Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra;Mihai Poalelungi

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

ORG , although informed by the Registrar of their right under LAW to participate in the proceedings , did not indicate that they wished to do so .

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

The applicant is a businessman with a number of projects in GPE . In DATE several of his properties were expropriated to make way for development projects planned by the municipality ( gemeente ) . As compensation for the expropriated properties the applicant was offered the lease of a new building on favourable terms , which he subsequently indicated would be used as a party centre ( partycentrum – a location in which space is made available for private social events , usually with the offer of catering ) and sports facility . By letter of DATE the municipality notified the applicant that it was his responsibility to obtain the licences required .

At DATE the applicant received possession of the party centre and it was opened for business in the course of DATE . The lease agreement between the applicant and the municipality was signed in DATE . It provided , among other things , that the applicant must obtain the licences required for his business .

The applicant submitted a request for an operating licence ( exploitatievergunning ) to the PERSON ( PERSON ) of GPE on DATE , after having been reminded by the municipality .

As the applicant had previously been refused a licence under ORG ( drank- en horecavergunning ) in DATE for another of his businesses because of criminal convictions including for employing illegal aliens , the PERSON requested advice pursuant to section QUANTITY of ORG ( Wet bevordering integriteitsbeoordelingen door het openbaar bestuur – referred to hereafter by its acronym “ BIBOB Act ” ) .

On DATE ORG ( landelijk bureau bevordering integriteitsbeoordelingen door het openbaar bestuur – “ the ORG ” ) recorded in its report the foll owing “ criminal offences and suspicious conduct ” :

employing foreign nationals without the requisite work permit ;

providing housing to illegal aliens ;

convictions , settlement penalties ( transacties ) , official reports ( processen verbaal ) and notations on incidents ( mutaties ) concerning minor hygiene and environment related offences ( overtredingen ) ;

problems with safety regulations in several buildings the applicant had rented or let ;

an unusual transaction of ORG CARDINAL registered in the name of the applicant .

Accordingly ORG advised the PERSON that there was a serious danger that the applicant would use the requested licence either to enjoy the proceeds of crime or to commit criminal offences .

On DATE the PERSON notified the applicant of his intention ( voornemen ) to reject the request for an operating licence and allowed the applicant to submit written comments ( zienswijze ) regarding his proposed decision .

In his written comments the applicant explained that he had been convicted of employing illegal NORP bakers in his bakery . There had been no one else available at the time capable of that traditional work and he would have gone bankrupt had he not employed them . The problem had been solved since and his last conviction had been in DATE . He further stated that he had not been aware that illegal aliens had been living in his houses ( especially since some of the houses were jointly owned by his brother and mother as well as by himself ) and all he had done had been to let or sublet them to third parties , without any knowledge of who was actually living in them . The hygiene and environment - related offences had involved such matters as not using the correct proportion of water in bread dough , a faulty exhaust and a defective waste disposal system , and had been caused by inexperienced personnel and concerned very minor offences . The breaches of the safety regulations had likewise all occurred DATE previously and in the main had concerned minor issues such as defective wiring caused by persons renting his apartments trying to install radio and television cables . The allegedly unusual transaction had in fact concerned an uncle in GPE who had worked for him and the money was in respect of pension benefits his uncle received in the GPE . Finally , the applicant submitted that none of the issues mentioned would arise in the party centre as he would only be supplying customers with a room to rent and would therefore not use any personnel of his own as the customers would be responsible for cleaning the LOC .

On DATE the PERSON rejected the applicant ’s written comments and refused to grant him an operating licence . He also ordered the party centre to be closed .

On DATE the applicant lodged an objection ( bezwaar ) against the PERSON ’s decision . In his objection he argued that his previous convictions for employing illegal aliens had arisen from an immediate need for NORP bakers to keep his bakery in business . As he had already indicated , that problem had now been solved . Furthermore , any alleged financial benefits he had reaped had no bearing on the current operation of the party centre . He also argued that it was unfair to impute to him events such as subletting to illegal aliens , those being transactions which had taken place in apartments operated by his brother and the latter ’s business partner Y and about which he had known nothing . Nor , for that matter , could he have been aware of what his tenants did when he was not there . Furthermore , the applicant submitted that quite obviously a party centre would not be used to house illegal aliens .

