Violations of Art. 8;Violations of P1-1;Violations of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - domestic and Convention proceedings

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

The facts of the case as submitted by the parties are summarised in section A below ( paragraphs CARDINAL - CARDINAL ) . A description of the documents submitted by the parties is contained in section B below ( paragraphs DATE ) .

The applicant is a co - owner of real estate in the village of ORG . The other co - owner is the applicant 's brother , Mr PERSON , who is not a party to the proceedings before the ORG . In reply to the ORG 's specific query in that respect , the applicant 's representative stated in a letter of DATE that the applicant 's brother did not intend to participate in the proceedings before the ORG , that the applicant had participated in the domestic proceedings by himself ( see below ) and that in any event the applicant had furnished the ORG with a general power of attorney granted to him by his brother . The document in question confirms the applicant 's right to represent his brother before the ORG if necessary .

Prior to the events described below , the applicant and his brother registered a limited liability company called ORG ( общество с ограниченной ответственностью « Недра » ) and , together with their families ( hereafter “ the applicant 's family ” ) , ran a bakery business . According to the applicant , this business was their main source of income .

The estate ( hereafter “ the applicant 's estate ” ) comprises a plot of land of QUANTITY transferred to the Nedra company under an indefinite lease , a house of QUANTITY owned by the applicant , a house of QUANTITY owned by his brother and industrial buildings and equipment , including a mill , a bakery and storage facilities with a total surface of QUANTITY assigned to ORG .

In DATE , as alleged by the Government , or in DATE , as alleged by the applicant , he and his family left their estate as they were constantly threatened by NORP rebel fighters , who then moved in .

At DATE the fighters left and the applicant and his family returned to their estate . According to the applicant , they found quarters that had been built by the fighters on the plot of land using the applicant 's building materials , but the houses , industrial premises and equipment had remained intact and they restarted their business .

In DATE ORG launched a counter - terrorist operation in GPE . Fearing possible attacks , the applicant and his relatives left the village .

On DATE the ORG consolidated police units of ORG ( PERSON сводный отряд милиции ORG РФ – “ the police units ” ) moved onto the applicant 's estate .

On DATE the applicant and his family tried to return , but the police units denied them access to the estate .

On DATE the applicant requested ORG of the Interior ( временный ORG Надтеречного района – “ the NORP ” ) to vacate his houses and industrial LOC .

By a letter of DATE the ORG refused the applicant 's request . The letter stated that they would only vacate the buildings after the termination of the hostilities in the region and the withdrawal of the NORP troops . As to the alleged damage to the applicant 's property , the letter advised him to lodge a compensation claim with a court .

Since , at the material time , the courts on the territory of GPE were inoperative , the applicant only submitted his claims in DATE .

The applicant and his family spent DATE in a refugee tent camp in the village of GPE , GPE . According to him , poor living conditions in the camp resulted in the death of his nephew , who was DATE and DATE . The applicant submitted medical death certificate no . CARDINAL issued in respect of his nephew on DATE . It states that the boy died of acute double bronchial pneumonia . The date and place of death are recorded as DATE , NORP refugee camp . The applicant also claimed that the health of other family members had seriously deteriorated .

On DATE and DATE respectively , the head of the local council of the village of ORG ( глава органа местного самоуправления с. PERSON ) issued CARDINAL similar certificates in respect of the applicant , his brother and their company ORG , stating that federal police units had been occupying the applicant 's estate since CARDINAL October DATE and refused to move out .

On DATE , upon the applicant 's request , the military commander of LOC ( военный комендант NORP района ) ordered the police units to ensure that no damage would be caused to the applicant 's property . According to the applicant , no measures to protect his property followed .

On DATE , upon the applicant 's request , a commission composed of the head of the local council of ORG , representatives of planning and building organisations ( представитель проектной организации , представитель подрядной организации ) and the military commander drew up evaluation reports ( дефектные акты ) reflecting in detail the poor state of the applicant 's property ( see paragraphs CARDINAL - CARDINAL below ) .

Another commission made up of the head of the local council and several residents of ORG issued a certificate stating that federal interior troops had been stationed on the applicant 's estate from DATE until DATE , and that they had damaged the applicant 's houses and industrial premises , the damage having been certified by the above - mentioned evaluation reports . The undated certificate was signed and sealed by the commission members and the military commander .

NORP In a letter of CARDINAL DATE an acting prosecutor of LOC ( исполняющий обязанности прокурора NORP района ) suggested that the military commander should order the police units either to vacate the applicant 's house or enter into a lease agreement with him . The commander never responded .

By a letter of DATE an acting prosecutor of LOC invited the applicant to apply to a court in the event of the police units ' refusal to follow the above recommendation .

From DATE the applicant also lodged a large number of complaints with ORG bodies , including military authorities , prosecutors at various levels and other law - enforcement agencies , regional and federal administrative authorities , seeking eviction of the police units . Mostly he received formal responses by which his complaints were transmitted to other bodies , but no effective measures were taken .

In DATE the courts in GPE became operational again . The applicant , in his own name and on behalf of his brother , brought an action in which he sought the eviction of the GPE consolidated police units from his estate .

By a default judgment of DATE ORG of GPE confirmed the title of the applicant and his brother to the plot of land and the houses and industrial premises , with reference to numerous documents submitted by the applicant . The court , having examined the evidence submitted by the applicant , found as follows :

“ ... Internal troops and police units from various regions of GPE involved in the counter - terrorist operation in GPE occupied the houses and industrial premises belonging to the GPE , without seeking approval of the rightful owners and in breach of all the provisions of law in force and LAW . The power structures , called upon to protect the interests of civilians , have themselves turned to breaching LAW ...

The well - foundedness of [ the applicant 's ] claim can also be confirmed by the district prosecutor 's letter addressed to the district military commander , which states that since DATE the police units of the federal troops have been occupying the residential and industrial premises belonging to [ the applicant ] on the western outskirts of the village of ORG in LOC . The actions of the police units of the federal forces have flagrantly breached [ the applicant 's ] housing and civil rights secured by LAW and by housing and civil legislation .

Earlier , on DATE , the military commander of LOC issued an order obliging the defendant to preserve the GPE ' property and upon the expiry of a DATE period to return them their property intact .

The defendant ignored this order . ”

The court concluded that the GPE police units of ORG had adversely occupied the applicant 's estate and ordered their eviction , thus allowing the applicant 's claim in full .

On DATE the judgment came into force and enforcement proceedings were commenced accordingly . A bailiff 's attempts to enforce the judgment proved to have been in vain , as the police units refused to comply with the writ of execution . In his attempts to enforce the judgment the bailiff unsuccessfully sought the assistance of the head of the administration of LOC , the military commander of LOC and the military commander of GPE .

The applicant 's numerous complaints to local and federal administrative bodies were to no avail .

On DATE ORG of GPE forwarded the applicant 's request to enforce the judgment in his favour to the NORP Minister of Justice and invited him to take the necessary measures .

According to the Government , in DATE , within the statutory time - limit provided for in domestic law for the enforcement of a final judgment , the GPE police units vacated the buildings on the applicant 's estate , but relocated to the applicant 's plot of land instead .

On DATE the Special Envoy of the NORP President for Rights and Freedoms in GPE ( ORG представитель ORG по соблюдению прав и свобод человека PERSON ) requested the NORP Minister of the ORG to order the enforcement of the judgment of DATE . On DATE the Special Envoy sent the applicant 's new complaint to the Minister of the ORG and stated that he had still not received any reply to his previous query of CARDINAL DATE .

On CARDINAL DATE the President of ORG for the Promotion of the PERSON of the Political , Social , and Economic Situation and ORG in GPE ( PERSON по содействию нормализации общественно-политической и социально-экономической обстановки и соблюдению прав человека PERSON ) notified the Minister of the Interior of the unlawful occupation by the police units of the applicant 's estate and their refusal to comply with the judgment in the applicant 's favour and requested that the Minister take up the applicant 's case , given that it had already attracted the attention of the Commissioner for Human Rights of ORG .

