NORP The applicant was born in DATE and lives in LOC . He grew raspberries there and had a lucrative contract with the shop ORG , but lost it in DATE when the local environmental health officer let it be known to the shop that the applicant was packing raspberries in his kitchen . The applicant and his wife sued ORG and ORG ( ' DOLGE ' ) for mis - statement and were awarded over GBP CARDINAL,CARDINAL in damages by the Manx High Court on DATE . The applicant did not consider that this was enough , and , wishing to appeal , instructed a new ( NORP ) advocate , a PERSON PERSON , then a partner in a firm of advocates called PERSON ORG CJM ' ) .

Mr PERSON advised that there was merit in an appeal , and applied for legal aid on his client 's behalf in DATE : this application was rejected on CARDINAL DATE . The applicant 's ORG from the first instance judgment was rejected DATE because it had been filed DATE . Mr PERSON advised ( via letter and at a meeting ) that it would not be unduly difficult to apply for an extension of time in which to lodge the appeal , but that , in the circumstances , the best course of action was for the applicant to cut his losses and to accept an offer put forward by ORG . The applicant accepted this advice and , on DATE , ORG 's offer of GBP CARDINAL .

NORP CJM issued proceedings against the applicant for payment of their fees on DATE . An advocate instructed by the applicant to defend the claim failed to file a Defence in the prescribed period , and judgment was entered for ORG on DATE . After taxation of ORG 's costs , judgment was issued on DATE for a total of ORG . PERSON then applied for execution of the judgment and on DATE , the applicant 's property was placed under arrest by the Coroner . The applicant appealed on DATE and on DATE Mr PERSON wrote to the Coroner and the applicant requesting that no further steps be taken in respect of the enforcement of the execution against the applicant until specifically instructed . It appears that the execution remained suspended until the judgment of CARDINAL DATE detailed below .

After a delay occasioned by their difficulty in obtaining legal aid , the applicant and his wife brought proceedings on DATE against ORG in negligence , claiming that ORG 's actions and omissions in DATE had deprived them of the opportunity to pursue their appeal against the first instance decision in their case against ORG . These proceedings are referred to hereafter as “ the ORG proceedings . ” In them , the applicant and his wife were represented throughout by leading Counsel from GPE , who had been granted a special temporary licence as a NORP advocate . The proceedings were heard by Acting PERSON , succeeded by Acting PERSON .

The summons issued on DATE was not served on ORG until DATE , the time for service of the summons having been extended by ORG on DATE . After the applicant filed a motion for judgment in default of defence on DATE , it appears a first defence was served out of time on DATE . A second defence was served on DATE . After the service of this second defence , a motion filed by the applicant for judgment in default was dismissed by consent on DATE . On DATE the defendants filed a motion for a split trial between liability and quantum issues , which was dismissed on DATE . It appears that there had been no correspondence between the parties and ORG DATE and DATE , leading ORG to write to the defendants on DATE indicating , inter alia , that Acting PERSON “ was very anxious to progress the matter ” . After the dismissal of the defendant 's motion for a split trial on DATE , it appears it was incumbent on the applicant to apply to have the case set down for trial within DATE of this date . No application was made . On DATE , ORG wrote to the applicant 's solicitors requesting that they make the necessary application as soon as possible . On DATE , the applicant 's solicitors replied , apologising for the delay in their application . On DATE , ORG replied with instructions from ORG that the case be set down for trial within DATE . Both parties responded expressing concern at this proposal .

It further appears that throughout DATE the parties each filed a number of motions , the defendants requesting a stay in the proceedings and each seeking leave to amend the statement of case , the defence and reply . Further such motions were sought throughout DATE and DATE and DATE . On DATE and CARDINAL DATE , ORG made orders setting further directions for the proceedings . Further orders were agreed by consent between the parties on DATE , DATE and DATE , in each instance agreeing to a revised timetable and date for trial . On DATE the applicant issued a motion for additional time to serve a further expert report to which the defendants responded with a motion that the action be struck out for non - compliance with orders of ORG . In order to hear the motions , ORG vacated the scheduled trial date . They were heard on DATE with the defendant 's motion being dismissed , the applicant being given leave to serve the expert report and further directions being given to the parties .

The ORG proceedings did not therefore come to trial before Acting PERSON until DATE , at which point ORG essentially conceded liability and limited themselves to contesting quantum . By a judgment dated CARDINAL DATE : ( CARDINAL ) the judgments obtained by ORG in DATE were set aside ( by consent ) and these earlier proceedings dismissed ; and ( CARDINAL ) the applicant and his wife were awarded the sum of ORG plus interest of ORG .

The applicant and his wife appealed against the quantum of the award ; their appeal was dismissed on DATE . In a detailed CARDINAL page judgment , ORG of GPE ) considered and dismissed each head of their challenge to the conclusions of the first instance judge . It seems that the applicant 's Counsel was directed by the lead judge at the end of the hearing that his interest was now at end .

The applicant wished to apply to ORG for special leave to appeal directly to ORG but it appears that after failing to obtain such leave as a “ poor person ” and failing to obtain legal aid from the NORP authorities , he did not do so .

Rule CARDINAL of LAW of ORG of GPE provides that for the purpose of service , a summons is valid in the first instance for DATE beginning with the date of its issue by ORG . Where a summons has not been served on a defendant , the ORG may by order extend the validity of the summons for a period , not exceeding DATE at any CARDINAL time .

Rule CARDINAL of LAW provides that the ORG may , at any stage of the proceedings , allow either party to alter or amend his pleadings , in such manner and on such terms as may be just , and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties .

Rule CARDINAL of LAW provides that a ORG shall have power to enlarge or abridge the time appointed by the Rules , or fixed by any order enlarging time , for doing any act or taking any proceeding , upon such terms ( if any ) as the justice of the case may require . Any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed .

Rule CARDINAL of the same LAW provides that the time for delivering , amending , or filing any pleading , answer , or other document may be enlarged by consent in writing , without application to the ORG .


The applicant was born in DATE and lives in GPE in GPE .

In DATE and DATE the applicant sued the local ORG for unpaid allowances and commodity benefits .

By judgment of DATE , ORG of the Voronezh Region awarded her MONEY ( RUB ) for the period from DATE to DATE . On DATE the judgment became final . The applicant received the monies on DATE .

By judgment of DATE , ORG awarded the applicant RUB CARDINAL,CARDINAL.CARDINAL for the period DATE and DATE . On DATE the judgment entered into force . The applicant received the monies on DATE .

On DATE ORG awarded the applicant RUB CARDINAL . It appears that the judgment was not enforced .

On DATE ORG awarded the applicant RUB CARDINAL for the period from DATE and increased her DATE allowance to RUB MONEY from DATE with subsequent indexation . On CARDINAL DATE the judgment entered into force . The applicant received the lump sum on CARDINAL DATE .

On DATE ORG awarded the applicant RUB CARDINAL in arrears , increased her DATE commodity benefits to RUB CARDINAL from DATE and ordered ORG to adjust the applicant 's DATE disability allowance starting from DATE in line with inflation . It appears that the judgment was not enforced .

On DATE ORG awarded the applicant RUB PERSON for the period from DATE to DATE . On DATE the judgment entered into force . The applicant received the monies on DATE .


The applicant was born in DATE and currently resides in GPE .

On DATE the applicant arrived in the GPE , where , on DATE , he applied for asylum or , alternatively , a residence permit for compelling reasons of a humanitarian nature ( klemmende PERSON aard ) . In support of his claim for asylum he submitted the following .

He belonged to the NORP population group and came from a farming family in the town of ORG in the north of GPE , bordering on the area controlled by ORG ( the “ NORP ” ) , a NORP terrorist organisation , engaged in an armed struggle for independence . ORG members would often visit NORP living in the area in order to obtain food . The GPE army was therefore quick to suspect local farmers of supporting the ORG .

NORP In DATE the applicant 's father was shot dead on his land by the NORP army because they suspected him of providing material assistance to the ORG . DATE after his father 's killing , the applicant 's mother sent him to the town of GPE , which was under NORP control at the time , where he stayed for DATE with his uncle . Following the death of his father , the applicant 's brother became a fighter with the ORG and neither the applicant nor his mother have heard from him since .

