CASE OF O'DONOGHUE AND OTHERS v. THE UNITED KINGDOM

Remainder inadmissible;Violation of Art. 12;Violation of Art. 14+12;Violation of Art. 14+9;Pecuniary and non-pecuniary damage - award

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

ORG Scheme

In DATE the Secretary of ORG for ORG introduced the first version of ORG ( “ the first version ” ) . Section CARDINAL of ORG etc . ) Act CARDINAL provided a statutory basis for the scheme and further details were set out in ORG Regulations DATE ( SI CARDINAL ) ( “ the DATE Regulations ” ) and ORG Instructions ( “ IDIs ” ) .

The first version of the scheme required that in order to marry , persons subject to immigration control had to have either entry clearance expressly granted for the purpose of enabling them to marry in GPE or a Certificate of Approval . The definition of “ persons subject to immigration control ” excluded ORG nationals and persons who had been granted Indefinite Leave to Remain .

NORP In order to obtain a Certificate of Approval , a person subject to immigration control had to submit an application to the Secretary of ORG for ORG together with an application fee of ORG . If both parties to the proposed marriage were subject to immigration control , each party had to submit an application form and pay the required fee . The IDIs provided that in order to qualify for ORG , an applicant had to have been granted leave to enter or remain in GPE for a period of DATE and he or she had to have DATE of that leave remaining at the time of making the application .

The first version of the scheme did not apply to persons seeking to marry in accordance with the rites of ORG .

On DATE Mr Justice PERSON delivered judgment in the case of R ( on the applications of PERSON and Others ) v Secretary of ORG for ORG [ DATE ] EWHC CARDINAL GPE ( Admin ) , in which he considered whether the first version of the scheme interfered with the Articles CARDINAL and CARDINAL rights of those who were subject to immigration control and who were in GPE lawfully .

He found that it was permissible , according to the ORG 's jurisprudence , to introduce legislation to prevent marriages entered into for the purpose of avoiding immigration control even though this legislation might interfere with the right to marry . Furthermore , the legislative objective relied on by the Government of preventing sham marriages was sufficiently important to justify limiting an LAW right .

NORP However , in the case of the first version of the scheme , the measures designed to meet the legislative objective were disproportionate as they were not rationally connected to it . First , all religious marriages other than those in ORG required a Certificate despite the fact that the evidence showed that sham marriages predominantly took place in registry offices . The treatment of religious marriages outside ORG was therefore a matter of concern as they were treated like registry office marriages even though evidence indicated that the same precautions which prevented sham marriages taking place in ORG were also present in other religious ceremonies . Secondly , there was no basis for the assumption that all religious marriages outside ORG were automatically to be treated as sham marriages , thus requiring a Certificate , while in contrast all marriages conducted according to the rites of ORG were to be regarded automatically as not being sham marriages and therefore did not require a ORG . Thirdly , the first version of the scheme arbitrarily failed to take into account many factors which might be relevant in considering whether or not a proposed marriage was a sham , such as clear and corroborated evidence that the parties had enjoyed a loving relationship over DATE , during which time they might have had children or bought a house together . It was difficult to understand how the scheme , which ignored factors such as these , could be “ rationally connected ” to the purported legislative aim of avoiding sham marriages . Fourthly , the first version of the scheme was not rationally connected to the legislative objective as it regarded the only relevant factors in determining whether a non - EU national could marry in GPE as his or her immigration status .

Mr Justice PERSON therefore held that the first version of the scheme was not proportionate and constituted a substantial interference with LAW .

He also held that this version of the scheme was incompatible with LAW as it was discriminatory on the grounds of religion and nationality . It constituted direct discrimination as it targeted individuals who were , because of their religious convictions or lack of them , unable or unwilling to marry pursuant to the rites of ORG . Meanwhile those who wished to marry in ORG were exempted from the scheme .

Furthermore , the fact that a fee was levied was also discriminatory as this was not required of those with the same characteristics wishing to marry in ORG religious ceremonies .

In a separate judgment ( [ DATE ] EWHC CARDINAL ( Admin ) ) , Mr Justice ORG found that in the case of Mr PERSON , at the time an illegal immigrant , the refusal of permission to marry did not constitute an interference with his rights under LAW , as permitting him to marry an ORG national would effectively have permitted him to “ queue jump ” and would have undermined the effectiveness of immigration control .

NORP The Secretary of ORG accepted Mr Justice PERSON 's findings that the first version of the scheme under section DATE Act was discriminatory and did not seek to challenge this conclusion on appeal . However , he was granted permission to appeal against Mr Justice PERSON 's findings in respect of LAW . Mr PERSON was also granted permission to appeal .

On DATE ORG delivered judgment in the case of LOC v. PERSON and Others [ DATE ] EWCA Civ CARDINAL . It agreed with Mr Justice PERSON 's finding that the first version of the scheme under section DATE Act was disproportionate and violated Articles CARDINAL and CARDINAL of the Convention . However , it disagreed with the conclusion reached in respect of Mr PERSON . ORG held that the immigration status of Mr PERSON was irrelevant to the genuineness of his proposed marriage , which alone could properly determine whether he should be free to exercise his right to marry . It therefore dismissed the Secretary of ORG 's appeal and allowed that of Mr PERSON . The Secretary of ORG was granted permission to appeal to ORG .

On DATE ORG handed down its opinion in the case of NORP ( on the application of PERSON and others ) v. Secretary of ORG for ORG [ DATE ] ORG DATE . It dismissed the appeal and ordered that section CARDINAL(CARDINAL)(b ) of the CARDINAL Act should be read as meaning “ has the written permission of the Secretary of ORG to marry in GPE , such permission not to be withheld in the case of a qualified applicant seeking to enter into a marriage which is not one of convenience and the application for , and grant of , such permission not to be subject to conditions which unreasonably inhibit exercise of the applicant 's right under LAW . ”

Lord PERSON observed that from DATE the ORG had described the right to marry as “ fundamental ” and noted that LAW , in contrast with LAW , conferred a right and not a right to respect for specified areas of personal life .

Lord PERSON further observed that the scope afforded to national law was not unlimited and it had been emphasised that national laws governing the exercise of the right to marry should never injure or impair the substance of the right . In practice the ORG had been firm in upholding the right to marry , finding in favour of applicants denied the exercise of that right because they were serving prisoners ( ORG v. GPE , no . DATE , Commission decision of DATE , PERSON , p. CARDINAL ) , because of a mandatory delay imposed before entering into a fourth marriage ( PERSON v. GPE , DATE , Series A no . CARDINAL ) , or because CARDINAL applicant was the father - in - law of the other and they could only exercise their right to marry if they obtained a private ORG ( B. and PERSON GPE , no . CARDINAL , DATE ) .

Lord GPE considered , inter alia , the ORG 's decisions in PERSON v. GPE , no . ORG decision of DATE , GPE CARDINAL p. CARDINAL and PERSON and PERSON v. the GPE ( DATE ) DR CARDINAL-A , p. CARDINAL . He concluded that :

“ A national authority may properly impose reasonable conditions on the right of a third - country national to marry in order to ascertain whether a proposed marriage is one of convenience and , if it is , to prevent it . This is because LAW exists to protect the right to enter into a genuine marriage , not to grant a right to secure an adventitious advantage by going through a form of marriage for ulterior reasons .

[ The authorities ] establish ... that where a third - country national proposes to marry within the jurisdiction the member state may properly check whether the proposed marriage is one of convenience or not and seek information necessary for that purpose . The authorities give no support to the proposition that a significant restriction may be placed on all such marriages , or on a sub - class of such marriages , irrespective of whether they are marriages of convenience or genuine marriages and with no procedure to ascertain whether they are the CARDINAL or the other . ”

In respect of the first version of the scheme , Lord PERSON held :

“ Apart from its discriminatory features , which the Secretary of ORG has said she will remove , I do not think section DATE , read alone , is legally objectionable . It is open to a member state , consistently with article CARDINAL , to seek to prevent marriages of convenience . There is nothing in the text of section CARDINAL which authorises or requires the withholding of permission to marry in the case of any marriage which is not a marriage of convenience . Indeed , the section makes no reference to marriages of convenience or sham marriages and gives no hint of the grounds on which permission may be granted or withheld . Section CARDINAL could be operated , consistently with its terms and with article CARDINAL , in a manner which required persons subject to immigration control to give notice of a proposed marriage , enabled an appropriate authority to investigate whether the proposed marriage would be CARDINAL of convenience and provided for the withholding of permission only in cases where it appeared that the proposed marriage would be CARDINAL of convenience .

Subject to CARDINAL qualification , LAW are similarly , in my opinion , unobjectionable . They provide in some detail in Schedule CARDINAL for the information to be given by an applicant for permission to marry , and considerable detail ( more than is required in the Schedule ) is clearly necessary if enquiry is to be made whether a proposed marriage will be CARDINAL of convenience . My qualification relates to the prescribed fee . It is plain that a fee fixed at a level which a needy applicant can not afford may impair the essence of the right to marry which is in issue . A fee of £ MONEY ( £ MONEY for a couple both subject to immigration control ) could be expected to have that effect .