On CARDINAL DATE the first deputy - head of ORG GPE ( FAC – “ the President 's Office ” ) transmitted the applicant 's complaint to the Minister of the Interior for examination .

On DATE ORG forwarded the applicant 's complaint to the prosecutor 's office of GPE ( прокуратура Чеченской республики ) “ for examination on the merits ” .

By letter of DATE the first deputy commander of ORG in LOC ( первый заместитель командующего ОГВ(с ) в СКР – “ the deputy commander ” ) informed ORG that the judgment in the applicant 's favour had been executed and the defendant units had left the applicant 's estate . In reply , on DATE a bailiff reported that the judgment remained unenforced . He stated that he had visited the applicant 's estate and found out that even though the ORG consolidated police units had left , the NORP consolidated police units ( ORG сводный отряд милиции ) had moved into the applicant 's property .

On DATE the prosecutor 's office of GPE invited the Chief Bailiff of GPE ( главный судебный пристав ORG ) to provide information as to what measures had been taken to enforce the judgment in the applicant 's favour and whether the question of administrative or criminal liability for evasion from enforcement by the personnel of the consolidated police units had ever been raised . It is unclear whether any answer was given to this query .

On DATE the Chief Bailiff informed ORG that the term allowed for the examination of the applicant 's complaint regarding the prolonged non - enforcement had been extended for DATE .

On DATE ORG informed ORG that the judgment of DATE had been enforced .

In a letter of DATE the prosecutor 's office of GPE , with reference to the letter of the deputy commander of DATE , notified the applicant that the judgment had been executed .

According to the Government , on DATE the bailiff imposed a fine equal to CARDINAL times the minimum monthly salary on the police units for their refusal to comply with the court judgment . The fine , however , could not be recovered because of delays in the payment of wages to military personnel in GPE . The Government also submitted that on DATE the GPE police units had left the territory of the applicant 's estate , and the bailiff had closed the enforcement proceedings and returned the writ of execution to FAC on DATE , but thereafter the NORP police units had occupied the applicant 's estate .

On DATE , in the course of the eviction proceedings , the bailiff drew up CARDINAL reports on the eviction of the police units from the applicant 's houses and industrial LOC . The reports listed items of the applicant 's property that had been destroyed or damaged and were signed by the applicant , the bailiff and CARDINAL attesting witnesses ( see paragraphs CARDINAL - CARDINAL below ) . It does not appear that the actual eviction took place .

In a letter of CARDINAL DATE a Deputy Chief Bailiff of GPE informed the applicant of the developments in his case , stating that the execution of the judgment depended in fact on ORG rather than on the efforts of a bailiff .

By a letter of CARDINAL DATE ORG transmitted the applicant 's new complaint to ORG . It also referred to the Chief Bailiff 's letter of DATE and stated that even though DATE had already passed , no information had been submitted on the developments in the enforcement proceedings .

On DATE the bailiff reported that on an unspecified date the police had vacated the houses , but remained in quarters they had built on the applicant 's land and continued using the applicant 's resources for their needs . The report also stated that the NORP consolidated police units had been replaced by the PERSON consolidated police units ( сводный отряд милиции УВД GPE области ) , that trenches , check - points and barbed wire restricted access to the land , and that the applicant could not enter it even for a short time , let alone permanently reside there .

On DATE the bailiff closed the enforcement proceedings , as the police units had finally left the applicant 's estate . The bailiff drew up a report on the eviction , briefly indicating the damage to the applicant 's property . It was signed by the applicant , the bailiff and CARDINAL attesting witnesses ( see paragraph CARDINAL below ) .

On DATE the applicant , acting in his own name and on behalf of his brother , brought an action against ORG of the Interior in LOC of GPE ( PERSON межмуниципальный суд г. PERSON – “ the ORG ” ) . He complained that the consolidated police units of ORG had occupied and wrecked his estate and had been refusing to comply with the judgment of DATE . He sought recovery of possession of his movables and real property as well as compensation in an amount of MONEY ( RUB ; approximately EUR CARDINAL ) for pecuniary losses that he had sustained as a result of the adverse occupation of his estate and compensation in an amount of RUB CARDINAL ( approximately ORG CARDINAL,CARDINAL ) for the damage caused thereto . The applicant also stated that as a result of the unauthorised occupation of his estate he and his family had had to live in a refugee camp in appalling conditions which had resulted in the death of his nephew , and he claimed compensation of RUB MONEY ( approximately EUR CARDINAL,CARDINAL ) in respect of non - pecuniary damage .

The applicant filed numerous documents in support of his claims , including those confirming his and his brother 's title to the houses , industrial buildings and the plot of land , CARDINAL registration certificates in respect of the Nedra company , his applications to various ORG bodies and respective replies , a copy of the judgment of DATE and the bailiff 's reports on the police units ' failure to comply with that judgment as well as the certificate issued by the commission made up of the head of the local council of ORG and local residents ( see paragraph CARDINAL above ) , together with the evaluation reports of CARDINAL DATE and estimates of repair costs for his property .

On DATE ORG delivered its judgment . At the trial the defendant Ministry did not contest , as such , the accuracy of the applicant 's submissions or the evidence he had presented , but denied its responsibility for the consolidated police units , stating that they had formed part of the federal troops within the territory of GPE and had been under the command of the military authorities of ORG . The court made no comment in respect of those submissions by the defendant Ministry . It examined the material before it and established that the applicant owned the property in question , that the local council had certified on DATE the unauthorised occupation of that property by federal police units , that the applicant had requested the authorities to ensure his estate be vacated and that by a judgment of DATE ORG had ordered the eviction of the GPE consolidated police units from the applicant 's LOC . The court further found as follows :

“ The plaintiffs have filed a certificate issued by [ the commission composed of ] the head of the local council and residents of ORG . The certificate states that the federal military were located on the plaintiffs ' estate from DATE until CARDINAL DATE and that they caused damage to the plaintiffs ' property .

The plaintiffs have produced evaluation reports and estimates of repair costs to corroborate their arguments concerning the property damage . The plaintiffs have also adduced a calculation of lost profit ...

Having assessed the evidence in its entirety , the court sees no reason to allow the plaintiffs ' claims , since the houses and industrial premises have already been vacated , as the [ first ] plaintiff has confirmed during the hearing . Besides , another judgment in force ordered the police units ' eviction , and enforcement proceedings were commenced .

The court can not award repair costs and compensation for property damage either , since the plaintiffs have failed to present sufficient proof that their houses and the industrial premises were damaged through the fault of ORG .

The only evidence the plaintiffs have produced to corroborate their claims is the certificate issued by the head of the local council of ORG , which states that the federal interior troops caused the property damage . However , the court can not consider this document as evidence , since the date of its issue is missing . Besides , there is nothing in this document to suggest that the real amount of the damage corresponds to that indicated by the plaintiffs .

The plaintiffs have adduced photographs of their houses and industrial LOC . The court can not admit these photographs in evidence , since there is no indication that they represent the plaintiffs ' houses and industrial LOC .

In view of the fact that during the trial the plaintiffs ' arguments that it was ORG which adversely occupied their property have proved groundless , the court finds the ORG ' claims unfounded . ”

The court rejected the applicant 's claims accordingly , without separately addressing his claims regarding compensation for the adverse occupation of his estate or that in respect of non - pecuniary damage .

The applicant appealed against the above - mentioned judgment . He pointed out , among other things , that ORG finding to the effect that “ during the trial the plaintiffs ' arguments that ORG unlawfully occupied their property had proved groundless ” was arbitrary and contravened LAW which stated that the facts established by a court judgment that had entered into force should not have to be proved again during examination of other civil disputes between the same parties . The applicant also claimed that ORG had been arbitrary in that it had rejected the certificate drawn up by the commission consisting of the head of the local council and residents of ORG by merely referring to the fact that this certificate was undated , even though the said document directly referred to the evaluation reports of CARDINAL DATE that had been enclosed with it and submitted to the first - instance court .