On DATE the applicant was arrested in his home by the Sri NORP army and detained in the PERSON military camp for DATE . Every other day he was questioned about the whereabouts of his brother . The soldiers told him that his father had been an NORP member and that the applicant must know other NORP members . During these interrogations soldiers beat him with their fists and sticks . He was also hung from the ceiling by his thumbs . Upon the arrival of new detainees , the applicant had to identify ORG members among them .

After DATE , he was released on condition that he report to the camp DATE . The ill - treatment to which he had been subjected had resulted in internal injuries requiring hospital treatment for DATE .

Every time he reported to the camp he was ill - treated , and often questioned . Sometimes he was made to accompany soldiers driving through PERSON so that he could point out NORP members . After DATE of reporting to the camp DATE , he was told to report on a DATE basis . However , a DATE reporting duty was once again imposed on him from DATE when a large number of ORG members was said to have arrived in PERSON ; the soldiers said that the applicant 's brother might be among them and the applicant was to point him out to them . According to the soldiers , his brother was an important NORP member who was responsible for many bomb attacks .

Because the applicant could no longer cope either physically or mentally with the DATE reporting duty , the interrogations , the ill - treatment and having to identify NORP members , he decided to leave the country . In addition , he knew of other persons who had a similar reporting duty who had disappeared . He feared the same thing could happen to him .

On DATE the applicant travelled to GPE by train with his mother . During this trip , he was in possession of an identity card which his mother subsequently took back with her to PERSON . On DATE the applicant , using a passport bearing his name , flew to GPE and then , DATE , on to GPE . He travelled from GPE to the GPE in a van on DATE . His passport had been taken from him by an intermediary in GPE .

Whilst in GPE he received CARDINAL letters from his mother stating that she had been arrested and detained for DATE by the army , and that the army were searching for him because he had failed to report . The applicant did not keep these letters .

On DATE the Deputy Minister of Justice ( Staatssecretaris van Justitie ) rejected the applicant 's requests , considering that it had not been established that the applicant had shown himself to be an opponent of the regime in GPE or that he was known as such by the authorities . Given that his arrest in DATE had obviously not constituted a reason for him to leave the country immediately , and that he had been able to leave GPE unhindered through the normal channels , it could not be said that at the time of departure he had been in such a dangerous situation that he could not have been expected to remain in his country of origin . The applicant was also notified that he would not be allowed to remain in the GPE when any objection ( bezwaar ) he might submit was being considered .

The applicant lodged an objection on DATE and also requested an interim measure ( voorlopige voorziening ) from ORG ( arrondissementsrechtbank ) of The GPE sitting in GPE . The request for an interim measure was declared inadmissible by the President of ORG on DATE because no grounds had been submitted for the objection . The objection itself was rejected by the Deputy Minister for ORG on DATE for the same reason . The Deputy Minister held in addition that , even if grounds for the objection had been submitted , merely invoking the general situation in GPE was insufficient to justify the conclusion that the applicant would be subjected to either persecution or treatment contrary to LAW if returned to that country .

On DATE the applicant appealed to ORG of The GPE sitting in GPE . Finding that the Deputy Minister had been correct in rejecting the applicant 's objection , ORG dismissed the appeal by a final decision of DATE .

The applicant did not , however , leave the GPE and neither was he forcibly expelled . On DATE he lodged a new request for a residence permit for compelling reasons of a humanitarian nature . This request was rejected by the Deputy Minister for Justice on DATE who considered that , even though recent developments in GPE continued to give cause for concern , the general situation there had not changed to such an extent that it required ORG to amend their policy relating to NORP asylum seekers . The applicant had failed to show that concrete reasons , related to facts and circumstances affecting him personally , existed which could justify the conclusion that he would be exposed to a real risk of treatment contrary to LAW if returned to GPE . The Deputy Minister further informed the applicant that he would not be allowed to remain in the GPE pending the examination of any objection he might wish to lodge .

On DATE the applicant submitted an objection to the decision of the Deputy Minister , and on DATE he requested an interim measure from ORG of The GPE sitting in GPE in order to prevent his expulsion . On DATE the President of ORG granted the interim measure , considering that the applicant belonged to CARDINAL or more of the so - called “ categories at risk ” : categories of people who ran the risk of being detained in GPE for TIME pursuant to ORG in force .

NORP The applicant was given the opportunity to comment on his application for a residence permit before an official committee ( ambtelijke commissie ) on CARDINAL DATE .

The applicant 's objection was rejected by the Deputy Minister for ORG on DATE . Given that the applicant 's claim for asylum had already been finally and conclusively rejected , and that he had failed to adduce any new facts or circumstances but had only made references to the general situation in GPE , the Deputy Minister considered that the request for a residence permit was no more than an attempt to frustrate his departure from the GPE . In any event , the fact that the applicant had not left GPE until DATE , even though the problems he had allegedly suffered stemmed from alleged events in DATE and DATE , militated against the assumption that he would currently run a real risk of treatment contrary to LAW .

The Deputy Minister further informed the applicant that any appeal lodged by him would be dealt with expeditiously , and the applicant 's departure from the GPE would be deferred pending such an appeal .

The applicant lodged an appeal with ORG of The GPE sitting in GPE on DATE . He argued that the information from ORG , used by the Deputy Minister for the determination of asylum claims of NORP from GPE , was seriously lacking . Referring to information from ORG , the applicant submitted that the group of persons who ran the risk of being detained for DATE and tortured during that time was far greater than assumed by ORG . Moreover , the ORG 's official report ( ambtsbericht ) of DATE itself stated that , if a detainee was held for DATE , during which time he was questioned about NORP involvement , there was a great likelihood that the detainee would be ill - treated . In addition , according to the same official report , a GPE with a relative known to be an ORG member ran the risk of being detained for DATE .

At the hearing of his appeal before ORG on DATE , the applicant further submitted that he ran an extra risk of detention now that an amendment to the Immigrants and Emigrants Act had entered into force , given that he had left GPE on an unofficial passport .

ORG rejected the appeal by judgment of DATE . It considered that where GPE NORP belonging to CARDINAL of the categories at risk were concerned , it should in general be readily accepted that a real risk of treatment in breach of Article CARDINAL existed . Nevertheless , not every GPE belonging to CARDINAL of the categories ran a real risk of treatment contrary to LAW . The likelihood of such NORP being apprehended for checks on a more or less regular basis upon their return to GPE as a result of the security situation in GPE was in itself insufficient to conclude that unacceptable risks existed , even if the persons concerned encountered a certain heavy - handedness in the process . As regards the applicant , ORG saw no reason to come to a different assessment from that made on the applicant 's request for asylum . The applicant 's argument that the Sri NORP authorities held a file on him was only an assumption and had not been shown to be plausible . Even though ORG considered it likely that persons returning would be interviewed by ORG authorities at GPE airport in order to establish whether or not they had left the country through illegal channels , this did not lead to a considerably increased risk of treatment in breach of LAW . Neither was it contrary to LAW to prosecute and sentence persons who had contravened the Immigrants and LAW . In any event , the applicant had stated that his uncle had obtained a passport for him from ORG in GPE , and it was therefore unlikely that the applicant had left GPE on a passport which the authorities of that country knew to be forged .

On DATE , i.e. following the introduction of the present application to the ORG , the applicant lodged a new request for asylum . This was refused on DATE . His objection against that decision , as well as his request for an interim measure , was rejected by the President of ORG of The GPE sitting in GPE on DATE . In this decision the President based himself on information contained in official reports from ORG of DATE and CARDINAL DATE , the accuracy of which , according to the President , had not been sufficiently disproved by the applicant . The President concluded that the security situation in GPE for rejected NORP asylum seekers was not such that they had to fear treatment contrary to LAW . The President further referred to a letter of the ORG ( ORG High Commissioner for Refugees ) of DATE in which the latter organisation stated its opinion that the expulsion of rejected NORP asylum seekers was acceptable as long as they were in possession of identity documents issued by the Sri Lankan authorities . The President noted that the applicant would be provided with an identity document by ORG in the GPE which he could use , even after its expiry , until such time as a new national identity card was issued to him .

Under LAW DATE ( vreemdelingenwet , hereinafter “ the LAW ” ) , in force at the relevant time , aliens coming from a country where they have a well - founded reason to fear persecution on account of their religious or political conviction , or of belonging to a particular race or a particular social group , could be admitted by the Minister of ORG as refugees .

