had occurred . He also submitted other documents and a “ verification report ” in relation to the authenticity of the newspaper article from “ ORG ” , which had been drawn up in the course of ORG ’s asylum proceedings .

On DATE ORG dismissed the applicant ’s request for the re - opening of the asylum proceedings . With regard to the newspaper article from “ FAC ” , it found that it was unlikely that a newspaper would report on events about food distribution in a camp for flood victims DATE after that occurrence . Furthermore , it was well known to the court that such articles could be easily bought in GPE and that the applicant had only presented the print - out of an internet download of the page , which was again an indication of it being a falsification . This conclusion could not be altered by the “ verification report ” , which was not a reliable source for establishing the authenticity of the article and any resulting danger of persecution for the applicant , especially taking into consideration that it had not been drawn up in the course of the applicant ’s proceedings , but for entirely different proceedings . Even if the article from “ FAC ” were considered evidence to support the applicant ’s story , it alone was not enough to outweigh all the other remaining inconsistencies in his account presented in the former proceedings .

The applicant applied for legal aid to lodge a complaint against that decision . However , on DATE , ORG rejected the application for legal aid due to lack of the application ’s prospects of success .

On DATE , the applicant , represented by counsel , lodged an application and a request for an interim measure under Rule CARDINAL of the Rules of the ORG to stay his expulsion to GPE .

On DATE , the President of the Section granted the request for an interim measure and asked the Government to inform the ORG as to the exact content of the documents and the “ verification report ” submitted by the applicant in the proceedings for the re - opening of his asylum claim . Furthermore , if the document was public , the ORG was asked to submit the “ verification report ” to the ORG . Finally , they were requested to explain to what extent that report was relevant to the granting of asylum to GPE

On DATE , the Government confirmed that the “ verification report ” had been commissioned by the NORP authorities in the course of GPE ’s asylum proceedings to verify the authenticity of the same article from “ FAC ” , which had been submitted in GPE ’s asylum proceedings and which also featured ORG full name , as it did the applicant ’s , in the context of the demonstrations in the camp for flood victims in relation to problems with the distribution of relief items . However , the Government emphasised that neither the authenticity of the article nor the chief editor ’s information on the extensive research done for the article could prove that the events were relevant to the applicant ’s asylum status . The Government further stated that the “ verification report ” was not public and that it did not concern the applicant . Therefore , reasons of data protection prevented the Government from submitting the whole report . With regard to the importance given to the article and the “ verification report ” in PERSON ’s asylum proceedings , the ORG submitted that the finding that the article was authentic carried no more weight in those asylum proceedings than other evidence , and that it had been considered together with all the other evidence in GPE ’s proceedings without taking any precedence .

M.A. was interviewed for the first time by ORG on DATE . He stated there that because of the flood in DATE , his family had lost their house and moved to a camp for flood victims . In the camp , relief items were distributed by soldiers and social workers ; however , they did not allow him and his friends to help with the distribution , called them “ members of the opposition ” and threatened them by stating “ you will see what will happen to you ” . PERSON was again interviewed on DATE . Asked to freely narrate his reasons for fleeing his country , he added that at the camp for flood victims , only supporters of the ruling government had had access to the relief items , whereas other groups of people and PERSON himself had not . Several families had protested against those practices and eventually ORG had organised demonstrations against the way relief items were distributed in the camp . As a result , the police had come , beaten them up and prohibited any further demonstrations . Police and security services had accused ORG and his followers of causing disturbances in the camp and uttered their threats . PERSON had told the story to a member of the ORG , who had helped him to leave the country . PERSON further claimed that he had also been persecuted by the military in DATE in the course of the presidential elections and the ensuing violent protests . Soldiers had come to his house several times , but he had never been there . He had also failed to comply with a number of summonses , but had left for GPE and stayed there until DATE . He had returned to ORG in DATE and had not had any problems with the authorities until the events in the camp for flood victims .

On DATE , ORG granted PERSON asylum in GPE . The decision did not elaborate on the reasons for granting him asylum in any depth . Referring to unspecified evidence in the file , the authority concluded that ORG submissions concerning the reasons for his fear of persecution , taken in conjunction with the results of investigations conducted by it , were credible .

On DATE , an NORP amendment statute repealed the possibility to lodge a complaint against a second - instance decision in asylum matters with ORG ( Verwaltungsgerichtshof ) .

DATE , Article CARDINALc of ORG had provided the possibility for decisions taken in asylum matters in the first instance to be appealed against in the form of a complaint with ORG ( PERSON ) . To appeal against decisions taken by ORG , an applicant had the option of lodging a complaint with ORG and/or with ORG .

After the entry into force on DATE of the amending statute in asylum matters , which established ORG and repealed the PERSON on ORG , it was no longer possible to lodge a complaint with ORG due to lack of jurisdiction : since DATE , ORG has decided upon appeals brought against decisions taken in asylum matters in the first instance . As concerns the possibility to lodge a complaint against a decision by ORG , Article CARDINAL no.CARDINAL of LAW reads as follows :

“ Article CARDINAL . The following matters are excluded from the jurisdiction of ORG :

matters pertaining to the jurisdiction of ORG ;

The new Article CARDINALa of LAW concerning jurisdiction of ORG now reads DATE after the entry into force of the amending statute DATE as follows :

“ Article CARDINALa . ( CARDINAL ) . The Constitutional Court shall decide on complaints against decisions of ORG where the appellant alleges an infringement of a constitutionally guaranteed right by such decision ... .

( CARDINAL ) ORG may decline to deal with a complaint ... if it has no reasonable prospects of success or if the decision is not expected to clarify a constitutional problem . ”

In sum , NORP asylum procedure includes the possibility of lodging a full appeal with ORG against a decision taken by ORG . Since DATE , ORG has no longer had jurisdiction over a complaint lodged against a decision by ORG . However , an asylum seeker can still lodge a complaint with ORG alleging a violation of a right guaranteed under LAW .

In GPE ORG has the status of a constitutional law ( ORG CARDINAL/CARDINAL ) .

Finally , section CARDINAL paragraph CARDINAL of ORG provides that a decision rendered by an administrative authority must only be reasoned if the party ’s arguments were not fully adhered to .

In DATE , the ORG High Commissioner for Refugees ( ORG ) updated his information on the international protection needs of asylum seekers from GPE . It referred to its position paper dated DATE in which it had urged , inter alia , a moratorium on forced returns in the light of the precariousness of the security situation in GPE following an outburst of human rights violations in the aftermath of the presidential elections of DATE . In DATE since , the report found that the situation in GPE had stabilised and in a number of ways improved . Reports of kidnappings and killings at TIME continued to be received but in substantially diminished numbers . There had been no fresh outbreaks of widespread violence . According to ORG and diplomatic sources , the NORP government evinced a genuine intention to resolve issues with the political opposition in the country , although this intention had not yet translated into meaningful reform . However , ORG reported on the complete impunity in GPE for the perpetrators of the outbursts of violence in DATE . The ORG for its part acknowledged the difficulties balancing the desire for reconciliation and for justice and referred to a general amnesty announced by the NORP Prime Minister , PERSON .