On DATE the PERSON rejected the applicant ’s objection . He considered that , given his history and in accordance with LAW , there was a serious danger that the applicant would use the requested licence to enjoy the proceeds of crime or to commit criminal offences . He found that ORG report showed that the applicant had systematically , over a long period of time , provided housing and work to illegal aliens and thereby gained financial reward . There were therefore reasonable grounds to fear that the applicant would use the party centre for the same purposes .

On DATE the applicant lodged an appeal with ORG ( rechtbank ) of GPE against the PERSON ’s decision . He submitted that the provisions of LAW violated LAW as his request for an operating licence had been rejected to a large extent on the basis of facts and suspicions which had never led to a criminal conviction . In particular , the applicant argued that although he had never been convicted of housing illegal aliens , the suggestion that he had done so had been a weighty factor in the PERSON ’s decision to reject his request for a licence . Furthermore , the aliens had been housed by tenants who had sublet the apartments without his knowledge and he had put an end to the practice as soon as he had been made aware of it . He also claimed that he could not be held responsible for events that had taken place in apartments belonging to his brother . Finally he submitted that the PERSON had also taken into account anonymous tip - offs from illegal aliens visiting the party centre even though that information had never led to any arrest , let alone a conviction .

On DATE ORG dismissed the applicant ’s appeal . It considered that the serious danger referred to by ORG in its report was based mainly on the commission of criminal offences and the use of the proceeds of such offences . It had attached only minor importance to the environmental and safety related offences . The court therefore considered that it had been reasonable for the PERSON to conclude that the requested licence would be used by the applicant either to enjoy the proceeds of crime or to commit criminal offences . It held that in the light of ORG advice there were sufficient reasons to conclude that the applicant and his brother worked so closely together as to make it legitimate to hold the applicant accountable for his brother ’s activities . It further found that the illegal aliens had been present in LOC above or next to a building the applicant owned and frequently visited , so that it was unlikely that he had been unaware of their presence . The court rejected the applicant ’s argument that these previous events would have no bearing on the activities for which the applicant required the licence as it considered that the PERSON had rightly assumed that the licence would simply be used to enable the applicant to carry on as before . The fact that most of the offences had been committed DATE previously was irrelevant as the applicant had been a recidivist . Finally the court considered that the provisions of LAW did not violate LAW as they did not entail any criminal procedure for the purpose of establishing a person ’s guilt of a criminal offence . It had thus been reasonable for the PERSON to refuse the applicant the requested licence .

In accordance with the judgment of ORG , the PERSON notified the applicant on DATE that the party centre would be closed pursuant to his letter of CARDINAL DATE .

On DATE the applicant lodged an appeal to the final appellate court : ORG of ORG ( GPE bestuursrechtspraak PERSON ; “ ORG ” ) . In his appeal he argued , inter alia , that the refusal of a licence had a punitive character for the purposes of LAW as , even though he had not been convicted of any criminal offences for DATE , he had not been allowed to continue with his business activities . As he had not even been charged with a number of the offences mentioned in ORG and PERSON ’s reports , previous events could in practice be held against him for DATE to come ; accordingly , the provisions of LAW , and in particular the presumption of innocence , had , in his submission , been violated . Specifically , he had not enjoyed any of the rights of the defence mentioned in LAW and had basically been handed a life - long ban on conducting his business . The applicant noted that no criminal offences had ever been committed at the party centre . He further argued that the fact that he had a business partnership with his brother could not mean that all his brother ’s acts ( even those performed outside the partnership ) were attributable to the applicant as well . The applicant also presented further arguments as to why there could be no serious danger that the requested licence could lead to his employing illegal aliens as the entire idea of the party centre was that customers would organise their own festivities .

On DATE ORG rejected the applicant ’s appeal . Its reasoning included the following :

“ CARDINAL . [ The applicant ] also maintains his statement that LAW runs counter to the presumption of innocence guaranteed by LAW ...