ORG , promulgated ( it is understood ) without express parliamentary sanction , provide for the denial of permission to marry ( save on compassionate grounds , relatively rarely allowed in practice ) to all those who are in the country without leave , or whose grant of leave to enter or remain in the GPE on the occasion in question did not total DATE , or who did not have DATE remaining at the time of making the application for permission . The vice of the scheme is that none of these conditions , although of course relevant to immigration status , has any relevance to the genuineness of a proposed marriage , which is the only relevant criterion for deciding whether permission should be given to an applicant who is qualified under national law to enter into a valid marriage . It may be that persons falling within the categories specified in the ORG are more likely to enter into a marriage of convenience than others , and that may be a very material consideration when the genuineness of a proposed marriage is investigated . But the section CARDINAL scheme does not provide for or envisage any investigation at all , because ( as has been explained in the evidence ) such investigation is too expensive and administratively burdensome . Thus , subject to the discretionary compassionate exception , the scheme imposes a blanket prohibition on exercise of the right to marry by all in the specified categories , irrespective of whether their proposed marriages are marriages of convenience or whether they are not . This is a disproportionate interference with exercise of the right to marry . ”

Baroness PERSON of GPE considered that :

“ It is not disputed that the Government would be free to deny any immigration advantage to a party to a marriage which had been entered into solely for the purpose of obtaining that advantage . ( Indeed , the respondents argue that that is already the case , as the claimed advantages apply only to real relationships . ) But the scheme in issue here does something very different . The legislation enables the ORG to prohibit in advance a great many marriages irrespective of whether or not they are genuine , irrespective of whether or not there is any immigration advantage to be obtained thereby , and without any right of appeal other than judicial review . This strikes at the very heart of the right to marry which is guaranteed to everyone of full age by LAW . ”

She found that there were many objections to the scheme , other than its being discriminatory . In particular , she noted that :

“ It covers anyone who is subject to immigration control , that is , anyone who is not an ORG national and requires leave to enter or remain in GPE ( s. CARDINAL(CARDINAL ) ) . This covers all non - nationals unless they have already acquired the ' right of abode ' . All of these people are required to give notice to the registrar in specified registration districts , irrespective of where they live or intend to get married ; and both parties to the intended marriage must attend in person to deliver their notice ( s. CARDINAL(CARDINAL ) ) . This is all irrespective of how long they have been living here , how close their relationship and how small or non - existent the immigration advantage there might be .

When they get to the registrar , there are CARDINAL categories of people who need go no further . The first is a person who has been given entry clearance expressly for the purpose of enabling him to marry in GPE ( s CARDINAL(CARDINAL)(a ) ) . The second is a person who falls within a class specified in regulations ( s CARDINAL(CARDINAL)(c ) ) . Regulation CARDINAL of ORG Regulations DATE ( SI CARDINAL ) specifies a person ' who is settled in GPE within the meaning of paragraph CARDINAL of ORG . This basically means someone who is ordinarily resident here , not in breach of the immigration laws , and without any restriction on the period for which he may remain . A very large number of people who have been here lawfully for a long time will still not be ' settled ' here in this sense .

Everyone subject to immigration control who does not fall within those CARDINAL exceptions can not marry without the written permission of the Secretary of ORG to marry in GPE ( s. CARDINAL(CARDINAL)(b ) ) . Application must be made in writing accompanied by the fee prescribed in LAW , which is now £ CARDINAL . If both parties require permission , therefore , they must pay £ MONEY to apply for it . There is no power in the regulations to waive or reduce the fee no matter how meritorious the case . This is on top of the much more modest fees for the actual marriage , of £ MONEY for each notice to marry , £ CARDINAL for the ceremony , and £ MONEY for the marriage certificate , making a total of £ MONEY . It must be a positive disincentive to couples whose desire to marry is deep and sincere and has nothing to do with their immigration status or where they intend to live once married .

None of these applicants will be able to find out from the LAW or the LAW how good their chances are of getting permission . On the face of it , the ORG can adopt whatever policy it chooses without even laying it before ORG for scrutiny . The current policy is contained in the published “ ORG " , chapter CARDINAL , section CARDINAL . This does not depend upon any reasonable assessment , either of the immigration advantage which the marriage might bring , or of the genuineness of the relationship . It depends upon a rule of thumb : permission will be granted if each person needing it has been granted leave to enter or remain in the GPE for DATE ( calculated from when his present stay in the GPE first began ) and has DATE of this remaining when he makes the application . Even within this category , permission will be refused if there is good reason to believe that either of the parties lacks capacity to marry in LANGUAGE law . Outside this category , permission will be refused unless “ there are exceptionally compassionate features ” making it unreasonable to expect them to travel , either to marry abroad or to apply for entry clearance from abroad . The examples given are pregnancy or some other condition making the person unfit to travel abroad . They do not include features suggesting that the marriage is genuine , because that is not the point .

This policy automatically excludes all asylum seekers because they do not have leave to enter . The policy states that they should not normally be permitted to marry until after their claims have been determined . But if an initial decision on an application or an appeal has been outstanding for DATE ( and we understand that time starts running afresh once an appeal has been lodged ) , or if they can not be expected to travel abroad for compelling compassionate reasons , the permission may be granted . It is , of course , extremely unlikely that any genuine asylum seeker will be in a position to travel back to the country from which he has fled to escape a wellfounded fear of persecution , nor would it be consistent with this country 's obligations under LAW to compel him to do so .

It is an indication of how over - inclusive the statutory scheme is that the great majority of applications for permission are granted . From DATE , when section CARDINAL came into force , until DATE , when PERSON handed down his first judgment , CARDINAL applications for permission to marry or enter a civil partnership were dealt with . CARDINAL were granted , CARDINAL of these on exceptional or compassionate grounds , the rest because they met the leave criteria . CARDINAL were refused . CARDINAL were withdrawn or discontinued . We are told that this was quite deliberate . The Government simply decided to subject a large number of proposed marriages to the deterrent effect of scrutiny and to prohibit all those in the class which they thought most likely to contain the suspect unions . Making a serious attempt to distinguish between the “ sham ” and the genuine was considered too difficult and too expensive . ”

Following the judgments of Mr Justice PERSON on DATE , the first version of the scheme was amended . Under the new procedure ( “ the second version ” ) , applicants who had insufficient leave to enter or remain at the time of applying for a Certificate of Approval could be asked to submit further information in support of their applications to enable ORG to satisfy itself that the proposed marriage or civil partnership was genuine .

Further amendments followed ORG judgment on DATE ( “ the third version ” ) . Under the third version of the scheme , applications from individuals who did not have valid leave to enter or remain , who had until this point been refused a Certificate of Approval unless there were exceptional compassionate circumstances , were to be treated in line with the guidance for those who had limited but insufficient leave to qualify for a Certificate .

With effect from DATE the ORG suspended the requirement to pay any fee . On DATE a scheme for repaying fees to applicants who met a financial hardship test at the time of the application met with Ministerial approval .

On DATE a proposal for a draft ORG etc . ) Act DATE ( Remedial ) Order DATE was laid before ORG . If the draft order is approved by both ORG , it is expected to come into force early in DATE . Once in force , it will effectively abolish ORG scheme .

The circumstances of the applicants

The applicants were born in DATE , DATE , DATE and DATE respectively and live in GPE .

The first applicant has both NORP and NORP nationality . She is married to the second applicant , who is a NORP national of PERSON ethnic origin . The third applicant is the child of the first and second applicant and the fourth applicant is the first applicant 's child from a previous relationship . Both the third and fourth applicants have NORP and NORP nationality .

The applicants are practising NORP .

The first and second applicants care for the third and fourth applicants and also for the first applicant 's disabled parents . The first applicant receives Invalid Carer 's Allowance , Income Support , ORG . The second applicant is not entitled to work .

The factual background to the application

The second applicant arrived in GPE in DATE and claimed asylum in DATE . In DATE he was granted Discretionary Leave to Remain , which runs until DATE .

The second applicant met the first applicant in DATE and they began living together in DATE . In DATE the second applicant proposed to the first applicant and she accepted .

On DATE the first and second applicants applied for ORG and requested to be exempted from the ORG CARDINAL fee . They explained in detail that the first applicant survived on Invalid Carer 's Allowance and Income Support and that the second applicant was destitute as a result of not being permitted to work . This explanation was attached to the application and a supporting letter from their Member of ORG was sent .

On DATE their application was returned to them with a letter stating the following :

“ If an applicant does not pay the specified fee , his or her application is invalid . The specified fee has not been paid in connection with your attempted application which you made by post on DATE . We do not consider that an exception to the requirement to pay the fee applies in this case , therefore your application is invalid and we are returning your documents . ”

In DATE a group of the applicants ' friends contributed towards the fee required to make an application for a Certificate of Approval . The applicants subsequently made an application with the donated funds . On receiving the application form , a case worker asked the first and second applicants to submit further information about their relationship . They submitted CARDINAL sworn affidavits . The case worker was satisfied with the information provided and the applicants were issued with a Certificate of Approval on DATE . They married on DATE .

Section CARDINAL ( CARDINAL ) of ORG etc . ) Act DATE ( “ the CARDINAL Act ” ) imposed certain requirements before a person subject to immigration control was able to marry , otherwise than in accordance with the rites of ORG under Part II of LAW .