The expression “ refugee ” in this provision was construed to have the same meaning as in LAW relating to LAW DATE ( decision of ORG of the Raad van State of DATE , PERSON – Immigration Law Reports DATE , no . CARDINAL ) .

Aliens , other than refugees , wishing to reside in the GPE for any length of time had to hold a residence permit ( LAW ) . Such a permit was to be requested from , and granted by , the Minister of Justice ( LAW ) .

Given the situation obtaining in the GPE with regard to population size and employment , Government policy was DATE and is – aimed at restricting the number of aliens admitted to the GPE . In general , aliens are only granted admission for residence purposes if :

( a ) the GPE are obliged under international law to do so , as in the case of citizens of ORG or GPE member GPE and refugees covered by the above - mentioned LAW ; or

( b ) this serves the “ essential interests of the GPE ” , e.g. economic or cultural interests ; or

( c ) there are “ compelling reasons of a humanitarian nature ” .

An alien not , or no longer , qualifying for admission to the GPE could be expelled ( LAW ) . However , aliens claiming that their removal from the GPE would compel them to travel to a country where they have reason to fear persecution on CARDINAL of the grounds set out in LAW ( see paragraph CARDINAL above ) could not be expelled except by a specific order of the Minister of Justice ( LAW ) .

An objection ( bezwaar ) against the refusal to grant refugee status or a residence permit lay to the Deputy Minister of ORG ( ORG CARDINAL and CARDINAL of LAW ( PERSON ) , LAW of LAW ) . An appeal against the rejection of an objection lay to LAW of ORG of GPE ( Article CARDINAL of the General Administrative Law Act ; Article PERSON of LAW ) . No further appeal was allowed ( LAW ) .

At the time of the decision on the applicant 's objection ( DATE ) , as well as in the period leading up to the introduction of the present application , GPE policy was based on country reports issued by ORG on DATE and DATE .

To assess whether a person ran a real risk of being treated in a manner contrary to the provisions of LAW , the following factors were taken into account :

- All young NORP in GPE who speak little NORP and whose documents reveal that they were born in the north ran the risk of being taken to a police station for questioning following an identity check . Most were released within TIME once their identity had been established and they had explained their reasons for being in the city .

- People who had recently come to GPE from a war zone and had no identity documents or “ valid ” reason for being in GPE , ran the risk of being held for longer than TIME so that further enquiries could be made . People who failed to register on arrival also lay themselves open to suspicion .

- NORP suspected of NORP activities on the basis of police files or information from other sources ran the risk of being held for DATE . This also applied to people whom the authorities believed could provide information on the ORG , such as people known to have a relative who is an ORG member .

- People could be detained for CARDINAL , DATE under LAW if there was firm evidence that they were involved in the NORP . Such evidence included arms caches or suspect documents .

Persons held for CARDINAL to CARDINAL hours for further questioning could be treated roughly ( beatings ) . Where the person concerned was held for DATE , and questioned about NORP involvement , the risk of illtreatment was considerable .

The mere fact that a NORP belonged to CARDINAL or more of the above categories of persons , who in theory ran the risk of longer detention , did not necessarily mean that there was a real risk of their being subjected to treatment prohibited by LAW . According to the country report of DATE , it could be assumed that , in any event , no such risk existed in the case of NORP falling into the first CARDINAL categories .

A country report of CARDINAL DATE stated that an amendment to the Immigrants and Emigrants Act had entered into force on DATE , pursuant to which the penalty for using forged travel documents was increased . According to the report , at the time of a person 's return to GPE there was generally insufficient evidence of use having been made of forged documents for the outward journey .

This country report also contained information on the procedure followed by police in respect of persons apprehended at the airport or in the course of a round - up . The list of names of the arrested persons was passed to ORG to see if any of the names featured in the database held by the ORG . All persons suspected of violating LAW or LAW were included in the files of wanted persons . However , the police did not in all cases have information concerning that person . Information was only available if the person concerned had either been arrested previously or been denounced by another detainee .

The GPE policy in force at the time of the most recent decision of the Deputy Minister of Justice ( DATE , see paragraph CARDINAL above ) , was based on the country reports of DATE and CARDINAL DATE . These reports indicated that NORP fleeing the war could find an alternative place of residence in Government - controlled areas , including GPE . NORP were subject to frequent identity checks in Government - controlled areas , especially on or around public holidays , after attacks and if the military position of Government troops had deteriorated . NORP who could not identify themselves on the spot or who were believed to come from the north or east of GPE could be arrested . Most were released within TIME , after their identity and background had been checked . As to the factors which could occasion longer detention , the report of DATE referred to that of CARDINAL DATE .

The country report of CARDINAL DATE included information on the developments of the peace process that was started in DATE , stating that a formal cease - fire agreement ( ORG ) between the ORG and the ORG had been signed on DATE . It further stated that during the period under review CARDINAL suicide attack had taken place in GPE , which had not been followed by the usual round - ups , large - scale identity checks and arrests . After the installation of PERSON as prime minister in DATE , the security situation in GPE had improved considerably and the atmosphere in the city was relaxed and had normalised . Most roadblocks and checkpoints were removed . The number of identity checks had been drastically reduced and there were no reports of arrests of ORG suspects .

The most recent country report , of CARDINAL DATE , confirmed that the security situation in GPE had significantly improved as had freedom of movement . NORP were free to travel through the whole of the country without requiring prior permission to enter certain areas . As a result , it was now far simpler for NORP fleeing NORP - controlled areas to go to areas under Government control . In GPE , no restrictions on freedom of movement applied . During the period under review , the GPE authorities had in general respected human rights , in line with the provisions of the ORG . No arbitrary arrests had been made . Ill - treatment and torture to which persons who had been arrested on suspicion of membership of , or involvement in , the ORG had been subjected in the past , no longer occurred .

As of DATE , returning rejected asylum seekers were for the most part allowed to leave the airport after their identity documents had been checked . In a few cases , returnees had been handed over to ORG ( ORG ) , usually within CARDINAL but sometimes within TIME , and subsequently transferred to a ORG . ORG judge decided whether , on the basis of the information provided by the ORG , the person concerned should be remanded in prison , released on bail pending the conclusion of the investigation , or simply released . During the period under review , all returnees were released DATE , either on or without bail . Unless they tried to enter the country using forged travel documents , returning rejected asylum seekers generally did not have to fear prosecution under the terms of the Immigrants and Emigrants Act .

In its DATE Report DATE , covering events from DATE , ORG noted with respect to GPE :

“ There was a major improvement in the human rights situation in the context of a cease - fire and peace talks between the ORG and the ORG . However , torture in police custody continued to be reported frequently ...

Unilateral cease - fires declared by both the ORG and the NORP in DATE were followed by a formal cease - fire agreement ( ORG ) that came into force on DATE . Peace negotiations , facilitated by ORG , started in DATE in GPE . ORG ( SLMM ) consisting of representatives of NORP countries was set up to verify the implementation of the agreement through on - site monitoring . By DATE , CARDINAL of CARDINAL internally displaced persons ( IDPs ) had returned home ...

As part of the ORG , the ORG made a commitment not to arrest anyone under the ORG . ”

On DATE ORG released ORG on ORG for DATE . It stated :

“ In the past , arbitrary arrest and detention were problems ; however , there were no reports of arbitrary arrests or detentions during DATE ...

Unlike in DATE , there were no large - scale arrests of NORP during DATE ...

The ... reports of regular mistreatment by security forces largely ceased ...

The reconciliation also has led to a sharp reduction in roadblocks and checkpoints around the country , the return of CARDINAL IDPs to their points of origin in the north and east , and to the opening of numerous investigations into actions by security force personnel ...