The ORG further referred to an avowed reluctance of many refugees to return to GPE , which was considered to be due in part to the lack of independent and reliable information on the treatment of individuals who had returned to GPE . It concluded that there was insufficient and contradictory information on the treatment of returnees to GPE to allow for a determination of the issue .

Based on the above conclusions , the ORG amended its position of DATE in respect to the international protection needs of NORP asylum seekers and urged host countries to consider every asylum claim on the basis of their individual merits and pursuant to the requirements of the DATE ORG Individuals already recognized as refugees should for the time being retain their status . For individuals found not to be in need of international protection following the determination of their claims in fair and efficient proceedings including a right of appeal , ORG did not object to their return to GPE . Host PERSON obligations under the principle of non - refoulement under application of human rights law remained unaffected and compelling humanitarian reasons were to be given due consideration .

Following an application by a NORP refugee in asylum proceedings in GPE , the organization ORG created a report in DATE about the current situation of members of the opposition party ORG in GPE .

The UFC participated for the first time in the parliamentary elections on DATE . Pursuant to international observers , those elections took place peacefully and in an orderly fashion . The governing party ORG won CARDINAL of the CARDINAL seats of the NORP parliament and the ORG , as the strongest opposition party , won CARDINAL seats . The UFC contested the election results and claimed forged ballots . The independent national election commission , ORG , noted that CARDINAL of CARDINAL ballot boxes were not correctly sealed . However , ORG finally confirmed the election results .

NORP The report confirmed that from DATE the Government had bowed to international pressure and tried increasingly to re - establish national dialogue among the government , the opposition and representatives of civil society , since such a dialogue was a condition for the re - instatement of economic cooperation with ORG . High - level members of the opposition were considered to be safe in view of the NORP government ’s own interest in international approval of the democratisation process in the country and the ensuing economic consequences . However , the situation was different for opposition activists who had no public standing , and for “ simple ” members who went on protest marches and became entangled in skirmishes with the military . An [ unnamed ] expert on NORP affairs was quoted as saying that those opposition members were still being secretly arrested , threatened and tortured , but that their stories would never be heard by the broader public .

Freedom of speech was still not guaranteed in GPE , a fact which was illustrated by the dissolution by use of teargas of a peaceful march organised by the ORG to mark the CARDINALth Independence Day on DATE . It was unclear if demonstrators had also been arrested at the march .

NORP The report concluded that ORG members of low public profile could still be victims of reprisals in GPE upon their return . Returnees from LOC were furthermore viewed with more suspicion than returnees from GPE or GPE .

With regard to arbitrary or unlawful deprivation of life , disappearances and torture in GPE , the report referred to several notifications that the government or its agents had committed arbitrary or unlawful killings during DATE . ORG had reported that several people had died in detention in DATE “ probably as a result of torture or other ill - treatment ” . In DATE , a ORG special rapporteur found evidence that police and gendarmes abused detainees during interrogation , guards beat prisoners and young persons and children were at risk of corporal punishment while in detention . Impunity for such actions remained a problem .

On DATE , the RPT candidate PERSON was re - elected as president with PERCENT of votes cast . International and national observers monitoring that election declared it generally free , fair , transparent and peaceful . The government arrested and held CARDINAL political detainees in connection with the presidential election , but denied that fact in public . As of DATE , according to ORG and ORG all CARDINAL detainees were released . None of those political prisoners had been mistreated .

Following the DATE elections , the ORG split into CARDINAL factions , CARDINAL led by PERSON , presidential candidate , and the other led by ORG president PERSON , who agreed to join the ruling RPT . As a result of an agreement between PERSON and the government , CARDINAL ORG ministers joined the presidential cabinet . As a result of internal rivalries in the ORG , the government banned the ORG DATE marches , justifying the action on the grounds that PERSON was no longer the lawful leader or the voice of the party .

Even though freedom of speech and of the press and freedom of assembly were guaranteed by the law and the constitution , the government continued to restrict those rights .


David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicants , PERSON ( “ the first applicant ” ) and PERSON PERSON , are NORP nationals who were born in DATE and DATE respectively and live in GPE . They were represented before the Court by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr J. Wołąsiewicz of ORG .

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

The applicants owned a flat in ORG in which they lived until DATE . The flat is located on the first floor of a block of flats . On DATE the applicants and their neighbours participated in a ORG meeting . It was decided that the communal boiler room be dismantled and that each of the residents would provide for their own heating .

NORP In DATE the applicants’ neighbour from the second floor , Mr S ( “ S ” ) , installed a central heating stove in his cellar and connected it to the chimney running through the applicants’ flat .

The applicants applied to the building and fire inspectors to report that their ORG central heating stove had been installed without the necessary building permit and was causing carbon monoxide pollution in their flat . On DATE the fire inspector carried out an inspection of the chimney in the applicants and their ORG flats .

On DATE FAC ordered S to dismantle the central heating stove . The Inspector established that the heating system had been installed without the building permit and that the exhaust tube was not wide enough . In consequence , the smoke from the coal burned in the stove had been coming out through the leaking ventilation system into the applicants’ kitchen . The Inspector underlined that such smoke normally contained carbon monoxide , which constituted a danger to the applicants’ health . S appealed unsuccessfully .

The first applicant repeatedly complained to the Inspector that his decision had not been enforced by S. On DATE ORG fined S for non - compliance with the decision to dismantle the stove .

On DATE the Building Inspector carried out an inspection of the venue and informed the Mayor that the decision to dismantle the stove had been enforced . Another inspection was carried out on DATE . It confirmed that the heating installation had been dismantled .

On DATE the first applicant complained to GPE about air pollution in her flat . On DATE the Sanitary Inspector confirmed that the nuisance caused in the applicants’ flat by the smoke coming out of the chimney was due to the heating stove used by S. He further informed the applicants that it was the responsibility of the Mayor to ensure that the heating installation of their neighbours complied with the relevant building regulations .

On DATE ORG informed the applicants that the use of the central heating stove did not pose any danger to their life or health . According to the tests carried out by the sanitary authorities on DATE the concentration of carbon monoxide in their flat was below the permissible level .

On DATE applied to the GPE District Mayor ( “ the Mayor ” ; PERSON ) for a building permit to install a heating system in his cellar . The proceedings were instituted on DATE . On DATE the Mayor rejected the application on the grounds that S had not complied with ORG earlier decision to dismantle the heating system .

On DATE made a new application for a building permit . On DATE the Mayor granted it , having regard to the fact that the decision to dismantle the stove had been enforced . On DATE the PERSON Governor quashed the impugned decision . The subsequent Mayor ’s decision granting a building permit was again quashed on appeal .

On DATE the Mayor dismissed S ’s application for a building permit for lack of all the required documents . S appealed against the decision and on DATE the PERSON Governor quashed it .