Section CARDINAL ( CARDINAL ) of LAW stipulated , as relevant , that :

“ ( CARDINAL ) The superintendent registrar shall not enter in the marriage notice book notice of a marriage to which this section applies unless satisfied , by the provision of specified evidence , that the party subject to immigration control—

( a ) has an entry clearance granted expressly for the purpose of enabling him to marry in GPE ,

( b ) has the written permission of the Secretary of ORG to marry in the GPE .... ”

Section CARDINAL ( CARDINAL ) ( a ) of the CARDINAL Act provided that a person “ subject to immigration control ” was a person who was not a European Economic Area ( ORG ) national and who required leave to enter or remain in GPE .

Section CARDINAL of the CARDINAL Act provided the following in relation to GPE :

“ ( CARDINAL ) This section applies to a marriage—

( a ) which is intended to be solemnised in GPE , and

( b ) a party to which is subject to immigration control .

( CARDINAL ) In relation to a marriage to which this section applies , the marriage notices—

( a ) shall be given only to a prescribed registrar , and

( b ) shall , in prescribed cases , be given by both parties together in person at a prescribed register office .

( CARDINAL ) The prescribed registrar shall not act under LAW ) Order DATE ( ORG ( N.I.CARDINAL ) ) ( marriage notice book , list of intended marriages and marriage schedule ) unless he is satisfied , by the provision of specified evidence , that the party subject to immigration control—

( b ) has the written permission of the Secretary of ORG to marry in GPE , or ... ”

Permission from the Secretary of ORG was granted by the issuing of a Certificate of Approval pursuant to the procedure provided for in ORG Regulations DATE ( SI CARDINAL ) ( “ the CARDINAL Regulations ” ) .

Regulation CARDINAL of the DATE Regulations provided that :

“ ( CARDINAL ) A person seeking the permission of the Secretary of ORG to marry in GPE under section CARDINAL(CARDINAL)(b ) , CARDINAL(CARDINAL)(b ) or CARDINAL ) of the CARDINAL Act shall—

( a ) make an application in writing ; and

( b ) pay a fee on the submission of the application in accordance with regulation CARDINAL .

( CARDINAL ) The information set out in Schedule CARDINAL is to be contained in or provided with the application . ”

Schedule CARDINAL indicated that both parties to an intended marriage should state their name , date of birth , name at birth ( if different ) , nationality , contact details , passport or travel document numbers , ORG reference numbers ( where applicable ) , details of their current immigration status ( if applicable ) , the date on which their current leave was granted and the date on which that leave was to expire ( where applicable ) , and details of any previous marriages and divorces .

The fee on application to the Secretary of ORG for ORG was initially fixed at GBP CARDINAL . It was increased to GBP CARDINAL on DATE . There was no statutory right of appeal for an applicant who alleged that they could not afford to pay the fee . If the fee was not paid , the application for a ORG was invalid and there was no discretion for the fee to be waived . The refusal of an application for a ORG did not constitute an immigration decision and there was no statutory right of appeal against it .

In DATE ORG issued instructions on authority to marry . ORG Instructions ( “ IDIs ” ) stated that under LAW persons subject to immigration control who wished to marry in GPE had to first meet an additional qualifying condition before they could give notice of the marriage : they were required to have an entry clearance or be settled in GPE or have a ORG . LAW , section CARDINAL , para CARDINAL , of the IDIs ( “ Criteria for Granting a Certificate of Approval ” ) provided that :

“ In order to qualify for a certificate of approval , a person must have valid leave to enter or remain in the GPE as follows . He must have been granted leave to enter or remain in the GPE totalling DATE on this occasion ; and have DATE of this leave remaining at the time of making the application . ”

The IDIs stated that a Certificate of Approval would be refused if there was good reason to believe that there was a legal impediment to the marriage , as on grounds of age , consanguinity or an existing marriage . A Certificate of Approval would normally be refused to a person not qualified to be granted CARDINAL , but a ORG could be granted on compassionate grounds .

The Certificate of Approval scheme was amended following the judgment of Mr Justice PERSON . ORG guidance stated that under the new procedures ORG could write to persons who had insufficient leave to enter or remain at the time of applying for a Certificate of Approval , asking that they submit further information in support of their application to enable ORG to be satisfied that the proposed marriage or civil partnership was genuine . Any such letter would ask for information about :

when , where and how the applicant and their fiancé(e)/proposed civil partner met ;

when the couple decided to marry or enter into a civil partnership ;

where the couple intended to live if permitted to marry or to enter into a civil partnership in GPE ;

arrangements for any religious ceremony , including the nature of the ceremony , the person conducting it and relevant contact details , arrangements for any reception or celebration , including details of the location , proof of booking and relevant contact ;

the applicant 's relationship with his or her fiancé(e)/proposed civil partner if the couple was not living together ( e.g. letters and photographs as evidence of the relationship ) ;

the applicant 's life with his or her fiancé(e)/proposed civil partner if the couple was living together , including the address(es ) , how long they had lived together and documentary evidence in the form of correspondence addressed to both parties at the same address from utilities , government bodies , local authorities , financial institutions etc . ;

any children from the applicant and his or her fiancé(e)/proposed civil partner 's present or previous relationships , including where they lived , the length of time any of them had lived with the applicant and his or her fiancé(e)/proposed civil partner , the names of their natural parents and details of who supported them ;

contact telephone numbers for the applicant and his or her fiancé(e)/proposed civil partner in case an officer wishes to contact either of you ;

and any additional information which the applicant would like to submit , and/or any additional supporting evidence or documentation which might help the application .

Following ORG judgment , the Government further amended the scheme . ORG guidance indicated that applications from individuals who did not have valid leave to enter or remain ( illegal entrants , persons who had been refused leave to enter but granted temporary admission or temporary admission pending the outcome of an application for leave to enter , and those who had overstayed their leave to remain ) , who had previously been refused unless there were exceptional compassionate circumstances for granting a ORG , would be treated in line with the guidance for those who had limited , but insufficient , leave to qualify for a Certificate .

In DATE the FAC and ORG for ORG brought judicial review proceedings in respect of the failure of ORG to comply with that part of ORG judgment which related to the level of the fees being charged . TIME the ruling the ORG agreed to suspend the fees with effect from DATE .

On DATE a scheme for the repayment of the full fee to applicants who met a financial hardship test by making ex gratia payments received ministerial approval . In order to meet the test for real financial hardship , applicants would have to provide evidence that the payment of the fee led the couple to experience real financial hardship at the time of the application . The test would take into account whether both parties to the proposed marriage were on benefits , including asylum support , or whether they had income below a certain threshold .

In DATE the Government notified the Court of its intention to abolish ORG . On DATE ORG etc . ) Act DATE ( Remedial ) Order DATE was laid before ORG and it is anticipated that it will come into force early in DATE .


Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

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

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

The applicant is the owner of a house in GPE . During DATE and DATE his neighbours , GPE and GPE , built a house and a garage on the adjacent plot of land , which in his opinion destabilized the foundations of his house .

On DATE the applicant instituted administrative proceedings before the first instance administrative authority competent for building inspection ( hereafter - “ FAC ” ) arguing that : ( CARDINAL ) his neighbours had significantly departed from building regulations for row houses in that : ( a ) their house was not leaning against his , there was a gap between the walls , ( b ) they had not isolated the foundations of the QUANTITY houses , and ( c ) their house was QUANTITY lower than his ; and ( CARDINAL ) that they had departed from the building permit granted to them on DATE by building an underground garage .

It appears that the case - file was lost .

Therefore , on DATE the applicant re - submitted his request .

As FAC did not render a decision on his request within the statutory time - limit of DATE , on DATE the applicant lodged an appeal for failure to respond ( žalba PERSON šutnje administracije ) with the competent Ministry .

On DATE ORG issued a decision ordering the applicant ’s neighbours to make the necessary modifications in order to comply with the building permit or , otherwise , to apply for a new building permit . This decision was not served on the applicant .

Given that the ORG also failed to decide on the applicant ’s appeal for failure to respond within the statutory time - limit of DATE , on DATE the applicant brought an action for failure to respond ( tužba zbog šutnje administracije ) against ORG in ORG ( Upravni sud Republike Hrvatske ) .

On DATE the ORG issued a decision discontinuing the appellate proceedings because it found that ORG had in the meantime decided on the applicant ’s request of DATE .

On DATE , the applicant modified his administrative action of CARDINAL DATE and challenged the ORG ’s decision of DATE .

On DATE ORG adopted a judgment whereby it quashed the ORG ’s decision of DATE . It held that since ORG decision of DATE had not been served on the applicant , the ORG could not have dismissed his appeal of DATE .

Since , following the judgment of ORG , the ORG failed to issue a new decision on his appeal of DATE within the statutory time - limit of DATE , on DATE the applicant requested ORG to decide on his appeal , that is to say , act as a court of full jurisdiction and issue its own decision replacing that of the Ministry , in accordance with the relevant provisions of LAW .

On DATE the ORG issued a decision ordering FAC to issue a new decision on the applicant ’s request of DATE and serve it on him .

On DATE ORG issued a decision ordering the applicant ’s neighbours to demolish the garage and certain parts of the house erected on their land which had been built outside the limits of the building permit . The decision was served on the applicant who did not appeal against it . According to LAW , that decision was immediately enforceable .

