Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal;Independent tribunal;Public hearing;Public judgment);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

C. Russo;J.A. Carrillo Salcedo;N. Valticos

ORG Mr PERSON is a NORP national born in DATE . He is a consultant engineer and resides at ORG , a town in the immediate vicinity of GPE .

On DATE he rented an apartment . The lease contained a " negotiation clause " ( förhandlingsklausul , see paragraph CARDINAL below ) which was worded as follows :

" During the running of the lease the parties undertake to accept , without prior termination of the lease , the rent and other conditions agreed upon on the basis of the negotiation agreement ( förhandlingsordning ) in force between , on the one hand , a DATE union affiliated to ORG ( Sveriges Fastighetsägareförbund ) and a landlord , who with his property is affiliated to such a union , and , on the other hand , a ORG union affiliated to ORG ( Hyresgästernas riksförbund ) . "

An agreement between the CARDINAL unions laid down the negotiating procedure . For conducting the negotiations the ORG union in question received a commission of PERCENT of the rent ( see paragraph CARDINAL below ) .

ORG The applicant was dissatisfied with the rent and with the fact that he was represented by ORG of GPE ( hyresgästföreningen i GPE , " GPE " ) . He therefore gave notice of his intention to terminate the lease in accordance with LAW , section CARDINAL of LAW ( jordabalken ) , with a view to having its terms altered . He proposed to the landlord the conclusion of a new agreement with a fixed rent and no negotiation clause . Following the rejection of his offer , he brought the dispute before ORG ( hyresnämnden ) for GPE on DATE .

ORG In accordance with the legislation in force ( see paragraph CARDINAL below ) , the section of ORG which examined the case was composed of a chairman and CARDINAL lay assessors ( intresseledamöter ) . At the time of his appointment , the chairman , PERSON , held a non - permanent judicial appointment as an associate judge in ORG . The CARDINAL assessors , who were nominated respectively by ORG and ORG , were experts on the administration of apartment buildings and on the problems of tenants . CARDINAL , Mr PERSON , the managing director of his own electricity business , was also the president of CARDINAL of the district associations affiliated to ORG ( PERSON , " the Landlords’ Union " ) . The other , Mr PERSON , a retired customs official , was a member of ORG and had previously been the president of CARDINAL of the district associations for DATE .

ORG The applicant first challenged the CARDINAL lay assessors because they had been nominated by a DATE association and a tenants’ organisation ( see paragraph CARDINAL below ) . He considered that they could not decide his case objectively and impartially because GPE depended for its existence on the sums paid to it for conducting the rent negotiations ( see paragraph CARDINAL , last sub - paragraph , below ) and ORG also derived a major part of its raison d’être from its participation in these negotiations . In addition he claimed that there was a risk of discrimination on political grounds because GPE was socialist in outlook , whereas he was a local elected representative belonging to a moderate right wing grouping . As regards the merits , he sought the deletion of the negotiation clause from the lease and contested the amount of the rent .

ORG On DATE ORG held a hearing at which the applicant and his representative and the landlord ’s representative were present .

The chairman dismissed the applicant ’s challenge because the rules governing the appointment of the lay assessors did not in themselves provide a ground for such a challenge and because there were no other grounds on which it could be based .

After having heard the views of the parties as to the merits of the case , ORG went on to state that its decision would be available at its secretariat on DATE .

On that date it dismissed PERSON claims . Its decision , which was communicated to him through the post , referred , inter alia , to the declarations of the competent minister during the examination of LAW ( see paragraph CARDINAL below ) regarding the discretion conferred on rent review boards in deciding whether negotiation clauses should be retained .

Mr PERSON appealed from this decision to ORG ( bostadsdomstolen ) . He relied on Articles CARDINAL , DATE and DATE ( article CARDINAL , LAW , LAW ) of the LAW and sought a thorough examination of the challenge which he had submitted at first instance ; he also challenged the lay assessors of this court . As to the merits , he repeated his claim that he should not be represented by GPE and that he should be permitted to fix his rent in direct negotiations with the landlord .

ORG The court which examined the applicant ’s appeal was composed of CARDINAL members ( see paragraph CARDINAL below ) .

The President , Mr PERSON , had , until his appointment to ORG , presided over a Chamber of ORG and still retained this post , on a formal basis , while exercising his new function .

The other lawyer , who acted as rapporteur , Mr PERSON , remained a Rent Judge ( see paragraph CARDINAL below ) .

The CARDINAL lay assessors had ( like the assessors sitting on ORG ) been nominated by , respectively , ORG and ORG ( see paragraph CARDINAL below ) . CARDINAL was an expert on the administration of apartment buildings and the other on tenants’ problems . The first , Mr PERSON , was a titular lay assessor ; before retiring he had worked for ORG as legal adviser from DATE and then as its managing director . The second , PERSON , was a salaried official of ORG , where she was responsible for staff legal training . She sat on ORG as a substitute lay assessor .

ORG The landlord of the flat was represented by the same official of ORG who had assisted him before ORG ( see paragraph CARDINAL above ) .

ORG On DATE ORG informed PERSON by letter that it considered that it might " determine the case as it was constituted at present and without a hearing " .

On DATE the rapporteur rejected the application challenging the CARDINAL lay assessors . The rules governing their appointment could not in themselves constitute valid grounds for their disqualification .

On DATE ORG dismissed the remainder of PERSON appeal and upheld ORG decision . It gave its ruling in private , in the absence of the parties and without having held a hearing . Its decision was final .

The applicant received a photocopy of this decision through the post . On DATE he obtained a copy of the decision of CARDINAL DATE which , by error , had not yet been sent to him .

Section CARDINAL of the DATE LAW ( hyresförhandlingslagen , " LAW " ) defines the negotiation clause as a provision in a lease whereby the tenant agrees to be bound by the terms of the lease , in particular regarding the rent , as accepted by the association conducting the negotiations . It provides that this clause is introduced or retained if this is not unreasonable , having regard to the tenant ’s standard of living and his opinion and to the opinion of other tenants affected by the clause .

A dispute regarding the insertion or retention of a negotiation clause may be submitted to a rent review board . According to the preparatory documents , this possibility was introduced to provide legal protection for private individuals , in particular those who were not members of the organisations which participated in the negotiations . The board may exempt the party concerned from the obligation to accept a negotiation clause ; in deciding whether to do so , it must , inter alia , weigh the interest in adopting a rational approach to rent negotiations against the fundamental need for the greatest possible contractual freedom for the individual ( Government PERSON . CARDINAL/CARDINAL:CARDINAL , p. CARDINAL et seq . ) .

Section CARDINAL provides that these conditions are to be negotiated between , on the one hand , the landlord or the landlord and a landlords’ organisation and , on the other hand , a tenants’ organisation . The tenant - who therefore has no right to negotiate - need not be a member of the organisation . Under section CARDINAL , the system applies in principle to all the flats in a building . These negotiations , which must be conducted in the manner laid down in the LAW , are not compulsory but depend on the desiderata of the parties . If CARDINAL of them refuses to conclude an agreement , the dispute may be referred to ORG .

Under LAW , the rent may incorporate the amount - a percentage of the rent agreed in the negotiations - payable to the ORG organisation for its role in these negotiations .

ORG The principal advantage which the landlords’ associations derive from the system is that they only have to negotiate rents with the tenants’ organisations and not with the individual tenants . For their part the tenants’ organisations can exert , through their right to represent the tenants , a continuous and durable influence on the conditions of the market in rental accommodation .

At present this system applies to all accommodation owned by public organisations and to PERCENT of privately owned buildings comprising CARDINAL flats .

ORG Rent review boards were set up by the DATE ORG ( lag CARDINAL:CARDINAL om arrendenämnder och hyresnämnder , LAW " ) . They hear , inter alia , disputes on rents arising in connection with the provisions of LAW of LAW .

ORG Under LAW , each rent review board is composed of a chairman - referred to as a Rent Judge - and CARDINAL lay assessors , CARDINAL of whom must be familiar with the problems of the administration of property and the other with those of tenants .

The chairman is appointed by the ORG or by an authority delegated by them , on the recommendation - which is always requested , except in CARDINAL specific cases - of the Judicial Appointments Recommendation Board ( tjänsteförslagsnämnd ) . He must have legal training and his post is full - time .

The lay assessors are appointed by ORG ) for a term of office of DATE , which is generally renewed . Under section CARDINAL para . CARDINAL of the CARDINAL LAW , the representative organisations of the housing sector ( essentially ORG and ORG ) must be able to put forward candidates when the appointment to be made concerns their interest group . The persons selected sit in a personal capacity and not as the representatives of their organisations .