On DATE the Mayor stayed the proceedings for a building permit because their outcome depended on the conclusion of a related set of proceedings instituted by ORG ( see point CARDINAL below ) .

On DATE the Mayor resumed the proceedings for a building permit at the ORG request . An inspection of the chimney in LOC ’s apartment revealed no defects . On DATE the Mayor discontinued the proceedings for a building permit as devoid of purpose , finding that S had complied with the conditions imposed by ORG and had been allowed to use the stove ( see paragraph CARDINAL below ) .

The applicants appealed . On DATE the PERSON Governor quashed the decision since the applicants had not been given an opportunity to defend their position in the proceedings .

On DATE the Mayor again discontinued the proceedings . That decision was upheld by the Podlaski Governor on DATE following an inspection . The Governor found that the proceedings for the building permit were devoid of purpose because the applicants’ neighbours had already installed the heating system . The applicants lodged a complaint with ORG which appears to have been dismissed .

On DATE the applicants informed ORG that S had been unlawfully using his heating stove .

On DATE , ORG issued a decision aimed at regularising the heating installation and ordered S to prepare an expert opinion on its suitability . He observed that in accordance with LAW the installation at issue could not be subject to a demolition order . ORG established that there had been no causal link between the installation and the alleged air pollution and the fissures in the applicants’ flat . In the light of various opinions submitted by the parties he expressed a preliminary view that the heating installation had complied with the relevant regulations .

The decision became final on DATE since the applicants did not appeal against it . Subsequently , they unsuccessfully requested the building authorities to declare it null and void .

On DATE submitted the opinion of an authorised expert on the suitability for use of their heating system .

On DATE FAC carried out an inspection of the heating system which confirmed that S had fulfilled the conditions indicated in the above expert opinion . FAC informed the Mayor that his decision of DATE had been complied with and that S had been allowed to use the central heating stove .

On DATE the Building Inspector re - opened ex officio the proceedings , having regard to ORG judgment of DATE which , in his opinion , concerned the same subject - matter ( see paragraph CARDINAL below ) . On DATE the Building Inspector revoked his earlier decision of CARDINAL DATE and discontinued the proceedings for installation of the heating system by S , having regard to the judgment of DATE .

On DATE ORG quashed the decision of DATE . He found that the proceedings should not have been discontinued because the ORG heating stove had been still illegally connected to a chimney . ORG had also regard to a decision on interpretation of the judgment of DATE ( see paragraph CARDINAL below ) .

On DATE applied to ORG for permission to use the stove . On DATE ORG issued a decision which formally confirmed that the neighbours had complied with the obligations imposed on them . The applicants appealed . Following a round of various decisions , ORG eventually concluded that ORG should have ordered an expert opinion .

ORG complied and an opinion prepared by an independent expert , Z.M was submitted on DATE . The opinion was based on the inspection of the heating installation , chimney and ventilation duct and on the analysis of relevant building regulations and various previous opinions . It evaluated in a very comprehensive manner the conditions of the use of the heating installation . The expert concluded that the chimney was impermeable and that the installation was compatible with the relevant regulations . The only technical shortcoming concerned the diameter of the tube in the chimney which should be increased . In respect of the stains in the applicants’ flat , the expert found that they originated from the lack of correct ventilation of the flat due to a defective ventilation duct , and recommended the insulation of the duct with a view to resolving the issue . He excluded as entirely unproven the proposition put forward by the applicants and the opinion of expert PERSON submitted in the second set of civil proceedings that the tarry substances could have penetrated into the applicants’ flat ( see paragraph CARDINAL below ) . The applicants contested that opinion .

On DATE FAC ordered the neighbours to carry out some works in accordance with the expert opinion . That decision was subsequently quashed .

On DATE the ORG revoked his decision of DATE and ordered S to carry out the works recommended by the expert in his opinion of DATE . Following their unsuccessful appeal to ORG , the applicants filed a complaint with the administrative court .

On DATE ORG dismissed their complaint as ill - founded . It thoroughly examined the opinion of expert PERSON and held that the opinion had clearly indicated that it was possible to make the installation conform to the relevant regulations . It further noted that the proposed solution was also aimed at elimination of neighbourly conflicts . The applicants appealed to ORG .

On DATE ORG dismissed the cassation appeal . It concurred with the findings of the lower court and found no shortcomings in the expert opinion . The court emphasised that the solution concerning the regularisation of the installed heating system had not violated the law or the rights of third parties , including the applicants .

On DATE the first applicant lodged a civil action against S in which she sought restitution of a legal situation and abstention from infringements of law . She further sought MONEY ( ORG ) in respect of pecuniary damage .

On DATE the ORG partly allowed her action in that it ordered the defendant to stop the infringements of the first applicant ’s right to peaceful enjoyment of the possession by the use of the central heating stove . It held that the first applicant ’s claim for removal of the GPE heating system was too far - reaching and found it sufficient to have the applicants’ kitchen restored to its original state . The court dismissed her claim for pecuniary damage as unsubstantiated . It established that the defendants had connected the heating system to a chimney which was not technically adapted to such a function . In consequence soot and tarry substances had been penetrating the ORG flat . The first applicant ’s appeal was rejected on formal grounds .

On DATE the applicant ’s lawyer instituted enforcement proceedings . At a court hearing held on CARDINAL DATE the debtor stated that the creditor had not allowed him to enter the apartment in order to execute the judgment .

On DATE ORG stayed the enforcement proceedings at the first applicant ’s request .

On DATE the ORG gave a decision on interpretation of its judgment of DATE . It held that the objective of its judgment was to prevent the defendants from causing nuisance to the applicants occasioned by the discharge of soot and tarry substances , however the fact that the stove had been connected to a chimney could not be seen per se in breach of the judgment .

On DATE the court discontinued the enforcement proceedings in the absence of a request from the creditor to resume the proceedings .

On DATE the applicants instituted a new set of civil proceedings against S , in which they sought an order to dismantle the heating system .

On DATE ORG gave a judgment in which it allowed the applicants’ action , referring to the opinion of expert PERSON The court established that in spite of works undertaken by S , the negative effect on the applicants’ flat , as found in its previous judgment of DATE , still existed . In particular , a wall in their kitchen had become stained as a result of the reaction of steam and soot which were penetrating through the leaky tube and chimney . The court thus ordered S to permanently disconnect the central heating stove and to brick up the entrance to the chimney .

On DATE the applicants’ lawyer instituted enforcement proceedings . On CARDINAL DATE the court stayed the enforcement proceedings following the ORG request of CARDINAL DATE . Their request was related to the pending administrative proceedings . On DATE the court discontinued the enforcement proceedings as the applicants had not requested that they be resumed .

On DATE the first applicant informed the police that an offence had been committed and requested them to initiate criminal proceedings against PERSON After initial discontinuation of the investigation , in DATE ORG indicted S before ORG .