On DATE ORG dismissed the applicant ’s request of DATE , finding that the Ministry had in the meantime ( on DATE ) issued the decision sought . On DATE the applicant lodged a constitutional complaint against ORG decision , which ORG ( Ustavni sud PERSON ) dismissed on DATE .

On DATE the competent ORG issued a decision dismissing an appeal by the applicant ’s neighbours and upheld the first - instance decision , which thereby became definitive ( konačna ) . Shortly afterwards , the applicant ’s neighbours brought an action in the ORG contesting the ORG ’s decision .

On DATE ORG issued a judgment dismissing the action of the applicant ’s neighbours . The first - instance decision of CARDINAL October CARDINAL thereby became final ( pravomoćna ) . ORG judgment also was served on the applicant as a third ( interested ) party ( zainteresirana strana ) .

It appears that to date no measures have been taken to enforce the first - instance decision of DATE .

On DATE , following ORG decision of DATE , the applicant filed a petition for reopening of the above administrative proceedings , arguing that he had not been heard by the building inspector in those proceedings .

On DATE FAC declared inadmissible the applicant ’s petition for reopening . On DATE the applicant appealed against that decision to ORG .

On DATE the Ministry allowed the applicant ’s appeal of CARDINAL DATE , quashed the first instance decision of DATE and remitted the case to FAC .

On DATE FAC again declared the applicant ’s petition inadmissible .

Following an appeal by the applicant , on DATE the ORG issued a decision whereby it first quashed the first - instance decision for lack of jurisdiction and then , having found that it was the competent authority to decide on the applicant ’s petition for reopening , itself declared that petition inadmissible . The Ministry held that the applicant was not a party to the administrative proceedings and was thus not entitled to lodge a petition for their reopening .

On DATE the applicant brought an action in the ORG challenging the ORG ’s decision . It would appear that the proceedings are currently pending before that court .

On DATE the applicant lodged a request for the protection of the right to a hearing within a reasonable time under LAW with ORG ( PERSON ) , complaining about the length of the proceedings concerning his petition to reopen the administrative proceedings .

On DATE ORG declared the applicant ’s request inadmissible on the ground that , under the case - law of ORG , the guarantees of LAW , including the right to a hearing within a reasonable time , did not apply to proceedings concerning a petition for reopening of a case .

On DATE the applicant lodged a constitutional complaint against ORG decision .

It would appear that the proceedings are currently pending before ORG .

On DATE the applicant lodged his first application ( no . CARDINAL ) with the ORG . He complained under LAW about the unfairness of the administrative proceedings concerning the alleged illegal construction . He also complained under LAW claiming that ORG decision of DATE and ORG decision of CARDINAL DATE deprived him of an effective remedy for the protection of his rights . On DATE the ORG , sitting in a ORG of CARDINAL Judges , adopted a decision declaring that application inadmissible as manifestly ill - founded .

The relevant provisions of LAW ( Zakon o općem upravnom postupku , ORG of ORG CARDINAL/CARDINAL ( consolidated text ) , and ORG no . CARDINAL/CARDINAL ) provide as follows :

Section CARDINAL defines a party to administrative proceedings as a person at whose request the proceedings have been instituted , a person against whom the proceedings have been brought or any other person who is entitled to participate in the proceedings in order to protect his or her rights or interests .

Section CARDINAL ) provides that the authority in charge of administrative enforcement shall , of its own motion or at the request of a party , issue an enforcement order . Such an order shall declare that the decision to be enforced has become enforceable and determine the method of the enforcement .

Section CARDINAL ) provides , inter alia , that the authority in charge of administrative enforcement shall issue an enforcement order with a view to enforcing a decision rendered of its own motion without delay and at the latest within DATE after such a decision became enforceable .

The other relevant provisions of LAW , in particular those governing an appeal for failure to respond ( žalba zbog šutnje administracije ) , are set out in ORG and PERSON GPE ( dec . ) , no . CARDINAL/CARDINAL , DATE .

In its judgment no . ORG of CARDINAL DATE ORG held that the owner of a neighbouring plot of land who filed a report with ORG had a status of a party in the inspection proceedings within the meaning of section CARDINAL of LAW and could , for example , lodge an appeal for failure to respond in accordance with LAW .

The relevant provisions of LAW ( Zakon o upravnim sporovima , ORG of ORG no . CARDINAL/CARDINAL , and ORG nos . CARDINAL , DATE and DATE ) governing an action for failure to respond , tužba zbog šutnje administracije ) are set out in ORG and PERSON , cited above .

The relevant provisions of the same LAW governing an “ action against an unlawful act ” ( tužba za zaštitu od nezakonite radnje ) are set out in GPE v. GPE ( dec . ) , no . CARDINAL , DATE .

In its judgment no . Us-CARDINAL/CARDINAL of CARDINAL DATE ORG held that “ a failure to respond ” ( šutnja administracije ) existed in the administrative enforcement proceedings when the competent administrative authority , following an application by the party , did not issue an enforcement order within the statutory time - limit .

In its judgment PERSON of CARDINAL DATE ORG held that a party could rely on the relevant provisions of LAW governing an action for failure to respond , in case the competent administrative authority did not issue an enforcement order within the statutory time - limit .

In its judgments nos . Us-CARDINAL/CARDINAL of CARDINAL DATE and Us-CARDINAL/CARDINAL of CARDINAL DATE ORG held that failure of the administrative authorities to carry out their own enforcement order constituted an “ unlawful factual act ” within the meaning of LAW against which the aggrieved party could bring an “ action against an unlawful act ” . In its decision no . Gž-CARDINAL/CARDINAL of DATE ORG reached the same conclusion .

LAW ( Zakon o gradnji , ORG nos . CARDINAL , ORG and CARDINAL ) , which was in force at the material time , provided as follows :

Section CARDINAL provided that when a building inspector found a breach of the relevant regulations , it could issue a decision even without hearing the parties .

Section CARDINAL(CARDINAL ) provided that an appeal lodged against a decision of a building inspector did not postpone its enforcement .

Section CARDINAL(CARDINAL ) provided that a decision of a building inspector could not be enforced DATE after it had become definitive .

The relevant provisions of LAW ( Zakon o sudovima , ORG nos . DATE , CARDINAL/CARDINAL and CARDINAL ) , which entered into force on DATE , governing a request for the protection of the right to a hearing within a reasonable time are set out in Pavić v. GPE , no . ORG , § DATE , DATE .


Violation of Art. 8;Non-pecuniary damage - financial award

The applicant was born in DATE and he lives in GPE . He is the eldest of CARDINAL children . He was in voluntary care with the social services ' department of the local authority for CARDINAL periods during his childhood : DATE , CARDINAL DATE , DATE , CARDINAL DATE and DATE .

During these periods his mother was receiving periodic psychiatric treatment and his father had some difficulty coping with the children on his own . The applicant had contact with both parents while in care : there was contact DATE and weekend during DATE of care , there were visits over DATE and then DATE visits by DATE ( and longest ) period , and DATE visits continued during DATE of care . It is not known how much parental contact there was during the first and third periods of care .

NORP By letter dated DATE , the applicant requested access to his social service records . By letters dated CARDINAL and DATE , he requested specific information including whether he had ever been on the “ risk register ” , whether his father had been investigated or convicted of crimes against children and about the responsibility of the local authority for abuse he had suffered as a child .

On DATE a social worker discussed with the applicant the access procedures and the information sought . On DATE that social worker went through background information gleaned from the file with the applicant ( concerning the dates and places of care ) and provided him with hand - written notes of that information .

On CARDINAL DATE the same social worker provided the applicant with further information gleaned from the file in the form of typed notes ( covering DATE ) . She also discussed certain areas of particular concern to the applicant including the impact of childhood neglect and ill - treatment which he remembered at the hands of his father , his feelings about having had a violent father and his vague suspicions of having been abused while in local authority institutional care . They also discussed the allegations of ill - treatment of the applicant by his father which had been made by neighbours via the school to the local authority in DATE , and the consequent investigation and decisions made by the local authority . The social worker also provided the applicant with various documents , including letters from his father to the social services DATE , social service progress reports dated DATE and DATE , medical treatment permission forms signed by his father DATE and DATE , child care agreements with his father from DATE to DATE , a medical report card dated DATE and a copy of his birth certificate . He was also given a report of a ORG dated DATE ( which was prepared for a case conference to be held on DATE ) together with notes of that case conference . The latter report provided further detail of the allegations of ill - treatment in DATE , of the consequent investigation and of the recommendations of ORG .

NORP By letter dated DATE , the social worker wrote to the applicant with more typed information taken from his file . That note dealt with the period DATE – September CARDINAL . It included brief references to the applicant returning home in DATE , to the family 's move in DATE and to a supervision order made in respect of the applicant by a juvenile court in DATE . She also gave the applicant a typed note recording the information which had been given orally to him during their last meeting , which note included further details of DATE .

NORP By letter dated DATE to the local authority the applicant 's legal representatives noted that the applicant had been provided with summary information and certain documents . They requested that he be allowed full access to his file . The local authority responded by letter dated DATE , pointing out that his social service records had been created prior to the entry into force of ORG DATE .

Further to the applicant 's queries , the local authority confirmed by letter dated DATE that there were no detailed records relating to him after DATE except an indication of juvenile offending . It also noted that there was little mention of ill - treatment , but it enclosed the above - mentioned report of ORG dated DATE . That letter accepted that the attitude expressed in that report would not have been acceptable in DATE given the more developed understanding of child abuse matters .

