Violation of Art. 5-1;No violation of Art. 5-3 (detention on remand);Not necessary to examine Art. 18;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

ORG Mr PERSON , who was born in GPE in DATE , is an NORP national and at the material time lived in GPE . On DATE ORG extradited him to GPE .

ORG Following CARDINAL complaints laid by NORP investors , an investigation was opened in GPE in DATE . The persons concerned had been approached by brokers established in GPE and in GPE who had sold them at artificially inflated rates shares issued on the NORP market by sham companies . The sums collected were paid into accounts opened in GPE in the name of foreign companies , but the complainants were never able to realise their shares . Criminal proceedings were instituted against QUANTITY persons , including the applicant . They were all foreign nationals .

Mr Quinn was arrested on DATE in possession of CARDINAL false NORP passports and was charged on DATE with fraud , offences under the legislation on the issuing of securities and forgery of administrative documents . On the following DATE the investigating judge added to the initial charges the aggravating circumstance of fraud by a person having solicited the public for a savings scheme .

ORG On DATE of his arrest Mr Quinn had been remanded in custody at the ORG prison in GPE .

On CARDINAL occasions , DATE , DATE and DATE , the investigating judge extended the detention by DATE at a time . He took the view that detention was the sole means of ensuring the appearance for trial of an accused , who was a foreign national , who had been arrested in possession of false passports and who had several residences outside GPE and a large number of accomplices .

Mr Quinn appealed to ORG of ORG against the order of DATE extending his detention on remand .

After holding a hearing on DATE , ORG set aside the contested order by a decision delivered in the applicant ’s absence at TIME on DATE . It directed that he should be " released forthwith if he [ was ] not detained on other grounds " and gave the following reasons :

" At the present stage in the investigation , which has been conducted with due diligence , and given the evidence against him , detention no longer appears necessary for establishing the truth .

In view of the reimbursements which have been , or are in the process of being , effected , it is no longer required on grounds of public order .

Finally , the seizures carried out are such as to ensure that the appellant will appear for trial and in addition he provides guarantees as regards his place of residence and his movements . "

This decision was immediately enforceable and no appeal was lodged against it .

ORG The applicant was not released , however . His release was subject to the decision being notified by the public prosecutor responsible for its execution and to completion of the relevant formalities .

ORG The applicant appeared before ORG while in detention with a view to extradition ( see paragraphs CARDINAL below ) . On DATE he was found guilty of fraud to the detriment of CARDINAL persons and of organising a campaign to solicit the public in connection with transactions involving foreign securities in GPE , without prior authorisation . He was sentenced to CARDINAL years’ imprisonment and fined MONEY ( ORG ) . The court ordered his detention ( see paragraph CARDINAL below ) .

ORG The prosecuting authority and PERSON appealed to ORG . In a judgment of DATE that court found that the aggravating circumstance of soliciting the public for a savings scheme was not made out and reduced the sentence to CARDINAL years’ imprisonment , DATE of which was suspended . It ordered that he remain in detention ( see paragraph CARDINAL below ) .

ORG The applicant , who had been in detention on remand from CARDINAL DATE to CARDINAL DATE and then for the duration of the court proceedings in the domestic case - a total of DATE and DATE - , was extradited to GPE on DATE after having completed his sentence .

ORG On DATE , towards TIME , a GPE investigating judge sent by fax to the GPE public prosecutor ’s office a request for the applicant ’s provisional arrest with a view to his extradition . The same request was transmitted through the intermediary of ORG ( ORG ) on DATE and through diplomatic channels on DATE . The applicant was described as " currently detained in the ORG prison in GPE , and DATE released on a provisional basis " .

This document headed " fiche d’accompagnement " ( covering note ) was marked " very urgent , to be delivered in person to the addressee [ a deputy public prosecutor ] , who is apprised of the matter " .

It was accompanied by the international warrant issued by the NORP judge for Mr PERSON ’s arrest on charges of professional fraud and forging securities . He was accused of having , with his accomplices , sold shares in NORP companies to CARDINAL investors throughout the world , deceiving them as to the value of the shares and using false identities to pay the sums in question into NORP bank accounts . The total prejudice was estimated at MONEY .

ORG The GPE public prosecutor ordered the applicant ’s provisional arrest . PERSON , who was still detained in the ORG prison , was arrested there . He was questioned by the prosecutor at TIME and placed in detention with a view to extradition .

ORG On DATE ORG - composed differently to the division that had ruled on the applicant ’s detention - served on the applicant the instrument on the basis of which he had been arrested .

ORG In the course of the extradition proceedings brought against him , PERSON applied CARDINAL times for his release , relying on each occasion on LAW . He complained of the circumstances in which he had been arrested .

In its CARDINAL decisions , given on DATE , CARDINAL DATE and DATE , ORG dismissed his CARDINAL applications , finding that the detention had been ordered in conformity with the provisions of LAW . It justified its refusal to release the applicant on the grounds of the risk of his absconding and the lack of guarantees to ensure his presence in connection with the further proceedings . On the question of the length of his detention , it considered that the proceedings had been " conducted uninterruptedly and without delay " .

In response to the applicant ’s complaint concerning the unlawfulness of the manner in which he had been placed in detention with a view to extradition , it observed that " the complaints in the pleadings on this point [ were ] a matter for NORP domestic law and [ could not ] be examined in extradition proceedings " .

ORG The applicant lodged CARDINAL appeals on points of law . In a judgment of DATE dismissing CARDINAL of those appeals , ORG stated as follows :

" ... contrary to the claims of PERSON , the judges [ of ORG ] were not under a duty , in order to justify his continued detention , to refer solely to the provisions of LAW [ see paragraph CARDINAL below ] , inasmuch as in extradition proceedings it is not their task to determine the merits of the charges brought against the person sought . "

It observed in a judgment delivered on DATE dismissing another appeal that the judges were not concerned with " the conditions and rules governing the foreign prosecution " , and that " the decision of ORG of CARDINAL DATE which ordered [ the applicant ’s ] release in the proceedings brought against him in GPE was entirely without force for the purposes of extradition proceedings " .

ORG On DATE the principal public prosecutor interviewed the applicant with a view to formally establishing his identity .

ORG In a preliminary decision of CARDINAL DATE ORG sought additional information from the requesting ORG .

The information which it obtained concerning the complainants , the bank accounts and the acts constituting the fraudulent transactions was communicated to the applicant at a hearing held on DATE . He pleaded that there had been an abuse of procedure on the part of ORG . The NORP authorities had sought to prevent the NORP court from exercising its jurisdiction .

ORG On DATE ORG of ORG ruled in favour of the applicant ’s extradition .

Expressing its view on the notions of " urgency " and " person sought " within the meaning of LAW , it stated as follows :

" The assessment of the urgency is a matter for that ORG [ GPE ] and that urgency was justified by the fact that ORG release in the NORP proceedings had just been ordered ;

The NORP authorities can not be criticised for having warned the NORP authorities as this conduct is natural and usual in the context of international judicial co - operation . "

ORG On DATE ORG dismissed as inadmissible under LAW of DATE ( see paragraph CARDINAL below ) Mr Quinn ’s appeal on points of law against ORG opinion .

ORG On DATE the Prime Minister granted the NORP authorities’ request for the applicant ’s extradition . The order was served on him on the following DATE .

Mr PERSON applied to the PERSON d’Etat for a stay of execution and for review of the order , but his application was dismissed on DATE , on , inter alia , the following ground :

" ... the fact that the arrest warrant was issued by a NORP judge on DATE on which ORG of ORG gave its decision on an application for release filed by PERSON , who was facing charges in GPE , does not establish , contrary to the applicant ’s contention , that there was an abuse of procedure . "

Mr Quinn , who had been in detention with a view to extradition from CARDINAL DATE to DATE - a period of DATE , DATE - was surrendered to the NORP authorities on DATE ( see paragraph CARDINAL above ) .

ORG LAW which was signed in GPE on DATE and which came into force on CARDINAL DATE provides as follows :

" The Contracting Parties undertake to surrender to each other , subject to the provisions and conditions laid down in this Convention , all persons against whom the competent authorities of the requesting ORG are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order . "

" CARDINAL . The requested ORG may refuse to extradite a person claimed for an offence which is regarded by its law as having been committed in whole or in part in its territory or in a place treated as its territory .

" The requested ORG may refuse to extradite the persons claimed if the competent authorities of such ORG are proceeding against him in respect of the offence or offences for which extradition is requested . "

" 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 .

... 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 .

If the [ extradition ] request is agreed to , the requesting ORG shall be informed of the place and date of surrender and of the length of time for which the person claimed was detained with a view to surrender .

" CARDINAL . The requested ORG may , after making its decision on the request for extradition , postpone the surrender of the person claimed in order that he may be proceeded against by that ORG or , if he has already been convicted , in order that he may serve his sentence in the territory of that ORG for an offence other than that for which extradition is requested .

The requested ORG may , instead of postponing surrender , temporarily surrender the person claimed to the requesting ORG in accordance with conditions to be determined by mutual agreement by the Parties . "

ORG The PERSON of DATE on the extradition of aliens provides , inter alia , as follows :

" Where there is no treaty , the conditions and the procedure for and the effects of the extradition shall be determined by the provisions of the present PERSON .

The present PERSON shall also apply to questions which have not been dealt with by the treaties . "

" An extradition request shall not be granted :

Where the serious or less serious offences ( crimes ou délits ) have been committed in GPE or in the NORP colonial possessions ;

" Where an alien is prosecuted or convicted in GPE and where ORG is requested to extradite him in connection with a different offence , he shall not be surrendered until the criminal proceedings have been concluded , and , in the event of his conviction , until the sentence has been executed .