The lay assessors are not designated in advance for each case , but carry out their functions in accordance with a prepared schedule ; their duties are not full - time . In addition , if a board has several sections , cases are , in practice , allocated on a geographical basis .

ORG In principle , proceedings before a rent review board are oral . They are governed by the general provisions of LAW ( förvaltningslagen ) , although LAW applies for certain formalities .

The board ’s decisions must contain a statement of reasons and be given in public . They are pronounced on DATE of the hearing or within DATE thereof at the latest . A copy is sent to the parties .

The Housing and Tenancy Court was set up by an Act of DATE ( lag CARDINAL om bostadsdomstol , " LAW " ) and has jurisdiction for the whole of GPE . It hears appeals lodged against the decisions of the rent review boards . Its judgments are final .

ORG The court is composed of CARDINAL lawyers ( " Housing Judges " ) , a technical assessor - who in certain cases replaces CARDINAL of the lawyers - and a maximum of CARDINAL lay assessors . All the members are appointed by the Government for a term of office of DATE which is renewable . The lawyer members are , in general , judges , while the lay assessors are experts on the housing market . An identical nomination procedure to that operating for the appointment of lay assessors to rent review boards ( see paragraph CARDINAL above ) applies .

ORG The court is always presided over by a lawyer . It can sit with CARDINAL members or , as in this instance , with CARDINAL . In the latter case , there must be CARDINAL housing judges and CARDINAL lay assessors . If they are unable to reach a majority decision , the president has a casting vote .

The proceedings are written , but a hearing may be held if that appears to be necessary for the purposes of the investigation . In some cases argument is taken on a specific point , while in others it concerns the case as a whole .

ORG applies the general provisions of LAW . Except in certain cases - which are not relevant here - its judgments are given in public . If the court can not give a decision at a hearing , it makes the text thereof available to the parties at the registry and communicates to them a copy by post .

ORG ( ORG domstolen ) has had occasion to rule on the independence and impartiality of a lay assessor who had to sit in a case involving the association which had nominated him ( judgment of DATE , case no . Ö CARDINAL/CARDINAL , PERSON , in FAC ( ORG ) , DATE , p. CARDINAL ) . It held that there was no ground for allowing the challenge .

ORG first considered the lay assessors’ position in general . It pointed out that their presence was " designed to ensure that there were persons on the court who are well acquainted with the questions with which the court has to deal and who can , in an authoritative way , express the ideas of the interest groups concerned . "

It held that :

" ... the fact that a member , generally speaking , represents a certain interest group does not mean that he is biased when dealing with a case where CARDINAL of the parties belongs to this interest group . As was stressed in the preparatory documents ( NJA II CARDINAL , p. CARDINAL ) , it is not intended that the lay assessors in their capacity as judges should feel bound by the interests which they can be said to represent . They should , like the other members , carry out their duties as independent judges and not as representatives of party interests . "

Turning then to the case at hand , it rejected the challenge which was based on " the viewpoint that every member who is closely linked to the tenants’ movement , for that reason alone , is biased when dealing with such a case " .

In setting out its reasoning ORG said inter alia :

" ... it should first be pointed out that it is not the task of the lay assessors of ORG to represent their organisations . They should represent the whole interest group in question without regard to their involvement in a particular organisation . The legislation is obviously based on the assumption that the lay assessors will be able to deal impartially with disputes even where the interests of their organisation are directly at issue , and it is not compatible with the provisions of the LAW generally to regard members attached to an organisation as biased in such disputes . "

The ORG added however :

" there may of course be grounds for challenging a member of the court if he has been involved in the dispute before the court . "


Preliminary objection rejected (six month period);Violation of Art. 6-1;Not necessary to examine Art. 14+6-1;Not necessary to examine Art. 13+6-1;Non-pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - claim dismissed

On DATE Mr PERSON and CARDINAL other persons brought an action in LOC ( Irinodikio ) against their employer , ORG ( PERSON , “ the DEI ” ) , to recover the sum of MONEY ( GRD ) . That was the amount which the ORG , relying on the provisions of PERSON no . CARDINAL/CARDINAL , had deducted from their salaries DATE and DATE for the benefit of ORG ( PERSON , “ the FAC ” ) . The hearing before ORG was set down for DATE .

On DATE the ORG applied to ORG for leave to serve a third - party notice ( anakinossi dikis meta prosepiklisseos is paremvassi ) on the ORG , arguing in particular that if it lost the case , it would be entitled to an indemnity from the ORG , for whose benefit it had deducted the sums claimed . A hearing was set down for DATE .

On DATE the hearing of the first action was adjourned to DATE so that the CARDINAL actions could be joined . However , the hearing on DATE was cancelled because the parties’ lawyers failed to appear .

As he now wished to continue on his own with the action brought on DATE , the applicant applied to ORG on DATE for a new hearing , which was set down for DATE .

On DATE the ORG made a further application to ORG for leave to serve a third - party notice on the ORG . A hearing was set down for DATE .

On DATE the hearing was adjourned to CARDINAL DATE so that the CARDINAL actions could be joined .

NORP In a judgment ( no . CARDINAL/CARDINAL ) of DATE ORG allowed the applicant ’s claim in part and ordered the DEI to pay him the sum of FAC CARDINAL ; in addition , it ordered the ORG to repay that amount to the ORG .

On DATE and DATE respectively the ORG and the ORG appealed to ORG ( NORP protodikio ) against that judgment . On an application by the applicant , a hearing was set down for CARDINAL DATE .

On DATE ORG Instance noted that the applicant had himself obtained an expedited hearing , but had not served a summons on the DEI to attend because he had considered that the ORG ’s appeal was inadmissible as it had also been brought against the ORG . It decided to declare the appeal against the DEI admissible and to adjourn the hearing of the appeal concerning PERSON in order to avoid the risk of delivering contradictory decisions ( judgment no . CARDINAL/CARDINAL ) .

On DATE the applicant , having served summonses on both the ORG and the ORG , applied for a new hearing before ORG , which was held on DATE .

In a judgment ( no . DATE ) of CARDINAL DATE ORG reduced the amount awarded to the applicant by ORG .

On DATE the ORG appealed on points of law ; the ORG intervened in the appeal proceedings in order to lend support to the ORG ’s arguments . In CARDINAL of its grounds of appeal the ORG challenged ORG ’s jurisdiction ; in its view , the issue over the obligation to make contributions was a matter of insurance law and therefore had to be decided by the administrative courts .

However , the hearing initially set down for DATE had to be adjourned because of a strike by members of ORG . The strike lasted until DATE .

On DATE the applicant applied for a new hearing , which was set down for DATE .

On DATE ORG , relying on the provisions of section CARDINAL of Law no . DATE adopted by ORG on CARDINAL DATE ( see paragraph CARDINAL below ) – set aside the judgment appealed against on the following grounds :

“ ... CARDINAL . It results from the principle of separation of powers ... that the legislature is not precluded from abolishing by means of new legal rules – through extinguishment – rights acquired under legal rules that were in force in the past , even if those rights have been recognised by final court decisions . This , however , is not the case with new rules which are not of general application and which consequently infringe the principle of equality ( LAW ) or the right of property ( LAW ) ; in such circumstances the courts may not give effect to such rules ... In the instant case , after the judgment under appeal had been delivered ( PERSON ) and the appeal on points of law lodged ( CARDINAL ) , PERSON no . DATE of DATE was passed , section CARDINAL of which provides ... In the judgment under appeal ( no . CARDINAL/CARDINAL ) ORG , sitting as a court of appeal , found that [ the applicant ] was a permanent employee of the DEI , which had given him a contract of employment and paid him a DATE salary ; DATE and DATE the relevant organs of the ORG had made deductions for the benefit of the ORG from his DATE income , which , as the additional insurance of ORG employees was incompatible with the aforementioned insurance branches ... , were illegal . The deductions comprised PERCENT of his income for unemployment benefit and PERCENT for the ORG , making a total of MONEY that was paid to the ORG . [ ORG ] subsequently awarded that amount to the [ applicant ] . However , after the entry into force of section CARDINAL ( CARDINAL ) of PERSON no . CARDINAL/CARDINAL , which is not contrary to the provisions of ORG and CARDINAL of the LAW , the judgment under appeal must be set aside and the proceedings struck out ... ”

It would appear that this judgment was not served on the applicant , who claims that he became aware of it on DATE .