On DATE the trial court convicted S of a breach of building law and sentenced him to CARDINAL months’ imprisonment . The court found him guilty of installing the central heating stove in DATE without the required permits , of using it afterwards , and of reconnecting it in DATE in spite of the decisions of ORG ordering him to stop use of the stove . By using his central heating stove S had caused smoke containing carbon monoxide and carbon dioxide as well as tarry substances to penetrate into the applicants’ flat which exposed the applicants to imminent danger to their life and health . The second applicant appealed against the judgment , arguing that the penalty imposed on S was too lenient . On DATE ORG dismissed his appeal . Subsequently , S served his prison term .

Subsequently the prosecution service , apparently at the ORG request , instituted a second set of criminal proceedings against PERSON DATE the ORG gave a summary judgment in which it found S guilty of reconnecting the stove and using it DATE . The court sentenced him to DATE of restriction of liberty together with the obligation to perform TIME of unpaid work per month . The judgment became final and enforceable on DATE .

In DATE a third set of criminal proceedings was instituted against S. On DATE ORG discontinued the investigation , having regard , inter alia , to the results of the examination of the applicants’ apartment by the sanitary authorities on DATE . The applicants appealed unsuccessfully .

On DATE the applicants bought another flat in GPE , for which they obtained a mortgage . It appears that in DATE they moved out of the flat in GPE .


Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych

The applicants , Mr PERSON , and PERSON , are citizens of GPE who were born in DATE respectively . They are currently serving their prison sentences respectively in GPE and GPE prisons ( GPE ) . They were represented before the ORG by PERSON V. Vlk , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , from ORG . ORG did not make use of their right to intervene ( Article CARDINAL § CARDINAL of the Convention ) .

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

On DATE a police intervention unit entered the first applicant ’s cottage on suspicion that he had raped a certain PERSON broke out , during which the first applicant was seriously injured . The applicants were charged with attempted murder of the police officers . The first applicant was also charged with rape . He was hospitalised and the second applicant was detained . In the course of the investigation it became apparent that PERSON had invented the story of the rape and that the police had already been aware of that on DATE .

i. Proceedings for the protection of the first applicant ’s personal rights

On DATE the first applicant filed with ORG ( městský soud ) an action for the protection of his personal rights against ORG claiming CZK MONEY ( EUR CARDINAL ) as compensation for non - pecuniary damages . It appears that the proceedings are still pending .

ii . Procedure for the protection of the second applicant ’s personal rights

On DATE the second applicant and a certain PERSON filed with ORG an action for the protection of their personal rights and payment of reasonable satisfaction . The court dismissed their action in a judgment of DATE which was upheld by ORG ( Vrchní soud ) on DATE .

On DATE the applicant requested to reopen the proceedings .

iii . Proceedings for damage to health , business losses brought by the first applicant

On DATE the first applicant filed an action for damages against ORG . On DATE and DATE respectively , ORG ( okresní soud ) interrupted the proceedings pending the outcome of the proceedings for the protection of the applicant ’s personal rights ( i. ) . It appears that the proceedings have not yet been terminated .

iv . Proceedings for compensation for the expenses incurred in criminal proceedings

On DATE the applicants brought CARDINAL actions against ORG and ORG before ORG for compensation for the expenses they had incurred in the criminal proceedings . On DATE the court terminated the proceedings following the applicants’ withdrawals of their actions . Both decisions became final on DATE .

v. Proceedings for material damages initiated by the first applicant

On DATE the first applicant brought proceedings before ORG against ORG , claiming material damages of CZK MONEY ( EUR CARDINAL,CARDINAL ) .

On DATE ORG interrupted the proceedings pending the outcome of the proceedings for the protection of the applicant ’s personal rights ( i. ) . It appears that the proceedings remain pending .

vi . Proceedings for protection of personal rights of both applicants

On DATE the applicants brought proceedings for protection of their personal rights against ORG before ORG . ORG ( PERSON státní zastupitelství ) , ORG ( krajské státní zastupitelství ) and PERSON District Prosecutor ’s Office ( okresní státní zastupitelství ) joined the proceedings later on .

The court dismissed their action in a judgment of DATE which was quashed by ORG in respect of the first applicant . In a judgment of CARDINAL DATE ORG partly granted the first applicant ’s action , dismissing the rest of his claims . On DATE ORG modified this judgment in that it dismissed the successful part of the applicant ’s action . On DATE ORG ( PERSON ) dismissed the first applicant ’s appeal on points of law ( dovolání ) . His constitutional appeal ( ústavní stížnost ) was rejected by ORG ( GPE soud ) on DATE .

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


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

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . He was represented before the Court by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of ORG .

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

On DATE the bankruptcy estate of ORG Ab requested the local police to investigate whether the applicant had committed debtor ’s dishonesty by using company funds for his own private purposes DATE . The police recorded the criminal complaint and searched the applicant ’s LOC on DATE in order to find documents needed for the administration of the bankruptcy estate and to deliver them to the liquidator . The head of investigation ordered an interim measure on DATE and requested on DATE that the ORG issue an injunction in respect of the disposal of the applicant ’s property . On DATE ORG ordered that the applicant ’s property to a value of MONEY ( MONEY ) be frozen .

The applicant was interrogated for the first time on DATE . The pre - trial investigation ended on DATE when the investigation material was forwarded to the prosecutor .

NORP The prosecutor received the investigation material on DATE .

The case was referred further to ORG ( valtakunnansyyttäjänvirasto , riksåklagarämbetet ) . It appears from the first ORG prosecutor ’s application of DATE for an extension of the time prescribed for bringing charges and from the investigator ’s letter that the final statement of the applicant was received as late as DATE . The prosecutor filed the application for a summons on DATE .

A second ORG prosecutor was assigned to this case and to another case concerning the applicant in DATE .

The case became pending before ORG ( käräjäoikeus , tingsrätten ) on DATE . In DATE ORG requested the complainant to present his claims . In DATE the summons was served on the applicant and he filed his response on DATE .

In DATE the applicant started to involve himself in the work of his legal counsel , for example by challenging it , filing submissions with ORG without informing the ( first ) counsel and alleging that the latter was guilty of criminal conduct . In DATE and DATE the applicant filed CARDINAL pages of submissions regarding counsel ’s alleged criminal activity and the alleged violation of official duty by the prosecutor .

On DATE the applicant ’s ( first ) counsel was dismissed , and ORG started to look for new counsel , but none was appointed because of a lack of candidates . The court tried to solve the counsel problem during DATE and finally on DATE appointed new ( second ) counsel .

On DATE the applicant ’s spouse informed ORG that the applicant had become very ill and she filed a medical certificate to that effect on DATE . On DATE the applicant filed additional medical certificates with the court . On DATE the court requested the applicant to provide further information about the certificates , according to which his medical examination and treatment were still ongoing between March and DATE .

NORP On DATE ORG held a consultation which the applicant also attended .

NORP Before ruling on the case , ORG waited for judgment in another case . The latter case was heard in DATE and decided on DATE .

NORP In DATE ORG drew up a timetable for processing the case and sent it to the applicant for information .