On DATE ORG dismissed the applicant 's appeal . It restated , in essence , the reasoning of the first - instance judgment and confirmed that all the findings had been correct .

The applicant 's subsequent requests for supervisory review were to no avail .

Among a considerable number of other documents , the applicants submitted the following .

Registration certificates ORG . CARDINAL and CARDINAL issued on DATE by a competent local authority in respect of the applicant 's house and that of his brother confirm that the houses belong to the applicant and his brother respectively .

A temporary registration certificate of CARDINAL DATE issued by a competent authority confirms the transfer of the plot of land of QUANTITY to the Nedra company under an indefinite lease .

Certified technical descriptions issued to the applicant and his brother for their respective houses and to the Nedra company in respect of the industrial premises indicate the surface area of the buildings ( see paragraph CARDINAL above ) and contain a plan of the buildings showing their dimensions .

The Charter of the Nedra company was approved by its founders on DATE and registered with ORG on DATE under number CARDINAL . It states that the multifunctional firm ORG is a limited liability company and a legal entity . The founders of the company are the applicant and his brother . The LAW stipulates that the founders are the company 's owners and that in case of their death the right of ownership shall be transferred to their heirs . The liability of the founders for the company 's debts is limited to the amount of their shares . They are empowered to appoint the director of the company .

Certificate no . CARDINAL issued by ORG on DATE confirms the registration of the Nedra company on DATE . The certificate states that ORG is a private company , indicates the company 's registered address and the amount of the charter capital and states that the company 's “ director ( founder ) is Mr NORP PERSON ” , the applicant 's brother .

Certificate no . CARDINAL of DATE confirms that the Nedra company was re - registered on DATE . It states that ORG is a private company , indicates the company 's registered address and the amount of the charter capital and states that the company 's “ director ( founder ) is PERSON NORP PERSON ” .

Extract no . CARDINALa of DATE from ORG provides a very detailed account regarding ORG , stating , in particular , that “ the founders ( owners ) of the company are CARDINAL natural persons ” , namely the applicant and his brother .

The applicants submitted CARDINAL evaluation reports issued in the presence of the applicant and his brother on CARDINAL DATE by a commission composed of the deputy head of the commission , PERSON , the head of the local council of ORG , PERSON , a representative of the planning organisation , PERSON , and a representative of the building organisation , PERSON . The reports are countersigned by the military commander of LOC , General - Major PERSON , and the head of the administration of LOC , Mr PERSON The reports are issued in respect of the applicant 's house , his brother 's house , the storage facility and the industrial equipment and state that each item of the property in question has been damaged and that its restoration requires a certain amount of work as listed below .

NORP The report issued in respect of the applicant 's house lists the following types of work :

Repair of the roof QUANTITY ;

Interior plasterwork QUANTITY ;

Double whitewashing of walls QUANTITY ;

Installation of CARDINAL doorways measuring QUANTITY ;

Installation of CARDINAL doorways measuring CARDINAL x QUANTITY ;

Installation of CARDINAL window openings QUANTITY ;

Glazing of windows QUANTITY ;

Cementing of the floor QUANTITY ;

Covering of the floor with linoleum QUANTITY ;

Repair of CARDINAL boilers ;

Laying of CARDINAL PERSON heating pipes QUANTITY ;

Installation of CARDINAL heating radiators DATE equivalent square metres ;

Repair of the ceiling QUANTITY ;

Sanitary equipment MONEY ;

Electrical equipment MONEY ;

Major repair of electric wiring QUANTITY ;

Covering of the floor with ceramic tiling QUANTITY ;

Covering of the walls with ceramic tiling QUANTITY ;

Painting of doors , windows , pipes and radiators QUANTITY ;

Repair of the iron fence QUANTITY ;

Repair of CARDINAL [ concrete fence ] blocks QUANTITY ;

Backfilling of the dug - outs and trenches MONEY ;

Removal of debris QUANTITY ;

Repair of a gravel driveway QUANTITY .

The report issued in respect of the house belonging to the applicant 's brother lists the following work :

Repair of the roof QUANTITY ;

Interior plasterwork QUANTITY ;

Installation of CARDINAL doorways QUANTITY ;

Glazing of windows QUANTITY ;

Cementing of the floor QUANTITY ;

Repair of a boiler ;

Repair of the ceiling – QUANTITY ;

Sanitary equipment MONEY ;

Electrical equipment MONEY ;

Painting of doors , windows , pipes and batteries QUANTITY ;

Repair of the iron fence QUANTITY ;

Repair of the gates measuring QUANTITY ;

Removal of debris QUANTITY .

As regards the storage facility the report lists at the outset CARDINAL types of necessary work revealing that the roof was destroyed completely . The report continues as follows :

Replacement of CARDINAL entrance gates QUANTITY ;

Replacement of CARDINAL exit gates QUANTITY ;

Installation of CARDINAL window openings QUANTITY ;

Glazing of windows QUANTITY ;

Covering of CARDINAL windows with bars QUANTITY ;

Cementing of the floor QUANTITY ;

Installation of paving borders QUANTITY ;

Repair of the paving around the building QUANTITY ;

Asphalting of an area of QUANTITY ;

Repair of CARDINAL boilers ;

Installation of CARDINAL heating radiators ;

Repair of a gas - flow line QUANTITY ;

Major repair of electric wiring QUANTITY ;

Electrical equipment MONEY ;

Installation of electric cable – QUANTITY ;

Repair of CARDINAL luminescent bulbs ;

Repair of CARDINAL electric control units ;

Repair of CARDINAL electric switches ;

Repair of CARDINAL [ concrete fence ] blocks QUANTITY ;

Backfilling of the dug - outs and trenches MONEY ;

Removal of debris – QUANTITY ;

Repair of a gravel driveway QUANTITY .

The report issued with respect to the industrial equipment states that the mill machinery and the mini - bakery had been disassembled completely .

DATE . The applicant submitted CARDINAL bailiff 's reports on the eviction of the police units dated DATE ( see paragraph CARDINAL above ) . The reports were drawn up in respect of the applicant 's house , his brother 's house and the industrial equipment and LOC , in the presence of the applicant , his brother and CARDINAL attesting witnesses . They are signed by the applicant , the bailiff and the witnesses . The reports list the items of the applicant 's property that were destroyed or damaged and indicate the degree of damage caused .

The report relating to the applicant 's house provides the following details :

The roof is damaged QUANTITY ;

The plaster inside the building is damaged – QUANTITY ;

The ceiling is damaged QUANTITY ;

CARDINAL window openings are broken QUANTITY ;

Window glass is broken QUANTITY ;

CARDINAL doorways measuring QUANTITY have been removed QUANTITY ;

The heating system is non - functional and has been disassembled completely MONEY ;

Floor linoleum has been removed QUANTITY ;

Floor ceramic tiles have been removed QUANTITY ;

A bath and sanitary facilities are missing MONEY ;

A fence of iron sheets is missing QUANTITY ;

CARDINAL [ concrete fence ] blocks are missing QUANTITY ;

A drinking water well has been filled up with debris MONEY ;

Electric wiring has been dismantled ;

Furniture and household belongings are missing completely – MONEY ;

Infrastructure inside and around the building is damaged because of trenches , dug - outs and debris ;

A driveway 's hard coating is broken completely QUANTITY .

NORP The report drawn up in respect of the house of the applicant 's brother lists damage as follows :

The roof is damaged QUANTITY ;

The plaster inside the building is damaged QUANTITY ;

CARDINAL doorways have been removed QUANTITY ;

Window glass is broken QUANTITY ;

The heating system is non - functional , a boiler and heating radiators have been removed MONEY , to be restored completely ;

Iron entrance gates are missing QUANTITY ;

Electric wiring has been dismantled MONEY ;

Infrastructure inside and around the building is damaged ( trenches , dug - outs , debris ) MONEY ;

Furniture and household belongings are missing completely – MONEY .