However , this provision shall not preclude the sending on a temporary basis of the alien to appear before the courts of the requesting ORG , subject to the express condition that he be returned as soon as the foreign courts have given judgment .

" [ If the person concerned does not consent to being surrendered to the authorities of the requesting ORG ] , ORG , in a ruling against which no appeal lies , shall give its reasoned opinion on the extradition request .

" If ORG reasoned opinion is opposed to granting the extradition request , that opinion shall be final and the request may not be granted . "

" If the division is not opposed , the Minister for ORG shall submit , where appropriate , for the signature of the President of the Republic , an order authorising the extradition . If , within a period of one month of the extradition order being served , the authorities of the requesting ORG have not taken charge of the person to be extradited , he shall be released and his extradition may not be sought on the same grounds . "

ORG Under LAW :

" ... detention on remand may be ordered or continued :

Where the detention on remand of the accused is the sole means of preserving evidence or material clues or of preventing either pressure being brought to bear on the witnesses or the victims , or collusion between the accused and accomplices ;

Where this detention is necessary to preserve public order from the prejudice caused by the offence or to protect the accused , to put an end to the offence or to prevent its repetition or to ensure that the accused remains at the disposal of the judicial authorities .

Article CARDINAL - CARDINAL of the Code of Criminal Procedure reads as follows :

" In cases involving ` less ORG criminal offences ( matière correctionnelle ) detention on remand may not exceed DATE . However , at DATE , the investigating judge may extend the detention by an order giving reasons as indicated in the first paragraph of Article CARDINAL . No extension may be ordered for DATE .

Where the person charged has not previously been sentenced for a serious or less serious offence ( crime ou délit ) to a non - suspended term of imprisonment exceeding DATE and where the sentence he risks does not exceed DATE , the extension of detention provided for in the preceding paragraph may be ordered only once and for a period not exceeding DATE .

In other cases , the person charged may not be kept in detention for DATE . However , in exceptional circumstances , the investigating judge may decide at the end of that period to extend the detention , for a period not exceeding DATE , by a reasoned order made in accordance with the provisions of the first and fifth paragraphs of Article CARDINAL , it being possible to renew such an order under the same procedure . Nevertheless the person charged may not be kept in detention for DATE where the sentence he risks does not exceed DATE .

ORG As the execution of judgments is stayed during the periods prescribed for lodging appeals , the courts may order at the trial or appeal hearing that the convicted person remain in detention on remand ( Articles CARDINAL - CARDINAL , CARDINAL and CARDINAL of the Code of Criminal Procedure ) . This period of detention is deducted in full from the sentence imposed ( LAW ) .

ORG A person detained following a request for extradition from a foreign government is subject to the same rules as a remand prisoner ( LAW of LAW ) .

ORG The decision of the court which rules on an application for release is immediately enforceable ( LAW , second sub - paragraph ) ; responsibility for its execution lies with the principal public prosecutor ( LAW ) .

ORG Prior to his release , a remand prisoner facing charges must make a statement giving his address ( Article CARDINAL of LAW ) , before the investigating judge if the latter has had him taken out of prison or otherwise before the governor of the prison . In so far as the governor is required to obtain a declaration of the detainee ’s address before releasing him , the investigating judge must inform him , when transmitting the order for his release , whether the accused has already given an address in his presence .

On release , each released detainee is issued with a release order ( Article D CARDINAL of LAW ) . Where several detainees are due for release on DATE , precautions are to be taken to ensure that they do not meet each other , but the application of this rule must not have the effect of delaying beyond TIME their release on DATE on which they are to be released ( LAW of LAW ) .


The applicant is a GPE national , born in DATE and currently held in FAC , GPE , ORG .

He is represented before the ORG by PERSON , a lawyer practising at ORG , in GPE , GPE .

A.

Facts as presented by the applicant

The applicant lived in GPE until DATE . This area was , and is , controlled by the ORG , a NORP terrorist organisation , engaged in an armed struggle for independence .

DATE until DATE , the applicant was forcibly taken by ORG members , CARDINAL times DATE , for periods of DATE , to mend their radio equipment . In DATE , ORG members came to the applicant 's house to search for his cousin who had escaped from the organisation . When they could not find him , they turned their attention to the applicant . They interrogated him but he was unable to tell them of his cousin 's whereabouts . He was taken to an NORP settlement in GPE , where he was held prisoner for DATE . He was made to repair radio equipment , dig bunkers , cook food and on CARDINAL occasion was beaten when he asked to return home .

In DATE , the applicant escaped from the ORG settlement . He left GPE with his father , arriving by train in GPE on DATE . On CARDINAL DATE , the applicant was arrested by the NORP army which raided the rented house where they were staying . They suspected him of being an ORG member . When his father tried to intervene , he was forcibly restrained by the soldiers . Following this incident , his father died of a heart attack on DATE .

After being beaten by the soldiers at the house , he was held in detention until DATE . He was photographed and his measurements taken . He was questioned regularly about his links with the ORG and referred to as being a “ Tiger ” . During that time , he was tortured and ill - treated by the soldiers . He was hit about the head by the soldiers , who also banged his head on the wall . He was whipped with an electric cable and , on CARDINAL occasion , he was strung up by his feet with chains from a bar in the ceiling . While he was hanging , the soles of his feet and lower back were beaten with an S - LON pipe ( a plastic pipe filled with cement ) . While in detention , the applicant developed a skin disease which was diagnosed as psoriasis resulting from the overcrowding and poor hygiene in the prison . The applicant was finally released from detention when his uncle paid a bribe .

On release , the applicant went to a skin clinic for treatment . This was in an area controlled by the ORG , a pro - ORG group . He was picked up twice by the ORG and taken to their camp for questioning about his involvement with the ORG , being held for DATE and DATE respectively . He was beaten on both occasions .

Following the explosion of an oil tanker near his home , the applicant was arrested on DATE . He was taken to the police station where he was questioned . He was pulled by the hair , chained to the wall by the arms and beaten with truncheons . A heated iron rod was pressed against his arm which caused him to lose consciousness . He was taken to a different room and questioned by officers of ORG who took turns in questioning him while CARDINAL officers kicked and beat him . He was released on DATE when his uncle bribed a police officer .

Asylum proceedings

Shortly after his release , the applicant left GPE . He arrived in GPE on DATE . He claimed asylum on DATE .

In its decision of DATE , ORG for ORG ( “ the ORG ” ) did not make any findings as to whether the applicant had been tortured as alleged , but considered that this was “ not relevant regarding the right of asylum . These are excesses of isolated executive organs and can not be imputed to ORG . ” In that regard , new Government orders had made clear that such practices were not to be tolerated . It was also found that there was no ground for the applicant to fear persecution as a consequence of his having claimed asylum in GPE .

The applicant ’s appeal was heard on DATE by ORG , PERSON , and rejected after an oral hearing . ORG noted that the actions of the ORG could not be attributed to the ORG and that the applicant would be sufficiently safe from political persecution if he returned to the south of GPE . It referred to various measures adopted by ORG including the ratification of LAW , which was made domestic law in DATE . While it noted that there was a risk of long term detention for persons suspected before their emigration of membership of the ORG , an actual terrorist should not be granted asylum . Also , though a risk of detention and ill - treatment by the security forces and army existed in respect of persons suspected of supporting the NORP , it concluded that the NORP security forces and army had no reason to suspect the applicant of supporting terrorist activities or NORP military activities . Any arrests made for the purpose of extorting money did not disclose political persecution but were cases of excesses by individual officials . Furthermore it was of the opinion that the entire presentation of the applicant was a completely fabricated tissue of lies . He was not credible having regard , inter alia , to his lack of detail as to his activities as a student in GPE , the way in which he left all his personal papers behind when he emigrated , and the fact that the letter which he presented in court from his mother was contained in an envelope on which the address was written by another person . It further concluded that there was no obstacle to deportation under LAW , in conjunction with LAW , as the pre - condition for this was that there was a threat of individually - specific and serious danger of treatment unconnected with political persecution , which was contrary to human rights or degrading , deriving from ORG organisations , or that such treatment was attributed to ORG organisations .

The applicant did not apply for leave to appeal against this decision . He states that his lawyer advised him not to appeal as there were clearly no prospects of success .

On DATE , the applicant left GPE and travelled to GPE . After DATE in GPE , he travelled to GPE hidden on board a trailer where he arrived on DATE and was discovered by immigration officers . On DATE , he claimed asylum .

On DATE , ORG requested that GPE accept responsibility for the applicant ’s asylum request pursuant to LAW . On DATE , GPE agreed . On DATE , the Secretary of ORG issued a certificate under LAW and directed the applicant ’s removal to GPE . He refused to examine the substance of the applicant ’s asylum claim .

On DATE , the applicant applied for judicial review . On DATE , Mr Justice PERSON refused leave . On DATE the applicant was released from detention .

On DATE , the applicant applied to ORG , complaining of the approach of the NORP authorities to the standard of proof and application of LAW . His renewed application was granted by ORG which decided to determine the substantive application . In its judgment given on DATE , ORG held that the Secretary of ORG was entitled to conclude that the NORP authorities do not adopt an approach which was outside the range of responses of a ORG acting in good faith to implement its obligations under LAW . It noted that care had to be taken not to subject the approach adopted in other GPE to an over technical comparison . The higher recognition rate in GPE for GPE asylum - seekers undoubtedly supported the Secretary of ORG 's opinion . Since he had taken reasonable steps to inform himself of the position in GPE by obtaining the opinion of Professor Dr PERSON , a distinguished NORP lawyer who had been legal counsel for ORG in asylum and immigration law and a judge of an administrative appeal court and Director of ORG law on immigration and asylum , no more was required of him .