The Government restricted the movement of displaced NORP due to possible security , economic , and social concerns . These restrictions have been lifted with the onset of the peace process . ”

The Operational Guidance Note on GPE , issued on DATE by ORG ) of ORG reported :

“ The authorities in GPE will no longer be concerned with those individuals with past low - level support for the LTTE ( e.g. digging trenches , providing food / shelter to NORP fighters ) , those with no police / criminal record or those who may have been arrested in the past and subsequently released . Those individuals who may be of continuing interest to the authorities would be ... “ those wanted in a relatively serious fashion ” . This could mean high - profile members of the NORP who are still active and influential , and wanted by the authorities . ”

DATE . On DATE , the Sri NORP President PERSON suspended parliament and sacked CARDINAL senior ministers . The President accused the Government of making too many concessions to the ORG . On DATE , NORP mediators said , after talks with the NORP , that the peace process was on hold until the country 's political crisis was resolved . The mediators had passed on to the NORP guarantees from both the President and the Prime Minister that they would abide by the ORG . The ORG stated that they would be patient during the political upheaval .


CASE OF LEDYAYEVA, DOBROKHOTOVA, ZOLOTAREVA and ROMASHINA  v. RUSSIA

Violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention and domestic proceedings

The first applicant was born in DATE , the second in DATE , the third and the fourth applicants were born in DATE . They all live in the town of GPE , GPE region , an important steel - producing centre situated QUANTITY north - east of GPE .

The GPE steel plant ( “ the steel - plant ” ) was built in the CARDINAL-s and owned by ORG of the Russian NORP Federative Socialist Republic ( RSFSR ) . The plant was and remains the largest iron smelter in GPE and the main contributor to the environmental pollution : it is responsible for CARDINAL - CARDINAL per cent of industrial emissions into the town 's air . According to the DATE report by ORG for ORG , in DATE overall emissions from stationary sources of atmospheric pollution were QUANTITY for GPE , a city of CARDINAL people , and QUANTITY for GPE , which counts CARDINAL residents . As a result , the concentration of certain dangerous substances in the residential areas around the steel - plant is high above the safe levels , as defined by the domestic legislation .

NORP In order to delimit the areas in which pollution caused by steel production could be excessive , the authorities established a buffer zone around the steel - plant LOC – “ the sanitary security zone ” . Although this zone was , in theory , supposed to separate the plant from the town 's residential areas , in practice CARDINAL of people ( including the applicants ' families ) lived there .

NORP The apartment buildings in the zone belonged to the plant and were designated mainly for its workers , who occupied the flats as life - long tenants . Since the CARDINAL-s several consecutive ORG programs have been adopted and implemented in order to reduce the pollution to acceptable levels and/or to resettle the inhabitants of the zone . Despite certain success in reducing the levels of atmospheric pollution and resettling some of the residents of the zone , these programs failed in bringing the atmospheric pollution down to the safe levels , as defined by NORP legislation .

The zone was first delimited in DATE . It covered a QUANTITY - wide area around the territory of the plant . By municipal decree no . CARDINAL of DATE the boundaries of the sanitary security zone around the plant were redefined . The width of the sanitary security zone was reduced to QUANTITY from the territory of the plant .

In DATE the steel - plant was privatized and acquired by “ ORG . In the course of privatisation the apartment buildings owned by the steel - plant and situated within the zone were transferred to the municipality .

In DATE the municipality challenged its own decree no . DATE , which had established the zone 's boundaries . On DATE the ORG declared decree no . CARDINAL invalid . ORG ruled that at the relevant time the municipality had not had jurisdiction to define the width of the zone . The boundaries of the sanitary security zone around the Severstal facilities currently remain undefined .

For further details concerning the status of the zone and the environmental situation in GPE in general see the judgement ORG v. GPE ( no . CARDINAL , § § CARDINAL , and § § DATE , ECHR DATE ... ) .

At the relevant time the applicants lived in the council houses situated within the sanitary security zone , as delimited by municipal decree no . DATE . They acquired those flats from the local authorities or the plant itself and lived there under the “ social tenancy agreement ” ( see the “ Relevant domestic law ” part below ) . Their respective housing conditions may be summarised as follows .

In the CARDINAL-s the first applicant 's family moved to a flat situated at DATE , FAC in GPE . That flat was provided by the plant to the applicant 's father under a “ protected tenancy ” agreement . After his death in DATE the applicant became the tenant . In the CARDINAL-s she left GPE but then returned to the city and settled in that flat . In DATE the applicant 's family had obtained from the ORG a right of protected tenancy to another flat in GPE . The applicant registered that flat as her main place of residence ( место прописки ) . However , there is no indication that she had physically moved there .

In DATE the municipality started repair works in the apartment block where the first applicant lived . In DATE the applicant registered again the flat at DATE , PERSON street as her place of permanent residence . The municipality proposed the applicant to move temporarily to another flat in the same building during the works in her flat . The applicant refused to do so , claiming that she had to be resettled outside the sanitary security zone once and for all . On DATE , upon the municipal authorities ' request , the applicant was temporarily evicted from her flat and moved to another apartment in the same building . In DATE , however , she returned to the flat no . DATE .

The second applicant lived in a flat at CARDINAL , NORP street . In DATE she privatised the flat . However , in DATE , upon her request , the court declared the privatisation contract null and void . She continues to live in the flat as a tenant .

The third applicant lives in a flat at CARDINAL , Babushkina street as a tenant . She moved to that flat in DATE .

The fourth applicant lived in a flat at CARDINAL , FAC as a tenant . On DATE she moved to another flat at DATE , GPE street , which was situated outside the sanitary security zone as defined by the municipal decree of CARDINAL DATE . That flat was provided to her by the municipality of GPE . She recently privatized that flat .

On DATE the ORG adopted a judgement in the case ORG v. GPE , cited above . PERSON , the applicant , lived within the sanitary security zone and complained about the effects of the operation of the “ Severstal ” steel - plant on her health and well - being .

NORP In that judgment the ORG found that the concentration of certain toxic substances in the air near the applicant 's home had constantly exceeded the safe levels established by the NORP legislation . The ORG also established that the nuisances endured by the applicant were in direct relation with the operation of the steel - plant .

In reaching that conclusion the ORG relied , inter alia , on the information on air pollution in the whole town . In addition , the ORG referred to the data collected by ORG for ORG at the monitoring post situated at CARDINAL Zhukov Street ( post no . CARDINAL ) . That post was the closest CARDINAL to the applicant 's house , and in the absence of any more precise measurement , the data obtained from post no . CARDINAL was regarded as the nearest approximation to the applicant 's individual situation .

Information referred to in the ORG judgment is fully relevant for the purpose of the proceedings in the present CARDINAL cases and will be taken into account by ORG . However , the parties produced certain new evidence as to the pollution in the area and its effects on the applicants ' health and well - being . This information will be examined below .

The first and fourth applicants ' houses are located in the vicinity of post no . CARDINAL , situated at CARDINAL , FAC . The data collected from that post showed that in DATE the concentration of dust , carbon disulphide and formaldehyde in the air constantly exceeded the “ maximum permissible limits ” ( MPLs , safe levels of various polluting substances , as established by NORP legislation , предельно допустимые концентрации ) . Moreover , an over - concentration of various other substances , such as manganese , benzopyrene and sulphur dioxide , was registered during that period ( for further details see § CARDINAL et seq . of the ORG judgment , with further references ) . In DATE an over - concentration of manganese ( CARDINAL times higher than MPL ) , dust ( CARDINAL times higher ) , and formaldehyde ( CARDINAL times higher ) was registered .

As regards the houses of the second and third applicants , they are located somewhere in between post no . CARDINAL and post no . CARDINAL , situated at CARDINAL , Stalevarov street . As follows from the data produced by the Government in the ORG case , the pollution levels registered there were slightly lower than those registered at post no . CARDINAL . Nevertheless , in DATE the concentration of formaldehyde in the air was from CARDINAL times higher than the respective ORG . The concentration of carbon disulphide was from CARDINAL times higher ( except for DATE , when it did not reach dangerous levels ) . Other pollution levels were below MPL ( except for the over - concentration of dust registered in DATE ) . In DATE the over - concentration of the following substances was registered : nitrogen dioxide ( CARDINAL times higher than ORG ) , carbon disulphide ( CARDINAL times ) , and formaldehyde ( CARDINAL times ) .