On DATE the court also held an internal consultation .

At the preparatory session on CARDINAL DATE ORG found that extensive additional preparation in writing was necessary .

During the additional preparation , which lasted the whole of DATE , the applicant requested an extension of the time prescribed for issuing the defendant ’s statement . Further , the applicant requested that another pending case be joined to the case . ORG rejected the latter request .

On DATE ORG adopted a procedural decision in view of the procedural motions and claims presented during the preparation in writing . At the same time , the court decided that the proceedings would be continued in respect of CARDINAL count only . Another count was left to await the judgments of ORG ( korkein oikeus , högsta domstolen ) and ORG ( application no . CARDINAL/CARDINAL ) .

For the count to be processed , ORG prepared a proposal in DATE regarding the main hearing and sent it to the parties for comment . In DATE the applicant requested that the main hearing should not be held on the date proposed . On DATE the court rejected the request , confirmed the procedure , and decided to hold the main hearing on CARDINAL and DATE .

On DATE the applicant was brought by the police before ORG . When arriving in the courtroom he announced that he had an appointment with a doctor and left the court using that excuse . He failed to appear at the main hearing DATE and could not be contacted .

On DATE ORG received a medical certificate according to which the applicant was unable to work CARDINAL and DATE . ORG set DATE as the new hearing date .

During the main hearing on DATE , a witness testimony pointed to a new fact , which caused the applicant to request an additional investigation .

On DATE ORG asked the applicant ’s counsel about the possibility of hearing the applicant at his home . The applicant declined , stating that that course of action would be unreasonable .

On DATE the applicant did not appear at the main hearing . During the hearing , the applicant ’s counsel successfully requested interim measures and a new hearing date . ORG set CARDINAL DATE as the new hearing date .

On DATE the applicant again failed to appear at the hearing . The court then made a consolidated procedural decision concerning the applicant ’s repeated absence , holding that he had intentionally evaded the proceedings .

On DATE ORG dismissed the charges of aggravated debtor ’s dishonesty but imposed a fine on the applicant due to his repeated absence from court . The injunction remained in force .

The prosecutor appealed against the judgment of ORG and presented an alternative description of the alleged criminal act before ORG ( hovioikeus , hovrätten ) . The applicant also appealed to ORG in respect of the fine imposed by ORG .

On DATE ORG decided to refer the case back to ORG . The court found that as the prosecutor had provided the court with an alternative description of the criminal act and an alternative victim , new documentary evidence and new witnesses , a new hearing was required . In addition , the court noted on its own initiative that the applicant had not been heard in person before ORG , even though he risked being sentenced to imprisonment . The fact that the charges were later dismissed was not known at the time of the main hearing and the applicant should therefore have been heard in person . In addition , the precautionary measure was quashed .

On an unspecified date the applicant sought leave to appeal to ORG .

ORG refused leave to appeal on DATE .

The case became pending for the second time before FAC on DATE . The case was assigned to a judge who took office on DATE . The case could not be assigned to another judge as they had all been either processing or had already adjudicated the applicant ’s , his son ’s or their ORG cases which all were interconnected in CARDINAL way or another . The applicant had entered several disqualification pleas and made several procedural and criminal complaints against the judges .

ORG judge responsible for the case had telephone contacts with the applicant and his spouse in DATE and DATE . At that time , a number of other cases concerning the applicant were pending before ORG . The applicant proposed that his other pending cases should not be heard simultaneously because of his state of health . The judge agreed that the proposal was justified . The court did not start to hear the case immediately but heard another criminal case of the applicant first . When the court passed judgment in the other case on DATE , the applicant requested that the judgment be supplemented or rectified .

In DATE a summary of the case was sent to the parties for statements . During DATE and DATE ORG made efforts to agree on the date of the preparatory session with the prosecutor and counsel of the parties . On DATE the parties were summoned to the preparatory session to be held on DATE . In order to accelerate the preparatory session , the court sent the applicant ’s counsel on CARDINAL DATE a request to reply and on DATE a request to supplement the reply given to the court .

During the preparatory session on DATE , ORG and the parties discussed the possibility of joining certain cases . It was agreed unanimously that DATE should be reserved for the main hearing .

On DATE and DATE ORG decided to extend the time prescribed for the applicant ’s submissions .

On DATE the court decided not to withdraw the assignment of the applicant ’s counsel . It appears from the case file that the applicant opposed on occasion withdrawing counsel ’s assignment , sometimes himself requesting that the assignment be withdrawn .

On DATE ORG decided to join some of the applicant ’s cases . On that date the court also rejected the applicant ’s request for an expert opinion .

On DATE the applicant brought charges for violation of official duty against the judge responsible for his case just before the beginning of the main hearing . Moreover , he entered disqualification pleas against nearly all actors in the proceedings just before the start of the main hearing .

On DATE , when the main hearing was to begin , the applicant failed to appear in court . On DATE the court ordered that the applicant be brought to the courtroom . The applicant requested that the main hearing be cancelled and challenged the jurisdiction of the court to try his case .

On DATE ORG convicted the applicant on CARDINAL different counts , inter alia , for aggravated debtor ’s dishonesty and sentenced him to a conditional term of imprisonment of DATE and DATE . ORG expressly took into account the length of the proceedings when passing sentence .

The applicant , invoking the nature and scope of the case , requested that the time for appeal to ORG be extended . On DATE the ORG agreed to the request and set DATE as the new date for the appeal . The date for the counter - appeal was fixed for CARDINAL DATE .

On DATE the case became pending before ORG .

On an unspecified date ORG adopted a partial decision concerning the withdrawal of the order appointing the applicant ’s counsel . The applicant requested leave to appeal to ORG against the said decision .

On DATE ORG refused the applicant leave to appeal .

The proceedings in ORG are still pending .

According to LAW , section CARDINAL , of LAW ( rikoslaki , strafflagen ; as amended by Act no . CARDINAL/CARDINAL ) ,

" [ ORG addition to what is provided above in LAW , grounds mitigating the punishment that are also to be taken into consideration are ;

( CARDINAL ) a considerably long period that has passed since the commission of the offence ; if the punishment that accords with established practice would for these reason lead to an unreasonable or exceptionally detrimental result . "

In its judgment of DATE ( GPE ) ORG noted that , although there were no legal provisions justifying the dismissal of a criminal charge due to unreasonably lengthy proceedings , such a dismissal or declaring a case inadmissible might in some exceptional circumstances , for example if their duration ruled out a good defence , be the only effective remedy satisfying the requirements of LAW . That was , however , not the case in that precedent case . In considering whether there were grounds for applying LAW , section CARDINAL , subsection CARDINAL , of LAW , ORG held that it had to be decided in PERSON whether the duration of the proceedings ( in the precedent case DATE ) had been unreasonable . It concluded that in this case there were no grounds to waive a sentence or to mitigate the sentence owing to the duration of the proceedings .