Article CARDINAL § CARDINAL of the LAW provides :

“ A government or private member ’s bill containing provisions unrelated to the principal subject matter of the bill shall not be put before ORG .

No additional provision or amendment shall be put before ORG if it is unrelated to the principal subject matter of a government or private member ’s bill .

Disputes will be referred to ORG for resolution . ”

The relevant provisions of LAW read as follows :

“ The parties shall be responsible for taking procedural steps on their own initiative unless the law provides otherwise . ”

“ CARDINAL . The parties shall be responsible for the service of judgments .

Where a judgment is not final , it shall be deemed to have been served if the parties , their legal representatives ... or their lawyers were present at the hearing . ”

Section CARDINAL ( CARDINAL ) of PERSON no . CARDINAL of DATE reads as follows :

“ Employees subject to the provisions of Legislative Decree no . DATE ... who receive a DATE salary are not entitled to the aforementioned family benefits if and for so long as they are receiving from their employer DATE pursuant to statute , a collective agreement , an arbitration award , company regulations or any other provision ... –benefit for dependent children exceeding the amount of benefit paid by the ORG ... ”

Contributions to the ORG are dealt with in LAW no . CARDINAL , which provides :

“ ( CARDINAL ) ORG and employees’ contributions to the ORG ... constitute welfare deductions for the benefit of the aforementioned bodies , which perform a welfare role , and the contributions shall continue to be payable notwithstanding any entitlement of beneficiaries who are employees to similar benefit from their employers or other institutions .

( CARDINAL ) Under no circumstances shall any claim be made for repayment of any contributions referred to in the preceding paragraph that have been paid to the ORG … before publication of this PERSON . Any pending proceedings concerning claims for repayment of such contributions shall be struck out .

On DATE ORG enacted a law ( no . DATE ) entitled “ rules on the special tax on the consumption of petroleum products and other provisions ” . Section CARDINAL of that PERSON provides :

“ ( CARDINAL ) ORG and employees’ contributions in the insurance branches under the responsibility of the ORG ... shall be deemed to be welfare deductions for the benefit of those bodies and shall be payable notwithstanding any entitlement of the insured to similar benefits from their employers or other institutions .

( CARDINAL ) No claims shall be made for repayment of contributions referred to in the preceding paragraph that have been paid to the ORG ... before publication of this PERSON and any claim relating to such contributions shall be extinguished and any claim pending in any court for the repayment of such contributions shall be struck out .

It was indicated in the explanatory report that the purpose of the provision was to settle the issue whether contributions to the ORG ( in particular those relating to benefit for dependent children ) were “ welfare deductions ” , that is to say contributions payable by those liable to make them even where the risk covered by the insurance would never materialise .

In CARDINAL judgments of DATE ( no . DATE ) and CARDINAL DATE ( no . DATE ) , respectively concerning disputes between ORG ( “ the ORG ” ) and its employees and ORG ( “ the ORG ” ) and its employees , ORG clarified the meaning of section CARDINAL of Law no . DATE and especially of the words “ continue to be payable ” contained in section CARDINAL ( CARDINAL ) . At the same time it upheld the decisions of the courts below in which the ORG and the ORG had been ordered to pay compensation to some of their employees for the deductions from their salaries made for the benefit of the ORG .

More particularly , in its judgment of DATE , ORG said :

It is apparent from the aforementioned provisions and from the fact that ORG staff are entitled to a ORG pension and to medical cover ... , that it is inconceivable and not intended by the legislature that staff should receive additional cover from the ORG for unemployment benefit and family benefit ... Before PERSON no . CARDINAL/CARDINAL was adopted and as the full court of ORG held in its judgment no . CARDINAL , the ORG ’s employees had no obligation under the PERSON to make contributions to the ORG ; section CARDINAL of the aforementioned Law – as indicated by the words ‘ continue to be payable’ DATE does not impose any such obligation on employees . Consequently , that section does not apply where there is no obligation to make contributions , which is the position with the ORG ’s staff ... ”

In its judgment of CARDINAL DATE ORG said that no obligation to make contributions was created by the entry into force of section CARDINAL of Law no . CARDINAL , as it was provided that the contributions continued to be payable , which meant that where no contributions had been payable previously , the aforementioned PERSON did not create such an obligation .


Violation of Art. 5-1;Violation of Art. 5-4;Violation of Art. 13+3

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

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

CARDINAL .

The applicant was born and used to live in GPE , GPE . From DATE he owned a small grocery shop there .

On DATE the applicant went to the town of Andijan to pick up merchandise from a wholesale market . On that date a demonstration was taking place in the town 's Bobur square ; the applicant decided to join the event . At some point the local authorities opened fire on the demonstrators . The applicant managed to escape , but lost his passport in the crowd . Fearing prosecution by the authorities for participation in the Andijan demonstration , he left the country .

On DATE ORG Office of GPE charged the applicant in absentia with a number of crimes including commission of terrorist acts , membership of a number of extremist organisations including ORG - ut - GPE , attempts to overthrow the ORG 's constitutional order and organisation of mass disorder . The applicant 's name was put on the wanted list . The prosecutor 's office issued an arrest warrant against the applicant .

On DATE ORG Office of GPE forwarded a request for the applicant 's extradition to GPE to ORG of GPE .

NORP On DATE the Andijan regional prosecutor 's office additionally charged the applicant with a number of crimes including conducting a holy war to create an NORP state , financing terrorist activities , membership of extremist organisations and organisation of mass disturbances .

On an unspecified date in DATE the applicant arrived in PERSON , GPE , GPE . From DATE to DATE he lived with his brother , PERSON . PERSON , and worked in the construction business .

On an unspecified date in DATE the applicant obtained a false passport of a ORG national .

On DATE ORG of ORG ( “ the LOC ” ) instituted criminal proceedings against the applicant under LAW ( forgery of documents ) .

On DATE ORG ( “ the ORG ” ) found the applicant guilty of forging documents and ordered him to pay a fine of MONEY ( RUB ) . The applicant did not appeal against the sentence .

On DATE the applicant was arrested in GPE ( see paragraph CARDINAL below ) . On DATE and on DATE he was questioned and stated that he was being subjected by the NORP authorities to politically motivated persecution in connection with events in GPE in DATE . He denied any involvement in illegal activities .

On DATE the applicant was questioned again . He reiterated that he was being sought by the NORP authorities for alleged participation in the LOC events in DATE and denied any involvement in extremist organisations .

On DATE ORG Office of GPE forwarded a request for the applicant 's extradition ( see paragraph CARDINAL above ) .

On DATE ORG ( “ the ORG ” ) informed ORG that the applicant did not have NORP citizenship .

On DATE the PERSON informed the PERSON prosecutor 's office that on DATE the applicant 's request for asylum had been rejected .

On DATE ORG informed ORG that they did not have any information precluding the applicant 's extradition . The text of the document comprised CARDINAL lines and stated :

“ ORG has no information precluding Mr A. ORG 's extradition to the law - enforcement bodies of GPE for criminal prosecution . ”

On DATE ORG ( “ the ORG ” ) informed ORG that they did not have any information precluding the applicant 's extradition to GPE . The text of the document stated :

“ The ORG has no information concerning either the politically motivated persecution of PERSON ( who was born in DATE in GPE ) or any obstacles precluding his extradition to the law - enforcement bodies of GPE .

His extradition to the NORP authorities would not damage the interests or security of GPE . ”

On DATE ORG ordered the applicant 's extradition to GPE .

On DATE the applicant was informed of the extradition order . He appealed against it to ORG of PERSON . Referring to the case - law of ORG , the applicant stated that he was being sought by the NORP authorities for the alleged commission of political crimes and that his extradition would expose him to a real risk of ill - treatment by the local authorities . He further stated that ORG of the ORG High Commissioner for Refugees had recognised the need for his international protection and requested that the extradition decision be overruled as unlawful .

On DATE ORG of PERSON rejected the applicant 's appeal and upheld the extradition order stating , inter alia , the following :

“ .... the law - enforcement bodies of GPE charged A. GPE with criminal conspiracy ... with the aim of undermining State security , destabilising the social and political order ...

These actions on the part of PERSON are classified [ by the NORP authorities ] as the use of violence and force jeopardising the safety of persons and property with the aim of forcing ORG bodies to take or not to take certain actions ... that is , as the crime punishable under LAW § CARDINAL ( a ) of LAW ...

... The factual circumstances and legal assessment of the actions of which A. ORG is accused are described in the statements of charges of DATE and DATE ...