As regards general effects of industrial pollution on the population of GPE , the Government produced a report , prepared in DATE by ORG in GPE in order to delimit the boundaries of the sanitary security zone . The conclusions of the report may be summarised as follows . The steel - plant 's emissions in DATE were CARDINAL as much as in DATE . However , in DATE the concentration of several polluting substances in the air of the residential areas of the town still exceeded safe levels . At the same time the birth rate in the town was higher than the average in the country and the morbidity rate was lower . Most of the deceases registered in the town were not place - specific . However , prevalence of some chronic respiratory diseases was directly linked to the distance of the patients ' houses from the territory of the steel - plant . The measures provided by the steel - plant in order to reduce emissions , would be capable of reducing health risks for the population of GPE . If all these measures were implemented , by DATE the concentration of pollutants in the air of the residential areas of the town could reach CARDINAL MPL , which is the acceptable level . It would be possible to establish a sanitary security zone at a distance of QUANTITY from the main sources of pollution . Having regard to the measures , scheduled for DATE , it would be possible to fix the boundaries of the sanitary security zone at the confines of the residential areas of the city .

On the basis of that report the Chief Sanitary Inspector of GPE issued a certificate , confirming that the project “ On creating a sanitary security zone around the ORG ” was in conformity with the requirements of the relevant NORP legislation . That certificate concluded that the realisation of the project would allow by DATE a complete reduction of the concentration of air contaminants to hygienic standards , which would “ guarantee reaching acceptable levels of public health hazards ” .

The Government further produced a set of materials , prepared by the “ ORG called “ For the important contribution to the environmental protection ” . These materials described the environmental protection policy of the plant , environmental risks assessment mechanisms in place , the management structure of the environmental protection programs , particular technological measures implemented by the plant in order to reduce pollution levels and to normalise the environmental situation in the town , payments to the local budget for excessive pollution levels , participation of the plant in environmental education programs etc .

The Government further produced a certificate , issued by ORG , which confirmed that the management systems of the “ ORG in the areas of environmental protection and occupational hazards were in accordance with the standards , applied by that organisation .

As regards the effects of the pollution on the applicants ' health , the Government produced the following information . As regards the first applicant , the Government did not have official information on her state of health , and , therefore , could not comment on it . As to the second and third applicants , according to ORG of GPE , their diseases were occupational or age - related . As to the fourth applicant , the Government stated that in DATE she had been excluded from the list of people in need of regular examinations by the GPE dispensary . In sum , the Government claimed that the applicants ' diseases were of general character and had not been caused by the their living near the steel - plant .

The applicants claimed that the air pollution in the area where they lived was and continued to be above safe levels . Thus , according to a letter of the Cherepovets Centre for Sanitary Control , DATE the average concentration of dust in the air within this zone exceeded the ORG by CARDINAL times , the concentration of carbon bisulphide – by CARDINAL times , the concentration of formaldehyde – by CARDINAL to CARDINAL times . ORG of GPE reported that the level of atmospheric pollution DATE within the zone was rated as “ high ” or “ very high ” . Notably , a high concentration of hazardous substances , such as hydrogen sulphide , ammonia and carbolic acid was registered . According to a resolution of ORG ( главный санитарный врач ) of DATE , the atmospheric pollution in the zone adversely affected public health , increasing the risk of cancer , as well as of respiratory and cardiac diseases .

According to the letter of the Head of ORG of GPE , in DATE atmospheric pollution in the town was rated as “ high ” . Namely , over - concentrations of formaldehyde , benzopyrene , dust and carbon disulphide were registered .

As regards DATE , the applicants referred to the information published on the website of ORG of ORG for ORG . This source reported that in DATE the concentration of formaldehyde in GPE was from CARDINAL to CARDINAL times higher than the respective MPL . According to an article published in the local newspaper “ PERSON ” in DATE the concentration of dust registered at post no . CARDINAL was CARDINAL times higher than ORG , the concentration of nitrogen dioxide was CARDINAL times higher , the concentration of carbonic oxide was CARDINAL times higher . Pollution levels registered at the post no . CARDINAL were QUANTITY CARDINAL and PERCENT than the corresponding MPLs .

The applicants also produced various medical documents , which confirmed that they suffered from certain chronic diseases . However , none of these documents certified that there was a link between any given illness and the place of residence of the respective applicant .

Finally , the applicants relied on the expert report of PERSON , Ph.D. , submitted to ORG in the ORG case . In that report Dr. ORG analysed the effects of several polluting substances , present in the town 's air in excessive quantities . As a result of his research Dr. ORG concluded that he would expect that the population residing within the sanitary security zone would suffer from excess incidences of various diseases , such as respiratory infections , cancer of nasal passages , chronic irritation of the eyes etc . Dr. PERSON attributed these effects to the emissions of the steel industry ( for further details see the ORG judgment , § DATE ) .

In DATE Dr. PERSON updated his report , taking into account data produced by the Government . In this new report PERSON concluded that emissions of harmful pollutants from the Severstal steel - plant and ambient levels of pollutants in the vicinity of it had not substantially declined in DATE ; levels of dust , carbon disulfide and formaldehyde were still above permissible levels and were generally higher at monitoring stations closest to the Severstal facility . Dr. PERSON also found that there was no substantiation of the claim that ORG had complied with the NORP and international environmental requirements .

On DATE the first applicant requested the municipality to confirm that her house was located within the sanitary security zone . On DATE the municipality replied that the boundary of the zone had not been officially delimited . On DATE , upon the applicant 's request , the ORG ordered the municipality to provide her with the information sought . That decision was upheld on DATE by ORG . ORG found that , pursuant to ORG no . CARDINAL of DATE , the applicant 's house was indeed located within the zone .

Shortly thereafter the first applicant brought proceedings against the “ Severstal ” company . She claimed that the “ LAW ” , LAW adopted in DATE , imposed on the owners of the plant an obligation to take various environmental protection measures in the zone , including the resettlement of its inhabitants , which obligation the company had failed to observe . Consequently , she claimed the resettlement outside the zone or the payment of a sum sufficient to purchase new housing in a safer area .

On DATE the ORG rendered a judgment in that case . The court discharged the company from any obligation to resettle the applicant , and ordered the municipality to put the applicant on the general waiting list for the new housing . This judgment was upheld by ORG on DATE . The applicant was placed on CARDINAL waiting lists . In DATE the first applicant was no . DATE on the general waiting list and no . CARDINAL on the priority waiting list .

On DATE the Presidium of the ORG quashed , by way of supervisory review , the judgment of DATE . The ORG established that the applicant lived in the sanitary security zone of the plant , where the concentration of by - products of steel production regularly exceeded the health limits . The ORG further criticized the judgment of DATE in the following words :

“ The lower court did not assess whether the measures taken in order to resettle the residents of the sanitary security zone were adequate in comparison to the degree of the threat that the plaintiff encounters . As a result , the court did not establish whether providing PERSON with new housing under the provisions of the housing legislation by placing her on the waiting list could be regarded as giving her a real chance to live in an environment that is favourable for her life and health ” .

The ORG further analysed the legislation and concluded that it was for the polluting enterprise to take all necessary measures and to “ develop ” the sanitary security zone around its LOC . The ORG remitted the case to the ORG for a fresh examination .

In DATE the municipality challenged before the town court Resolution no . CARDINAL of DATE fixing the boundary of the zone . The applicant requested that she participate in the proceedings as a third party but this motion was refused . On DATE the ORG declared ORG no . CARDINAL invalid as ultra vires , in the presence of the only interested party – the municipality .

On DATE the ORG rejected the applicant 's claims against the steel - plant . The court , referring to its judgment of DATE , held that the new boundary of the sanitary security zone had not been defined yet . ORG of DATE , referred to by the applicant , contained such measure as the resettlement of the zone residents . However , that program has been abolished by Government Decree no . CARDINAL of DATE , which did not provide for any resettlement .

Further , the court found that the DATE town planning regulations provided that no housing should be situated within the sanitary security zone . However , those regulations had been adopted after the applicant 's house had been built and , therefore , could not be referred to . Finally , the court noted that the applicant 's family had moved to the flat at issue voluntarily .

The court also observed that the “ ORG was aware of the environmental consequences of its activities and was taking measures in order to reduce their impact .

The court concluded that the “ ORG could not be held responsible for not resettling the applicant from the zone . On DATE this decision was upheld by ORG .

In DATE the second , third and fourth applicants brought a court action against the company , seeking their resettlement outside the zone .