On DATE , the applicant ’s application for leave to petition ORG was refused . On DATE , the Secretary of ORG refused to exercise his discretion to grant leave to remain in the applicant ’s favour on compassionate grounds . On DATE , the applicant was again placed in detention .

On DATE , the Secretary of ORG informed the applicant that he was satisfied that GPE was a safe third country . He noted that it was well - established that the NORP authorities were under a legal obligation to look at any new material placed before them . On DATE , removal directions to GPE were issued .

On DATE , Dr PERSON of ORG for ORG , GPE , issued a medical report in which he concluded that :

QUANTITY scars on the right side of the head were consistent the applicant 's account of his head being hit against the wall ;

Scarring of the right eardrum was consistent with the surgical repair of a traumatic rupture of the eardrum ;

Psoriatic plaques on his upper back confirmed the diagnosis of psoriasis ( The condition was not infectious but was made worse by stress ) ;

A linear QUANTITY scar on his right upper arm was consistent with his account of being whipped with electric cable ;

CARDINAL linear scars inside the left fore - arm , QUANTITY and QUANTITY , were consistent with his account of being burned by a heated metal rod ;

An irregular scar on the back of the left hand , QUANTITY in diameter , was consistent with his account of a cigarette being pressed against his hand ;

An irregular scar , QUANTITY long , behind the right heel was consistent with his account of a chain cutting into his ankles when he was suspended .

Dr Peel concluded that the details given by the applicant of his detention were completely consistent with the descriptions of NORP detention centres given to him by other asylum seekers , that the scars on his body were fully consistent with his story and that he described some psychological symptoms found in persons who have been detained and beaten .

The applicant made a second application for judicial review , submitting the above medical evidence and challenging the certification of GPE as a safe third country as , inter alia , GPE failed to recognise persons as refugees where the persecution emanated from non - State agents . Leave was refused by Mr Justice PERSON on DATE . Counsel advised that there were no grounds on which to appeal to ORG . Removal directions were set for DATE and then deferred .

A further medical report was prepared by Dr PERSON of ORG Caring for victims of Torture ) after CARDINAL examinations of the applicant on DATE and DATE . He stated :

“ My professional view is that particularly in regard to the neck , jaw and burn scars ... that there is a serious possibility and I would go beyond that < to conclude that there is > very little doubt that what has been observed and recorded above results from physical injuries inflicted upon him during periods of detention in the past . ... Though there are symptoms of a physical nature which have been described which persist , I find also that there are psychological ill effects of his past ill treatment which are present and likely to remain for DATE in the future … there can be little doubt , if any doubt , that [ the applicant ’s scars ] have been caused in the way he describes . ”

On DATE , following the decision of DATE of ORG in the case of PERSON , NORP and PERSON ( see domestic law and practice below ) , the applicant 's representatives requested that the Secretary of ORG reconsider his decision to issue a certificate under section CARDINAL(CARDINAL ) of ORG authorising the removal of the applicant to GPE , and to consider the merits of his claim for asylum . On DATE , the Secretary of ORG stated that he was not willing at this stage to consider the merits of the applicant ’s claim as he was pursuing an appeal to ORG in respect of PERSON and PERSON . He also expressed the view that it would be premature to do so as the applicant ’s application to ORG issues not considered by ORG in the PERSON , PERSON and PERSON case .

The applicant has submitted material from members of his family supporting his account of events , e.g. a statement from his mother dated DATE , an affidavit from his mother dated DATE , a letter from his uncle dated CARDINAL DATE and a letter from his sister dated DATE . He has also provided the ORG with colour photographs showing various marks on his head , legs , arm and torso .

PERSON Relevant domestic law and practice

Applicable international texts

GPE and GPE are parties to the DATE LAW relating to The Status of Refugees . Article CARDINAL ) provides :

“ No contracting state shall expel or return 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 . ”

LAW ( the Convention determining the ORG responsible for examining applications for asylum lodged in one of GPE of ORG , DATE ) provides for measures to ensure that applicants for asylum have their applications examined by CARDINAL of the Member GPE and that applicants for asylum are not referred successively from CARDINAL Member ORG to another . Articles CARDINAL to CARDINAL set out the criteria for determining the single Member ORG responsible for examining an application for asylum . Pursuant to LAW , the responsibility for examining an application for asylum is incumbent upon the Member ORG responsible for controlling the entry of the alien into the territory of GPE . GPE and GPE are both signatory GPE .

GPE immigration statutes and rules

Section CARDINAL of ORG provides :

“ ( CARDINAL ) ... a person who has claimed asylum [ may be ] removed from GPE if -

( a ) the Secretary of ORG has certified that , in his opinion , the conditions mentioned in subsection ( CARDINAL ) below are fulfilled ; ...

( CARDINAL ) The Conditions are :

( a ) that the person is not a national or citizen of the country or territory to which he is to be sent ;

( b ) that his life and liberty would not be threatened in that country or territory by reason of his race , religion , nationality , membership of a particular social group or political opinion ; and

( c ) that the government of that country or territory would not send him to another country or territory otherwise than in accordance with the [ LAW . ”

Paragraph CARDINAL of ORG states :

“ If the Secretary of ORG is satisfied that there is a safe country to which an asylum applicant can be sent , his application will normally be refused without substantive consideration of his claim to refugee status . A safe country is one in which the life or freedom of the asylum applicant would not be threatened ( within the meaning of LAW of the [ LAW ) and the government of which would not send the applicant elsewhere contrary to the principles of the [ LAW .... ”

Paragraph CARDINAL of ORG provide :

“ When an asylum applicant has come to GPE from another country which is party to the [ LAW ...... and which has considered and rejected an application for asylum from him , his application for asylum in GPE may be refused without substantive consideration of his claim for refugee status . He may be removed to that country , or any country meeting the criteria of paragraph CARDINAL , and invited to raise any new circumstances with the authorities of the country which originally considered his application . ”

The Secretary of ORG has power to grant exceptional leave to enter or remain in cases which do not fall within the LAW or the Rules . His policy is to grant such leave :

“ ... Where the [ LAW requirements are not met in the individual case but return to the country of origin would result in the applicant being subjected to torture or other cruel , inhuman or degrading treatment , or where the removal would result in an unjustifiable break - up of family life ... A person should never be disqualified from exceptional leave to enter or remain if there are substantial reasons for believing that he or she would be tortured or otherwise subjected to inhuman or degrading treatment if they were to be returned to their country of origin . ”

A refusal to grant exceptional leave is subject to judicial review . The courts can rule that the particular exercise of the Secretary of ORG ’s discretion is unlawful on the ground that it was tainted with illegality , irrationality or procedural impropriety . The courts could quash a decision if it was established that there was a serious risk of inhuman treatment on the ground that no reasonable Secretary of ORG could take such a decision .

GPE case - law

The domestic ORG approach under LAW DATE prior to DATE was summarised as :

( i ) The Secretary of ORG can not simply rely upon the fact that the third country is a signatory to LAW : he must be satisfied that in practice it complies with its obligations ( Re Musisi [ DATE ] ORG CARDINAL ) .

( ii ) The issue is whether the third country adopts an approach within the range of responses of a ORG acting in good faith to implement its obligations under LAW ( NORP v. Secretary of ORG for ORG Ex parte Iyadurai [ DATE ] INLR CARDINAL ) .

( iii ) The Secretary of ORG must be satisfied that there is no real risk that the third country would send the applicant elsewhere in breach of LAW ( NORP v. Secretary of ORG for ORG [ DATE ) .

In its judgment of DATE in the case of NORP v. Secretary of ORG for ORG ex parte PERSON , PERSON and PERSON , ORG examined as a question of general importance whether the Secretary of ORG was entitled to return asylum seekers to GPE and GPE under LAW ( CARDINAL ) c of ORG , as being countries which did not recognise as refugees those who feared persecution from non - State agents . PERSON was a citizen of GPE who had been refused asylum in GPE prior to her arrival in GPE ; PERSON was a GPE national who claimed asylum in GPE on account of his ill - treatment by both the NORP and the NORP army but whose claims had been rejected by the NORP authorities ; and PERSON was a citizen of GPE whose asylum application had been rejected by NORP authorities . ORG held that LAW extended protection to persons who feared persecution by non - State agents , where , for whatever cause , the ORG was unwilling or unable to offer protection itself . As the NORP and NORP authorities subscribed to the “ accountability theory ” - ie . refugee status was limited to those who feared persecution emanating from ORG or quasi - State authorities or persecution from non - State agents where it was shown that it was tolerated or encouraged by the ORG , or at least that the ORG was unwilling to offer protection - the Secretary of ORG could not as a matter of law certify the claimants for return to these countries as safe third countries because these countries did not give effect to the ORG ’s core values :

“ If a party to LAW were to take a position which was at a variance with the Convention ’s true interpretation , and act upon it , it could not be regarded as a safe third country ; not merely because the “ real risk ” test is not breached ( though certainly it would be ) but because in the particular case the LAW was not being applied at all . ” ( § DATE )

The Secretary of ORG has petitioned ORG for leave to appeal against this decision as regards PERSON and PERSON , no separate petition being pursued in respect of PERSON due to the similarity of the issues .