NORP The report drawn up in respect of the industrial equipment and LOC states as follows :

Mill machinery has been disassembled ;

A CARDINAL - core cable is missing QUANTITY ;

Bakery equipment is missing completely ;

The roof has been dismantled QUANTITY ;

CARDINAL entrance gates have been removed QUANTITY ;

CARDINAL exit gates have been removed QUANTITY ;

CARDINAL window openings with bars have been removed QUANTITY ;

Window glass is missing QUANTITY ;

CARDINAL iron main beams are damaged QUANTITY ;

The concrete ceiling is damaged QUANTITY ;

The paving around the building is broken QUANTITY ;

An asphalt area of QUANTITY is broken ;

The heating system in the mill has been destroyed MONEY ;

A gas - flow line has been destroyed QUANTITY ;

Electric illumination of the mill has been destroyed MONEY ;

CARDINAL [ concrete ] blocks are missing from the fence QUANTITY ;

A driveway 's hard coating is broken completely QUANTITY ;

An area of QUANTITY has been alienated and re - planned and [ built upon ] using the materials [ of the applicant and his brother ] .

The report of DATE states that the police units were evicted from “ [ the applicant 's ] private house and the Nedra company 's LOC ” . The state of the house is described as follows :

The heating system has been destroyed ;

The ceiling has been dismantled ;

The electric wiring has been destroyed ;

Doors are missing completely ;

ORG are partly broken .

The Government did not furnish the ORG with any documents before the admissibility decision was taken . After the case was declared admissible the ORG submitted a number of documents , including certificate no . CARDINAL of DATE ( see paragraph CARDINAL above ) , a temporary registration certificate of DATE ( see paragraph CARDINAL ) , a decision of CARDINAL DATE taken by the applicant 's brother to re - register the Nedra company in accordance with the NORP legislation in force and to appoint the applicant as the company 's director , an evaluation report of CARDINAL DATE issued in respect of the storage facility ( see paragraph CARDINAL ) , certificate no . CARDINAL of DATE ( see paragraph CARDINAL ) , registration certificate no . CARDINAL of DATE ( see paragraph CARDINAL ) and extract no . CARDINAL of DATE from ORG which provides information identical to that contained in extract no . CARDINALa ( see paragraph DATE ) .

The other documents submitted by the ORG may be summarised as follows .

A certificate of CARDINAL DATE issued by a housing authority of LOC states that the residential properties of the village of ORG have never been included in a register for administration by the said housing authority and that the latter has no information as to whether the applicant and his brother have any housing .

DATE . A written explanation given by PERSON , the head of the local council of ORG , on DATE states that the applicant and his brother used to live in ORG but no longer reside there . According to PERSON , in DATE the applicant was assigned a plot of land of QUANTITY for construction purposes and the applicant built a storage facility and QUANTITY houses thereon . The explanation further states that in DATE the applicant 's estate was occupied by NORP rebel fighters who had built quarters on the applicant 's land and that in late CARDINAL they were replaced by federal police who remained on the estate until DATE . In Mr T. 's submission , he does not remember the exact period during which various military structures were placed on the applicant 's estate , and can not indicate the legal basis for the occupation of the estate . According to him , “ after the police units left , the situation on the estate was as it is now ; there were only slight defects in the rooms of the house , which we reported when drawing up documents ” . In his explanation Mr T. submits that he does not remember the date on which the said documents were drawn up , and that the local council of ORG does not have these documents at its disposal .

CARDINAL of CARDINAL certificates issued by PERSON , the head of the local council of ORG , on DATE states that the limited liability company GPE on a plot of land of CARDINAL hectares on the outskirts of ORG is registered in the names of the applicant and his brother , but the latter CARDINAL , themselves , are not registered in the village . The remaining CARDINAL certificates state that the houses of the applicant and his brother respectively are not listed in the property register of the village of Bratskoye .

CARDINAL certificates issued by the ORG enterprise “ NORP ORG ” on DATE state that “ as a result of military actions within the territory of GPE the archive of the NORP branch of ORG was completely destroyed ( burnt ) ” and that “ according to the archive data since DATE , as at the date of CARDINAL DATE , there is no housing registered for the applicant and his brother respectively ” .

The Government submitted a number of photographs taken on CARDINAL DATE which represent CARDINAL houses photographed from the outside and situated in close proximity to each other and a long construction with a missing roof and missing floor . Some photographs represent a partly broken fence made from concrete blocks . The Government did not make any comments regarding the photographs .

The Government also submitted CARDINAL undated evaluation reports drawn up in the applicant 's presence by a commission comprising a technical expert , PERSON , a representative of the administration of LOC , Mr Ib . , and the head of the local council of ORG , PERSON The reports are countersigned by the deputy head of the administration of LOC . They do not specify in respect of which particular building they are made , but contain a hand - drawn plan of the respective building and indicate the work required to restore the property .

One of the reports lists work very similar to that indicated in the evaluation report of CARDINAL DATE issued in respect of the applicant 's house ( see paragraph CARDINAL above ) :

Repair of the roof QUANTITY ;

Interior plasterwork QUANTITY ;

Double whitewashing of walls QUANTITY ;

Installation of CARDINAL doorways measuring QUANTITY ;

Installation of CARDINAL doorways measuring CARDINAL x QUANTITY ;

Installation of CARDINAL window openings QUANTITY ;

Glazing of windows QUANTITY ;

Cementing of the floor QUANTITY ;

Covering of the floor with linoleum QUANTITY ;

Repair of CARDINAL boilers ;

Laying of QUANTITY heating pipes QUANTITY ;

Laying of CARDINAL PERSON heating pipes QUANTITY ;

Installation of CARDINAL heating radiators DATE equivalent square metres ;

Repair of the ceiling QUANTITY ;

Sanitary equipment MONEY ;

Electrical equipment MONEY ;

Major repair of electric wiring QUANTITY ;

Covering of the floor with ceramic tiling QUANTITY ;

Covering of the walls with ceramic tiling QUANTITY ;

Painting of doors , windows , pipes and batteries QUANTITY ;

Repair of the iron fence QUANTITY ;

Replacement of CARDINAL [ concrete fence ] blocks QUANTITY ;

Backfilling of the dug - outs and trenches MONEY ;

Repair of a gravel driveway QUANTITY .

Another report lists work very similar to that indicated in the evaluation report of CARDINAL DATE issued in respect of the house of the applicant 's brother ( see paragraph CARDINAL above ) , such as :

Repair of the roof QUANTITY ;

Interior plasterwork QUANTITY ;

Installation of CARDINAL doorways QUANTITY ;

Glazing of windows QUANTITY ;

Cementing of the floor QUANTITY ;

Repair of a boiler ;

Repair of ceiling – QUANTITY ;

Sanitary equipment MONEY ;

Electrical equipment MONEY ;

Repair of the iron fence QUANTITY ;

Repair of the gates measuring CARDINAL x QUANTITY ;

Removal of debris QUANTITY .

The third report lists work very similar to that indicated in the evaluation report of CARDINAL DATE issued in respect of the industrial premises ( see paragraph CARDINAL above ) . In particular , the first CARDINAL types of work indicate that the roof of the respective building has been completely destroyed . The report further states as follows :

Installation of CARDINAL entrance gates QUANTITY ;

Installation of CARDINAL exit gates QUANTITY ;

Repair of CARDINAL window openings QUANTITY ;

Glazing of windows QUANTITY ;

Covering of CARDINAL windows with bars QUANTITY ;

Cementing of the floor QUANTITY ;

Installation of paving borders QUANTITY ;

Repair of the paving around the building QUANTITY ;

Asphalting of an area of QUANTITY ;

Repair of CARDINAL boilers ;

Installation of CARDINAL heating radiators ;

Repair of a gas - flow line QUANTITY ;

Major repair of electric wiring QUANTITY ;

Electrical equipment MONEY ;

Installation of electric cable – QUANTITY ;

Replacement of CARDINAL luminescent bulbs ;

Replacement of CARDINAL electric control units ;

Replacement of CARDINAL electric switches ;

Repair of CARDINAL [ concrete fence ] blocks QUANTITY ;

Backfilling of the dug - outs and trenches MONEY ;

Removal of debris – QUANTITY ;

Repair of a gravel driveway QUANTITY .