On DATE the ORG rendered a judgment regarding the third applicant . On DATE this judgment was upheld by ORG on appeal . The judgment in respect of the second applicant was rendered by the town court on DATE , and upheld on appeal on DATE . The judgment with respect to the fourth applicant was delivered on DATE and upheld on DATE .

In each case the courts came to the same conclusion by using a similar line of reasoning , which can be summarised as follows .

The courts noted that , before DATE , the applicants ' flats had been owned by ORG , which had also owned the steel plant . Following the privatisation of the plant in DATE , it became a privately - owned entity , while the applicants ' flats had become the property of the local authorities . The courts concluded that the company was therefore under no obligation to resettle the applicants .

The courts further recognised that the applicants lived in the sanitary security zone , where the concentration of dangerous substances and the level of noise exceeded the maximum limits permitted . The courts in principle accepted the applicants ' claims , stating that they had the right in domestic law to be resettled by the local authorities . However , no specific order to resettle the applicants was made by the courts in the operative parts of the judgments . Instead , the courts stated that the municipality should put the applicants on a waiting list to obtain new housing ( see the ' Relevant domestic law and practice ' part below ) .

Enforcement proceedings were opened in this respect . In the absence of any special procedure for the resettlement of residents of the sanitary security zone , the applicants were put on the general waiting list for those entitled to better housing on social grounds . The second applicant was put on the list on DATE with CARDINAL , and the third and fourth applicants on DATE with the numbers CARDINAL and DATE , respectively .

In DATE the applicants brought new court proceedings , alleging that the judgments of DATE had not been duly enforced . The applicants claimed flats in an ecologically - safe area , or the means to buy new flats themselves .

The Cherepovets Town Court dismissed their claims . The court established that no special waiting list existed for the zone residents and that on different dates the applicants had been put on the general waiting list . Therefore , the judgments of DATE had been duly executed , and there was no need to undertake any further measures . These decisions were upheld by ORG with respect to the second , third and fourth applicants on DATE , DATE and DATE respectively .

Article CARDINAL of the LAW of the Russian Federation reads as follows :

“ Everyone has the right to a favourable environment , to reliable information about its state , and to compensation for damage caused to his health or property by ecological offences ”

Pursuant to LAW on ORG ( О санитарно-эпидемологическом благополучии населения ) , ORG establishes ORG standards for protecting public health from environmental nuisances . In particular , these standards are applied in assessing air quality in cities : atmospheric pollution is assessed in comparison to the maximum permissible limits ( MPLs ) , the measure which defines the concentration of various toxic substances in the air . It follows from LAW of LAW of DATE and LAW ( Об охране атмосферного DATE ) that if the MPLs are not exceeded the air is safe for the health and well - being of the population living in the relevant area . Pursuant to Regulation CARDINAL of LAW , the air quality in the residential zones of cities should not exceed CARDINAL ORG for all categories of toxic elements , and should not exceed CARDINAL.CARDINAL MPL in recreational zones .

Pursuant to LAW , the federal environmental agency establishes environmental standards for various types of polluting sources ( cars , farms , industrial enterprises etc ) . These general standards are applied to specific enterprises by the regional environmental agencies . In principle , an industrial enterprise 's operations should not result in pollution which exceeds the MPLs ( section CARDINAL of the Act ) . However , for the sake of a region 's economic development , a regional environmental agency may issue a temporary permit authorising an enterprise to exceed these norms ( sections CARDINAL and CARDINAL of the Act ) . The permit should contain a schedule for the phased reduction of toxic emissions to safe levels .

Every polluting enterprise must create a “ sanitary security zone ” around its territory – a buffer area separating sources of pollution from the residential areas of a city ( Regulations CARDINAL.CARDINAL and CARDINAL of the DATE LAW , enacted by Decree no . CARDINAL of ORG of DATE ; similar provisions were contained in the sanitary regulations of DATE , DATE and DATE , which replaced the DATE regulations ) . The levels of pollution in this buffer area may exceed the MPLs .

The minimum width of the zone is defined by the sanitary regulations for different categories of enterprises . Pursuant to the DATE regulations , the sanitary security zone around a steel - plant of the size of Severstal ought to be QUANTITY from the boundaries of the territory of the industrial zone . Pursuant to the sanitary regulations of DATE , the width of the sanitary security zone for a metallurgical enterprise of this size ought to be QUANTITY . In certain cases ORG may enlarge the zone ( for example , where the concentration of toxic substances in the air beyond the zone exceeds the MPLs ) . The width of the sanitary security zone is calculated from the confines of the industrial territory or from the sources of pollution depending upon the type of polluting emissions .

Regulation CARDINAL.CARDINAL of the DATE city planning regulations provided that an enterprise must take all necessary measures in order to develop ( обустроить ) its sanitary security zone in accordance with the law , with a view to limiting pollution .

Regulation CARDINAL.CARDINAL of the DATE town planning regulations provided that no housing should be situated within the sanitary security zone . This provision was later incorporated into LAW ( Градостроительный PERSON ) of DATE ( Article CARDINAL ) and the sanitary regulations of CARDINAL DATE and DATE . Art . CARDINAL of LAW of DATE provided :

“ Industrial zones are intended for placement of industrial objects , public utilities , warehouses ... as well as for sanitary security zones thereof .

Development of sanitary security zones should be conducted at the expense of the owners of the industrial objects .

Placement of houses , kindergartens , schools , hospitals , [ ... ] within the sanitary security zones of industrial objects [ ... ] is prohibited ” .

According to Regulation CARDINAL.CARDINAL.CARDINAL of the DATE sanitary regulations , a project to develop the zone may include , as a high - priority objective , resettlement of the zone 's residents . However , there is no direct requirement to resettle the residents of the sanitary security zone around an enterprise which is already in operation .

Article CARDINAL § CARDINAL of LAW of DATE provided as follows :

“ In cases where ORG or public interests require that economic or other activities be conducted on environmentally unfavourable territories , the temporary residence of the population on these territories is permitted , subject to the application of a special town planning regime ... ”

On DATE the new LAW was adopted . It came into force on DATE . The new Code does not contain the regulations on sanitary security zones , similar to article CARDINAL of the former Code . The only provision on the matter is the inclusion of sanitary security zones in the category of “ zones with special conditions in the use of territories ” . The legal regime for this type of zone remains to be determined in accordance with article CARDINAL ) of the new Code .

It follows from a judgment of ORG ( decision of DATE , No . ORG - CARDINAL/CARDINAL ) that the authorities may discontinue the operation of an enterprise which has failed to create a sanitary security zone around its premises in accordance with the law .

DATE . The applicant produced an extract from the decision of ORG of GPE in the case PERSON v. ORG ( published in “ Overview of the case - law of the Supreme Court ” , ORG , № DATE , of DATE , § CARDINAL ) . In that case the plaintiff had claimed immediate resettlement from a decrepit house . The lower court had rejected the plaintiff 's action , indicating that she could claim resettlement following the order of priority ( i.e. should be put on the waiting list ) . ORG quashed this judgment , stating as follows :

“ the [ plaintiff 's ] house is not only dilapidated [ ... ] , but is also situated within QUANTITY of a railway , within the latter 's sanitary security zone , which is contrary to the sanitary regulations ( this zone is QUANTITY wide , and no residential premises should be located within it ) ”

ORG remitted the case to the first - instance court , ordering it to define specific housing which should be provided to the individual concerned as a replacement for her previous dwelling .

During the NORP period , the majority of housing in GPE belonged to various public bodies or ORG - owned enterprises . The population lived in those flats as life - long tenants under “ social tenancy agreements ” ( for further details see PERSON v. GPE , no . CARDINAL/CARDINAL , § CARDINAL et seq . , , DATE ) . In DATE extensive privatisation programmes were carried out . In certain cases , property that had not been privatised was transferred to local authority possession .

By the time of the events at issue , a certain part of the NORP population continued to live as tenants in local council homes on account of the related advantages . In particular , council house tenants were not required to pay property taxes , they paid a rent that was substantially lower than the market rate and they had full rights to use and control the property . Certain persons were entitled to claim new housing from the local authorities , provided that they satisfied the conditions established by law .

From a historical standpoint , the right to claim new housing was one of the basic socio - economic rights enshrined in NORP legislation . Pursuant to LAW RSFSR of DATE in force at the time of the relevant events every tenant whose living conditions did not correspond to the required standards was eligible to be placed on a local authority waiting list in order to obtain new council housing . The waiting list established the priority order in which housing was attributed once it was available .