... the [ applicant 's ] allegations about the risk of ill - treatment in GPE were not confirmed by the documents examined during the hearing ...

... GPE guaranteed that the applicant would not be extradited to a third country without the consent of GPE ... [ and ] that after the trial and the completion of his sentence he would be free to leave GPE . ”

On DATE the applicant appealed against the above decision and the extradition order to ORG of GPE ( “ the ORG ” ) . He stated that the proceedings concerning his request for refugee status in GPE were still pending and that his extradition would expose him to a real risk of ill - treatment by the NORP authorities .

On DATE ORG granted the applicant 's request for the application of interim measures under Rule CARDINAL of the Rules of Court to suspend his extradition to GPE .

On DATE ORG rejected the applicant 's appeal and made the extradition order final . The court stated that the applicant had applied for refugee status in GPE only after his arrest on DATE , that his allegations of a risk of ill - treatment were unsubstantiated and that “ ... ORG guaranteed that ... it would prosecute PERSON only for the crimes he had been charged with ... ” .

On DATE the applicant requested ORG to cancel the extradition order of DATE as he had been granted temporary asylum in GPE ( see paragraph CARDINAL below ) . He did not receive any response from the authorities .

On DATE the applicant was arrested in PERSON and placed in the local detention centre IZ-CARDINAL/CARDINAL ( “ the detention centre ” ) .

On DATE ORG ordered the applicant 's detention until DATE , stating that :

“ ... the deputy head of ORG of GPE .... requested that TIME be arrested ... and that the request for his extradition be submitted [ to the NORP authorities ] within DATE ” .

On DATE the applicant appealed against this decision to ORG . On DATE the latter upheld the extension order .

On DATE ORG extended the applicant 's detention until DATE . On DATE the applicant appealed against this decision to ORG . On DATE the latter upheld the extension order .

On DATE counsel for the applicant requested the head of the detention centre to release the applicant as the term of his detention had expired on DATE and his detention after that date was unlawful .

On DATE the head of the detention centre replied to counsel , stating the following :

“ ... the law - enforcement bodies of GPE received a request from ORG Office of GPE concerning TIME extradition ... In connection with this [ the applicant 's ] detention is lawful and substantiated ” .

On DATE , DATE , counsel for the applicant appealed against the reply of the head of the detention centre to ORG , LAW ( complaints against acts and decisions of officials involved in criminal proceedings ) . He stated that the applicant 's detention had been authorised only until DATE and that his detention after that date was unlawful . On DATE ORG examined this complaint and set it aside without examination , stating that the applicant had failed to accurately define his request and to provide copies of the relevant court extension orders . The decision stated that the applicant should correct the above deficiencies and resubmit his complaint by DATE . The applicant appealed against this decision to ORG , which on DATE returned his appeal without examination for failure to comply with the requirements specified in the decision of DATE .

Meanwhile , on DATE ORG , at the request of the PERSON prosecutor , extended the applicant 's detention until DATE . As to the applicant 's allegation concerning the unlawfulness of his detention DATE , the court stated :

“ ... Taking into account the fact that the PERSON prosecutor had already requested the court to detain the applicant pending his extradition , and that this request had been granted ... the present prosecutor 's request for extension of the applicant 's detention should cover the applicant 's detention DATE and DATE ... ”

On DATE the applicant appealed against this extension order to ORG . On DATE the latter upheld the extension of the applicant 's detention ; it left without examination the issue of the lawfulness of his detention DATE .

On DATE ORG , at the request of ORG prosecutor , extended the applicant 's detention pending extradition until DATE . On the same date the applicant appealed against this decision to ORG . On DATE the latter upheld the extension order .

On DATE ORG , at the request of the PERSON prosecutor , extended the applicant 's detention until DATE . On DATE the applicant appealed against this decision to the ORG . On DATE the latter upheld the extension order .

NORP On CARDINAL DATE ORG rejected the request of ORG prosecutor and refused to extend the applicant 's detention until DATE ( DATE ) . The prosecutor 's office appealed against the refusal to ORG . On DATE ORG upheld the refusal to extend the applicant 's detention .

On DATE the applicant was released from the detention centre .

On DATE the applicant lodged a preliminary request for refugee status in GPE . On DATE he lodged the full application .

On DATE the PERSON refused to examine the applicant 's request . The decision referred to LAW on refugees , which stated that one of the reasons for refusing to examine an application for refugee status was the opening of criminal proceedings against the person applying for refugee status .

On DATE ORG of the ORG High Commissioner for Refugees informed the FAC that “ the refusal to provide access to the refugee status procedure to PERSON violates LAW .

On DATE the applicant appealed against the refusal to ORG . He stated that he had left GPE out of fear of illtreatment by the local authorities for alleged participation in the demonstration in Andijan in DATE and that he was being sought by the NORP authorities for political crimes . The applicant requested the court to overrule the refusal and order the ORG to examine his request .

On DATE ORG of the ORG High Commissioner for Refugees wrote to ORG stating that ORG decision to extradite the applicant to GPE had been taken without proper examination of his request for refugee status in GPE .

On DATE ORG of the ORG High Commissioner for Refugees wrote to the Head of the NORP ORG . The letter stated that the information provided by the applicant about events in GPE had been confirmed as truthful and that his fear of ill - treatment by the NORP authorities was justified and substantiated . The letter requested the NORP authorities to take into consideration the High Commissioner 's opinion concerning the applicant 's case during the examination of his request for refugee status in GPE .

On DATE the court granted the applicant 's appeal and ordered that the PERSON examine the applicant 's request for refugee status .

DATE . On DATE the PERSON decided to examine the applicant 's request .

On DATE , DATE , ORG of the ORG High Commissioner for Refugees wrote to ORG of MariAl . The letter stated that the applicant “ ... falls under the definition of refugee as provided by LAW ... ” and that he faced a real risk of illtreatment in GPE if extradited . The letter stated that the applicant 's extradition would violate the obligations of the NORP authorities under LAW .

On DATE ORG informed the applicant that his extradition to GPE had been suspended pending completion of the examination of his request for refugee status .

On DATE ORG of the ORG High Commissioner for Refugees informed the applicant 's representative that the application of Rule CARDINAL by ORG should not be terminated as it was the only safeguard protecting the applicant from extradition to GPE .

On DATE the PERSON rejected the applicant 's request for refugee status in GPE . The applicant appealed against this decision to ORG . On DATE the court upheld the refusal . The applicant appealed against the court 's decision to the ORG . On DATE the latter examined the appeal and forwarded the case for fresh examination to ORG .

On DATE ORG of the ORG High Commissioner for Refugees wrote to ORG confirming that the applicant 's fear of politically motivated persecution and ill - treatment in GPE was justified and substantiated .

On CARDINAL DATE ORG rejected the applicant 's appeal and upheld the refusal to grant him refugee status . On DATE the refusal was made final by ORG .

On DATE the applicant lodged a temporary asylum request with the ORG stating that he feared politically motivated persecution and illtreatment in GPE .

On DATE the ORG allowed the applicant 's request and granted him temporary asylum for DATE .

The LAW guarantees the right to liberty ( LAW ) :

“ CARDINAL . Everyone has the right to liberty and personal integrity .

Arrest , placement in custody and detention are permitted only on the basis of a judicial decision . Prior to a judicial decision , an individual may not be detained for longer than TIME . ”

Article CARDINAL of LAW DATE ( ORG no . CARDINAL ) , to which GPE is a party , provides as follows :

“ CARDINAL . In case of urgency the competent authorities of the requesting ORG may request the provisional arrest of the person sought . The competent authorities of the requested ORG shall decide the matter in accordance with its law .

Provisional arrest may be terminated if , within DATE after arrest , the requested ORG has not received the request for extradition and the documents mentioned in LAW . It shall not , in any event , exceed DATE from the date of such arrest . The possibility of provisional release at any time is not excluded , but the requested ORG shall take any measures which it considers necessary to prevent the escape of the person sought . ”

The CIS Convention on legal aid and legal relations in civil , family and criminal cases ( the DATE Minsk Convention ) , to which both GPE and GPE are parties , provides that a request for extradition must be accompanied by a detention order ( LAW ) .

A person whose extradition is sought may be arrested before receipt of a request for his or her extradition . In such cases a special request for arrest containing a reference to the detention order and indicating that a request for extradition will follow must be sent . A person may also be arrested in the absence of such request if there are reasons to suspect that he or she has committed , in the territory of the other ORG , an offence entailing extradition . The other ORG must be immediately informed of the arrest ( Article CARDINAL ) .