In his letter of DATE , the applicant stated that memories of abuse suffered by him began to return shortly after DATE and that he was now in full possession of his memories , was being counselled and had consulted solicitors about a negligence action against the local authority . He requested specific information about the allegations of ill - treatment made in DATE and about his being abused by his father for DATE thereafter . The local authority responded by letter dated DATE , referring the applicant to the information already provided to him in DATE and to the differences between social work standards and procedures in DATE and in DATE .

ORG in ORG ( DATE ) held that ORG , in refusing access to the relevant records , had correctly balanced the public interest in maintaining an efficient child - care system with the individual 's interest in obtaining access to records , and that it was not necessary for the court to review the records in question in order to so decide .

In DATE a binding circular , PERSON , was issued setting out the principles to be applied by local authorities in permitting access to their care records . Access to records was , in principle , to be permitted subject to necessary exceptions ( such as the preservation of third party confidences and the protection of sources ) .

The Access to Personal Files Act DATE and ORG Regulations DATE both entered into force on DATE . The LAW and the LAW gave subjects the statutory right to know what was recorded about them in manually maintained records held by the local authority for the performance of social service functions . A number of exceptions were retained for the preservation of third party confidences and the protection of sources , but there was a right of review ( and , subsequently , of judicial review ) of a refusal of access . LAW did not , however , apply to records created before DATE .

Circular GPE was issued to provide guidance to the local authorities on the implementation of LAW and LAW . The previous circular ( LAC(CARDINAL)CARDINAL ) was cancelled and LAW to the new circular pointed out that , while there was no obligation to furnish pre - DATE information , “ there is likely to be significant advantage in authorities making available as much information as possible . This could lead to greater clarity and understanding of an individual 's background . ”

On DATE LAW DATE ( “ the DATE LAW ) came into force and repealed LAW , LAW and circular GPE . It provided a statutory right of access for a “ data subject ” to information held about him in care records and other personal files ( both manual and electronic ) regardless of the date when the information was recorded , together with a right of appeal to the domestic courts or to ORG Commissioner if access were refused , or where a contributor or a relevant third party had not consented .


Preliminary objection dismissed (non-exhaustion);Violation of P1-1;Violation of Art. 6-1;No violation of Art. 14+P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

András Baka;Luigi Ferrari Bravo;Vitaliano Esposito

The applicant is the owner of a flat in GPE , which he had let to PERSON The lease had been extended until DATE by the operation of Law no . CARDINAL of DATE .

In a writ served on the tenant on DATE , the applicant communicated his intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate .

By a decision of CARDINAL DATE , which was made enforceable on DATE , the ORG upheld the validity of the notice to quit and ordered that the LOC be vacated by DATE .

On DATE , DATE , CARDINAL May , DATE , DATE , DATE and CARDINAL DATE , the bailiff unsuccessfully attempted to evict the tenant without police assistance .

Pursuant to Law no . CARDINAL of DATE , the enforcement proceedings were suspended until DATE .

On DATE the applicant made a statutory declaration that he urgently required the premises as accommodation for himself .

On DATE and CARDINAL DATE , the bailiff made CARDINAL other unsuccessful attempts to evict the tenant .

On DATE the applicant was granted police assistance in evicting his tenant ; on DATE , however , the latter claimed to be ill and no officially appointed doctor was available to check her allegations . The bailiff arranged to make his next visit to the premises on DATE . However , on this occasion the applicant was not granted the police assistance and the tenant refused to vacate the LOC .

Pursuant to law - decree no . CARDINAL of DATE and to Laws no . CARDINAL of DATE and no . CARDINAL of CARDINAL DATE the enforcement of the order for possession was suspended until DATE .

In DATE , after a number of unsuccessful attempts by the bailiff , the applicant recovered possession of his flat .

The relevant domestic law is described in the judgment ORG GPE [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINAL-V.


Violation of Art. 3;No separate issue under Art. 2;Pecuniary damage - claim dismissed

The applicant was born in DATE and is currently staying in the GPE .

On DATE the applicant arrived in the GPE , where on DATE he applied for asylum ( verblijfsvergunning asiel voor bepaalde tijd ) at the asylum application centre ( aanmeldcentrum ) at GPE . A first interview with an official of ORG of ORG took place that DATE , in order to establish the applicant 's identity , nationality and travel route . DATE he was interviewed regarding the reasons for his request for asylum . The applicant submitted the following .

After completing his DATE military service on DATE , the applicant was again called up during a general mobilisation in DATE . He served as a soldier in an anti - tank unit and fought in the war against GPE .

Although the war ended on DATE , demobilisation did not commence until considerably later because the NORP authorities feared further military incursions by the NORP . In DATE a meeting was held with the applicant 's battalion , consisting of CARDINAL men , in order to evaluate its performance in the war . According to the applicant , it was customary for such meetings to be held , and they allowed the higher army echelons to cover up their mistakes by putting the blame for an unsuccessful campaign on the soldiers . During this meeting the commanders said that the soldiers had not fought well . The applicant spoke up and said that this was because the commanders had insisted that hungry , thirsty and tired soldiers should continue fighting at the front , which had resulted in casualties . He said that his unit should have been replaced or strengthened . Other soldiers present at the meeting also voiced criticism , saying , for example , that there had not been enough weapons . When the applicant had spoken out , the other soldiers had vociferously supported him and an argument had ensued .

For some time after the meeting , the applicant had the feeling that the army authorities were keeping an eye on him ; for example , he thought he was being followed whenever he visited other units , and he was denied permission to go into town . On DATE , by which time he thought everything had been forgotten , he was summoned to the battalion 's headquarters . There , he was informed that he had incited the soldiers . He was made to hand over his weapons and was detained in an underground cell for DATE . He was neither interviewed , nor charged , nor brought before a military tribunal .

On DATE he was put into a jeep , with a driver and a guard who were armed . He was neither handcuffed nor bound . During the drive , they happened upon a military vehicle that had had an accident . Both the driver and the guard got out of the car to see if they could lend assistance . The applicant , left alone , seized the opportunity and escaped through the back of the car .

The applicant made his way unhindered to GPE , avoiding official border posts . An acquaintance of his in GPE brought him into contact with a travel agent , who arranged for a passport and air tickets . Accompanied by the travel agent , the applicant flew to GPE via GPE and another , unspecified NORP country . From GPE they took a train to GPE in the GPE . There , the travel agent told the applicant they had reached their destination . He asked him to hand back the passport and to report to a police station .

On DATE the Deputy Minister of Justice ( Staatssecretaris van Justitie ) , applying an accelerated procedure , rejected the applicant 's request for asylum . His failure to submit any document capable of establishing his identity , nationality or travel itinerary was held to affect the plausibility of his statements . Moreover , the Deputy Minister considered that the applicant 's account of his alleged escape lacked credibility : it was hard to believe that someone who had been kept in detention for DATE should have been transported unrestrained and been able to get away without being stopped by his guards , both of whom were alleged to have left him alone in the back of an open jeep in order to look at a traffic accident . The applicant was further held not to have substantiated his alleged detention . The comments he had allegedly made at the meeting in DATE were not of such a confrontational nature that he had well - founded reasons to fear persecution on that account , the more so bearing in mind that his comments did not particularly deviate from the opinion of the superiors to whom he claimed to have addressed them . Moreover , the applicant himself had stated that he was not the only soldier to have voiced criticism , yet neither had it been alleged , nor had it appeared , that any of those other soldiers had experienced problems as a result of their comments . The applicant had also not explained why he had not been arrested until DATE and had been left undisturbed in the meantime .

The applicant lodged an appeal with ORG ( arrondissementsrechtbank ) of GPE , sitting in GPE , and also applied to the President of that court for a provisional measure staying his expulsion . Pending the outcome of these proceedings , the applicant submitted a written statement by a certain Mr PERSON , to the effect that PERSON PERSON 's son had been executed in GPE in DATE after he had been staying with his mother for DATE without having obtained prior permission from his army commanders . He also submitted an identity card , a military identity card , a driving licence and a marriage certificate . On DATE the President of ORG rejected the application for a provisional measure and , finding that further investigation could not reasonably contribute to the clarification of the case , also dismissed the appeal . The President considered that the applicant 's alleged desertion and his resulting fear of disproportionate punishment had not been established in a sufficiently plausible manner . It was unlikely that the army should still have been mobilised at the time of the applicant 's escape in DATE , given that the war had ended in DATE and that the army , by the applicant 's own account , had evaluated its performance in the war at a meeting in DATE . The applicant 's claim that he stood accused of incitement was based on pure supposition . In view of the ease with which the applicant had allegedly managed to escape , the President further found it unlikely that the ( army ) authorities wished to harm him . Thus , finding the applicant 's account neither credible nor plausible , the President deemed it unnecessary to hear Mr PERSON as a witness .

The applicant lodged a further appeal ( hoger beroep ) with ORG of ORG ( Afdeling Bestuursrechtspraak van de Raad van State ) , arguing , inter alia , that further investigation of the case , and in particular of the question whether the NORP army had been demobilised at the time of his desertion , was called for and feasible . If it turned out that the army had still been mobilised in DATE , the reasoning adopted by the President of ORG as to the lack of credibility and plausibility of the applicant 's account would no longer stand up . The applicant also applied for a provisional measure allowing him to await the outcome of his further appeal in the GPE . He withdrew this application on DATE in view of the relevant case - law of ORG .