NORP law concerning asylum - seekers and persons claiming protection

ORG for ORG considers claims for asylum or whether there are obstacles to the deportation of aliens . Its decisions to issue deportation orders may be reviewed by ORG .

Pursuant to Article CARDINAL ) of LAW , a person persecuted on political grounds has the right of asylum . Persons entitled to asylum enjoy legal status pursuant to LAW and are issued with an unlimited residence permit ( section CARDINAL of LAW ) .

Section CARDINAL of LAW prohibits the deportation of aliens to a State where they would face political persecution . Aliens granted protection against deportation under this provision enjoy legal status under LAW but are merely issued with limited residence for exceptional purposes .

According to the constant case - law of ORG , recognition as a political refugee requires a risk of persecution emanating from a ORG or quasi - State like authority . Persecution by private organisations or persons qualifies only if it can be attributed to the ORG in that the ORG supports or passively tolerates the persecution by private groups or exceptionally if the ORG does not provide adequate protection due to its inability to act as a consequence of existing political or social structures . This does not cover situations where a ORG has factually lost control of parts of its territory ( ORG of DATE . CARDINAL , CARDINAL , CARDINAL ) .

Ill - treatment by a ORG officer considered as an isolated event in excess of his functions and prohibited and sanctioned according to the regular administrative and penal procedures is not attributed to the ORG . A practice of torture by police or prison authorities , either in the form of political persecution or in the context of LAW , is attributable to the ORG . State complicity may be shown where torture is practised as part of the police or military structure of a ORG .

If an asylum claim for protection against political persecution does not meet the necessary requirements under LAW ) of LAW or section CARDINAL(CARDINAL ) of LAW , ORG is obliged to examine whether an applicant faces a serious risk of treatment contrary to LAW if he were returned . Section CARDINAL(CARDINAL ) of LAW prohibits expulsion in such circumstances .

In a decision of DATE ( PERSON . ORG , CARDINAL ) , ORG decided that an applicant , in order to meet the requirements of section CARDINAL(CARDINAL ) of LAW , must show a serious risk of inhuman or degrading treatment or punishment by a ORG or a ORG - like authority . It therefore declined to follow the interpretation of LAW adopted by ORG in GPE v. GPE ( judgment of DATE , Reports CARDINAL ) .

If the preconditions for the application of section CARDINAL(CARDINAL ) are not met , protection may be granted under section CARDINAL(CARDINAL ) of LAW , which grants a discretion to the authorities to suspend deportation in case of a substantial danger for life , personal integrity or liberty of an alien . This applies to concrete individual danger resulting from either ORG or private action . It does not require an intentional act , intervention or ORG measure and covers risks for life resulting from adverse living conditions , lack of necessary medical treatment , etc . ( FAC CARDINAL DATE , InfAusIR DATE , CARDINAL ) . This provision has also been applied to civil war or war situations where the threat derived from a non - State source ( ORG of Baden - Württemberg decision of CARDINAL DATE , CARDINAL CARDINAL/CARDINAL ) . Persons afforded protection under this provision are granted temporary permission to remain for periods of DATE , renewable by the authorities .

In DATE , section CARDINAL(CARDINAL ) was applied to CARDINAL NORP nationals in respect of serious individual risks of ill - treatment which could not be attributed to GPE . This included the case of a GPE whose scars placed him a real danger of being apprehended by the security forces and submitted to renewed torture as a person suspected of NORP involvement ( ORG decision of CARDINAL DATE , CARDINAL K CARDINAL/CARDINAL )

Unsuccessful applicants are entitled to have their case re - examined in a new asylum procedure ( follow up application , section CARDINAL of LAW ) subject to section CARDINAL(CARDINAL)-(CARDINAL ) of LAW . This only applies where the factual or legal situation has changed in favour of the applicant , where there is new evidence or there are reasons to resume proceedings analogous to those relevant to LAW ( false evidence , fresh witnesses etc ) . In addition , the applicant must show that such new facts or evidence , which have to be submitted with DATE time - limit , are suitable to support a favourable result and that he / she was unable to deliver such facts or evidence in the previous asylum procedure .

However , even where these conditions are not met , the competent authorities would be obliged to examine whether the applicant , if removed , was facing a serious individual risk for life and personal integrity , in particular a grave danger within the meaning of ORG jurisprudence relating to section CARDINAL(CARDINAL ) ( see e.g. FAC of DATE , CARDINAL C CARDINAL.CARDINAL ) .

An applicant filing a follow - up application or claiming protection under section CARDINAL can not be removed immediately upon return to GPE on the basis of the previous rejection of an asylum claim and deportation order . If the applicant does not meet the requirements for a resumption of the procedure or a re - examination of his case , the authorities have to issue a new deportation order , which may be subject to judicial review . Only where an unfounded application ensued within DATE would the original deportation order remain in force . An applicant has DATE to file a complaint against the deportation with ORG . PERSON can not take place pending the court ’s decision . The applicant may ask the court to grant suspensive effect to the appeal .

Relevant Reports

In the part of ORG for DATE concerning GPE , it was reported that ‘ no member of the security forces has been brought to justice for committing torture’ . In DATE ORG published a report entitled “ GPE Torture in Custody ” . That report noted :

“ .. [ T]orture ... continues to be reported almost ( if not ) DATE in the context of the ongoing conflict between the security forces and ORG ( NORP ) fighting for an independent ORG , ORG , in the north and east of the country ...

The pattern of arrest , detention and torture in GPE is closely linked to the occurrence of NORP attacks in the city , the discovery of materials for such attacks or any major public events in GPE such as Independence Day . High numbers of arrests are reported after explosions , assassinations and arm - finds . ”

A report by ORG for ORG entitled “ No GPE : NORP , NORP and Sri Lankan Torture Victims in the GPE ” dated DATE stated :

“ Although the government elected in DATE has established legal and statutory frameworks with the expressed intent to control human rights abuses by security forces , these have not been very successful in curbing human rights violations by army or police , or in bringing perpetrators to justice . NORP , especially young men , are frequently detained by security forces in search of Tiger supporters ... many ... are detained , sometimes for long periods , and ill - treated or tortured ....

When the security forces detain someone with scarring , they assume the person to be a ORG member and treat them extremely brutally ... ”

The Report of ORG on extra - judicial and summary executions dated DATE stated in respect of his visit to GPE :

“ Human rights violations are most frequent in the context of operations carried out by the security forces against the armed insurgency ... the violations have been so numerous , frequent and serious over DATE that they could not be dealt with as if they were just isolated or individual cases of middle and lower - rank officers , without attaching any political responsibility to the civilian and military hierarchy . ”

ORG for DATE ” dated DATE stated :

“ Torture remained a serious problem , and prison conditions remained poor . Arbitrary arrests and detentions continued , often accompanied by failure of the security forces to comply with some of the protective provisions of ORG Impunity for those responsible for human rights abuses remained a serious problem .

No arrests were made in connection with the disappearance and presumed killing of CARDINAL NORP suspects in GPE in DATE and DATE . ”


CASE OF KHURSHID MUSTAFA AND TARZIBACHI v. SWEDEN

Violation of Art. 10;Pecuniary and non-pecuniary damage - award

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

The applicants , a married couple of NORP origin , were born in DATE and DATE respectively and live in Västerås . They have CARDINAL children , who are now DATE , DATE and DATE .

From DATE they rented a flat in GPE , a suburb of GPE . Rule CARDINAL of the special provisions of the tenancy agreement stipulated the following :

“ The tenant undertakes not to erect , without specific permission , placards , signs , sunblinds , outdoor aerials and such like on the house . ”

The agreement further stipulated , as a general condition , that the tenants were obliged to take proper care of the flat and to maintain good sanitary conditions , order and good practice in the house .

It appears that when the applicants moved in , there was a satellite dish mounted on the façade , next to CARDINAL of the windows of the flat . The applicants made use of this in order to receive television programmes in LANGUAGE and LANGUAGE .

NORP In DATE the applicants ' landlord changed . The new landlord , a real - estate company , demanded that the satellite dish be dismantled . The applicants did not comply and , by letter of DATE , the company gave the applicants notice of termination of the tenancy agreement with effect from DATE .

Further , in DATE , the landlord initiated proceedings before ORG ( hyresnämnden ) in GPE against the applicants and some other tenants who had installed satellite dishes in the same house . The landlord sought execution of the notice of termination , claiming that the applicants ' satellite installation violated the express ban in LAW of the tenancy agreement and that , by not complying with the instruction to dismantle the dish , they had failed to maintain good sanitary conditions , order and good practice . Stating that it objected only to satellite dishes mounted on or outside the façade of the house , while allowing , for instance , dishes placed on a balcony , the landlord claimed that the ban on such installations was of considerable importance as the installations a ) risked causing injuries to persons and property for which the landlord would be held responsible , b ) damaged the house physically and aesthetically and c ) obstructed rescue workers ' and the landlord 's access to the flat .

Shortly after having received the notice of termination , the applicants dismantled the satellite dish . However , in its place they installed a new device by placing on the kitchen floor an iron stand from which an arm , on which the satellite dish was mounted , extended through a small open window . The installation could be pulled back into the kitchen when not being used . At the request of ORG , an engineer , Mr S. Tornefelt , examined the installation on DATE . He found that it was very stable but recommended that , for safety reasons , a steel wire be fixed between the dish and the stand . The applicants made the recommended addition .