CARDINAL.CARDINAL.CARDINAL . ORG has rightly held , referring to the drafting history [ of LAW ] , that LAW only applies to criminal or comparable proceedings and that the instruments offered by LAW fall outside its scope , already because advice under LAW and the decision which the government body concerned must base , inter alia , on that do not purport to establish anyone ’s guilt of a criminal offence . According to the standards developed by ORG to determine whether there is a ‘ criminal GPE within the meaning of LAW the nature of the norm transgressed , the circle of persons to whom the norm is addressed and the purpose , the nature and the seriousness of the sanction risked through the transgression . It is also relevant whether the enforcement of the norm transgressed has been labelled criminal in domestic law . Application of the ground of refusal set out in section CARDINAL of LAW is intended to prevent government organs from facilitating criminal activities by unwittingly and unintentionally issuing licences , providing subsidies and granting government contracts . Refusal [ of a licence ] does not purport to impose suffering in order to encourage behaviour in conformity with the norm . No punitive sanction is therefore in issue . It makes no difference in this respect that [ the applicant ] perceives the refusal of the licence in this sense . It must be found , as ORG did , that no criminal charge is in issue and the presumption of innocence is irrelevant to the case .

In implementing section CARDINAL of LAW the GPE has a responsibility of his own under administrative law , which is unrelated to the responsibility of the government bodies charged with prosecution and punishment . ... ”

ORG went on to reject the applicant ’s argument that the offences in question had been committed in the distant past and should have had no bearing on his request for an operating licence . It also noted the importance of action to prevent the employment of illegal aliens . ORG noted that ORG had correctly interpreted the business partnership of the applicant and his brother as well as the consequences of the partnership for the applicant . Finally , it concluded that it had been reasonable for the PERSON to conclude that the criminal offences had been committed in pursuit of activities that could also be exploited if the licence was issued .

The BIBOB Act entered into force on DATE . According to the explanatory memorandum to the PERSON ( PERSON ; ORG , no . CARDINAL , CARDINAL , DATE session , no . CARDINAL ) , its main purpose is to create an effective instrument to help administrative bodies avoid unwittingly facilitating criminal activities , such as the illegal transport of goods .

Pursuant to section CARDINAL of LAW , an administrative body can refuse a request for a licence or revoke a previously granted licence if there exists a serious danger that the licence will be used either to commit criminal offences or to enjoy the proceeds of crime .

Section CARDINAL of the BIBOB Act reads :

“ CARDINAL . In so far as administrative authorities have acquired such power by or pursuant to an Act of ORG they may refuse to make a requested decision or may cancel a decision that has been made if there is a serious danger that the decision could be used , among other things :

( a ) to enjoy proceeds obtained or yet to be obtained from criminal offences that have been committed , or

( b ) to commit criminal offences .

NORP In so far as the serious danger referred to in subparagraph CARDINAL , opening words and ( a ) is concerned , the degree of danger is to be determined on the basis of :

( a ) facts and circumstances that indicate or give rise to a reasonable suspicion that the person concerned is connected with criminal offences as referred to in subparagraph CARDINAL ( a ) ;

( b ) in the event of suspicion , the level thereof ;

( c ) the nature of the connection ; and

( d ) the amount of the proceeds obtained or yet to be obtained .

NORP In so far as the serious danger referred to in subparagraph CARDINAL , opening words and ( b ) is concerned , the degree of danger is to be determined on the basis of :

( a ) facts and circumstances that indicate or give rise to a reasonable suspicion that the person concerned is connected with criminal offences that have been committed in the course of activities that correspond or are related to activities for which the decision has been requested or given ;

( d ) the number of criminal offences committed .

NORP The person concerned is deemed to be connected with criminal offences as referred to in LAW if :

( a ) he has himself committed these criminal offences ;

( b ) he is or has been directly or indirectly in charge of , has or has had control over or provides or has provided capital to a legal entity within the meaning of LAW ( Wetboek van Strafrecht ) [ i.e. a body possessing legal personality , a partnership , etc . ] which has committed these criminal offences ; or

( c ) another person has committed these criminal offences and this person is or has been directly or indirectly in charge of , has or has had control over or provides or has provided capital to the person concerned or is in a joint - business venture with him .