Finally , the ORG submitted written statements by CARDINAL police officers who were stationed on the applicant 's estate at various times in DATE . The statements were made in the period CARDINAL . Officer PERSON submitted that the property had been kept in the same condition in which it had been taken over ; officers PERSON and PERSON . stated that nothing had been plundered from the estate , and that the condition of the property had been assessed as being good at the time of its transfer to other police units . CARDINAL other officers submitted that they had been stationed in DATE on the applicant 's land plot , and that they had been unaware who had owned the property in question .

DATE LAW provides that housing shall be inviolable and that no one shall have the right to enter housing against the will of those living there , except in the cases established by a federal law or pursuant to a court decision .

Article CARDINAL § CARDINAL states that the right of private property shall be protected by law .

Article CARDINAL § CARDINAL provides that no one may be arbitrarily deprived of his or her home .

Under LAW the rights and freedoms set forth in the LAW may only be limited by the federal law to the extent necessary for the protection of the fundamental principles of the constitutional system , morality , health , the rights and lawful interests of other people , or for ensuring defence of the country and security of the ORG .

LAW provides that an owner has the right to recover his property from adverse possession .

By virtue of LAW , an owner , when recovering property from adverse possession , has the right to claim from a person who knows , or should have known , that his possession is adverse ( the possessor in bad faith ) , the return or reimbursement of all profits which that person has , or should have , received during the entire period of the possession .

Article CARDINAL states that an owner is entitled to seek the elimination of all violations of his property rights even if such violations do not involve deprivation of possession .

Article ORG provides that damage caused to the property of an individual or of a legal entity shall be compensated for in full by the person who inflicted such damage . The latter may be released from the obligation to make compensation if he or she can prove that the damage was not inflicted through his or her own fault ; however , the law may provide for compensation in respect of damage even in the absence of fault by the person who caused it . Damage inflicted by lawful actions shall be compensated for in cases established by law .

By virtue of Article CARDINAL , damage inflicted in a situation of absolute necessity , and notably for elimination of a danger threatening the tortfeasor or third parties , if the danger , in the circumstances , could not be eliminated by any other means , shall be compensated for by the tortfeasor . Having regard to the circumstances in which the damage was caused , a court may impose an obligation to compensate for such damage on a third party in whose interests the tortfeasor acted , or release from such an obligation , partially or in full , both the third party and the tortfeasor .

Article CARDINAL stipulates that a ORG agency or a ORG official will be liable towards a citizen for damage caused by their unlawful actions or failure to act . Compensation for such damage will be awarded at the expense of the federal or regional treasury .

Article CARDINAL of the Code of Civil Procedure states that each party to proceedings must prove those circumstances to which it refers in support of its submissions . A court decides what circumstances are relevant for the case and which party must prove them and proposes those circumstances for discussion even if some of them have not been referred to by any of the parties . Evidence is submitted by the parties and other persons involved in the proceedings . A court may propose that the parties or other persons involved in the proceedings submit additional evidence . If it is complicated for the parties or other persons involved in the proceedings to submit additional evidence , the court , on their request , assists them in obtaining that evidence .

Article CARDINAL provides that the facts established by a court judgment that has entered into force will not have to be proved again during examination of other civil disputes between the same parties .

Article CARDINAL establishes , as a general rule , that actions must be brought in the court of the defendant 's place of residence .

Article CARDINAL stipulates the plaintiff 's right to bring a claim of compensation for damage to his or her property in the court of his or her choosing – either that of the defendant 's place of residence or that of the place where the damage has been caused .

Under LAW , actions concerning the determination of rights over immovable property may only be brought in the court of the place where such property is situated .

The Law on Suppression of Terrorism of DATE ( Федеральный закон от CARDINAL июля DATE г. № CARDINAL « О борьбе с терроризмом GPE ) , as in force at the relevant time provided as follows :

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

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

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

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

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

( CARDINAL ) if necessary , to take measures aimed at temporary restriction or prohibition of vehicle and pedestrian traffic in the streets and on the roads , to prohibit the access of transport vehicles , including those of embassies and consulates , and that of citizens to certain territories or objects , or to remove citizens from certain territories or objects and to tow away transport vehicles ;

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

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

( CARDINAL ) to enter unimpeded ( penetrate ) private residential or other LOC or plots of land belonging to individuals , or the territory and LOC of an organisation regardless of to whom such organisation may belong ... while suppressing a terrorist act or pursuing persons suspected of committing such an act , when a delay may entail a real risk for human life or health ;

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

( CARDINAL ) to use , for duty purposes , any means of communication , including special ones , belonging to a citizen or organisation regardless of to whom such organisation may belong ;

( CARDINAL ) to use , for duty purposes , transport vehicles belonging to an organisation regardless of to whom such organisation may belong , except for those of embassies , consulates or other representations of foreign GPE and international organisations , and to use , in the event of emergency , transport vehicles belonging to citizens for the purpose of preventing a terrorist act , or pursuing and detaining persons who committed such an act , or conveying persons in urgent need of medical assistance to medical institutions , and arriving at the scene of an incident .

In the zone of a counter - terrorist operation , the activity of representatives of the mass - media shall be regulated by the head of the operational headquarters for a counter - terrorist operation , unless federal law provides otherwise . ”

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

Section CARDINAL of the Law on Enforcement Proceedings provides that a bailiff 's order on the institution of enforcement proceedings must fix a time - limit for the defendant 's voluntary compliance with a writ of execution . The time - limit may not exceed DATE . The bailiff must also warn the defendant that coercive action will follow , should the defendant fail to comply with the time - limit .

Under LAW , enforcement proceedings should be completed within DATE following receipt of the writ of enforcement by the bailiff .

Decree no . CARDINAL of the NORP President “ On Measures Aimed at Increasing the Effectiveness of ORG within the Territory of the North - Caucasian Region of the NORP Federation ” of DATE ( указ PERSON от DATE № CARDINALс « О мерах по повышению эффективности контртеррористических операций на территории GPE региона Российской PERSON ) provided that ORG be formed in the NORP region from units and detachments of the NORP armed forces , those of the interior troops and departments of ORG of the ORG , departments of ORG , those of ORG and ORG . The decree also empowered the commander of ORG to take decisions that were binding for all the forces forming ORG .


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

The applicant ’s wife died on DATE , leaving CARDINAL children born in DATE and DATE . His claim for widows’ benefits was made on DATE and was rejected on DATE on the ground that he was not entitled to widows’ benefits because he was not a woman . The applicant lodged an appeal on DATE , which was decided and rejected on DATE . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .

The applicant ’s wife died on DATE , leaving CARDINAL children born in DATE and DATE . His claim for widows’ benefits was made on DATE and was rejected on DATE on the ground that he was not entitled to widows’ benefits because he was not a woman . The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .

The applicant ’s wife died on DATE , leaving CARDINAL child born in DATE . His claim for widows’ benefits was made on DATE and was rejected on DATE on the ground that he was not entitled to widows’ benefits because he was not a woman . The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .

The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV .


CASE OF AGUILERA JIMÉNEZ AND OTHERS v. SPAIN

Remainder inadmissible;No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

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

The applicants live in GPE . They were employed as delivery men by the company P. , against which they brought several sets of proceedings in employment tribunals . In DATE they set up the trade union N.A.A. to defend their interests and those of the other delivery staff , and sat on its executive committee .

NORP The trade union published a DATE news bulletin . On the cover of the bulletin for DATE a cartoon with speech bubbles showed a caricature of the human resources manager , PERSON , sitting behind a desk under which a person on all fours could be seen from behind , together with , to CARDINAL side , GPE and PERSON , also employees of the company P. , who were watching the scene while waiting to take their turn to satisfy the manager like their colleague . Inside the bulletin were CARDINAL articles which denounced , in crude and vulgar terms , the fact that those CARDINAL individuals had testified in favour of the company P. in proceedings that the applicants had brought against their employer . The bulletin was distributed among the workers and displayed on the notice board of the trade union N.A.A. that was located on the company ’s LOC .