The applicants , as well as the other tenants summoned , contested the landlord 's claims before ORG . They stated that , by mounting satellite dishes for the reception of television programmes , some of which were broadcast in their mother tongues , they were exercising their freedom to receive information , as protected by LAW , LAW and ORG law . The landlord 's interests , as provided for in LAW , section CARDINAL of LAW ( Jordabalken ) , had to be balanced against this freedom . The applicants further claimed that they had now complied with the landlord 's demand that the earlier satellite installation be dismantled . The new installation was , they claimed , in conformity with the rules of the tenancy agreement . Referring to PERSON opinion , they further maintained that it was safe and did not damage the house .

The landlord submitted , in addition to what it had previously stated , that it was working on the possibility of installing broadband and internet access in the house , which would allegedly give access to the desired television channels .

Following an inspection of the applicants ' satellite installation , ORG gave a decision on DATE finding in their favour . ORG noted in general that the assessment of whether tenants had failed to comply with their obligations by mounting satellite dishes had to involve the balancing of the interests of the landlord – which could be more or less strong depending on how the actual installations had been made DATE and the interests of the tenants in using a satellite dish – which could also vary depending on whether there were alternative means of receiving the television channels in question . In the applicants ' case , ORG found that the fact that the new satellite installation extended through a window did not involve a breach of LAW of the tenancy agreement . With regard to the general obligation to maintain good sanitary conditions , order and good practice in the house , ORG considered that the actual installation did not and could not damage the house . Moreover , the landlord 's liability for damage to persons and property could not reasonably be incurred unless it were able to prevent the mounting and use of the satellite dish , which was not the case if the ORG found that the landlord had no right to such prevention . Moreover , having regard to Mr PERSON 's opinion and its own inspection , ORG considered that the risk of damage caused by the installation was negligible . Nor could it not find any evidence that the installation would obstruct rescue workers ' access to the flat . The only inconvenience for the landlord was the aesthetic aspect . However , the applicants ' interest in being able to watch television programmes that were not accessible by other available means weighed more heavily , and the satellite installation could not therefore be considered as contrary to good sanitary conditions , order and good practice .

NORP The landlord appealed to ORG ( PERSON hovrätt ) . The court held an oral hearing at which , inter alia , Mr PERSON gave evidence . It also made an inspection of the applicants ' satellite installation . By a final decision of DATE , the court found that the applicants had disregarded their obligations as tenants , under the tenancy agreement and LAW , LAW , to such a degree that the agreement should not be extended , pursuant to LAW , section DATE , subsection CARDINAL(CARDINAL ) of the LAW . They were given a respite until DATE to move from the flat . The court found that the landlord had made a reasonable distinction between acceptable and unacceptable satellite installations and had submitted weighty reasons for prohibiting dishes mounted on the façade or otherwise extending outside of it . It noted that the evidence showed that the applicants ' dish was virtually always positioned outside the kitchen window and thus constituted a permanent installation , and concluded , contrary to the findings of ORG , that its placement breached Rule CARDINAL of the tenancy agreement . In assessing the seriousness of this breach of contract , the court first concluded , with reference to PERSON PERSON 's testimony , that the satellite installation met the reasonable requirements of stability and safety . However , noting that the landlord 's main reason for not allowing the installation was the safety aspect , the court considered that the landlord was entitled to make general risk assessments and should not have to determine whether an individual installation was unsafe or inconvenient . It went on to state that , while the applicants ' interest in receiving the broadcasts of the television channels in question had to be taken into consideration and that it was desirable that technical solutions for such reception be found , the right to freedom of information relied on did not have such a bearing on the case that it could be considered to have any real importance . It noted , finally , that the applicants had been fully aware of the importance that the landlord attached to the issue of the placement of satellite dishes and of the consequences that could follow from a refusal to comply with the landlord 's instructions in this respect . Although their satellite installation did not pose any real safety threat , their interests could not be allowed to override the weighty and reasonable interest of the landlord that order and good custom be upheld .

NORP The landlord offered the applicants the option of staying in their flat if they agreed to remove the satellite dish . They did not agree to do this , however , and instead moved on DATE . They have stated that , largely because of the scarcity of flats for rent in the GPE area but also due to there being a court eviction order against them , they were forced to move to FAC , QUANTITY west of GPE . As a consequence , the first applicant now had much longer and costlier trips to and from work and the applicants ' CARDINAL children had had to change nursery and school and leave friends .

The renting of a flat is regulated primarily in LAW of LAW .

Section CARDINAL provides that a tenancy agreement shall be in writing if the landlord or the tenant so request . In the event that a provision in the agreement is difficult to interpret , it is in practice ultimately interpreted to the disadvantage of the person who formulated the agreement . As it is almost always the landlord who draws up the tenancy agreement , the landlord has to take the responsibility for an agreement that is difficult to interpret . In most cases , landlords use standard agreements , the content of which is the result of negotiations between rental market organisations .

Section CARDINAL contains provisions for the term and cancellation of tenancies . A tenancy agreement which is applicable for an indefinite period , as in the present case , must be cancelled for it to cease to apply . According to section CARDINAL , an indefinite tenancy agreement can be cancelled and thus cease to apply on DATE following DATE notice . LAW provides that , in a case such as the present , a notice of cancellation shall be in writing and comply with certain rules governing service .

Section CARDINAL provides , inter alia , that a tenant may not use the flat for a purpose other than that intended . Under section CARDINAL , the tenant is under an obligation to take good care of the flat . In general , he or she shall take care of it in a way that can be reasonably expected of an orderly person . Further , the tenant is liable to make good all damage caused by his or her carelessness or negligence .

Section CARDINAL contains provisions on disturbances and demands on the tenant for keeping the flat sound , orderly and in good condition . Subsection CARDINAL provides :

“ When using the flat , the tenant shall ensure that persons living in the vicinity are not subjected to disturbances which may be harmful to their health or otherwise impair their dwelling environment to an extent not reasonably tolerable ... . In his use of the flat , the tenant shall also in other respects do all that is necessary to keep the property sound , orderly and in good condition . ... ”

Disturbances and failure to meet those requirements may result in the tenancy agreement being forfeited under section DATE .

Special provisions and regulations can be included in the tenancy agreement . A tenant 's refusal to abide by such provisions and regulations may also constitute a failure to fulfil the requirements for keeping the flat sound , orderly and in good condition .

It follows from section DATE that if the landlord has given notice of cancellation of the tenancy agreement , the tenant may still be entitled to have the agreement extended . However , subsection CARDINAL of section CARDINAL lists a number of situations in which the tenant loses the right to renewal . The first situation , laid down in subsection DATE ) , is the forfeiture of the tenancy . LAW stipulates the conditions in which a tenancy agreement is deemed to be forfeited , including residential disturbances and failure to keep the flat sound , orderly and in good condition . The second situation , regulated in subsection CARDINAL(CARDINAL ) , was relied on by the landlord and applied by ORG in the present case . It concerns the tenant 's neglect of their obligations . If the obligations are neglected to such an extent that it is not reasonable for the tenancy agreement to be extended , the tenant may lose the right to such renewal .

The preparatory works to the latter provision state that the requirements of orderliness must be high in order to make it possible for the landlord to maintain the property in good order and condition ( ORG CARDINAL:CARDINAL , pp . CARDINAL ) . The interests of the landlord shall be weighed against the reasonableness of the tenancy being terminated . Distressing personal circumstances may be taken into account . The possibility of another flat in the same area should also be considered ( Government PERSON , LAW , p. CARDINAL ) .

Examples of negligence are , for example , failure to pay rent , subletting without permission , refusing to grant the landlord access to the flat , depositing rent without valid reasons , residential disturbances , a failure to keep the flat sound , orderly and in good condition , and a breach of clauses in the tenancy agreement .

A large number of tenancy disputes are examined by the CARDINAL regional rent review boards , whose task it is , under section CARDINAL of ORG ( Lagen om arrendenämnder och hyresnämnder , CARDINAL:CARDINAL ) , to examine disputes concerning , for example , the terms of a tenancy and disputes relating to the renewal of a tenancy agreement . A decision by ORG in a renewal dispute , as in the present case , can be appealed to ORG , in accordance with LAW , LAW , section CARDINAL in conjunction with section CARDINAL . No appeal lies against the court 's decision , as provided for in section CARDINAL of ORG NORP om rättegången i vissa hyresmål i PERSON hovrätt , PERSON ) .

Chapter CARDINAL , section CARDINAL , subsection CARDINAL of LAW ( PERSON ) states the following :

“ Subject to any contrary provision of this LAW neither public authorities nor other public bodies shall prohibit or prevent the possession or employment of such technical aids as are necessary to receive radio programmes or to view or hear the content of technical recordings on grounds of the content of a radio programme or technical recording,.The same shall apply to any ban on the construction of landline networks for the transmission of radio programmes . ”

LAW , section CARDINAL , subsection CARDINAL of ORG ( Regeringsformen ) provides , inter alia , as follows :

“ Every citizen shall be guaranteed the following rights and freedoms in his relations with the public institutions :

NORP freedom of expression : that is , the freedom to communicate information and express thoughts , opinions and sentiments , whether orally , pictorially , in writing , or in any other way ;

NORP freedom of information : that is , the freedom to procure and receive information and otherwise acquaint oneself with the utterances of others ;

Section CARDINAL provides that the enumerated rights and freedoms may be restricted only to satisfy a purpose acceptable in a NORP society . The restriction may never go beyond what is necessary having regard to the purpose which occasioned it , nor may it be carried so far as to constitute a threat to the free formation of opinion as one of the fundaments of democracy . Furthermore , no restriction may be imposed solely on grounds of a political , religious , cultural or other such opinion . Under section CARDINAL , freedom of expression and information can only be restricted on grounds of national security , national provision of supplies , public order and safety , the good name of an individual , the sanctity of private life , and the prevention and prosecution of crime . Freedom of expression may also be restricted in commercial activities .