In its judgment of DATE ( PERSON ) , ORG , applying LAW , section CARDINAL , subsection CARDINAL , of LAW , reduced the sentence imposed upon the applicant by DATE owing to the length of the proceedings that had lasted DATE . The court imposed an immediate term of CARDINAL months’ imprisonment , finding that it was not justifiable to mitigate the sentence further by suspending the term of imprisonment .

A new LAW has been added to LAW ( oikeudenkäymiskaari , rättegångsbalken ; as amended by Act no . CARDINAL/CARDINAL ) which entered into force on DATE . This LAW provides for a possibility to accelerate pending proceedings if there are specific reasons for so doing , inter aliaAny application for acceleration must be addressed to ORG before which the case is pending and shall be examined by a single judge formation . A case which has been granted priority must be examined by ORG without delay and before any other cases . The decision to grant or refuse priority can not be separately appealed .

The Act on Compensation for Excessive Duration of Judicial Proceedings ( laki oikeudenkäynnin viivästymisen hyvittämisestä , lagen om gottgörelse för dröjsmål vid rättegång ; Act no . ORG ) entered into force on DATE . The LAW provides for a party a right to receive compensation from ORG funds whenever judicial proceedings concerning that party have been excessively long .

As to its scope of application , section CARDINAL of the LAW provides as follows :

“ This Act is applicable by general courts to litigious , non - contentious and criminal actions .

Reduction of a penal sanction on the basis of excessive length of judicial proceedings is provided for in LAW ( CARDINAL/CARDINAL ) . Irrespective of this LAW , compensation for damage caused by excessive duration of judicial proceedings can be obtained as provided in LAW ( CARDINAL ) . ”

The right to compensation is set out in section CARDINAL of the LAW which provides the following :

“ A private party is entitled to receive a reasonable amount of compensation as referred to in section CARDINAL from the ORG funds if judicial proceedings last an excessively long time resulting in a violation of the party ’s right to a trial within a reasonable time . ”

When evaluating the length of the proceedings , in addition to the length itself , the nature and scope of the subject - matter , the actions of the parties , authorities and courts in respect of the proceedings as well as the importance of the subject - matter to a party are to be taken into consideration pursuant to section CARDINAL of the LAW . Moreover , the case - law under LAW is also to be taken into account .

According to section CARDINAL of the LAW , the period to be taken into account starts in civil and non - contentious civil matters when action is initiated before a court ; in criminal matters when the competent authority has notified the defendant of a crime suspected to have been committed by him or when a crime suspicion directed at him has had an essential bearing on his position ; or when a claim made by a party has become pending before a court .

As to the amount of compensation , section CARDINAL of the LAW provides the following :

“ The purpose of compensation is to compensate for the anxiety , uncertainty or other comparable harm caused to a party by excessive duration of proceedings .

The amount of compensation is QUANTITY per year for DATE that the proceedings have been delayed for reasons attributable to the ORG . The total amount of compensation shall be increased by a maximum of CARDINAL if the merits are particularly important to the party . A matter shall be considered particularly important if it has a direct bearing on the person ’s health , income , legal position or some other comparable consideration . The compensation may be reduced or increased on the basis of a consideration referred to section CARDINAL or for some other comparable consideration .

The compensation amount shall not exceed MONEY . This maximum amount of compensation may be exceeded in special circumstances .

There is no entitlement to monetary compensation as far as a sanction imposed has been mitigated due to the excessive duration of proceedings . If compensation has been awarded earlier by a final decision in the same matter , it shall be taken into account as a reduction when determining the new compensation . ”

As to the procedure for claiming compensation , section CARDINAL of the LAW provides as follows :

“ A claim for compensation shall be lodged with the general court in charge of the case before the consideration of the merits is closed under the pain of loss of the right of action . Such a claim can not be lodged as late as at ORG stage without a valid reason .

A claim may be made in writing or orally . Justifications for the claim shall be presented . ”

According to section CARDINAL of the LAW , the public prosecutor shall use in criminal matters the right of action on behalf of the ORG in respect of a compensation matter while ORG shall use it in respect of other matters . ORG shall not be provided with an opportunity to be heard in respect of the compensation claim unless there is a special reason for this .

As to the decision - making , section CARDINAL of the LAW provides that the court shall decide on the compensation claim when it decides on the merits of a case . The composition competent for deciding on the merits shall also be competent for deciding on the issue of compensation . The court must notify ORG of the decision on compensation without delay .

Section CARDINAL of the Act concerns costs . It provides as follows :

“ If a party is awarded compensation , reimbursement of the necessary and reasonable costs incurred by him for claiming compensation shall be ordered to be paid to him from ORG funds unless otherwise reimbursed from ORG funds . No fee is charged for the processing of the compensation claim . ”

According to LAW , a decision rendered by a court on the compensation claim can be appealed against in the same manner as the decision on the merits . ORG can appeal against the ORG decision without having to register its intent to appeal .

As concerns the payment of compensation , section CARDINAL of the LAW provides that the compensation shall be paid to a party within DATE on which the compensation decision became final . The compensation shall be paid by ORG . A prohibition on attaching the compensation and its tax - fee nature is provided for by a separate provision .

The Act has already been applied by the domestic courts . On DATE ORG rejected a compensation complaint as the length of the proceedings had not been excessive ( DATE and DATE at CARDINAL level of jurisdiction ) . In its judgment of DATE ORG rejected a compensation complaint as it had been filed too late . On DATE ORG found in a case that proceedings had been too lengthy when they had lasted DATE and DATE at CARDINAL levels of jurisdiction , and awarded the applicants QUANTITY respectively .


The applicant is a NORP citizen , born in DATE and currently living in GPE . Before the Commission he is represented by Mr. PERSON , a lawyer practising in GPE am GPE .

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

In or DATE , when he was DATE , the applicant arrived with his family , his parents and CARDINAL brothers and sisters , in GPE . A younger sister was born there later .

The applicant attended school in LOC and worked thereafter in his parents ' restaurant . From DATE to DATE he was the manager of this restaurant .

In DATE and DATE the applicant was convicted of theft and aggravated theft and fined , respectively sentenced to DATE imprisonment on probation .

On DATE and DATE the applicant was convicted by ORG ( Landgericht ) of armed robbery in CARDINAL cases and sentenced to DATE imprisonment . ORG fixed later a cumulative sentence ( PERSON ) of DATE and DATE imprisonment .

After having served CARDINAL of this sentence , ORG ( Oberlandesgericht ) suspended the remainder of the sentence on probation having regard to the favourable prognosis of the applicant 's personality .

On DATE ORG ordered the applicant to leave GPE on the ground that the applicant had been convicted of criminal offences and sentenced to DATE imprisonment . Reference was made in particular to Section CARDINAL para . CARDINAL ( CARDINAL ) of LAW ) . According to this provision , a foreigner shall be expelled from GPE if he has been finally sentenced to a minimum of DATE imprisonment for having committed wilfully CARDINAL or more offences ( ... wird ein Ausländer ausgewiesen , wenn er wegen einer oder mehrerer vorsätzlicher ORG rechtskräftig zu einer GPE von mindestens fünf Jahren verurteilt worden ist ) .