A person arrested pursuant to LAW must be released if no request for extradition is received within DATE of the arrest ( LAW ) .

LAW of LAW ( “ Preventive measures ” ) governs the use of preventive measures ( меры пресечения ) , which include , in particular , placement in custody . Custody may be ordered by a court on an application by an investigator or a prosecutor if a person is charged with an offence carrying a sentence of DATE imprisonment , provided that a less restrictive preventive measure can not be used ( LAW ) . The period of detention pending investigation may not exceed DATE ( Article CARDINAL § CARDINAL ) . A judge may extend that DATE ( LAW ) . Further extensions to DATE , or in exceptional circumstances , DATE , may be granted only if the person is charged with serious or particularly serious criminal offences ( LAW ) . No extension beyond DATE is permissible and the detainee must be released immediately ( LAW ) .

LAW ( “ Complaints about acts and decisions by courts and officials involved in criminal proceedings ” ) provides for the judicial review of decisions and acts or failures to act by an investigator or a prosecutor that are capable of adversely affecting the constitutional rights or freedoms of the parties to criminal proceedings ( LAW ) . The court must examine the complaint within DATE from its receipt .

Chapter DATE ( “ Extradition of a person for criminal prosecution or execution of sentence ” ) regulates extradition procedures . On receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court , a prosecutor must decide on the preventive measure to be applied to the person whose extradition is sought . The measure must be applied in accordance with the established procedure ( LAW ) . A person who has been granted asylum in GPE because of possible political persecution in the ORG seeking his extradition may not be extradited to that ORG ( LAW ( CARDINAL ) ) .

An extradition decision made by ORG may be challenged before a court . Issues of guilt or innocence are not within the scope of judicial review , which is limited to an assessment of whether the extradition order was made in accordance with the procedure set out in the relevant international and domestic law ( LAW and CARDINAL ) .

A person may apply for judicial review of decisions and acts or failures to act by a ORG body or a ORG official that are capable of violating his or her rights or freedoms , hindering the exercise of his or her rights and freedoms , or imposing an obligation or liability unlawfully ( Articles CARDINAL § CARDINAL and CARDINAL ) . If the court finds the application well - founded , it must order the ORG body or ORG official concerned to remedy the violation or remove the obstacle to the exercise of the rights and freedoms in question ( LAW ) .

DATE . On DATE ORG issued decision no . CARDINAL concerning a complaint by PERSON about the ex post facto extension of his “ detention during trial ” by ORG decision . It held as follows :

“ LAW provides that the [ trial court ] may ... upon the expiry of DATE after the case was sent to it , extend the defendant 's detention for successive periods of DATE . It does not contain , however , any provisions permitting the courts to take a decision extending the defendant 's detention on remand once the previously authorised time - limit has expired , in which event the person is detained for a period without a judicial decision . Nor do other rules of criminal procedure provide for such a possibility . Moreover , Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW expressly require the court , prosecutor , investigator ... to immediately release anyone who is unlawfully held in custody beyond the time - limit established in the LAW . Such is also the requirement of LAW and CARDINAL of LAW ... which is an integral part of the legal system of GPE , pursuant to LAW ... ”

Verifying the compatibility of LAW ORG with LAW , ORG reiterated its established case - law to the effect that excessive or arbitrary detention , unlimited in time and without appropriate review , was incompatible with LAW in all cases , including extradition proceedings .

In ORG view , the guarantees of the right to liberty and personal integrity set out in DATE and LAW , as well as the legal norms laid down in LAW of the ORG on preventive measures , were fully applicable to detention with a view to extradition . Accordingly , LAW ORG did not allow the authorities to apply a custodial measure without abiding by the procedure established in the ORG , or in excess of the time - limits fixed therein .

The Prosecutor General asked ORG for an official clarification of its decision no . CARDINAL-O of DATE ( see above ) , for the purpose , in particular , of elucidating the procedure for extending a person 's detention with a view to extradition .

ORG dismissed the request on the ground that it was not competent to indicate specific criminal - law provisions governing the procedure and time - limits for holding a person in custody with a view to extradition . That was a matter for the courts of general jurisdiction .

In this decision ORG reiterated that LAW ORG did not imply that detention of a person on the basis of an extradition request did not have to comply with the terms and time - limits provided for in the legislation on criminal procedure .

Article CARDINAL of the DATE ORG , which was ratified by GPE on DATE , provides as follows :

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

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

LAW ( Law no . GPE of DATE ) incorporated the definition of the term “ refugee ” contained in LAW , as amended by LAW The LAW defines a refugee as a person who is not a NORP national and who , owing to a well - founded fear of being persecuted for reasons of race , religion , nationality , ethnic origin , membership of a particular social group or political opinion , is outside the country of his nationality and is unable or , owing to such fear , unwilling to avail himself of the protection of that country , or who , not having a nationality and being outside the country of his former habitual residence as a result of such events , is unable or , owing to such fear , unwilling to return to it ( section CARDINAL § CARDINAL ( CARDINAL ) ) .

DATE . The Act does not apply to anyone believed on reasonable grounds to have committed a crime against peace , a war crime , a crime against humanity , or a serious non - political crime outside the country of refuge prior to his admission to that country as a person seeking refugee status ( section CARDINAL § CARDINAL ( CARDINAL ) and ( CARDINAL ) ) .

A person who has applied for refugee status or who has been granted refugee status can not be returned to a ORG where his life or freedom would be imperilled on account of his race , religion , nationality , membership of a particular social group or political opinion ( section QUANTITY ) .

If a person satisfies the criteria established in LAW ) , or if he does not satisfy such criteria but can not be expelled or deported from GPE for humanitarian reasons , he may be granted temporary asylum ( section CARDINAL § CARDINAL ) . A person who has been granted temporary asylum can not be returned against his will to the country of his nationality or to the country of his former habitual residence ( section CARDINAL § CARDINAL ) .

UN General Assembly resolution CARDINAL/CARDINAL of DATE ( “ Torture and other cruel , inhuman or degrading treatment or punishment ” ( ORG Doc.:A / RES/CARDINAL/CARDINAL ) ) reads as follows :

“ ORG ...

Urges GPE not to expel , return ( ' refouler ' ) , extradite or in any other way transfer a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture , and recognizes that diplomatic assurances , where used , do not release LAW from their obligations under international human rights , humanitarian and refugee law , in particular the principle of non - refoulement ... ”

NORP In his interim report submitted in accordance with ORG resolution CARDINAL/CARDINAL ( ORG . : ORG , DATE ) , the Special Rapporteur of ORG on torture and other cruel , inhuman or degrading treatment or punishment , PERSON , reached the following conclusions :

“ CARDINAL . It is the view of the Special Rapporteur that diplomatic assurances are unreliable and ineffective in the protection against torture and ill - treatment : such assurances are sought usually from GPE where the practice of torture is systematic ; post - return monitoring mechanisms have proven to be no guarantee against torture ; diplomatic assurances are not legally binding , therefore they carry no legal effect and no accountability if breached ; and the person whom the assurances aim to protect has no recourse if the assurances are violated . The Special Rapporteur is therefore of the opinion that GPE can not resort to diplomatic assurances as a safeguard against torture and ill - treatment where there are substantial grounds for believing that a person would be in danger of being subjected to torture or illtreatment upon return .

The Special Rapporteur calls on Governments to observe the principle of nonrefoulement scrupulously and not expel any person to frontiers or territories where they might run the risk of human rights violations , regardless of whether they have officially been recognized as refugees . ”

Specifically referring to the situation regarding torture in GPE and returns to torture effected in reliance upon diplomatic assurances from the NORP authorities , the UN Special Rapporteur on Torture stated to the CARDINALnd Session of the UN Human Rights Council on DATE :

“ The practice of torture in GPE is systematic , as indicated in the report of my predecessor PERSON visit to the country in DATE . Lending support to this finding , my mandate continues to receive serious allegations of torture by NORP law enforcement officials ... Moreover , with respect to the events in DATE in GPE , the ORG High Commissioner for Human Rights reported that there is strong , consistent and credible testimony to the effect that NORP military and security forces committed grave human rights violations there . The fact that the Government has rejected an international inquiry into the LOC events , independent scrutiny of the related proceedings , and that there is no internationally accepted account of the events , is deeply worrying . Against such significant , serious and credible evidence of systematic torture by law enforcement officials in GPE , I continue to find myself appealing to ORG to refrain from transferring persons to GPE . The prohibition of torture is absolute , and GPE risk violating this prohibition - their obligations under international law - by transferring persons to countries where they may be at risk of torture . I reiterate that diplomatic assurances are not legally binding , undermine existing obligations of GPE to prohibit torture , are ineffective and unreliable in ensuring the protection of returned persons , and therefore shall not be resorted to by GPE . ”

Further referring to the situation regarding torture in GPE , the UN Special Rapporteur on Torture stated to the CARDINALrd Session of ORG on DATE :

“ CARDINAL . The Special Rapporteur ... stressed that he continued to receive serious allegations of torture by NORP law enforcement officials ...