On DATE ORG dismissed the further appeal . It held that the applicant 's appeal to ORG had not been dismissed for reasons relating solely to the mobilisation , but also for reasons relating to the applicant 's account of his arrest and escape . Given the conclusions reached by the President of ORG to the effect that the Deputy Minister had not been wrong in describing the applicant 's account as not credible , he ( the President ) had been entitled to decide not to hear evidence from Mr PERSON as a witness . The fact that it was not in dispute that the applicant had served in the army did not affect this ruling .

Under the terms of LAW of LAW ( Vreemdelingenwet DATE ) , in force at the relevant time , an alien is eligible for a residence permit for the purposes of asylum if , inter alia ,

( a ) he or she is a refugee within the meaning of the LAW relating to LAW DATE ; or

( b ) he or she has established that he or she has well - founded reasons to assume that he or she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment if expelled to the country of origin .

To help in the assessment of asylum applications and the establishment of whether it is safe to return unsuccessful asylum - seekers , the Minister for ORG regularly publishes official country reports ( ambtsberichten ) on the situation in asylum - seekers ' countries of origin . In drawing up these reports , the Minister uses published sources and reports by non - governmental organisations as well as reports by GPE diplomatic missions .

NORP The decision of DATE rejecting the applicant 's request for asylum was based on information contained in the country report of DATE . That report described GPE 's conflict with GPE and the hostilities that arose from it . The first series of hostilities ended in DATE . Fierce fighting broke out again in DATE , and there was small - scale fighting in DATE and DATE . Full - scale war broke out again on DATE . On DATE the CARDINAL countries signed an agreement which has ended hostilities for the time being . Since then , the security situation has been good but the humanitarian situation has been worrying .

The country report made clear that merely coming from GPE does not constitute legal grounds for being admitted to the GPE . An asylum - seeker has to show convincingly that his or her personal circumstances – viewed objectively – justify a fear of persecution as defined in refugee law or constitute grounds for the issuing of a residence permit for the purposes of asylum because he or she would be subjected to treatment prohibited by LAW if returned to the country of origin .

NORP The country report of DATE largely confirmed the findings of the previous report , although it also stated that deserters belonged to the categories of persons who , from a human rights point of view , ran a greater risk than others of encountering adverse treatment . With regard to penalties for desertion , it stated that the maximum penalty for desertion during general mobilisation was life imprisonment or , in extreme cases , death . According to the country report , these penalties and the question whether they applied in time of war or in peacetime were , however , largely theoretical . In practice , deserters were not tried in court , not even a military court . They were sentenced by their superiors and put to work in mining or road building for periods varying from DATE , until a new batch of recruits received basic training . Those sentenced were then sent to join the new batch and , subsequently , into active service . There were reports that in DATE , during the war with GPE , deserters who had been caught in the act were executed .

NORP The most recent country report , that of DATE , contained the same information as the aforementioned report as far as penalties for desertion were concerned . It added that it seemed likely that the severity of the punishment imposed on deserters depended on the specific circumstances , including whether the desertion took place in time of war or in peacetime , whether the authorities were aware of the desertion at the time , and the particular circumstances of the individual concerned .

The same report further stated that there had been indications of ill - treatment of deserters by ( military ) police and security forces , and of disciplinary punishments , such as extended exposure to high temperatures or the binding of hands , being meted out to deserters in the army and resulting in permanent injury in some cases .

Given that there was a system of registration for conscripts , it was assumed that deserters were also registered and therefore known to the authorities .

NORP In support of his application , the applicant provided the Court with information relating to the demobilisation of the army and the treatment of deserters .

According to a report published on DATE in the DATE news magazine ORG , the NORP army was at that time yet to be demobilised .

A letter to the applicant 's lawyer dated DATE from LOC specialist of the GPE branch of ORG stated that it was usual for the NORP army to get together after an offensive and to conduct an evaluation of its performance . It was also not unusual for a considerable time to pass between openly expressed criticism and arrest , or for deserters to be punished by their superiors without trial . ORG of the NORP army had commenced in DATE .

The applicant also submitted written statements by CARDINAL NORP nationals currently living in exile in GPE and the GPE respectively . The first statement , dated DATE , related how a relative of the author had been executed in DATE following this relative 's voluntary return to the army after attending his brother 's funeral without permission from his commanders . According to the second statement , made on DATE by CARDINAL of the founders and senior members of ORG and former governor of a provincial capital , conscripts and soldiers who left the army were “ hunted down and killed ” .

In its DATE Report DATE , covering events from DATE , ORG noted with regard to GPE , inter alia :

“ The penalty for evading conscription or protesting against military service is DATE imprisonment , but in practice those caught are tortured and arbitrarily detained for DATE with hard labour , before being forced back into the army . Methods of torture reported included being left for TIME in the hot sun , bound hand and foot , in some cases resulting in permanent injury . ”

An ORG press release of CARDINAL DATE expressed that organisation 's concern about reported plans by the NORP authorities forcibly to return CARDINAL NORP to GPE . These men had deserted from the NORP army at different times during DATE and fled from GPE to GPE and then to GPE , hoping to reach a country of asylum in LOC . The press release stated that CARDINAL of NORP had fled the country in DATE , to GPE initially , after deserting from national service or to escape conscription . Prisoners held in military detention also included a number of persons who had expressed opinions critical of the government or the military authorities . The press release contained the following passage :

“ [ I]f these CARDINAL NORP detainees are forcibly returned to GPE , they are at high risk of being arrested on arrival , and detained incommunicado and in secret without charge or trial for an indefinite period . They could face torture – which is routinely used by the military in GPE – and CARDINAL of them who had been previously detained in GPE for political reasons could face extrajudicial execution . ”

Amnesty International 's Report DATE , covering events from DATE , stated :

“ Torture continued to be used ... as a standard military punishment . ORG deserters ... were tortured in military custody . They were beaten , tied hand and foot in painful positions and left in the sun for lengthy periods ( ' the helicopter ' torture method ) , and suspended by ropes from the ceiling . ”

ORG DATE , covering events from DATE , depicted an identical situation .

On DATE ORG published a report entitled “ GPE : ' You Have No Right to Ask ' – Government Resists Scrutiny on Human Rights ” . It described , inter alia , the forcible deportation back to GPE of CARDINAL NORP who had landed on the island of GPE in DATE , mainly as a result of shipwrecks or sea rescues , by the NORP authorities in DATE and DATE . According to the report , the deportees

“ ... were all immediately detained on arrival in GPE and sent to the nearby PERSON military detention centre . ... As ORG learned later , women , children and those over the conscription age limit of DATE were released after DATE in PERSON but the rest of the GPE deportees – mostly army deserters – were kept in incommunicado detention and tortured . ”

On DATE ORG released ORG in GPE . It stated , inter alia :

“ The Government continued to authorise the use of deadly force against anyone resisting or attempting to flee during military searches for deserters ...

During DATE , police severely mistreated and beat army deserters ... Security forces detained deserters ... and subjected them to various disciplinary actions that included prolonged sun exposure in temperatures of up to QUANTITY or the binding of the hands , elbows and feet for extended periods . ...

The Government deployed military police throughout the country using roadblocks , street sweeps , and house - to - house searches to find deserters ... ”


Violation of Article 5 - Right to liberty and security

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych

The applicant was born in DATE and lives in GPE .

On DATE the applicant was apprehended by the police in GPE under the international arrest warrant issued by ORG .

On DATE the Pechersky District Court of GPE ordered the applicant ’s detention for DATE pending an official request for his extradition to GPE and in order to effect his transfer to the law enforcement authorities of GPE .

On DATE the applicant appealed against the decision of DATE . He contended that the first instance court had not taken into account his state of health and the fact that he , together with his wife and CARDINAL minor children , had been residing in GPE for a long period of time , and that the court had not examined the applicant ’s submissions concerning his political persecution in GPE .

On DATE ORG rejected the applicant ’s appeal against the decision of DATE . It held that the first instance court had duly taken into account the applicant ’s state of health . However , it took the view that his family situation was irrelevant for the case and that the applicant ’s allegations of political persecution in GPE were unsubstantiated .

On DATE the Deputy Prosecutor of GPE submitted an official request to ORG of GPE , seeking the applicant ’s extradition to GPE .

NORP By letter of DATE the Deputy Prosecutor General of GPE informed the NORP Deputy Prosecutor General that the applicant would not be extradited on the ground that , under NORP law , the charges against the applicant did not carry imprisonment .

On DATE the applicant was released from detention .

Relevant domestic law and practice is summarised in the case of PERSON ( GPE v. GPE , CARDINAL , § § DATE and DATE , DATE ) .


CASE OF FERRANTELLI AND SANTANGELO v. ITALY

Violation of Art. 6-1 (reasonable time, impartial tribunal);No violation of Art. 6-1 (fair trial);No violation of Art. 6-3-d;Just satisfaction rejected (out of time)

ORG Mr PERSON and Mr PERSON , who were born respectively in DATE and DATE at ORG ( ORG ) and who currently live in GPE , have a heavy prison sentence pending against them following their conviction by ORG on DATE in a judgment that was upheld by ORG on DATE ( see paragraphs CARDINAL and CARDINAL below ) .