LAW and ORG apply to the relationship between individuals and public bodies . They do not apply to relationships between individuals .


Preliminary objection dismissed (applicability);No violation of Art. 6-1;Remainder inadmissible

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

The applicant is a company based in GPE , GPE .

Following the institution of bankruptcy proceedings before ORG ( Trgovački sud u GPE ) against ORG , d.d . ORG , on CARDINAL DATE , creditors were invited to lodge their claims against the said bank . Pursuant to that invitation , the applicant company lodged its claim . On DATE a notice was placed on the court ’s public noticeboard informing all interested persons that a list of claims to be examined in the bankruptcy proceedings could be consulted in the court ’s registry . The list included a claim submitted on behalf of ORG for ORG Deposits ( PERSON agencija za osiguranje štednih DATE hereinafter the “ Agency ” ) .

The applicant company ’s representative was present at an examination hearing ( ispitno ročište ) held on DATE where the bankruptcy administrator assigned to the case ( stečajni upravitelj ) was to accept or reject each of the claims . No objections were raised as to the accepted claims . The relevant parts of the transcript of the hearing read as follows :

“ It is established that the following PERSON representatives are present at DATE ’s hearing :

... attorney PERSON for QUANTITY Interfinanz GPE ... PERSON for ORG [ short for PERSON agencija za osiguranje štednih uloga ] ...

After having announced the subject matter of the case , the president of the bankruptcy panel informs the creditors in attendance that a list of LOC claims available to everyone exists and after that [ the creditors ] agree that there is no need to write down individual claims since the amount of each claim is going to be announced orally by the bankruptcy administrator and the creditors will be able to comment on it .

After that the claims are examined under sections CARDINAL and CARDINAL of LAW and the bankruptcy administrator presents the amounts of the claims of the creditors in attendance in the order established in the list of claims .

At the bankruptcy president ’s inquiry whether the creditors wish to contest any of the claims examined DATE no objections are raised .

The hearing is concluded .

A decision on the LOC claims examined DATE will be issued in writing . ”

NORP Immediately afterwards a report hearing was also held ( izvještajno ročište ) , where the applicant company ’s representative was appointed as a representative of all foreign creditors in the board of creditors . The Agency , being the creditor claiming the highest sum , was also included in the board of creditors , a body designed to represent the NORP interests in the bankruptcy proceedings . In the subsequent course of the proceedings CARDINAL meetings of the board of creditors were held , on DATE and DATE respectively , the applicant company ’s representative being present at both .

A decision concerning the claims examined at the hearing of DATE was subsequently issued where , inter alia , the claim submitted on behalf of the ORG was accepted .

In its submission of CARDINAL DATE the applicant company opposed the claim filed by the ORG , arguing that although the ORG ’s claim had been listed in the decision of CARDINAL September CARDINAL it had not been subject to examination at the hearing held on DATE as the claim in question had not yet become due . On DATE ORG declared the applicant company ’s submission inadmissible . It held that LOC claims in the context of bankruptcy proceedings could only be opposed at the examination hearing and that the contested claim had been accepted by the bankruptcy administrator as stated in her decision of DATE .

On DATE the applicant company appealed against the above decision contending that during the examination hearing held on DATE the bankruptcy administrator had not stated whether she accepted or rejected the ORG ’s claim and that therefore it had had no opportunity of contesting that claim .

On DATE the High Commercial Court ( ORG trgovački sud PERSON ) dismissed the appeal , finding that the contested claim had been accepted in the bankruptcy administrator ’s decision of CARDINAL DATE and that the applicant company could have filed an appeal against that decision . Since the applicant company had failed to file a timely appeal it had no right to oppose the contested claim at a later stage .

NORP The applicant company then filed a constitutional complaint whereby it argued that the ORG ’s claim had not been subject to examination at the hearing held on DATE as it had not yet become due at that time . Furthermore , it contended that the decision of DATE had not been served on it . On DATE ORG dismissed the applicant ’s complaint , finding that it did not concern the merits of the case .

The applicant company submitted a letter of ORG of DATE whereby it replied to its enquiry and stated that the decision of DATE had been filed in the court ’s registry the same day and kept there for a further DATE . In their further letter of DATE it was stated that the former bankruptcy administrator in the proceedings had informed the court that a notice had been posted on the court ’s public noticeboard informing all interested parties that the decision of CARDINAL DATE could be consulted in the court ’s registry within DATE . There was no mention of the date when this notice had been posted on the court ’s noticeboard and for how long it had stayed there . The decision itself had not been posted on the noticeboard because it had comprised CARDINAL pages .

LAW ( Stečajni zakon , ORG nos . CARDINAL , CARDINAL , CARDINAL , QUANTITY , CARDINAL , CARDINAL/CARDINAL and CARDINAL ) in its relevant part provides as follows :

Section CARDINAL allows for court decisions addressed to a large number of persons to be placed on a court ’s public noticeboard . These decisions are considered as being served on parties DATE after they are posted on the noticeboard . The courts are to maintain registers of documents placed on their public noticeboards , containing , inter alia , the date of the posting of each decision on the noticeboard .

Sections CARDINAL and CARDINAL impose on commercial courts a duty to furnish supplementary registers , including a list of documents posted on their public noticeboards .

Section CARDINAL provides for an examination hearing before the competent commercial court at which the bankruptcy administrator shall either accept or reject each of the reported claims . Likewise , a creditor can oppose a claim reported by another creditor .

Section CARDINAL provides that a claim is deemed to have been accepted if no objection has been raised by either the bankruptcy administrator or another creditor . The commercial court shall prepare a schedule of examined claims on the basis of which it shall issue a decision ( rješenje ) showing which claims were accepted and which were rejected , and setting out the amount and priority of each claim .

Section CARDINAL(CARDINAL ) provides that a final decision establishing the claim and its priority , or establishing that a claim does not exist , shall be effective against the bankrupt and all its creditors .


Violation of Article 6 - Right to a fair trial

Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva

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

In DATE the applicant became a member of the housing cooperative “ Verstatobudivelnyk-CARDINAL ” ( “ the cooperative ” ) in order to be provided with an apartment in the dwelling house to be constructed by the latter . At the same time he was employed part - time by the cooperative .

By decisions made at a general meeting of the members of the cooperative on DATE , DATE and CARDINAL DATE the applicant ’s membership of the cooperative was cancelled on the grounds that he had failed to pay his contributions on time . Therefore , the applicant was not provided with the apartment to which he believed he was entitled ( “ the apartment ” ) . Later it was given to another member of the cooperative , PERSON

NORP In DATE the applicant instituted proceedings against the cooperative in LOC requesting the court to declare the above decisions null and void . He also claimed compensation for non - pecuniary damage .

Later , the applicant lodged additional claims against ORG of ORG , ORG and PERSON , challenging the latter ’s right to own the apartment , seeking the removal of PERSON family and claiming property rights over the apartment . The applicant also claimed payment of the salary arrears from the cooperative , and alleged that his contributions entitled him to a larger apartment .

NORP In DATE ORG of Odessa was closed down . On an unspecified date the applicant ’s case was transmitted from that court to FAC of Odessa ( “ the court ” ) .

In the period from DATE to DATE the domestic courts listed some CARDINAL hearings . QUANTITY hearings were adjourned due to the failure of the representative of the cooperative to appear or at his request . CARDINAL hearings were adjourned since Mr S. failed to appear . The domestic courts took no steps to ensure the defendants’ presence in the court . CARDINAL hearings were adjourned due to the applicant ’s failure to appear or at his request . Most hearings were scheduled at intervals from DATE .

On DATE the court allowed the applicant ’s claims .

On DATE the NORP Regional Court of Appeal ( “ the court of appeal ” ) quashed the decision and remitted the case for fresh consideration to the court .

On DATE the court found against the applicant .

On DATE the court terminated proceedings concerning payment of the salary arrears and the applicant ’s claim for a larger apartment since the applicant had failed to comply with procedural requirements prescribed by NORP law . The applicant did not appeal against this ruling .

On DATE the court of appeal quashed the judgment of DATE and remitted the case for fresh consideration to the court .

On DATE the court dismissed the applicant ’s claims .

On DATE the court of appeal quashed the judgment of CARDINAL DATE and partly allowed the applicant ’s claims .

In the period from DATE until DATE the court and the court of appeal listed some CARDINAL hearings . CARDINAL hearing was adjourned because of the judge ’s illness , CARDINAL due to PERSON failure to appear , one at the applicant ’s request . Most hearings were scheduled at intervals from DATE . No hearings were scheduled by the court DATE and DATE .

The defendants appealed in cassation . On DATE ORG upheld the judgment given by the court of appeal .

On DATE the judgment of CARDINAL DATE was enforced in full .

On an unspecified date in DATE Mr S. instituted new proceedings against the applicant claiming his property rights over a part of the apartment on the ground that he had carried out certain repair works .


András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . The respondent Government were represented by their Agent , PERSON of ORG .