The applicant lodged an administrative appeal ( Widerspruch ) against the deportation order . These proceedings are still pending .

At the same time the applicant requested to suspend , pending the appeal proceedings , the execution of the deportation order ( Antrag auf einstweiligen PERSON ) .

On DATE , ORG ( Verwaltungsgericht ) at GPE an der Weinstrasse dismissed this request . The ORG found that the deportation order had been issued in accordance with the relevant provisions of LAW . The competent authorities did not enjoy any margin of appreciation when ordering the applicant 's deportation . Having regard to the applicant 's sentence of DATE imprisonment and the seriousness of the offences committed by him , the public interest in the prevention of disorder and crime outweighed the applicant 's interests in staying in GPE although he had lived with his family in that country for DATE . Furthermore there was a particular public interest in enforcing the deportation order rapidly with a view to deterring other foreigners from committing similar offences .

The applicant 's appeal ( Beschwerde ) against the refusal to be granted a suspension of the deportation order was dismissed by PERSON ( Oberverwaltungsgericht ) on DATE .

On DATE ORG ( Bundesverfassungsgericht ) , sitting as a panel of CARDINAL judges , refused to admit the applicant 's constitutional appeal against the above decisions , on the ground that it offered no prospect of success .

ORG held that it was not in breach of any constitutional right to expect the applicant to pursue the appeal proceedings from GPE .

On DATE the applicant was expelled to GPE .


CASE OF TIMES NEWSPAPERS LTD v. THE UNITED KINGDOM (Nos. 1 AND 2)

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

The applicant , ORG , is the proprietor and publisher of The ORG newspaper . The applicant is registered in GPE .

On DATE The ORG published an article in the printed version of the newspaper headlined “ Second NORP Link to Money Laundering ” . This article stated :

“ NORP and NORP investigators are examining the role of an alleged second NORP mafia boss over possible involvement in money - laundering through ORG .

Investigators are understood to be looking at links to [ PERSON : his name was set out in full in the original article ] , whose company , ORG , has been described by the ORG as an ‘ organisation associated with NORP criminal activity’ .

[ PERSON ] ’s name surfaced in earlier money - laundering investigations which may have links to ORG affair , in which MONEY of NORP money are alleged to have been laundered .

The NORP - born businessman came to the attention of NORP and NORP investigators in DATE . They suspected ORG of using its former international base in GPE as a front for a large - scale money - laundering operation . His name also figured in a NORP police report in DATE , known as GPE , which looked at the extent of the influence of the NORP mob in GPE .

[ PERSON ] has repeatedly denied any wrongdoing or links to criminal activity .

ORG , which has since moved out of GPE , is also alleged to have been involved in the smuggling of nuclear weapons and by DATE reportedly controlled CARDINAL businesses in the former GPE and another CARDINAL companies in the LOC .

The ORG has learnt that these included DATE CARDINAL offshore companies in NORP jurisdictions , including LOC and LOC .

They were administered through a chartered accountant in central GPE whose offices and home were raided in DATE by officers from GPE .

The companies were suspected of being used to help launder money from GPE , which was then channelled through NORP banks . No charges were ever filed against the accountant .

At about the same time a NORP associate said to have been a frontman for [ PERSON ] was stopped and questioned after arriving at a GPE airport . No charges were filed against him .

The NORP investigation into ORG is believed to have failed because of the difficulty of establishing that the money funnelled through offshore companies controlled by ORG was linked to criminal activities .

[ PERSON ] is alleged to be a former business associate of PERSON , the former NORP Prime Minister , and in DATE his name hit the headlines after it emerged that he had been photographed with President PERSON at a NORP fund - raising event in DATE .

He is also alleged to have had business dealings with ORG , the NORP - based mafia figure at the centre of ORG investigation . ”

On DATE The ORG published a second article entitled “ ORG to ORG , Wife Claims ” . This article stated :

“ A NORP businessman under investigation by NORP authorities pursuing allegations of money - laundering was a friend of [ GPE ] , a suspected mafia boss , the businessman ’s wife claims .

ORG , the aluminium magnate under NORP investigation , was given access to staff and a chauffeur by [ GPE ] when he moved to GPE , according to ORG , Mr Chernoi ’s estranged wife ...

If PERSON allegation about a connection between her husband and [ PERSON ] is true , it will raise further questions about Mr Chernoi . In DATE the ORG described ORG , a company operated by [ GPE ] and alleged to have been used to launder money and smuggle nuclear weapons , as an ‘ organisation associated with NORP criminal activity’ .

In DATE [ PERSON ] triggered a row in GPE after a photograph was published of him with President PERSON in DATE . [ PERSON ] has denied any wrongdoing . ”

Both articles were uploaded onto the applicant ’s website on DATE as they were published in its newspaper .

On DATE PERSON brought proceedings for libel in respect of the CARDINAL articles printed in the newspaper against the applicant , its editor and the CARDINAL journalists under whose bylines the articles appeared ( “ the first action ” ) . The defendants did not dispute that the articles were potentially defamatory and did not seek to prove that the allegations were true . Instead , they relied solely on the defence of qualified privilege , contending that the allegations were of such a kind and seriousness that they had a duty to publish the information and the public had a corresponding right to know .

While the first action was under way , the articles remained on the applicant ’s website , where they were accessible to Internet users as part of the applicant ’s archive of past issues . On DATE , PERSON brought a second action for libel in relation to the continuing Internet publication of the articles ( “ the second action ” ) . Initially , the GPE only defence to the second action was CARDINAL of qualified privilege . The CARDINAL actions were consolidated and set down for a split trial on issues of liability and then quantum .

On DATE the applicant added the following preface to both articles in the Internet archive :

“ This article is subject to ORG libel litigation between [ PERSON ] and ORG . It should not be reproduced or relied on without reference to ORG . ”

NORP In or around DATE the defendants applied to re - amend their defence in the second action in order “ to contend that as a matter of law the only actionable publication of a newspaper article on the Internet is that which occurs when the article is first posted on the Internet ” ( “ the single - publication rule ” ) . They argued that , as a result , the second action was time - barred by CARDINAL of LAW .

On DATE the ORG refused permission to re - amend the defence , relying in particular on the common - law rule set out in Duke of GPE v. PERSON ( see paragraph CARDINAL below ) that each publication of a defamation gives rise to a separate cause of action . The court held that , in the context of the Internet , this meant that a new cause of action accrued every time the defamatory material was accessed ( “ the Internet publication rule ” ) .

On DATE ORG found that the defendants had no reasonable grounds for contending that after DATE ( the date on which the defendants lodged their defence in the first action ) they remained under a duty to publish the articles on the Internet . As a result , the court struck out the defence of qualified privilege in relation to the second action . On DATE , judgment was entered for PERSON in the second action , with damages to be assessed . By this time the applicant had removed the articles from its website .