ORG On DATE CARDINAL police officers ( carabinieri ) were murdered at a barracks in LOC . Some clothes , firearms and ammunition were found to be missing .

ORG In TIME CARDINAL to CARDINAL February the ORG police arrested PERSON who was driving a car with false registration plates . He was found to be unlawfully in possession of firearms . The police concluded on the basis of an initial inspection that one of the CARDINAL pistols that they had seized had been used to commit the murders and the other had been stolen from the barracks .

G.V. was taken to the police station and gave the name of a lawyer , who was not able to come immediately . In the latter ’s absence , GPE agreed to an informal interview in the course of which he stated that he belonged to a revolutionary group . Shortly afterwards he asked to see his father , in whose presence he made other revelations concerning the circumstances of the raid , which had been directed against the NORP ORG rather than the QUANTITY police officers . While his father was out of hearing , GPE told the investigators that the applicants and CARDINAL other persons , PERSON and PERSON , had taken part in the crime . All CARDINAL were friends of his ; PERSON was in fact his cousin . PERSON also gave the police information as to the whereabouts of the articles stolen during the attack .

ORG When his lawyer arrived at TIME on DATE , GPE confirmed that he had committed the murders , but retracted his statements concerning the involvement of the other persons . A little later he repeated in writing his first statements indicating what part each of those concerned had played .

ORG The applicants and the other suspects were arrested at their homes DATE on DATE . They were taken to the FAC barracks and were immediately questioned by the carabinieri . At first they were questioned on their own and then , after TIME , a lawyer appointed by the authorities to act for them was present . They all admitted having taken part in the attack , but gave accounts that were inconsistent with each other and with that given by GPE

ORG According to the admissions register of PERSON prison , when the applicants arrived at the prison they appeared to be in a state of shock and had bruises and abrasions . PERSON told the staff of the admissions office that he had slipped and injured himself .

ORG In the course of TIME CARDINAL DATE , the PERSON public prosecutor questioned all the suspects . PERSON reaffirmed that he had committed the double murder , but again retracted his statements concerning the involvement of the applicants , maintaining that he had made them under duress . Mr PERSON and Mr PERSON also retracted their confessions . Mr PERSON likewise referred to pressure brought to bear on him by the investigators and ill - treatment at their hands . Mr PERSON claimed that the police officers had persuaded him that it was in his interests to make a confession because , in view of the damming accusations made by GPE , he would be sentenced to life imprisonment if he did not . At a later stage he maintained that he too had suffered ill - treatment .

Expert medical examinations established that the applicants had slight injuries to their bodies .

ORG After a period during which he refused all communication with the investigators and his family , in DATE PERSON wrote a letter to the investigating judge asking to be questioned . During his interview with the judge , which was attended by a lawyer appointed by the authorities to act for him , he indicated that he intended to make new revelations in writing .

On DATE he was found hanged from a high window in the prison hospital with a handkerchief in his mouth . PERSON had only one arm , but the authorities concluded that he had committed suicide .

ORG On DATE the applicants , who had not had an opportunity to examine or have examined GPE in the proceedings prior to his death , were committed for trial with the CARDINAL other accused .

ORG On DATE ORG quashed the committal and ordered further inquiries to establish whether the ORG allegations about the pressure to which they had been subjected could be substantiated , to identify the presumed perpetrators of the ill - treatment and to verify whether the statements to the police officers were credible and voluntary .

The prosecuting authority lodged an appeal on points of law , which was dismissed in DATE .

ORG As the maximum period for pre - trial detention had expired , the applicants were released on DATE .

On DATE , the new investigation having reached its conclusion , the CARDINAL accused were committed for trial . The investigating judge found that there was no case to answer in the matter of the alleged ill - treatment as the material facts of the offence had not been established ( perché il fatto non sussiste ) . He took the view that the injuries noted by the medical reports had been caused by blows received by the accused in the struggles which occurred during their transfer from the barracks . Indeed some of the police officers who had been present at the time had similar injuries . The state of shock observed on their arrival at the prison was attributed to a lack of sleep and the lengthy interrogation . As regards the description by the accused of the LOC where the alleged ill - treatment had been carried out and the fact that the accused had named the CARDINAL officers who were said to have perpetrated the violence , the judge concluded that they could have seen the LOC in question on a previous occasion and that the CARDINAL officers were well known in the small town of ORG .

ORG The proceedings in ORG began on DATE and ended on DATE with the acquittal , on the basis of the benefit of the doubt , of the applicants and PERSON was convicted and sentenced to life imprisonment .

ORG The prosecuting authority and the accused appealed . Mr PERSON and Mr PERSON , in particular , sought their unqualified acquittal .

ORG On DATE ORG , basing its decision essentially on the statements made to the police officers , also found the applicants and PERSON guilty of the double murder .

ORG On DATE ORG , to which GPE , PERSON , Mr PERSON and Mr PERSON had appealed , on a date that has not been specified , quashed the judgment of CARDINAL DATE and remitted the case of ORG and PERSON to ORG of Appeal and that of the applicants to ORG .

ORG noted that even if the pressure described by the appellants had not been as serious as they claimed , the contested confessions had been made without a judicial officer being present . The PERSON judges had not intervened in the first stage of the inquiry except to carry out acts of a purely formal nature . For TIME the carabinieri had thus been completely free to conduct their inquiries as they wished .

ORG On DATE the Juvenile Section of ORG acquitted the applicants on the basis of the benefit of the doubt .

The prosecuting authority and the applicants again appealed to ORG .

ORG On DATE ORG quashed the decision of the court below on the ground that it had regarded as established the facts found in the judgment of DATE , whereas those facts ought to have been the subject of a new investigation . The case was remitted to ORG .

At the same time ORG set aside the judgment of ORG of CARDINAL DATE convicting PERSON and sentencing him to life imprisonment . The case was remitted to ORG for a decision as to whether there were any extenuating circumstances .

ORG On DATE the Juvenile Section of the Caltanisetta Court of Appeal quashed the judgment of ORG of DATE in so far as it concerned the applicants and transmitted the file to the GPE public prosecutor ’s office . Allowing the objection raised by counsel for PERSON , the appeal court applied ORG judgment of DATE ( no . CARDINAL ) which had declared LAW of DATE ( no . CARDINAL ) unconstitutional . That provision had removed from the jurisdiction of the juvenile court ( tribunale per I minorenni ) criminal proceedings brought against minors accused of committing a criminal offence in concert with adults .

ORG On DATE ORG , presided over by Judge PERSON , accorded PERSON the benefit of general extenuating circumstances . It took the view that the facts had been definitively established by ORG , it referred to the " co - perpetrators " of the double crime and to the " precise statement by GPE that PERSON together with ORG had been responsible for physically carrying out the murders " .

ORG On DATE ORG , which was trying the case at first instance , acquitted the applicants on the basis of the benefit of the doubt . The applicants and the prosecuting authority appealed .

ORG By an order of DATE ORG raised a question as to the proper jurisdiction and transferred the file to ORG . It considered that , in declaring the nullity of the judgment of ORG of DATE - applying retrospectively the decision of ORG had breached LAW , which was in force at the time and which prohibited raising at a retrial on remittal grounds of nullity allegedly arising out of the conduct of earlier stages in the proceedings or the investigation .

ORG On DATE ORG remitted the case to ORG , having confirmed the validity of the judgment of DATE .

ORG On DATE that court , presided over by PERSON , who had also presided over ORG in PERSON ’s trial ( see paragraph CARDINAL above ) , sentenced Mr PERSON to DATE and CARDINAL months’ imprisonment and a fine of MONEY . PERSON was sentenced to DATE . In its judgment the court noted that lawyers had been continuously present throughout the interrogations , which ruled out any possibility of pressure of such a nature as to undermine the credibility of the confessions . Admittedly CARDINAL of the lawyers appointed by the authorities to act for the applicants maintained that he had found PERSON PERSON chained to a radiator , but according to the same person he had been released before the beginning of the interrogation .

Referring to LAW para . CARDINAL of LAW , which provides that statements made by a person accused of the same offence may be relied on only if they are corroborated by other items of evidence which confirm their credibility , the appeal court based its decision , inter alia , on the following considerations :

- the fact that the accused had all made statements implicating each other ;

- the fact that it would have taken CARDINAL people to carry out such an attack ;

- the credence that could be attached to the statements of GPE concerning his responsibility , which was confirmed by other physical evidence ;

- a number of items of evidence establishing that those statements were voluntary ;

- the fact that the accused were friends ;

- the fact that the applicants had helped PERSON to buy or transport the oxygen bottles for the oxyacetylene torch used to cut open the barracks door ;

- the fact that on TIME of CARDINAL DATE ORG father had been seen by the carabinieri , who were following him , in the applicants’ company , near Mr PERSON ’s home , and on that occasion the latter had appeared worried , while Mr PERSON had sought to reassure him ;

- the discovery at Mr PERSON ’s home of a box of matches of a brand that was no longer manufactured , the matches being the same type as those used to light the oxyacetylene torch and found in a garage rented by GPE The matches had been stolen by GPE from a tobacconist in DATE ;

- finally the lack of a convincing alibi for any of the accused .