Moreover , with respect to the events in DATE in GPE , the ORG High Commissioner for Human Rights reported that there is strong , consistent and credible testimony to the effect that NORP military and security forces committed grave human rights violations there . The fact that the Government has rejected an international inquiry into the LOC events , and any independent scrutiny of the related proceedings , and that there is no internationally accepted account of the events , is deeply worrying . Even more so , given that no independent monitoring of human rights is currently being conducted .

In light of the foregoing , there is little evidence available , including from the ORG that would dispel or otherwise persuade the Special Rapporteur that the practice of torture has significantly improved since the visit which took place in DATE ... ”

The ORG High Commissioner for Refugees ' Note on ORG and ORG published on DATE reads as follows :

In general , assessing the suitability of diplomatic assurances is relatively straightforward where they are intended to ensure that the individual concerned will not be subjected to capital punishment or certain violations of fair trial rights as a consequence of extradition . In such cases , the wanted person is transferred to a formal process , and the requesting ORG 's compliance with the assurances can be monitored . While there is no effective remedy for the requested ORG or the surrendered person if the assurances are not observed , non - compliance can be readily identified and would need to be taken into account when evaluating the reliability of such assurances in any future cases .

The situation is different where the individual concerned risks being subjected to torture or other cruel , inhuman or degrading treatment in the receiving ORG upon removal . It has been noted that ' unlike assurances on the use of the death penalty or trial by a military court , which are readily verifiable , assurances against torture and other abuse require constant vigilance by competent and independent personnel ' . ORG addressed the issue in its decision in PERSON GPE ( Minister of ORG ) , contrasting assurances in cases of a risk of torture with those given where the person extradited may face the death penalty , and signalling

' ... the difficulty in relying too heavily on assurances by a state that it will refrain from torture in the future when it has engaged in illegal torture or allowed others to do so on its territory in the past . This difficulty becomes acute in cases where torture is inflicted not only with the collusion but through the impotence of the state in controlling the behaviour of its officials . Hence the need to distinguish between assurances regarding the death penalty and assurances regarding torture . The former are easier to monitor and generally more reliable than the latter . '

In his report to ORG of DATE , the special Rapporteur of ORG Human Rights on torture and other cruel , inhuman or degrading treatment or punishment examined the question of diplomatic assurances in light of the non - refoulement obligations inherent in the absolute and non - derogable prohibition of torture and other forms of ill - treatment . Noting that in determining whether there are substantial grounds for believing that a person would be in danger of being subjected to torture , all relevant considerations must be taken into account , the Special Rapporteur expressed the view that :

' in circumstances where there is a consistent pattern of gross , flagrant or mass violations of human rights , or of systematic practice of torture , the principle of nonrefoulement must be strictly observed and diplomatic assurances should not be resorted to . ' ”

United States Department of State , DATE Country Reports on Human Rights Practices – GPE , DATE .

“ Torture and Other Cruel , Inhuman , or Degrading Treatment or Punishment

Although the constitution and law prohibit such practices , law enforcement and security officers routinely beat and otherwise mistreated detainees to obtain confessions or incriminating information . Torture and abuse were common in prisons , pretrial facilities , and local police and security service precincts . Prisoners were subjected to extreme temperatures . Observers reported several cases of medical abuse , and CARDINAL known person remained in forced psychiatric treatment .

Authorities reportedly gave harsher than normal treatment to individuals suspected of extreme NORP political sympathies , notably pretrial detainees who were alleged members of banned extremist political organizations PERSON ut - GPE ( ORG ) or PERSON . Local human rights workers reported that authorities often paid or otherwise induced common criminals to beat suspected extremists and others who opposed the government . CARDINAL human rights defenders who were arrested reported beatings in pretrial detention facilities .

There were reports of politically motivated medical abuse . Victims could request through legal counsel that their cases be reviewed by an expert medical board . In practice , however , such bodies generally supported the decisions of law enforcement authorities .

Prison and ORG

Prison conditions remained poor and in some cases life threatening . There continued to be reports of severe abuse , overcrowding , and shortages of food and medicine . Tuberculosis and hepatitis were endemic in the prisons , making even short periods of incarceration potentially life - threatening . Family members frequently reported that officials stole food and medicine that were intended for prisoners .

There were reports that authorities did not release prisoners , especially those convicted of religious extremism , at the end of their terms . Instead , prison authorities contrived to extend inmates ' terms by accusing them of additional crimes or claiming the prisoners represented a continuing danger to society . These accusations were not subject to judicial review . ”

ORG for the Prevention of Torture ( “ the CPT ” ) , in its CARDINALth ORG of DATE on its activities covering the period from DATE to DATE , expressed concern about reliance on diplomatic assurances in the light of the absolute prohibition on torture :

“ CARDINAL . Reference was made in the Preface to the potential tension between a ORG 's obligation to protect its citizens against terrorist acts and the need to uphold fundamental values . This is well illustrated by the current controversy over the use of ' diplomatic assurances ' in the context of deportation procedures . The prohibition of torture and inhuman or degrading treatment encompasses the obligation not to send a person to a country where there are substantial grounds for believing that he or she would run a real risk of being subjected to such methods . In order to avoid such a risk in given cases , certain ORG have chosen the route of seeking assurances from the country of destination that the person concerned will not be ill - treated . This practice is far from new , but has come under the spotlight in DATE as GPE have increasingly sought to remove from their territory persons deemed to endanger national security . Fears are growing that the use of diplomatic assurances is in fact circumventing the prohibition of torture and ill - treatment .

The seeking of diplomatic assurances from countries with a poor overall record in relation to torture and ill - treatment is giving rise to particular concern . It does not necessarily follow from such a record that someone whose deportation is envisaged personally runs a real risk of being ill - treated in the country concerned ; the specific circumstances of each case have to be taken into account when making that assessment . However , if in fact there would appear to be a risk of ill - treatment , can diplomatic assurances received from the authorities of a country where torture and ill - treatment is widely practised ever offer sufficient protection against that risk ? It has been advanced with some cogency that even assuming those authorities do exercise effective control over the agencies that might take the person concerned into their custody ( which may not always be the case ) , there can be no guarantee that assurances given will be respected in practice . If these countries fail to respect their obligations under international human rights treaties ratified by them , so the argument runs , why should CARDINAL be confident that they will respect assurances given on a bilateral basis in a particular case ?

NORP In response , it has been argued that mechanisms can be devised for the postreturn monitoring of the treatment of a person deported , in the event of his / her being detained . While the ORG retains an open mind on this subject , it has yet to see convincing proposals for an effective and workable mechanism . To have any chance of being effective , such a mechanism would certainly need to incorporate some key guarantees , including the right of independent and suitably qualified persons to visit the individual concerned at any time , without prior notice , and to interview him / her in private in a place of their choosing . The mechanism would also have to offer means of ensuring that immediate remedial action is taken , in the event of it coming to light that assurances given were not being respected . ”


The first applicant is an NORP national , born in DATE . The second applicant is a NORP national , born in DATE . They are living in GPE .

They are represented before the ORG by Mr. PERSON , a lawyer practising in GPE .

On DATE the second applicant filed a request for a residence permit , indicating that the first applicant and herself intended to get married .

On DATE ORG ( PERSON ) dismissed this request . It noted that under PERSON of the DATE LAW ( Aufenthaltsgesetz ) a quota for issuing new residence permits was fixed DATE . In administering the quota , priority had to be given , inter alia , to cases of family reunion under PERSON of LAW , in which marriage with an NORP citizen had already existed for DATE at the time of the request . However , the second applicant did not fulfil this requirement .

On DATE the applicants got married . It appears that they were already living together before their marriage .

On DATE the second applicant , represented by counsel , filed an appeal . She referred in particular to the marriage which she and the first applicant had meanwhile concluded . She further submitted that the first applicant had been living in GPE since DATE . He was employed as a worker and was able to maintain his family .