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

The applicant was CARDINAL of the CARDINAL founding partners and a holder of PERCENT of the shares of a limited liability company ( “ the company ” ) set up on DATE to run a retail shop . The shop , privatised by those partners in DATE and valued at CARDINAL NORP laris ( GEL ) ( QUANTITY ( ORG ) ) , was designated as the company ’s founding capital .

In DATE , a certain PERSON brought a court action contesting the lawfulness of the privatisation of the shop and , in a decision of DATE , ORG in GPE declared the privatisation agreement null and void .

After the decision of DATE became binding , the applicant and another founding partner of the company , Mr N. , entered into friendly settlement negotiations with PERSON On DATE they reached an agreement , according to the written terms of which the applicant and Mr N. were “ to cede ” to Mrs. PERSON , respectively , PERCENT and PERCENT of their company shares . The agreement did not specify PERSON counter - obligations , if any .

On DATE the ORG of ORG , on the basis of both GPE request , quashed in a supervisory review the decision of DATE and ordered the parties to abide by the conditions of their friendly settlement of CARDINAL DATE ; the company was ordered to amend its registration records in ORG accordingly .

As disclosed by TIME of the company ORG general meeting on DATE , the applicant considered that PERSON should pay compensation for the agreed cession of the shares , as this had been her pledge during the friendly settlement negotiations . However , since PERSON now insisted on obtaining those shares free of charge , the applicant stated that she would not cede her part . The applicant ’s position was maintained by Mr N. and other partners , and the unanimous decision was not to admit Mrs. PERSON as a new partner .

On DATE ORG , pursuant to PERSON request , issued a resolution on the redistribution of the company shares in accordance with the decision of CARDINAL DATE and entered the consequent amendments into ORG . Thus , PERSON was designated as a new partner with PERCENT of the company shares , PERCENT of which was transferred from the applicant ’s possession .

On DATE the applicant brought an action before ORG , requesting that the resolution of CARDINAL DATE be declared null and void , and that the disputed PERCENT of the company shares be returned to her . The applicant , relying on the relevant provisions of LAW of DATE on Entrepreneurship ( “ the Act on Entrepreneurship ” ) , claimed that PERSON lacked the standing to request amendment of the company ’s registration records , and that consequently the resolution of DATE had been unlawful .

On DATE the Krtsanisi - Mtatsminda District Court , finding the applicant ’s reading of the Act on Entrepreneurship to be erroneous , dismissed her action . That decision , however , was overturned by ORG on DATE in the applicant ’s favour . The appeal court reasoned that the decision of CARDINAL DATE had not rendered PERSON a partner nor transferred any shares to her , but had simply ordered the company to enforce the friendly settlement of DATE . Since the company ’s decision - making body – the ORG general meeting DATE had refused , on DATE , to accept her as a new partner , PERSON should have challenged that decision in adversarial proceedings . The appellate court further reasoned that , by virtue of section CARDINAL § CARDINAL of LAW , consent to a partial cession of the company ’s shares had to be recorded in writing at a general meeting of the partners .

On DATE ORG , at a hearing attended by the applicant and her advocate , overturned the appellate judgement of DATE and dismissed the applicant ’s action . Acting as the court of cassation it pronounced the operative part of its decision orally that day . A complete , reasoned copy of the judgment of DATE was served on the applicant ’s advocate on CARDINAL DATE .

ORG stated that since the company had refused to abide by the binding court decision of DATE of its own accord , the resolution of CARDINAL DATE had simply enforced that decision . In any event PERSON could have applied to a bailiff , and the resultant enforcement proceedings would have led to the same result . The court of cassation acknowledged that , as a rule , written approval of the conclusions of the ORG general meeting was required for a partial cession of company shares . However , in the case at hand , the friendly settlement agreement of CARDINAL DATE had implicitly amounted to such an approval , since all the partners of the company had had a genuine interest in the maintenance of the privatised shop . As to the price of the disputed shares , ORG concluded that the company had agreed to cede them not in exchange for monetary compensation , but rather as a quid pro quo for PERSON commitment to abandon her claim for the annulment of the privatisation .

“ CARDINAL . A company is registered by a court entry in the [ Corporate ] ORG . ”

“ CARDINAL . An entry in the [ Corporate ] ORG can be requested by a partner of the company ...

As regards a limited liability company ... , a registration request should contain information about the founding ORG contributions and the number of their respective shares ...

A change in the circumstances which serves as the basis for the registration of a company under LAW ... must also be entered in the [ Corporate ] Register ... ”

Section CARDINAL § CARDINAL , CARDINAL and CARDINAL - “ A partner ’s rights and responsibilities [ in a limited liability company ] ”

“ CARDINAL . A partner has the right to alienate ( gasxviseba ) or to bequeath his or her shares .

The cession ( PERSON ) of shares by a partner takes place in the form of a notarised agreement . A notarised agreement is also required for the alienation ( gasxviseba ) of shares .

A partial alienation of shares is only possible with the company ’s approval , [ which document ] must contain information about the identity of the purchaser and the price ... of each share ... ”

Neither section DATE nor any other provision of the Act accounted for the difference between the notions of “ alienation of shares ” ( wilis gasxviseba ) and “ cession of shares ” ( wilis PERSON ) , if any .

Article CARDINAL § DATE “ The ORG general meeting [ in a limited liability company ] ”

“ CARDINAL . If the articles of incorporation do not establish otherwise , the ORG general meeting decides on all issues , including those related to ... the acquisition and handover of shares ... ”


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 6+6-1 - Right to a fair trial (Article 6-3-c - Defence through legal assistance) (Article 6 - Right to a fair trial;Article 6-1 - Fair hearing);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre

The applicant , Mr PERSON , is a NORP national who was born in DATE and is currently detained in ORG prison .

On DATE the applicant and a number of suspects were arrested in the context of an operation led by security forces in GPE on suspicion of membership of ORG , an illegal organisation . Prior to being taken into police custody , the applicant was examined by a doctor who observed no sign of illtreatment on his person .

NORP The applicant alleges that during his questioning by the police he was tortured and compelled to sign incriminating statements in the absence of a lawyer .

On DATE the applicant was examined by a doctor who found no injuries on his person .

On DATE the applicant was taken to the public prosecutor and the investigating judge , before whom he alleged that he had been ill - treated while in police custody . He claimed that he had been hung by his arms , given electric shocks and beaten by police officers . Later on the same day , the investigating judge placed the applicant in pre - trial detention .

On DATE the applicant and CARDINAL co - suspects , arrested in the same security operation conducted against ORG , lodged a complaint with the LOC public prosecutor , alleging that they had been ill - treated in police custody .

On the applicant ’s request to the prison authorities to obtain another medical examination , on DATE he was examined by a doctor in a public health clinic , who observed bruises on the inner part of the applicant ’s lower arms , between his wrists and elbows .

NORP The public prosecutor took statements in respect of the allegation of torture from a number of suspected police officers , who denied the accusations . They maintained that the bruises on the applicant ’s arms , which were detected in a medical report obtained later , must have been caused after his release from police custody .

On CARDINAL DATE the GPE public prosecutor refused to commit the police officers for trial , taking into account the medical reports drafted at the beginning and end of the applicant ’s detention in police custody , which had recorded no injuries on his body . In this regard , the prosecutor found that the applicant ’s allegation of having been ill - treated in police custody was unsubstantiated . This decision was notified to the applicant on DATE .

In the meantime , on DATE , the public prosecutor at ORG filed a bill of indictment against the applicant and CARDINAL other persons , charging them with the membership of an illegal organisation and involvement in a number of illegal activities on behalf of the organisation , such as murder , assault and arson .

On DATE the LAW was amended and the military judge sitting on the bench of ORG was replaced by a civilian judge .

Following the entry into force of Law no . CARDINAL of DATE , the criminal proceedings were transferred to ORG .

During the proceedings ORG reviewed the lawfulness of the applicant ’s detention on a regular basis in accordance with LAW no . CARDINAL and found that his pre - trial detention should be continued on account of the severity of the offences , the reasonable grounds of suspicion that he had committed those with which he was charged , and the state of the evidence in the case file .

On the basis of the range of evidence , namely confiscated documents of the illegal organisation , ballistic and autopsy reports , statements taken before the police , public prosecutor and judges , the medical reports drawn up at the beginning and end of police custody , statements taken during the trial from witnesses and other co - accused , on DATE the ORG established that the applicant , as a member of ORG , had been involved in a number of terrorist activities , including the murder of numerous people . Subsequently , the trial court convicted the applicant of attempting to undermine the constitutional order of the ORG , as proscribed by LAW , and sentenced him to life imprisonment .

On DATE the new Criminal Code entered into force .

On DATE ORG quashed the judgment , holding that it should be revised in the light of the provisions of the new LAW .

On DATE the first - instance court once more convicted the applicant under LAW and sentenced him to life imprisonment .

On DATE ORG upheld that judgment .


Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The applicant , Mr PERSON , who has both NORP and NORP nationality , was born in DATE and lives in GPE . He was represented before the Court by PERSON , a lawyer practising in GPE .

On DATE the applicant was placed in pre - trial detention on charges of participating in a criminal organisation with intent to commit acts of terrorism ( lidmaatschap van een criminele organisatie met terroristisch oogmerk ) , namely the so - called “ ORG group ” ( GPE ) , from its being based in the town of GPE which is the place of residence of the Queen ( Hofstad , town where the royal residence is located ) .

During a hearing held on DATE the pre - trial detention was lifted , ORG ( rechtbank ) considering there were no grounds for it to be continued .

On DATE the public prosecution service ( Openbaar Ministerie ) demanded a sentence of DATE imprisonment based on the charges as described above with deduction of the time spent in pre - trial detention .