On DATE the company notified the applicants of their dismissal on grounds of serious misconduct .

The applicants challenged that decision before ORG no . CARDINAL of GPE , which , in a judgment of DATE , dismissed their claims and found that the dismissals were justified , in accordance with LAW § CARDINAL et CARDINAL ( c ) of ORG . The tribunal took the view that the company ’s decision to dismiss the applicants had been based on a genuine and serious cause , namely the publication and display on a notice board inside the company of a cartoon with speech bubbles and CARDINAL articles which were offensive and impugned the dignity of the persons concerned . The first article entitled “ Whose witnesses ? Theirs , of course ” , contained caricatures of A. and PERSON , showing them gagged , and the text underneath read as follows :

“ We knew who they were and how they behaved , but we did n’t know how far they were prepared to go in order to hold onto their seats and cushy jobs without doing anything .

As employees of P. we earn our living by selling goods in the street . A. and PERSON earn theirs by selling the workers in the courts . Not content with doing this simply by signing agreements that go against the collective interest , they ’ve now gone a step further – they rob and steal with total impunity , in broad daylight , with the confidence of men who feel totally untouchable . They play at being gods .

... but they , the chairman and secretary of the staff representatives , agreed , just like guard - dogs , to roll over and frolic in return for a pat on the back by their master . ... ” .

The tribunal noted that the text was a response to what had happened during proceedings brought by the applicants before ORG no . CARDINAL of GPE , in which NORP and PERSON had appeared as witnesses against the applicants’ interests .

The second article , entitled “ When you ’ve rented out your arse you ca n’t shit when you please ” , read as follows :

“ If you belong to a works council and you have to sign agreements with your employers that will never be honoured , just to keep you quiet , and agree to changes that only benefit their cronies , and to pay - cuts and other sell - outs , then you ’ve swapped your dignity for an armchair , [ and ] you have the dubious merit of achieving the same level of infamy as politicians and policemen . You see , you shut up and you shrewdly agree to all sorts of shenanigans . When you ’ve rented out your arse , you ca n’t shit when you please .

If you ’re a despicable ‘ professional trade - unionist’ and you ’ve thus sold your soul to the union , you ’ll never have a surge of sincerity , because your status would be threatened . You say what the union tells you to say , and as the unions are ‘ condoms’ on freedom , your lips are sealed just like your anal sphincter , because you ’ve rented out your arse and you ca n’t shit when you please .

You can see the injustices meted out on your colleagues , the totally irrational way of dealing with their problems and the constant persecution to which they are subjected , but say nothing , for fear of drawing attention to yourself . Once upon a time , in DATE , you were a rebel who criticised the system – you would curse conventionalism and rant against the rules and regulations . You were caustic , dynamic , cutting , impulsive , jovial . But a couple of favours received have gradually cooled your fiery temperament , stoked your self - esteem and put the dampers on your feelings . From time to time you have a pang of nostalgia and you would like to fart , but your sphincter is sealed , because you ’ve rented out your arse and ca n’t shit when you please .

You ’re fed up with your work , pissed off , anxious , stressed and in despair , because of the longer working TIME and the responsibilities , products , promotions and pressures . You could work anywhere , do anything without having to get up at the time others go to bed . You could break everything up , tear it to pieces , crush and demolish it all ... but your hands are tied by credits , IOUs and debts . You are crushed by your new SUV , your children ’s after - school activities , and DATE mortgage on your semi - detached house . And you let yourself be humiliated , you swallow your pride , you shut up and you accept , because when you ’ve rented out your arse , you ca n’t shit when you please ” .

The news bulletin was distributed to staff and displayed on the trade union ’s notice board on the company ’s LOC .

The tribunal observed at the outset that the cause of the dismissal was the content of the bulletin and not the applicants’ trade - union membership . As to the bulletin ’s content , it took the view that the cartoon and speech bubbles on the cover , together with the articles inside , were offensive and exceeded the limits of freedom of expression and information , impugning the honour and dignity of the human resources manager , of CARDINAL employees , and of the company itself . Lastly , it noted that the dismissal could not be declared null and void , since it was based on serious misconduct provided for by law , and found that the applicants’ fundamental rights had not been breached .

The applicants lodged an appeal against the decision . In a judgment of CARDINAL DATE ORG partly upheld the appeal in respect of CARDINAL of the applicants , namely PERSON PERSON and PERSON . It noted that those CARDINAL employees had been on temporary sick leave at the time of the incident on which the dismissal was based . Given that they had been absent from the company and that their direct participation in the distribution and publication of the bulletin could not be established , ORG found that their dismissal had been unfair and ordered the employer either to reinstate them to their posts in the company under the same employment conditions as before , or to pay them appropriate compensation . It upheld the remainder of the judgment under appeal in respect of the other applicants .

The CARDINAL applicants lodged an appeal on points of law , seeking harmonisation of the relevant case - law . In a decision of CARDINAL DATE ORG dismissed their appeal on the ground that the decision produced for purposes of comparison was not pertinent .

Relying on DATE ( right to a fair hearing ) of the LAW , and on LAW and CARDINAL taken together ( freedom of expression and association ) , the applicants lodged an amparo appeal with ORG . In a decision of DATE , notified on DATE , that court found the appeal inadmissible for lack of constitutional content . As regards the complaint concerning the right to freedom of association , it took the view that there was not enough evidence to show that the ORG dismissal had been an act of reprisal on the part of the company because of the proceedings they had brought against it . Similarly , it found that the applicants had not provided sufficient evidence to show that the company ’s action was intended to restrict , hamper or prevent the exercise of their right to freedom of association . The applicants had simply expressed their disagreement with the decisions rendered by the courts below , which had found in reasoned decisions devoid of arbitrariness that they had committed the acts of which the company had accused them in their letters of dismissal .

As regards the alleged violation of their right to freedom of association , combined with their right to freedom of expression , ORG first noted that the latter did not encompass any right to insult others . It pointed out in this connection that the LAW did not prohibit the use of hurtful , embarrassing or scathing expressions in any circumstances . However , freedom of expression did not protect vexatious expressions which , regardless of their veracity , were offensive or ignominious and were not pertinent for the purpose of conveying the opinions or information in question . ORG took the view that the applicants’ right to freedom of expression had not been breached , since the cartoons and expressions used by the applicants had been offensive and humiliating for the persons concerned and had impugned their honour and reputation . Moreover , those cartoons and expressions had not been a necessary contribution to the forming of an opinion on the facts that the applicants wished to denounce , and had not therefore been necessary for the exercise of freedom of expression in a trade - union context .

The LAW

“ CARDINAL . The following rights shall be recognised and protected :

( a ) the right freely to express and disseminate thoughts , ideas and opinions by word of mouth , in writing or by any other means of reproduction ;

( d ) the right to receive and communicate true information by any means of dissemination . ...

The exercise of these rights may not be restricted by any prior censorship .

These freedoms shall be limited by respect for the rights secured in this Part , by the provisions of the implementing Acts and in particular by the right to honour and to a private life and the right to control use of one ’s likeness and to the protection of youth and children . ”

“ CARDINAL . Everyone shall have the right to associate freely . Freedom of association shall include the right to form trade unions or to join a trade union of one ’s choosing , and the right for trade unions to establish confederations and to set up or join international trade union organisations . No one shall be obliged to join a trade union .

“ CARDINAL . The employer may decide to terminate a contract of employment by dismissing the employee for serious and negligent failure to perform his or her obligations .

Non - compliance with contractual obligations shall include :

( c ) Verbal or physical attacks on the employer or persons working in the company , or members of their families living with them . ”

“ Form and effects of disciplinary dismissal .

Justified dismissal shall entail the termination of the contract without any right of compensation .... ”


Remainder inadmissible;Violation of Art. 8;Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Julia Laffranque;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in GPE on DATE as the youngest of CARDINAL siblings . Currently she lives in Esbjerg .

DATE the applicant lived with her family in GPE .