On DATE ORG for ORG ) dismissed the appeal . It noted that the quota fixed under PERSON of the DATE LAW was already filled . According to S. CARDINAL of the said LAW , any requests which could not be based on a right to family reunion under LAW had to be dismissed .

On DATE the second applicant filed a complaint with ORG ( Verwaltungsgerichtshof ) . She submitted in particular that she had a right to a residence permit under LAW of the DATE LAW in view of her marriage to an NORP national .

On DATE the second applicant filed a complaint with ORG ) . She submitted that the decision refusing her a residence permit violated her right to respect for her private and family life . She argued in particular that LAW of the DATE LAW granted non - national spouses of NORP nationals the right to a residence permit . However , according to PERSON the right was subject to the condition that the marriage had already lasted for DATE at the time of lodging the request . Such a restriction of the right to a residence permit was contrary to LAW and was , therefore , unconstitutional . The impugned provision obliged an NORP national and his foreign spouse to live separately for DATE . It therefore interfered with their right to private and family life . It was not apparent that this interference served any of the legitimate aims set out in the second paragraph of LAW . LAW § CARDINAL of the DATE LAW might serve to prevent fictitious marriages , the interference was disproportionate as it equally affected spouses truly wishing to lead a marital life . In her case , a separation from the first applicant would be particularly difficult as she was expecting a baby which would be born with a defect of the abdominal wall necessitating an operation immediately after its birth .

Also on DATE the ORG daughter was born in GPE .

On DATE the first applicant requested ORG to review the constitutionality of S. CARDINAL § CARDINAL of the DATE LAW . He argued that the impugned provision had direct consequences for him . GPE the same arguments as the first applicant he pleaded that the impugned provision was contrary to LAW . Further he argued that it also violated the principle of nondiscrimination as real marriages were treated in the same way as fictitious marriages .

On DATE ORG refused to deal with the second applicant ’s complaint for lack of prospects of success .

Also on DATE ORG rejected the first applicant ’s request . It found that PERSON of the DATE LAW was not addressed to or directed against the first applicant . That the impugned provision , being addressed to the second applicant as an alien , produced certain factual consequences for him did not suffice to entitle him to request the review of its constitutionality .

On DATE ORG dismissed the second applicant ’s complaint . It noted that it was uncontested that she had filed her request for a residence permit on DATE while her marriage with the first applicant had only been concluded on DATE . As PERSON of the DATE LAW only conferred a right to a residence permit on the foreign spouse if the marriage with an NORP national had already existed for DATE at the time of filing the request , the second applicant could not rely on this provision .

This decision was served on the second applicant on DATE .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant , ORG , is a corporation ( Aktiengesellschaft ) registered in GPE . It was represented before the ORG by PERSON NORP PERSON , a lawyer practising in GPE .

company , may be summarised as follows .

The applicant company is the publisher of ORG , a DATE journal aimed at the investor community . By letter of CARDINAL DATE the editor received a press statement by PERSON , a shareholder and former staff member of ORG , a subsidiary of CARDINAL of the leading NORP automobile groups , the ORG group ( ORG ) . In the statement Mr NORP raised several allegations against Mr P. , a well - known business leader and manager , chairman of the board ( PERSON ) of ORG until DATE and chairman of the board of ORG from DATE . Both companies were listed on the stock exchange and ORG ) held CARDINAL of the shares .

Prior to publication , by letter of DATE the applicant company transmitted Mr NORP 's press statement to the board of ORG and asked for a written comment ( schriftliche GPE ) . The next day the applicant company informed the board of ORG that for editorial reasons any comments should be sent by CARDINAL DATE .

In its issue of DATE ORG published an article on the basis of Mr NORP 's press statement . The article gave an account of parts of PERSON press statement and his allegations against Mr P. In the last paragraph of the article the author commented on these statements , holding that “ the whole story stinks to high heaven ” ( “ PERSON stinkt zum PERSON ” ) :

“ The whole story stinks to high heaven ! Particularly if it is borne in mind that ORG indirectly owns PERCENT of ORG and that therefore particular sensitivity could be expected . ORG has in the past denounced the fact that big business was ransacking the national economy . If big business will not even invest in the LOC in a case such as this one , when will it ? And the reproach of betraying one 's own country in this context seems understandable . But above all , I wonder : ORG is trying to squeeze out private dealers and to set up its own branches everywhere , and it can not equip the east NORP countries with its own branches , but acts by proxy of a company owned by ORG , ORG ? ! ! ! That is totally implausible ! ”

The article revealed the source of its contents and Mr NORP was presented as an insider source as he had been involved , in DATE , as the main representative of CARDINAL sector of the board of ORG , in the conclusion of contracts with ORG .

On DATE ORG , upon an application by PERSON for an injunction ( PERSON ) , ordered the applicant company to refrain from disseminating certain parts of the article , namely from :

“ CARDINAL . disseminating :

' It is known that ORG holds shares in ORG and in DATE , according to NORP , he apparently grabbed for free ( offenbar kostenlos unter den ORG gerissen ) the exclusive distribution rights through ORG for ORG , ORG , ORG and ORG in GPE , GPE and GPE . '

NORP giving the impression that in the context of his activities for ORG the plaintiff [ Mr P. ] was involved in decision - making concerning royalty payments in favour of ORG or other companies in which the plaintiff holds shares , by reporting :

' Moreover [ in conjunction with NORP 's allegations against the plaintiff ] , NORP addresses the question of royalty payments by ORG to ORG or other companies in which ORG holds shares . '

NORP disseminating that the background to the decision against GPE ( namely in favour of building an engine plant in GPE in GPE ) was , in NORP 's opinion , that ' Mr P. would like to have a factory as the exclusive distributor , exactly as for the allterrain vehicles in GPE ' . ”

ORG held that the dissemination of the above statements violated PERSON personality rights . The first statement ( DATE . ) consisted of a factual statement because to say that somebody had “ grabbed ” something implied that this person had acted with the aim of getting something . The statement was also disparaging as it implied that PERSON had abused his leading position to his own advantage . Hence , ORG found that the burden of proof was with the applicant company , which had not produced any evidence to that effect and had not even contested PERSON submission that he had not been involved in the decision about the exclusive distribution rights . Against this background the statement had to be regarded as untrue and thus was not protected by freedom of speech . Moreover , the court held that there had not been a legitimate interest in the publication of the statement . It was true that even the publication of untrue factual statements could be justified . However , this was only the case if the person disseminating the information had sufficiently tried to verify the facts prior to publication and if any remaining doubts as to the truth of the facts had been made sufficiently clear . In the case at hand , the applicant company had not even come close to having exhausted all possibilities of establishing the facts , as it had not tried to obtain a statement either from PERSON himself or from the board of ORG , that is , from those persons against whom the allegations had been raised . Furthermore , the article was a long way from balanced coverage that also indicated doubts as to the truth of the statements made by Mr D.

As to the second statement ( under CARDINAL . ) , ORG held that it necessarily gave the impression claimed . This was the case in particular because the statement that Mr NORP also “ addresses the question of royalty payments ” was made in the direct context of the statement that PERSON NORP had raised serious allegations against Mr P. Any other understanding would render the statement meaningless and empty . The statement , hence , consisted of a factual statement ( through the creation of an impression ) and had to be regarded as untrue because the applicant company had not produced any evidence . For the same reasons as for the first statement , there had also not been a legitimate interest in the publication of the expression .

As to the third statement ( under CARDINAL . ) , ORG likewise held that it consisted of a factual statement as it alleged a certain motivation on the part of Mr P. , in other words an “ internal fact ” . Such statements had to be regarded at least as statements of fact if they were connected with certain external events by which these internal circumstances allegedly became perceptible to others . The court found that this was the case as the decision to build an engine plant in GPE was traced back to an alleged internal motivation on the part of Mr P. as being the real reason for that decision . The existence of this alleged causal connection between the motivation of Mr P. and the decision in question was susceptible to proof – be it by circumstantial evidence or by interviewing PERSON P. The statement , moreover , had not been changed into a value judgment by formally adding “ in PERSON D. 's opinion ” . The decisive factor was not the formal terms in which a statement was couched but the way it was understood by the average reader . Otherwise the publisher of a factual statement could easily escape the rules governing publication of statements of fact by adding “ according to ” or “ in the opinion of ” . From the perspective of an average reader , the basic purpose of the statement at stake was not to convey information about the personality and the opinions of Mr D. – as might be the case , for example , in a portrait of PERSON D. – but about events within the ORG group . Finally , for the same reasons as for the first and the second statement , there had neither been a legitimate interest in the publication of this statement .