However , being on a waiting list did not entitle the person concerned to claim any specific conditions or timetable from the ORG for obtaining new housing . Certain categories of persons , such as judges , policemen or handicapped persons were entitled to be placed on a special “ priority waiting list ” . However , it appears that the NORP legislation guaranteed no right to be placed on the priority waiting list solely on the ground of serious ecological threats .

NORP Since NORP times , CARDINAL of NORP have been placed on waiting lists , which become longer DATE on account of a lack of resources to build new council housing . The fact of being on a waiting list represented an acceptance by the ORG of its intention to provide new housing when resources become available . The applicants submit , for example , that the person who is the first on the waiting list in the GPE municipality has been waiting for new council housing since DATE . On DATE the new Housing Code of GPE was adopted . It came into force on DATE . Pursuant to the provisions of the new code the social housing may be obtained on very limited grounds . However , those who were placed on the “ waiting lists ” before the entry into force of the new Housing Code remained on the “ waiting lists ” ( article CARDINAL of LAW On ORG of die GPE ” of DATE ) .


Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva

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

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

On DATE the applicant brought a car registered in GPE ( a DATE ORG ) into the customs territory of GPE . When crossing the border she undertook an obligation to re - export the car before DATE . She failed to do so , however .

On DATE the applicant , upon request of the customs authorities , explained that the car had been brought to GPE and sold to unknown persons .

On DATE she explained that she did not bring the car to GPE but left it on the NORP - NORP border .

On DATE ORG , in absence of records confirming that the impugned car had actually left GPE , drew up a report on an infringement of customs regulations due to the applicant ’s failure to remove the above car from the customs territory of GPE ( LAW ) .

On DATE ORG submitted the above report to ORG of PERSON . Before the court the applicant explained that she had brought the car to the checkpoint on the Ukrainian- NORP border and then her husband had been supposed to take it away to GPE . The applicant ’s husband explained that he had sold a car on the border check - point to an unknown person . ORG explained that the car was not registered as exiting GPE at the period mentioned by the applicant .

On DATE the court found the applicant guilty of having failed to re - export the car in violation of LAW . The court ordered the confiscation of the vehicle , but given that the car ’s location was unknown , it replaced the confiscation with payment of CARDINAL NORP hryvynas ( ORG ) ( MONEY ( ORG ) ) , which corresponded to the value of the car , in accordance with LAW of LAW .

On DATE the Acting President of ORG refused the applicant ’s request to initiate supervisory review proceedings in the case .

The relevant domestic law is summarised in the case of ORG v. GPE ( no . CARDINAL , § § CARDINAL - CARDINAL , CARDINAL DATE . )


The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested on charges of smuggling . He was detained until DATE .

On CARDINAL DATE the applicant and his CARDINAL accomplices were charged by ORG with having participated in a gang of smugglers involved in illegally importing merchandise ( mainly perfumes and sweets ) worth MONEY , from GPE to GPE .

On DATE the ORG seized a large amount of merchandise , mainly spirits and cosmetics , held by the applicant .

After having held several hearings and obtained the opinions of experts , on DATE ORG held a public hearing , which the applicant 's lawyer attended , and discontinued the criminal proceedings against the applicant and his accomplices , observing that their conduct was no longer punishable subsequent to GPE 's accession to ORG . The court ordered that the seized goods should be returned to the applicant . He states , however , that ORG had meanwhile sold the merchandise . The decision was served on the applicant 's lawyer on DATE .

On DATE the applicant filed an action against the ORG for compensation on account of his pre - trial detention . On DATE ORG dismissed the action , in a procedural decision , observing that it had been introduced outside the DATE statutory time - limit which had run from the pronouncement of the final decision on DATE .

On DATE ORG quashed this decision , holding that the applicant 's claims had to be examined on their merits .

In the resumed proceedings , on DATE ORG dismissed the applicant 's claims as being statute - barred .

On DATE ORG upheld this decision . Examining the applicant 's claims from the perspective of ORG and LAW and CARDINAL of the Convention , ORG was satisfied that the final decision had been pronounced on DATE and that the applicant 's claims were consequently statute - barred .

On DATE ORG dismissed the applicant 's petition for review .


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

From DATE to CARDINAL DATE the applicant worked as DATE manager of a limited liability company owned by him - a petrol station and a car wash - named PERSON og LOC . The company operated under a sales distribution agreement with ORG The applicant spent most of TIME in the car wash , where he embezzled cash payments received from customers , which over DATE added up to MONEY ( ORG ) . He kept these monies inter alia in his mother ’s bank box and safe .

On DATE ORG ( byrett ) convicted the applicant of embezzlement ( Articles CARDINAL and CARDINAL of the Penal Code ( straffeloven ) ) , fraud of ORG CARDINAL vis - à - vis Shell ( Article CARDINAL and CARDINAL ) , and also false accounting ( Article CARDINAL of LAW and LAW regnskapsloven ) ) , evasion of value added tax ( section DATE of LAW DATE ( merverdiavgiftsloven ) and Articles CARDINAL and CARDINAL of LAW ) and , in his capacity as DATE manager and chairman of the board of the limited liability company LOC og CARDINAL of tax evasion to the benefit of the company ( sections CARDINAL - CARDINAL and CARDINAL of LAW DATE ( ligningsloven ) ) in respect of the embezzled amounts . He was sentenced to DATE and CARDINAL months’ imprisonment and prohibited from engaging in independent private business activities for DATE . ORG further ordered the seizure of ORG CARDINAL .

In DATE ORG ( likningsnemnda ) imposed on the applicant in his personal capacity a tax surcharge of PERCENT concerning DATE . Under the relevant provision the surcharge should normally have amounted to PERCENT but , in the event of intent or gross negligence , the rate was PERCENT . In DATE the applicant appealed against this decision to ORG ( overlikningsnemda ) .

Concurrently with the above , the applicant appealed against ORG judgment but ORG ( lagmannsrett ) refused him leave to appeal , as did ORG of ORG ( Høyesteretts kjæremålsutvalg ) , the latter on DATE . Subsequently , on DATE ORG accepted a request by the applicant to amend its earlier decision and gave him leave to appeal against his sentence and the loss of his business rights , but maintained its earlier refusal of leave to appeal in respect of the assessment of evidence in relation to the question of guilt .

On DATE , after holding an oral hearing during which the applicant and CARDINAL witnesses gave evidence , ORG modified the sentence to CARDINAL years’ imprisonment DATE spent in pre - trial detention ) . ORG noted the tax surcharge imposed in DATE and also observed that the applicant had appealed against that decision and that the appeal had not yet been decided . It stated that it would proceed on the assumption that the applicant would be required to pay tax surcharges , but not in such a way as to infringe the prohibition of double jeopardy .

In this connection ORG had regard to a ruling of DATE in which ORG dismissed a case brought by prosecuting authorities and found that criminal punishment after the imposition of tax surcharges at PERCENT constituted double jeopardy in breach of LAW No . CARDINAL to the LAW . Subsequently , however , on DATE , ORG of ORG , on an appeal by the prosecution , quashed ORG dismissal of the aforementioned case , finding that that ORG had based its decision on an erroneous interpretation of the law . In its view , the said ORG provision did not prevent criminal punishment after the imposition of a tax surcharge .

On DATE the applicant sought leave to appeal against ORG judgment of DATE , but on DATE ORG of ORG refused him leave to appeal ( a decision notified to him on DATE ) .

In the meantime , on DATE ORG had reduced the tax surcharge from PERCENT in order to avoid any conflict with LAW No . CARDINAL to the LAW . In this connection it was noted that the applicant ’s prosecution and conviction under sections CARDINAL - CARDINAL and CARDINAL of LAW related to advantages secured for PERSON og LOC . The applicant had not , however , been charged or convicted with regard to the submission of incorrect and incomplete information to the tax authorities that might result in tax advantages for him personally , though in terms of the advantages that the applicant had ultimately hoped to achieve by his conduct there was a close relationship between the company ’s and his own tax evasion . ORG noted that a shareholder who incurred liability to pay a tax surcharge on behalf of a company could seek repayment from the company ( section CARDINAL sub - section , of LAW ( skatteloven ) ) . It further had regard to a plenary decision of DATE in which ORG ruled that a PERCENT tax surcharge would constitute a criminal charge for the purposes of LAW but that there were reasons for assuming that this provision did not apply to a surcharge of PERCENT .