On DATE ORG acquitted the applicant of all charges brought against him , finding that he could not be considered an active participant in the ORG group . In a number of cases of the applicant 's co - defendants similar acquittals were pronounced . The public prosecution service did not appeal against that judgment and on DATE ORG judgment became final .

Claiming that he had incurred damage as a consequence of DATE he had spent in pre - trial detention , the applicant filed a request for compensation on DATE pursuant to the provisions of LAW of LAW ( Wetboek van Strafvordering – “ ORG ” ) which provides for the possibility of such compensation . LAW provides , in the relevant part and as regards the compensation described in LAW ORG , that “ compensation shall be awarded in each case if and to the extent that the court , taking all circumstances into account , is of the opinion that there are reasons in equity ( gronden van billijkheid ) to do so . ”

The applicant claimed CARDINAL,CARDINAL.CARDINAL euros ( ORG ) in damages to cover both pecuniary and non - pecuniary damage .

By decision of DATE ORG granted the applicant 's claim in part , to the amount of EUR CARDINAL,CARDINAL.CARDINAL .

On DATE the public prosecution service appealed against that decision , arguing that there were no grounds in equity to award any damages . In the alternative , the public prosecution service asserted that the applicant should be awarded less .

On DATE ORG ( gerechtshof ) of GPE quashed ORG decision .

ORG noted that the applicant was one of the acquitted suspects in the criminal case against members of the ORG group , and that the members of this group were known to frequent circles close to PERSON , the murderer of film director PERSON : the members of the ORG group and PERSON would gather in what has come to be called the “ living - room meetings ” ( huiskamerbijeenkomsten ) . As regards those meetings , it had been established that they had taken place in a group setting and that all suspects could be counted as members of that group .

Paraphrasing ORG acquittal of DATE referred to above , ORG observed that ORG had found that all persons suspected of membership of the ORG group had in fact belonged to a structured and durable joint co - operation which had had the intent to commit crimes , to incite ( violence ) and to threaten ( with the commission of acts of terrorism ) and had established that the group 's individual members generally could not have been unaware that the objectives of the group to which they belonged was to commit crimes of this nature .

It then went on to consider that the reason for the applicant 's acquittal of criminal participation in the group 's activities , despite the above - mentioned finding of fact by ORG , was to be found in the circumstance that ORG had not considered the applicant to have been an “ active ” participant in the organisation . In this connection , ORG quoted parts of ORG judgment of DATE :

“ Although all suspects are to be deemed members of the [ ORG ] group , not all of them behaved in such a manner that the group in fact benefited from their membership . Some of them merely tagged along . Those members did , for instance , attend meetings where hatred was incited and which were of an incendiary nature , but they did not contribute to any of that themselves . They also received texts and files of a threatening nature , but did not put them to any use . By behaving in such a manner , these members neither directly nor indirectly aided the realisation of the group 's criminal intent . It follows that activities such as attending aforementioned meetings and receiving aforesaid texts can not be deemed as [ criminal ] acts of participation [ in the ORG group 's activities ] ( deelnemingshandelingen ) .

ORG went on to hold that this admitted of no other conclusion than that the applicant had taken part in the organisation in the above - mentioned passive manner , in full knowledge of the group 's aims , not merely on an incidental basis but moreover without distancing himself from those aims . ”

Having taken these circumstances into consideration , ORG found that there were no reasons in equity to award the applicant the damages he sought .

No further appeal lay against this decision .


Partly inadmissible;Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient

Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych

The applicant , Mr PERSON , is a NORP national who was born in DATE and resides in the city of PERSON , GPE .

On DATE the applicant brought a car ( Audi-CARDINAL ) registered in GPE into the customs territory of GPE . When crossing the border he undertook an obligation to re - export the car before DATE .

On DATE the applicant was arrested on suspicion of murder .

On DATE the applicant was sentenced to CARDINAL years’ imprisonment for murder .

On DATE , in the applicant ’s absence , ORG drew up a report on an infringement of customs regulations due to the applicant ’s failure to bring the above car outside the customs territory of GPE ( section CARDINAL of LAW ) . In the report , ORG indicated the applicant ’s place of detention .

On DATE ORG sent the applicant ’s case to ORG of PERSON . In the covering letter they requested the court to consider the issue of the applicant ’s liability for a violation of section CARDINAL of LAW ( loss of goods placed under customs control ) .

On DATE the court considered the case in the applicant ’s absence . The court found the applicant guilty of having failed to re - export the car and of having lost it in violation of CARDINAL of LAW . The court ordered the confiscation of the vehicle , but given that the car ’s location was unknown , it replaced the confiscation with payment of ORG CARDINAL,CARDINAL.CARDINAL ( about ORG CARDINAL,CARDINAL.CARDINAL ) which corresponded to the value of the car , in accordance with section QUANTITY of LAW . In its decision , the court also indicated the applicant ’s actual place of detention and noted that the applicant had not expressed a wish to be present at the court ’s hearing , even though a notification about the time and place of the hearing had been sent to him . However , according to an information letter by the Deputy Head of ORG ( PERSON департамент України з питань виконання покарань ) in reply to ORG request , the applicant ’s prison file contained no evidence that the applicant had received any summons to or notification about the above proceedings , while they were pending .

The applicant was informed about the above court decision by the prison administration , which received a copy of the decision on DATE .

NORP On DATE the applicant was released on probation .

The relevant provisions of the LAW read as follows :

“ The legislation of the GPE and of the NORP SSR on administrative offences consists of ... , this LAW and other legislative acts of the NORP SSR and decrees of ORG NORP SSR on administrative offences ... ”

“ ( ... ) administrative liability for infringement of customs regulations shall be governed by LAW ... ”

“ An administrative offence is an unlawful , culpable ( intentional or negligent ) act or omission , which is prejudicial to the ORG or public order , property , ORG rights and freedoms , [ and ] established administrative procedures , and for which the law foresees administrative liability ... ”

Administrative liability for the offences provided for by this Code arises in circumstances where no grounds to subject a person to criminal liability can be found . ”

Section CARDINAL . Circumstances that exclude administrative liability

“ A person who has acted in the case of urgent necessity ... shall not be subject to administrative liability . ”

Section CARDINAL . Confiscation of an item used to commit an administrative offence or CARDINAL which is the direct subject - matter of such an offence

“ ... Only an item forming part of the private property of the offender can be confiscated , unless the legislative acts of the GPE provide otherwise ... ”

Section CARDINAL . Terms for imposing administrative penalties

“ Administrative penalties ( адміністративні стягнення ) can be imposed not DATE after the offence has been committed , and in the case of a continuous offence – not DATE after the offence has been discovered ... ”

Section CARDINAL . Rights of a person against whom administrative proceedings have been brought

“ A person against whom administrative proceedings have been brought shall be entitled to : ... give explanations , present pieces of evidence , make motions ... In the absence of the suspected person , the case can be considered only where there is information that he or she has received timely notification about the place and time of the hearing and if he or she has not requested an adjournment of the case ... ”

Part VII of the Code defined smuggling and further referred to the criminal law on liability . The provisions pertinent to the present case are contained in Part VIII of the Code and read , in so far as relevant , as follows :

Part VIII

Infringement of customs regulations . Proceedings in cases concerning infringement of customs regulations

LAW

Infringement of customs regulations and liability for such infringements

Section CARDINAL

“ The giving out of the items under the customs control without the permission of the customs body of GPE or the loss thereof shall incur the fine from the citizens in the amount up to a salary minimum , officially established at the date of that infringement , with confiscation of goods in question or without the latter ; and from the officials - in the amount from DATE till CARDINAL minimums officially established at the date of that infringement , with confiscation of goods in question or without the latter . ”

“ Failure to re - export items brought into the customs territory of GPE on condition of an obligation to re - export them within the established time - limits ... shall result in imposition of a fine ... with confiscation of the items concerned ... ”

LAW . Proceedings in cases concerning infringement of customs regulations

“ Proceedings concerning infringement of customs regulations shall be conducted in accordance with the provisions of this LAW or , where not regulated by it , under the relevant legislation ... on administrative offences ( ... ) ”

Section CARDINAL . Presence of a person against whom administrative proceedings have been brought during consideration of the case concerning infringement of customs regulations .

“ A case concerning infringement of customs regulations shall be considered in the presence of the person against whom administrative proceedings have been brought .

In the of the absence of the person against whom administrative proceedings have been brought , the case may be considered only when there is information about the timely notification of this person about the place and time of consideration of the case , but he or she has not submitted any petition for adjournment of the case or if there is information that at the time of consideration of the case the person is outside the territory of GPE , or when the person who committed the infringement of customs regulations has not been established , or in the case of a infringement of customs regulations via the sending of items by international postal correspondence . ”

“ Administrative penalties ( адміністративні стягнення ) in the form of a warning or fine for infringement of customs regulations may be imposed not DATE after the infringement of customs regulations , and in the case of a continuous infringement not DATE after the infringement has been discovered ...

Confiscation of items that have been the direct subject - matter of an infringement of customs regulations ... shall be effected regardless of the time of the commission or discovery of the infringement of customs regulations . ”

LAW . Execution of decisions of the customs authorities and courts concerning the imposition of an administrative penalty

Section CARDINAL . Execution of the decision of the court ( judge ) concerning confiscation .

“ ... If the items ... can not be confiscated , the pecuniary equivalent of the value of the said items shall be collected from the persons who have infringed the customs regulations ... ”