On DATE ORG dismissed an appeal by the applicant company against the judgment and refused leave to appeal on points of law . It confirmed the reasoning adopted by ORG . As to the appellate submissions , ORG added that , concerning the first statement , the expression “ grabbed for free ” could only be understood in the sense that Mr P. had actively influenced the decision about the awarding of the exclusive distribution rights . It pointed out that , contrary to the applicant company 's contention , the simple fact of Mr P. being the chairman of ORG was far from being sufficient to influence that decision in the manner claimed . It also expressly confirmed ORG finding that the applicant company should have interviewed Mr P. or at least the board of ORG . Moreover , the article was not even close to mentioning sufficient facts supporting a reasonable suspicion . With regard to the second statement , ORG confirmed that it necessarily suggested the impression claimed and re - emphasised that the statement directly followed the information that Mr NORP had raised “ serious allegations ” against Mr P. and that the article ended with the conclusion that “ the whole story stinks to high heaven ” . Such wording was not of a kind to leave it up to readers to draw their own conclusions . As to the third statement and the argument – also mentioned in the article – that prior to the decision in favour of PERSON , Mr P. had given incorrect information about the difference in salaries between GPE and GPE , ORG held that it did not follow from this that the real reason for the decision was the motivation of Mr P. as alleged in the article .

On DATE ORG rejected a complaint by the applicant company against the refusal of leave to appeal on points of law ( Nichtzulassungsbeschwerde ) , without giving further reasons .

On DATE the ORG refused to accept for adjudication a constitutional complaint by the applicant company . It first held that statements of fact DATE whether a person 's own statements or statements of others incorporated in the person 's own statement DATE fell within the scope of protection of the freedom of expression as guaranteed in LAW ) as long as their untruthfulness was not established . However , this protection was subject , inter alia , to the limitations laid down by the provisions of general laws , including the protection of the personal rights of others . The interpretation and application of these provisions , the establishment of the facts and the balancing of the different interests concerned were the task of the civil courts , which had to take into account the relevance and the impact of fundamental rights .

With regard to the general principles established in its case - law ORG underlined that it was of crucial importance whether an expression contained factual elements the truth of which could be verified . If an expression inseparably contained both factual and evaluating elements , it had to be regarded as a value judgment if it was dominated by the evaluating elements . However , the truth or untruth of the factual elements had to be taken into account when balancing the different interests . If the publication of statements of fact , the truth of which was uncertain , interfered with the personal rights of others , there were duties of care ( ORG ) to fulfil . The more intense the interference , the more intense these duties became . CARDINAL aspect was the question whether the person making the statement had adequately verified the facts and correctly conveyed the state of his knowledge in this regard . The courts had to take into account that these duties of care were an expression of the ORG 's positive obligation to protect the personal rights of others . On the other hand , they also had to take into account the public interest in the information concerned , and the requirements in question should not have a constricting effect on readiness to make use of the freedom of expression .

Against the background of these principles , ORG did not find a violation of constitutional law . It held that the expressions at stake all contained factual elements , the truth of which had not been established . ORG also found that at the time of their publication there had been no legitimate interest in the dissemination of the statements at stake . It held that it might have been excessive for the courts to have required the applicant company to also ask the board of ORG and Mr P. for a written comment . However , this had been CARDINAL additional aspect amongst others which in themselves formed a sufficient basis to justify the decisions . In particular , the courts had taken into account that the statements in the article were based on CARDINAL single private source only and that the dissemination of such information was acceptable only if there was a minimum of evidence in favour of its veracity . Lastly , ORG also found that the court decisions were not in contradiction with the case - law of ORG . Referring to different judgments of the latter , it pointed out that there was no breach of LAW if the domestic courts , when balancing the different interests involved , attached weight to the question whether the person making the statement had conducted his own investigations as to the veracity of the information and whether any remaining doubts had been made sufficiently clear .


Violation of Article 6 - Right to a fair trial

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

The applicant was born in DATE and lives in PERSON .

On DATE the applicant was arrested in GPE on suspicion of being a member of an illegal organisation . On DATE the applicant was allowed to see her lawyer for a short period of time ( TIME ) following the permission given by the public prosecutor .

On DATE the applicant 's statement was taken by the police in the absence of a lawyer . In her statement , the applicant accepted the charges against her and gave a detailed account of her connections in the illegal organisation . Subsequently , on DATE the applicant was brought before the public prosecutor , and thereafter before the investigating judge of ORG . Before the public prosecutor , the applicant admitted that she was a member of the illegal organisation . When questioned by the investigating judge , the applicant denied the charges against her . After the interrogation , the investigating judge ordered that the applicant be detained on remand .

On DATE the public prosecutor filed an indictment with ORG , accusing the applicant of being a member of an illegal armed organisation under LAW and LAW .

On DATE , based on her police statement and other evidence before it , ORG convicted the applicant as charged and sentenced her to DATE and DATE imprisonment . On DATE ORG rejected the applicant 's appeal .

On DATE the applicant was released from prison .


Anatoly Kovler;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

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

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

On DATE the applicant concluded an investment agreement with PERSON , a representative of ORG ( “ RMB ” ) . According to information given to the applicant by PERSON was a subsidiary of ORG ( “ ORG ” ) , an international investment and stock - trading company based in GPE . PERSON also claimed to be an official representative of ORG in GPE . The applicant invested MONEY ( USD ) . In exchange , he was promised high profits from international stock exchange operations to be carried out by RMB dealers .

In DATE the applicant was informed that all of the money that he had invested had been lost due to unsuccessful stock - trading deals . The applicant demanded financial reports proving this , but they were not made available to him .

The applicant brought an action against MONEY and ORG , demanding compensation for pecuniary and non - pecuniary damage . On DATE ORG rejected the claim , finding that RMB , and PERSON personally , could not be held responsible for the loss of the applicant ’s money because the contract had formally been concluded between the applicant and ORG . According to the contract terms , all disputes were to be resolved under GPE law . The court advised the applicant to lodge a lawsuit against ORG in GPE .

The applicant lodged an appeal . He asked the court , inter alia , to institute criminal proceedings against MONEY . On DATE ORG delivered an interim decision ( qərardad ) instructing ORG to investigate whether the actions of RMB , and PERSON personally , involved any elements of such criminal offences as fraud , illegal business dealings , false advertising and falsification of official seals and documents . ORG stayed the civil proceedings pending the conclusion of the criminal investigation .

On DATE ORG refused to institute criminal proceedings , finding that the matter did not raise any issues under criminal law . This decision was upheld on DATE and CARDINAL DATE by ORG and ORG respectively .

Thereafter , ORG resumed the suspended civil proceedings . Following an expert examination ordered by the court , it was established that certain documents pertaining to the applicant ’s transaction and the partnership agreements between RMB and ORG had been falsified .

On DATE the ORG quashed ORG judgment of DATE . The court found that , at the relevant time , RMB had not been properly set up as a legal entity in GPE , that ORG had no subsidiaries in GPE , that the “ partnership ” documents between RMB and ORG were false , and that the alleged official seals of ORG used on the investment agreement signed with the applicant were also false . The court partially upheld the applicant ’s claim , ordering PERSON to compensate him for pecuniary damage in the amount of ORG CARDINAL . The court rejected the applicant ’s claim for non - pecuniary damages .

ORG judgment of CARDINAL DATE became operative immediately upon its delivery . On DATE ORG issued a writ of execution of the judgment .

Both the applicant and PERSON lodged cassation appeals against ORG judgment of CARDINAL DATE . On DATE ORG upheld the judgment .

On DATE ORG instituted criminal proceedings for falsification of documents by RMB .

It appears from the case file that , following the institution of the enforcement proceedings , ORG applied to various public authorities , including ORG , ORG and ORG , asking for information on PERSON ’s property . However , according to the respective letters of DATE , DATE and DATE of the aforementioned public authorities , PERSON did not possess any property in GPE .

Moreover , it was established that PERSON did not have a permanent residence in GPE and , according to his father ’s statement , had been abroad since DATE .

Upon the request of ORG , on DATE was reprimanded in absentia by ORG under Article CARDINAL ( non - execution of court judgments ) of LAW due to the continued non - execution of the judgment of CARDINAL DATE .

According to the information provided by the ORG , the judgment was executed in full on DATE and the applicant received ORG CARDINAL .