On DATE ORG changed its jurisprudence in this area , in CARDINAL plenary decisions . In CARDINAL of these it concluded that a criminal case should be dismissed if the accused had already been subjected to tax surcharges of PERCENT , or else there would be a violation of LAW No . CARDINAL . Regard was had to the earlier ruling of DATE , in which it was concluded that a PERCENT tax surcharge constituted a “ criminal charge ” within the meaning of LAW . The third case concerned only LAW , where ORG found that the imposition of a PERCENT tax surcharge constituted a “ criminal charge ” for the purposes of that provision .

On DATE , following the above change of jurisprudence of ORG , the applicant asked ORG to proceed with its examination of a request he had previously made in DATE for the reopening of the criminal proceedings against him . He further demanded that ORG reverse its DATE decision and reimburse him the tax surcharges which he had paid .

No decision has yet been given on either of the above requests .

On DATE the applicant started serving his sentence . All of his repeated applications for release after serving CARDINAL of the sentence have been refused .

On DATE ORG , sitting in plenary , rejected an application for the reopening of proceedings relating to tax surcharges , lodged by another person in a separate case . ORG concluded that there was no justification for it to apply retroactively its jurisprudence of DATE to that case .


AHMADI, SABERDJAN AND SABERDJAN v. LITHUANIA

The first applicant , PERSON , was born in DATE . The second applicant , GPE SABERDJAN , was born in DATE . The third applicant , PERSON , is the second applicant 's son , born in DATE . All CARDINAL were born in GPE . The applicants are represented before the ORG by Mr. PERSON , a lawyer practising in GPE .

A.

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

Proceedings concerning the first applicant

The first applicant fled from GPE in DATE and illegally entered GPE via Belarus without any valid identification papers . She applied for political asylum in GPE , which was refused on the ground that she had no established family links in GPE and that her fear of persecution in GPE had been unsubstantiated . On DATE the Minister of the ORG decided to expel the first applicant from GPE . No time - limit or country of destination was specified in the expulsion order . The court proceedings brought by the applicant against the above decisions were unsuccessful .

By reference to LAW ( see the ' Relevant domestic law ' part below ) , on CARDINAL DATE the interior authorities held that the first applicant could face persecution in GPE and decided to clarify her identity and re - examine her status in GPE on account of the persistent state of unrest in GPE and “ in accordance with the principle of non - refoulement . ”

On DATE the first applicant applied to the interior authorities to leave GPE . She obtained an NORP passport from ORG in GPE and voluntarily left GPE on DATE . It appears that she now lives in GPE .

Proceedings concerning the second and third applicants

In DATE the second and third applicants fled from GPE . They illegally entered GPE via Belarus without any documents and immediately requested asylum . On DATE the Minister of the ORG refused asylum on the ground that there was no substantiated fear of their persecution in GPE . In the same decision the Minister decided to expel the second applicant and his son from GPE . No time - limit or destination was specified . The second applicant brought court proceedings concerning the above decisions , but to no avail .

On DATE ORG granted asylum to the second applicant 's brother and his family .

By reference to LAW , on CARDINAL DATE the interior authorities held that the second and third applicants could face persecution in GPE and decided to clarify their identity and re - examine their status in GPE on account of the persistent state of unrest in GPE and “ in accordance with the principle of non - refoulement . ”

The second and third applicants applied for temporary residence on “ humanitarian grounds ” ( see the ' Relevant domestic law ' part below ) . By a decision of DATE they were issued temporary residence permits for DATE , pursuant to LAW , because of the danger to their lives and health in GPE . In that decision it was noted that the second applicant had no valid identification documents , but that he had been assisted by the NORP immigration authorities in applying to ORG in GPE for an NORP passport . The second applicant was requested to present a passport so that his and his son 's temporary residence permits could be renewed after DATE .

B. Relevant domestic law

Article CARDINAL of the Refugees Act stipulates that a rejected asylum seeker for whom an expulsion order has been issued can not be expelled if his life could be endangered as a result .

Pursuant to LAW , an expulsion order can be suspended on “ humanitarian grounds . ” Pursuant to LAW , a rejected asylum seeker can apply for temporary residence on “ humanitarian grounds . ”


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings

NORP The applicant claimed restitution of real property which had been expropriated from her in DATE .

On DATE the Košice - mesto ORG ( Pozemkový úrad ) granted the applicant ’s claim . ORG established , after an inspection of the land in question , that it had never served the purpose for which it had been expropriated which was a relevant reason for its restitution within the meaning of LAW ( CARDINAL ) ( m ) of LAW of DATE . The educational institution which possessed the land challenged the decision .

On DATE ORG ( Krajský súd ) quashed the administrative decision as it considered the reasons for it to be insufficient . ORG instructed the administrative authority to establish all relevant facts of the case and to hear the parties .

On DATE both the applicant and a representative of the institution using the land in question met with officials of ORG úrad ) to which the case fell to be examined . In the course of the meeting the relevant facts of the case were examined .

On DATE the ORG delivered a new decision by which it dismissed the applicant ’s claim . It held that the plot served the original purpose of its expropriation within the meaning of LAW ( CARDINAL ) ( m ) of LAW of DATE and that the applicant had received compensation for it . The decision was signed by the head of the land , agriculture and forest department of ORG .

On DATE the applicant requested judicial review of this decision . She complained that ORG had failed to establish the relevant facts correctly , that it had decided arbitrarily and that there had been no hearing in the case .

On DATE ORG upheld ORG decision . The court found , with reference to the documents included in the file of ORG , that the plot in question served the purpose of its expropriation since a social institution used it as a playground for handicapped children . With reference to LAW , ORG decided in camera .

Pursuant to Section CARDINAL ( CARDINAL ) ( m ) of Act No . DATE on ORG And Other ORG ( ORG o úprave vlastníckych vzťahov k pôde a inému poľnohospodárskemu majetku – “ LAW ” ) , real property which was expropriated with payment of compensation shall be restored if it still exists and provided that it has never served the purpose for which it was expropriated .

The lawfulness of decisions delivered by administrative authorities can be examined by courts in accordance with Part V of LAW which governs the administrative judiciary .

Article CARDINALf , as in force at the relevant time , entitled the courts to deliver a judgment without prior oral hearing in simple cases , in particular when there is no doubt as to whether the administrative authority established the facts correctly , and the point at issue was a question of law .

In accordance with LAW ( CARDINAL ) , the parties to the proceedings before the court are the parties in the proceedings before the administrative authority and the administrative authority whose decision is to be reviewed .

Pursuant to Article CARDINALq ( CARDINAL ) , when the court reviewing an administrative authority ’s decision does not decide without an oral hearing pursuant to Article CARDINALf , it may take such evidence as is necessary for reviewing the decision at issue .

Under Article ORG , if the court quashes the decision of the administrative authority , the latter , when taking a new decision , is bound by the legal opinion expressed by the court .

Act No . CARDINAL/CARDINAL on ORG ( PERSON o organizácii CARDINAL štátnej správy a o zmene a doplnení niektorých zákonov ) governs , inter alia , the status and competence of district offices .

Sections CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) provide that district offices are ORG authorities in charge of local administration of the ORG which are financed from the ORG budget .

Section CARDINAL ( CARDINAL ) entitles the district offices to decide at first instance on the rights and obligations of natural or legal persons in the context of administrative proceedings .

Pursuant to Section CARDINAL ( CARDINAL ) , the head of a district office is appointed and revoked by the Government .

Section CARDINAL ( CARDINAL ) provides that the heads of departments of district offices are appointed by the head of the district office .

Pursuant to Section CARDINAL , the departments of district offices shall act and decide in the context of administrative proceedings autonomously unless the law otherwise provides .

Section CARDINAL ( CARDINAL ) provides that district offices are directed and controlled by the Government when carrying out ORG administration .

In its finding No . PL.ÚS CARDINAL of CARDINAL DATE ORG found that LAW was contrary to the LAW and also to LAW . As a result , this provision ceased to be effective from the moment of its publication in LAW on DATE .