ORG On DATE the prosecuting authority and the applicants appealed to ORG complaining , inter alia , of the inadequacy of the appeal court ’s statement of grounds .

ORG In a judgment of CARDINAL DATE , deposited in the registry on DATE , ORG dismissed the ORG appeal , finding that the appeal court ’s assessment of GPE ’s statements implicating them , their confessions and the corroborating evidence was not open to criticism in terms of the statement of grounds .

ORG An application of DATE seeking a pardon from the President of the Republic was rejected on DATE that has not been specified .


The applicant [ Mr Angelos PERSON ] is a NORP national . He was born in DATE and lives in GPE . He was represented before ORG ( “ the Commission ” ) by Mr PERSON , of ORG .

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

As part of a judicial investigation into a case of international drug trafficking , ORG no . CARDINAL of FAC was informed that the PERSON , a vessel flying the NORP flag , was on the LOC sailing towards LOC with a cargo of cocaine . After obtaining verbal authorisation from the NORP embassy in GPE , in accordance with LAW and CARDINAL of LAW in LAW , adopted in GPE on DATE , the investigating judge , in a decision CARDINAL DATE , ordered that the vessel , which was on the high seas of LOC QUANTITY ( QUANTITY ) from GPE , be boarded and searched .

On DATE the crew of a NORP vessel , the Petrel I , belonging to the customs inspection department boarded the PERSON . After an exchange of fire with several members of the crew who had barricaded themselves into the engine room , the CARDINAL - member crew surrendered and the vessel set sail again on DATE . The members of the crew were nationals of various GPE , and included CARDINAL NORP and the applicant , the vessel ’s captain , who is a NORP national . The applicant was transferred to the vessel belonging to the NORP customs police , where he was placed under police supervision .

After searching the PERSON , the customs police officers seized CARDINAL packets of cocaine weighing QUANTITY in all . The narcotic powder was attached to wheels , which were on rails , so that the drug could be very quickly thrown into the sea .

On DATE ORG ordered reporting restrictions in respect of the judicial investigation for DATE .

On DATE ORG made an order in which it noted firstly that the PERSON

According to the Government , the arrested members of the crew , including the applicant , had been told on DATE that they were being detained and had been informed of their rights . On DATE they had been notified of the decision of the investigating judge ordering them to be detained . A record of those measures appears in the Petrel I ’s log . They had also been invited to name persons whom they wished to be informed of their detention . The applicant had named a PERSON The embassies of the States of which the detained crew members were nationals had also been informed of their detention . Additionally , from DATE the applicant had had a lawyer in GPE and in GPE . In that connection , his lawyer had sent him a letter in LANGUAGE on DATE informing him that his wife had instructed lawyers in GPE to defend him .

The applicant maintained that the decision of CARDINAL DATE had not been sent to him until DATE , as could be seen from the investigating judge ’s decision of that date . Moreover , he had had no communication – even by radio telephone – with the investigating judge during his period of detention on the Petrel I. The applicant claimed that it was not until he had arrived at the port of GPE that he was informed in the manner prescribed by law of his rights as a person in detention . He submitted that the brief entries in the Petrel I ’s log were of no evidential value and that in any event , as a NORP national with no interpreter or lawyer , he could not be expected to understand , even vaguely , the content of the decision of CARDINAL DATE .

The PERSON and the PERSON I arrived in GPE ( ORG ) at TIME on DATE . At the port of GPE , a judicial commission took charge of the prisoners . Assisted by an interpreter , the commission informed the applicant of ORG decision ordering him to be detained pending investigation . He was informed of his rights in the presence of a lawyer and an LANGUAGE - to - NORP interpreter . On DATE the members of the crew who had been placed in detention were taken to GPE by air . On DATE they were brought before the relevant judicial authority and questioned in the presence of their lawyers , with interpreters on hand .

On DATE the applicant lodged an application for the proceedings to be set aside and for his release , alleging that there had been a violation of his fundamental rights . In a decision of CARDINAL DATE ORG dismissed his application . An appeal lodged by the applicant was dismissed by ORG in a judgment of DATE .

The applicant lodged an appeal ( recurso de amparo ) with ORG . He complained that he had been illegally detained , that he had not been brought promptly before a judicial authority and that he had not been informed immediately and in a way that was understandable to him of his rights or of the reasons for his detention . He relied on LAW , CARDINAL and CARDINAL of LAW ( right to liberty and security ) . In a judgment of DATE ORG dismissed his appeal . It declared , by way of a preliminary observation , that , notwithstanding that the applicant had been detained while on the high seas , the enforcement of a judicial decision remained subject to LAW and , in particular , to the duty to respect fundamental rights and freedoms , this being in accordance with the case - law established by ORG in its judgments in the cases of PERSON and PERSON v. GPE and GPE ( judgment of DATE , Series A no . CARDINAL ) and PERSON v. GPE ( judgment of DATE , Reports of Judgments and Decisions CARDINAL-VI ) .

Dealing first with the complaint based on LAW , ORG noted that the boarding and searching of the NORP vessel had been authorised by ORG ( after that court had been informed that the vessel in question was being used for cocaine trafficking ) , that CARDINAL NORP nationals had been on board and that the search had been authorised by GPE . In that connection , ORG reiterated that section CARDINAL(CARDINAL ) of LAW of DATE gave the NORP courts jurisdiction over acts committed by NORP or aliens outside NORP territory if those acts constituted an offence like ( as in the case in point ) drug trafficking .

The court added that enforcement of the measure in question aboard a foreign sea - going merchant vessel was potentially contrary to the rules of international law , since the vessel was subject to the jurisdiction of the flag ORG . Accordingly , any exception to that principle of international law had to be based on a rule of law , which , in this case , was provided by LAW and CARDINAL taken together with LAW and CARDINAL of LAW in LAW , an instrument to which GPE and GPE were Contracting Parties .

Under those provisions , any ORG , having obtained authorisation from the flag ORG , could take appropriate measures in respect of a vessel being used for drug trafficking and in respect of the members of the crew . The court found that the measure taken by ORG had complied with all the requirements of the convention in question . Consequently , the applicant had been detained in accordance with the law and the manner of his detention had complied with the applicable international rules .

With regard to the complaint based on LAW , ORG pointed out that any detention lasting CARDINAL - two hours had to be authorised by the relevant judicial authority . In the instant case ORG had decided in a reasoned order of CARDINAL DATE that the applicant should be held in detention pending investigation . A judicial authority had therefore reviewed the applicant ’s deprivation of liberty at DATE of custody prescribed by LAW .

On DATE the applicant was released on bail .

On DATE the Audiencia Nacional convicted the applicant of drug trafficking and sentenced him to DATE imprisonment and a fine of MONEY .

“ CARDINAL . Everyone has the right to liberty and security of person . No one may be deprived of his liberty other than in accordance with the provisions of this LAW and only in the cases and in the manner prescribed by law .

Pre - trial detention shall last no longer than is strictly necessary to carry out investigations to ascertain the facts . A person detained shall , in any event , be released or placed at the disposal of the judicial authority within a maximum period of TIME .

Any person arrested shall be informed immediately , and in a way that is understandable to him , of his rights and the reasons for his arrest , and shall not be forced to make a statement . He shall be guaranteed the assistance of a lawyer in police and judicial proceedings , on the terms laid down by law .

A habeas corpus procedure shall be provided for by law so that anyone who has been illegally arrested can be immediately brought before a judicial authority . The maximum duration of pre - trial detention shall also be determined by law . ”

“ CARDINAL . Toda persona tiene derecho a la libertad y a la seguridad . ORG puede ser privado de su libertad , sino con la observancia PERSON en este artículo y en los casos y en la forma previstos en la ley .

La detención preventiva no podrá durar más del tiempo estrictamente necesario para la realización de las averiguaciones tendentes PERSON esclarecimiento de los hechos , y , en todo caso , en el plazo máximo de setenta y dos horas , el detenido deberá ser puesto en libertad o a disposición de la autoridad judicial .

Toda persona detenida debe ser informada de forma inmediata , y de modo que le sea comprensible , de sus derechos y de las razones de su detención , no pudiendo ser LOC a declarar . Se garantiza la asistencia de abogado al detenido en las diligencias policiales y judiciales , en los términos que la ley establezca .

La ley regulará un procedimiento de habeas corpus para producir la inmediata puesta a disposición judicial de toda persona detenida ilegalmente . ORG , por ley se determinará el plazo máximo PERSON prisión provisional . ”

“ CARDINAL . The Parties shall cooperate to the fullest extent possible to suppress illicit traffic by sea , in conformity with the international law of the sea .

A ORG which has reasonable grounds to suspect that a vessel exercising freedom of navigation in accordance with international law and flying the flag or displaying marks of registry of another ORG is engaged in illicit traffic may so notify the flag ORG , request confirmation of registry and , if confirmed , request authorisation from the flag ORG to take appropriate measures in regard to that vessel .

NORP In accordance with paragraph CARDINAL or in accordance with treaties in force between them or in accordance with any agreement otherwise reached between those Parties , the flag ORG may authorise the requesting ORG to , inter alia :

( a ) board the vessel ;

( b ) search the vessel ;

( c ) if evidence of involvement in illicit traffic is found , take appropriate action with respect to the vessel , persons and cargo on board .