NORP In DATE the applicant ’s father and a sister were granted asylum in GPE .

Having been granted a residence permit in DATE , on CARDINAL DATE the applicant , who at the relevant time was DATE , her mother and CARDINAL siblings joined them . DATE , the applicant ’s parents divorced . The parents maintained joint custody of the applicant , who lived with her mother . From DATE until DATE , the applicant attended various schools , some of which expelled her due to disciplinary problems .

The applicant also had difficulties with her parents , who disapproved of certain aspects of her behaviour . Consequently , in DATE , when the applicant was DATE , her father decided to take her to GPE to take care of her paternal grandmother , who was living at FAC in northeastern GPE . It appears that the applicant ’s mother did not want her to go but reluctantly agreed on the understanding that it would be a short trip . It also appears that the applicant believed that she was going on a short trip to visit her grandmother .

When the applicant ’s father returned to GPE , he was summoned for an interview with ORG on DATE because the latter had been informed that he , who had been recognised as a refugee , had visited his country of origin . On DATE ORG ) took the stand that the applicant ’s father ’s residence permit had not lapsed . In that connection , the applicant ’s father was advised on the regulation regarding lapse of residence permits .

NORP On DATE , DATE before the applicant turned DATE , she contacted ORG in GPE with a view to returning to live with her mother and siblings in GPE . Her father had joined her in GPE to help her submit the application for family reunification . He also remarried in GPE at the relevant time . An interview was conducted with the help of an LANGUAGE / NORP interpreter although it was stated that the applicant spoke NORP . The applicant explained that she had taken care of her grandmother , who had fallen seriously ill , until some of the grandmother ’s children had arrived from GPE to take over the care of their mother .

In a letter of CARDINAL DATE to ORG the applicant ’s mother stated , inter alia , that at the relevant time it had been decided temporarily to send the applicant to GPE where the family had a network so that she could attend school and that the applicant had been living with her father ’s friends .

On DATE ORG found that the applicant ’s residence permit had lapsed pursuant to section CARDINAL of LAW because she had been absent from GPE for DATE ; because she had not contacted ORG until DATE ; and because there was no information indicating that she could not have contacted the authorities in due time . They also considered that the applicant was not entitled to a new residence permit under section CARDINAL , subsection CARDINAL ( ii ) , of LAW , in force at the relevant time , since the applicant was DATE and the said provision only extended a right to family reunification to children below DATE . Finally , it found that no special circumstances existed to grant her a residence permit under section CARDINAL c , subsection CARDINAL , of LAW . It noted in that connection that the applicant had not seen her mother for DATE ; that it had been the latter ’s voluntary decision to send the applicant to GPE ; that she could still enjoy family life with her mother to the same extent as before ; that she had stayed with the grandmother ; and that except for the grandmother ’s age , there was no information that the applicant could not continue to live with her or the grandmother ’s children .

On DATE the applicant appealed against the decision and maintained that it had not been her decision to leave the country ; that from the refugee camp where she lived with her grandmother she was not able herself to go to GPE ; and that during her stay outside GPE she had not stayed in her country of origin .

According to the applicant , in DATE she re - entered GPE clandestinely to live with her mother . It is disputed whether the NORP authorities were aware of this .

On DATE ORG received a questionnaire from the applicant dated DATE used for requests for exemption from the authorities revoking a residence permit despite a stay outside GPE for a certain period . It was partly filled out and stated , inter alia , that it had been the applicant ’s GPE decision that she should leave GPE at the relevant time ; that the applicant spoke NORP , but could not read or write the language ; that she spoke the language of the country in which she was currently residing , but that she could not read or write that language either ; and that she was very afraid and could not reside in her country of origin as there was unrest . The applicant did not specify that she had actually returned to GPE , but her signature was dated as set out above in LOC , GPE . It was also stated that her sister had assisted her in answering the questionnaire .

On DATE ORG ( NORP for flygtninge , indvandrere og integration ) upheld the decision by ORG of DATE . It stated among other things :

“ ... The Ministry emphasises that there is no information available of any circumstances that would lead to [ the applicant ’s ] residence permit being deemed not to have lapsed ... [ the applicant ’s ] parents did not apply for retention of [ her ] residence permit before she left , and neither she nor her parents contacted the immigration authorities during her stay abroad , and it has not been substantiated that illness or other unforeseen events prevented such contact . Thus , the ORG finds that the illness of [ the applicant ’s ] grandmother did not prevent [ the applicant ] or her parents from contacting the immigration authorities .

Although the distance from GPE to GPE is significant [ QUANTITY ] and it can be assumed that [ the applicant ] did not have the means to travel to GPE , the ORG finds that these circumstances did not prevent [ the applicant ’s ] parents from contacting the immigration authorities before [ the applicant ’s ] departure , which was planned .

The fact that [ the applicant ] stayed in GPE and not in GPE does not change the fact that [ she ] has resided abroad for DATE .

It is stated for the record that it was not [ the applicant ’s ] decision to leave GPE and stay away so long . The ministry finds that this will not lead to a different outcome of the case as [ the applicant ’s ] parents had custody over her at the time of her departure ... they could thus lawfully make decisions about [ her ] personal circumstances ... ”

Upon request from the applicant , who was represented by counsel , on DATE ORG brought the case concerning section CARDINAL and section CARDINAL , subsection CARDINAL ( ii ) , of LAW before ORG ( PERSON ) , before which the case was decided on the documents submitted , without any parties being summoned . On DATE it found against the applicant . It added that section CARDINAL , subsection CARDINAL ( ii ) , of LAW had been amended , limiting the right to family re - unification to children DATE instead of DATE in order to discourage the practice of some parents of sending their children on “ re - upbringing trips ” for extended periods of time to be “ re - educated ” in a manner their parents consider more consistent with their ethnic origins . It was preferable in the legislator ’s view for foreign minors living in GPE to arrive as early as possible and spend as many of DATE as possible in GPE . It found that such decision did not contravene LAW as invoked by the applicant .

NORP The decision was appealed against to ORG of Eastern Denmark ( PERSON ) , henceforth ORG , before which the applicant ’s representative in his written submissions stated that the applicant remained in GPE . On DATE ORG upheld ORG decision . By way of introduction , it stated that according to section CARDINAL of LAW , it could not review a final administrative decision of refusal of a residence permit under section CARDINAL , subsection CARDINAL , of LAW . As to section CARDINAL , subsection CARDINAL ( ii ) it confirmed that the applicant failed to fulfil the conditions . It took into account that the applicant ’s parents had sent her voluntarily to GPE to live with family for an indefinite period ; that the applicant was DATE and DATE , when in DATE she applied to re - enter GPE ; that her father visited her during her stay in GPE ; and that her mother would also be able to visit the applicant in GPE to enjoy family life there .

Leave to appeal to ORG ( Højesteret ) was refused on DATE .

By letter of CARDINAL DATE ORG advised the applicant of her duty to leave GPE pursuant to section CARDINAL of the Alien ’s Act and the possibility of submitting an application for asylum under section CARDINAL of LAW . The applicant was also advised that an application should be submitted in person to ORG or the police .

So far the applicant has not applied for asylum .

DATE LAW read as follows :

The courts have authority to adjudge on any matter concerning the limits to the competence of a public authority . However , anyone wishing to raise such matters can not avoid temporarily complying with orders issued by the public authorities by bringing them before the courts .

Applications for asylum are determined in the first instance by ORG and in the second instance by ORG under LAW ( GPE ) , the relevant provisions of which at the relevant time read as follows

Upon application , a residence permit will be issued to an alien if the alien falls within the provisions of the Convention relating to ORG ( DATE ) .

Upon application , a residence permit will be issued to an alien if the alien risks the death penalty or being subjected to torture or inhuman or degrading treatment or punishment in case of return to his country of origin . An application as referred to in the first sentence hereof is also considered an application for a residence permit under subsection CARDINAL .

A residence permit under subsections CARDINAL and CARDINAL can be refused if the alien has already obtained protection in another country , or if the alien has close ties with another country where the alien must be deemed to be able to obtain protection .