The defendants appealed against ORG order of DATE rejecting the single - publication rule . They argued that the Internet publication rule breached LAW , pointing out that as a result of the rule , newspapers which maintained Internet archives were exposed to ceaseless liability for republication of the defamatory material . The defendants argued that this would inevitably have a chilling effect on the willingness of newspapers to provide Internet archives and would thus limit their freedom of expression .

In its judgment of DATE , ORG , per ORG , dismissed the appeal against the order in the second action , stating :

“ We do not accept that the rule in the Duke of GPE imposes a restriction on the readiness to maintain and provide access to archives that amounts to a disproportionate restriction on freedom of expression . We accept that the maintenance of archives , whether in hard copy or on the Internet , has a social utility , but consider that the maintenance of archives is a comparatively insignificant aspect of freedom of expression . Archive material is stale news and its publication can not rank in importance with the dissemination of contemporary material . Nor do we believe that the law of defamation need inhibit the responsible maintenance of archives . Where it is known that archive material is or may be defamatory , the attachment of an appropriate notice warning against treating it as the truth will normally remove any sting from the material . ”

On DATE ORG refused leave to appeal . The parties subsequently settled the action and the applicant agreed to pay PERSON a sum of money in full and final settlement of claims and costs arising in both actions .

Section CARDINAL of LAW DATE ( “ the DATE LAW ) sets out a general limitation period of DATE in tort actions . Section CARDINAL of the DATE Act qualifies this limitation period as regards defamation actions and provides as follows :

“ The time - limit under LAW shall not apply to an action for DATE

( a ) NORP libel or slander ; or

( b ) slander of title , slander of goods or other malicious falsehood ;

but no such action shall be brought after the expiration of DATE from the date on which the cause of action accrued . ”

Section CARDINALA of the DATE Act provides :

“ ( CARDINAL ) It if appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which –

( a ) the operation of section CARDINAL of this Act prejudices the plaintiff or any person whom he represents ; and

( b ) any decision of the court under this subsection would prejudice the defendant or any person whom he represents ;

the court may direct that that section shall not apply to the action or shall not apply to any specified cause of action to which the action relates .

( CARDINAL ) DATE

( a ) the length of , and the reasons for , the delay on the part of the plaintiff ;

( b ) where the reason or one of the reasons for the delay was that all or any of the facts relevant to the cause of action did not become known to the plaintiff until after the end of the period mentioned in section DATE

( i ) the date on which any such facts did become known to him ; and

( ii ) the extent to which he acted promptly and reasonably once he knew whether or not the facts in question might be capable of giving rise to an action ; and

( c ) the extent to which , having regard to the delay , relevant evidence is likely –

( i ) to be unavailable ; or

( ii ) to be less cogent than if the action had been brought within the period mentioned in section CARDINALA. ”

Duke of GPE v. PERSON [ DATE ] CARDINAL QB CARDINAL lays down a common - law rule of some significance . On DATE an article was published in ORG . The limitation period for libel was , at that time , DATE . The article defamed the Duke of GPE . DATE after its publication an agent of the ORG purchased a back number containing the article from ORG office . Another copy was obtained from ORG . The ORG sued on those CARDINAL publications . The defendant contended that the cause of action was time - barred , relying on the original publication date . The court held that the delivery of a copy of the newspaper to the plaintiff ’s agent constituted a separate publication in respect of which suit could be brought .

In PERSON v. ORG [ DATE ] ORG the respondent brought an action in defamation against the appellants who were Internet service providers . They had received and stored on their news server an article , defamatory of the respondent , which had been posted by an unknown person using another service provider . The judge stated :

“ In my judgment the defendants , whenever they transmit and whenever there is transmitted from the storage of their news server a defamatory posting , publish that posting to any subscriber to their ORG [ Internet service provider ] who accesses the newsgroup containing that posting . Thus every time CARDINAL of the defendants’ customers accesses ‘ soc culture thai’ and sees that posting defamatory of the plaintiff there is a publication to that customer . ”

The leading case on the defence of qualified privilege is ORG [ DATE ] CARDINAL AC CARDINAL . That case established that qualified privilege is an absolute defence to libel proceedings . In the leading judgment before ORG , Lord PERSON of GPE explained the defence as follows :

“ The underlying principle is conventionally stated in words to the effect that there must exist between the maker of the statement and the recipient some duty or interest in the making of the communication . Lord PERSON ’s dictum , in PERSON [ DATE ] A.C. CARDINAL , CARDINAL , is much quoted :

‘ a privileged occasion is ... an occasion where the person who makes a communication has an interest or a duty , legal , social , or moral , to make it to the person to whom it is made , and the person to whom it is so made has a corresponding interest or duty to receive it . This reciprocity is essential’ . ”

ORG has adopted a Code of Practice which is regularly reviewed and amended as required . Paragraph CARDINAL of the current Code of Practice reads as follows :

“ ( i ) The Press must take care not to publish inaccurate , misleading or distorted information , including pictures .

( ii ) A significant inaccuracy , misleading statement or distortion once recognised must be corrected , promptly and with due prominence , and – where appropriate DATE an apology published .

( iii ) The Press , whilst free to be partisan , must distinguish clearly between comment , conjecture and fact .

( iv ) A publication must report fairly and accurately the outcome of an action for defamation to which it has been a party , unless an agreed settlement states otherwise , or an agreed statement is published . ”

Unlike GPE , the courts of GPE have chosen to apply the “ single - publication rule ” . In the case of PERSON v. ORG Sons ( DATE ) CARDINAL ORG , a book originally put on sale in DATE was still being sold in DATE following several reprints . ORG considered the rule in Duke of GPE v. PERSON , but concluded that it was formulated “ in an era which long antedated the modern process of mass publication ” and was therefore not suited to modern conditions . Instead , the court held that the limitation period started to run in DATE , when the book was first put on sale . The court pointed out that :

“ Under [ the rule in Duke of GPE v. PERSON ] LAW would never expire so long as a copy of such book remained in stock and is made by the publisher the subject of a sale or inspection by the public . Such a rule would thwart the purpose of the legislature . ”

The single - publication rule was subsequently applied to a website publication in GPE of GPE DATE ) NY int CARDINAL . In that case , a report published at a press conference on DATE was placed on the Internet DATE . An action was brought over DATE . ORG held that the limitation period started when the report was first uploaded onto the website and did not begin anew each time the website version of the report was accessed by a user . The court observed that :

“ The policies impelling the original adoption of the single - publication rule support its application to the posting of ... the report ... on the website ... These policies are even more cogent when considered in connection with the exponential growth of the instantaneous , worldwide ability to communicate through the Internet ... Thus a multiple publication rule would implicate an even greater potential for endless retriggering of the statute of limitations , multiplicity of suits and harassment of defendants . Inevitably , there would be a serious inhibitory effect on the open , pervasive dissemination of information and ideas over the Internet which is , of course , its greatest beneficial promise . ”