Upon application , a residence permit will be issued to an alien who arrives in GPE under an agreement made with the ORG High Commissioner for Refugees or similar international agreement , and who falls within the provisions of the LAW relating to ORG ( DATE ) , see section CARDINAL(CARDINAL ) .

In addition to the cases mentioned in subsection CARDINAL , a residence permit will be issued , upon application , to an alien who arrives in GPE under an agreement as mentioned in subsection CARDINAL , and who risks the death penalty or being subjected to torture or inhuman or degrading treatment or punishment in case of return to his country of origin , see section CARDINAL subsection CARDINAL .

In addition to the cases mentioned in subsections CARDINAL and CARDINAL , a residence permit will be issued , upon application , to an alien who arrives in GPE under an agreement as mentioned in subsection CARDINAL , and who would presumably have satisfied the fundamental conditions for obtaining a residence permit under CARDINAL of the provisions of LAW if he had entered GPE as an asylum - seeker .

In the selection of aliens issued with a residence permit under subsections CARDINAL to CARDINAL , the GPE possibilities of establishing roots in GPE and benefiting from the residence permit , including their language qualifications , education and training , work experience , family situation , network , age and motivation , must be emphasised unless particular reasons make it inappropriate .

Unless particular reasons make it inappropriate , it must be made a condition for a residence permit under subsections CARDINAL to CARDINAL that the alien assists in a special health examination and consents to the health information being transmitted to ORG and the local council of the municipality to which the alien is allocated , and signs a declaration concerning the conditions for resettlement in GPE .

The Minister of Refugee , ORG decides the overall distribution of the aliens to be issued with a residence permit under subsections CARDINAL to CARDINAL .

Before DATE section CARDINAL , subsection CARDINAL ( ii ) had the following wording :

Upon application , a residence permit may be issued to : -

( i ) ....

( ii ) an unmarried child of a person permanently resident in GPE or of that person ’s spouse , provided that the child lives with the person having custody of him or her and has not started his or her own family through regular cohabitation , and provided that the person is permanently resident in GPE ;

As from DATE section DATE had the following wording :

( i ) ....

( ii ) an unmarried child under DATE of a person permanently resident in GPE or of that person ’s spouse , provided that the child lives with the person having custody of him or her and has not started his or her own family through regular cohabitation , and provided that the person is permanently resident in GPE :

a. is a NORP national ;

b. is a national of CARDINAL of the other NORP countries ;

c. is issued with a residence permit under section CARDINAL or CARDINAL ; or

d. is issued with a permanent residence permit or a residence permit with a possibility of permanent residence .

( iii ) ...

The age limit referred to in section CARDINAL , subsection ( ii ) was reduced from DATE by Act no . CARDINAL of DATE . The amendment entered into force on DATE . The following appears from the explanatory notes :

“ It has turned out that some parents living in GPE send their children back to the GPE country of origin or a neighbouring country on so - called “ re - education journeys ” to allow them to be brought up there and be influenced by the values and norms of that county . This particularly occurs in situations where the child has social problems in GPE . Moreover , there are examples of parents who consciously choose to let a child remain in his or her country of origin , either together with CARDINAL of the parents or with other family members , until the child is nearly grown up , although the child could have had a residence permit in GPE earlier . The result of this is that the child grows up in accordance with the culture and customs of its country of origin and is not influenced by NORP norms and values during its childhood . In the ORG ’s view , under - age aliens who will live in GPE should come to GPE as early as possible and spend the longest period of their childhood in GPE in consideration of the child and for integration reasons . Similarly , children and young aliens who already live in GPE should grow up here , to the extent possible , and not in their GPE country of origin . Against that background , the Government finds that the age limit for under - age children ’s entitlement to family reunification should be reduced from DATE . The purpose of such reduction of the age limit for family reunification of children is to counteract both re - education journeys and the cases in which the parents consciously choose to let a child remain in its country of origin until the child is nearly grown up .

However , a residence permit will still have to be issued to children DATE based on an application for family reunification if a refusal would be contrary to LAW In cases where refusal of family reunification will be contrary to GPE ’s treaty obligations , and where section CARDINAL , subsection CARDINAL ( ii ) , of LAW does not allow for family reunification , a residence permit will thus have to be issued under section CARDINAL , subsection CARDINAL , of LAW ...

In cases where the child has spent by far the largest part of his or her childhood in GPE , and where the ties with the GPE country of origin are very poor , including where the child has attended school in GPE only , or where the child speaks LANGUAGE , but not the language spoken in the GPE country of origin , regard for the best interest of the child might also imply , in these circumstances , that family reunification in GPE must be granted . Circumstances may also exist in other situations which make it cogently appropriate to grant a residence permit in consideration of the best interest of the child even though the child is DATE or more at the time of the application .

Furthermore , LAW set out :

Upon application , a residence permit may be issued to an alien if exceptional reasons make it appropriate , including regard for family unity ...

A residence permit lapses when the alien gives up his residence in GPE . The permit also lapses when the alien has stayed outside GPE for DATE . Where the alien has been issued with a residence permit with a possibility of permanent residence and has lived lawfully for DATE in GPE , the residence permit lapses only when the alien has stayed outside GPE for DATE . The periods here referred to do not include absence owing to compulsory military service or any service substituted for that .

Upon application , it may be decided that a residence permit must be deemed not to have lapsed for the reasons given in subsection CARDINAL .

An alien who is not , under the rules of Parts I and III to GPE , entitled to stay in GPE , must leave GPE .

If the alien does not leave GPE voluntarily , the police must make arrangements for his departure . The Minister of ORG lays down more detailed rules in this respect .

An alien may not be returned to a country where he will be at risk of the death penalty or of being subjected to torture or inhuman or degrading treatment or punishment , or where the alien will not be protected against being sent on to such country .

An alien falling within section CARDINAL(CARDINAL ) may not be returned to a country where he will risk persecution on the grounds set out in LAW relating to LAW DATE ) , or where the alien will not be protected against being sent on to such country . This does not apply if the alien must reasonably be deemed a danger to national security or if , after final judgment in respect of a particularly dangerous crime , the alien must be deemed a danger to society , but see subsection CARDINAL .

Decisions pursuant to this LAW are made by ORG , except as provided by sections CARDINAL(CARDINAL ) and ( CARDINAL ) , ORG to DATE , CARDINAL , ORG , ORG ) , second sentence , DATE , ( CARDINAL ) to ( CARDINAL ) , DATE and DATE , but see section DATE , second sentence .

Apart from the decisions mentioned in sections CARDINALg(CARDINAL ) , DATE , GPE , CARDINAL , ORG , CARDINAL ) , first sentence , ORG ( CARDINAL) , first sentence , DATE ) , ( CARDINAL ) and ( CARDINAL ) to ( CARDINAL ) , CARDINAL ) , CARDINAL , CARDINALa and CARDINALb , the decisions of ORG can be appealed to PERSON ...

An alien who has been notified of a final administrative decision made under LAW may request , within DATE after the decision has been notified to the alien , that the decision is submitted for review by the competent court of the judicial district in which the alien is resident or , if the alien is not resident anywhere in GPE , by ORG , provided that the subject matter of the decision is :

( i ) refusal of an application for a residence permit with a possibility of permanent residence under LAW , subsection CARDINAL ( ii ) ;

( ii ) lapse , revocation , or refusal of renewal of such permit ;

The case must be brought before the court by ORG , which shall transmit the case to the court , stating the decision appealed against and briefly the circumstances relied on , and the exhibits of the case .

The court shall see that all facts of the case are brought out and shall itself decide on examination of the alien and witnesses ; procuring of other evidence ; and whether proceedings are to be heard orally . If the alien fails without due cause to appear in court , the court shall decide whether the administrative decision appealed against is to be reviewed without the alien being present or the matter is to be dismissed or proceedings stayed .

If found necessary by the court , and provided that the alien satisfies the financial conditions under section CARDINAL of ORG , counsel must be assigned to the alien , except where he himself has retained counsel .