The refusal or cancellation referred to in subparagraph CARDINAL shall take place only if this is proportionate to :

( a ) the degree of danger , and

( b ) in so far as the serious danger referred to in subparagraph CARDINAL ( b ) is concerned , the seriousness of the criminal offences .

Administrative authorities shall have the same power of refusal or cancellation as referred to in subparagraph CARDINAL if facts and circumstances indicate or give rise to a reasonable suspicion that a criminal offence has been committed in order to obtain the decision applied for or made . The refusal or cancellation shall take place only if it is at least proportionate , in the event of suspicions , to the level thereof and to the seriousness of the criminal offence .

If no serious danger , as referred to in subparagraph CARDINAL , exists , the administrative authority may , in the case of a lesser degree of danger , attach conditions to the decision . Such conditions shall be designed to remove or limit the danger in question . ”

In accordance with LAW of LAW the above procedure is executed by a separate agency , ORG , at the request of an administrative body , by consulting a number of public and classified databases as well as the criminal records of the person requesting the licence .

In the explanatory memorandum to LAW , express reference is made to the provisions of LAW . It was considered that any person whose request for a licence was rejected or whose licence was revoked under LAW had the normal avenues of appeal available under LAW ( Algemene wet bestuursrecht ) , and that this complied with the provisions of LAW . The memorandum further stated that LAW was not applicable to the procedures of LAW as it only applied to cases where a person was liable to have criminal charges brought against him and had to be considered innocent until proven guilty according to law whereas the conclusions of ORG and subsequent decisions of the administrative body were not intended to establish anyone ’s guilt of a criminal offence .

The judgment of ORG of ORG concerning the present application was its first ruling on the application of LAW .


Violation of Art. 6-1;Violation of P4-2;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE . The applicant ’s surname was “ PERSON ” before he formally changed it to “ GPE ” on CARDINAL DATE .

The applicant was a politician and a member of the opposition . On DATE ORG , a political block uniting a number of opposition political parties , held a demonstration in FAC in GPE . Earlier , ORG ( “ BCEA ” ) had refused to grant authorisation to hold the demonstration in FAC , suggesting instead that the demonstration be held in another location further from the city centre . However , contrary to the ORG ’s decision , the organisers of the demonstration refused to change their plans and decided to gather their followers in FAC .

Soon after the start of the demonstration , police units began arriving in the square with the aim of dispersing the crowd . It appears that the police and the crowd engaged in a series of violent clashes . According to the applicant , the police used excessive force . The applicant himself was beaten by the police in the square and taken to a police station .

On DATE the applicant was charged with the administrative offence of obstructing the police and , on DATE , ORG sentenced him to CARDINAL days’ “ administrative detention ” in accordance with LAW .

At around the same time , the PERSON and ORG instituted criminal proceedings in respect of the ORG obstruction of the police . On CARDINAL DATE the case was transferred to ORG .

On DATE ORG charged the applicant , together with CARDINAL other persons , with obstructing state officials by the actual or threatened use of force , an offence under LAW of the former LAW , which was in force before DATE .

On DATE the investigator issued an order for the applicant ’s detention on remand in connection with this criminal charge . Under the former Code of Criminal Procedure such a decision could be taken by an investigator , not a court .

On DATE the applicant ’s detention on remand was substituted by a preventive measure prohibiting him from leaving his place of residence . He was therefore released from detention .

DATE the investigators interrogated a number of witnesses in connection with the case . It appears that no major investigative acts were carried out subsequently .

On DATE ORG decided to suspend the investigation in the applicant ’s case because CARDINAL of the coaccused , ORG , had absconded and he could not be located or his testimony obtained . Moreover , it was noted that at that stage of the investigation a number of other “ accomplices to the offence ” had not been identified . The prosecutor found that , in the absence of ORG and other unidentifed accomplices , it was not possible to conclude the investigation and give a legal assessment of the acts of the co - accused , including the applicant . Therefore , the prosecutor decided to suspend the investigation until such time as ORG and other accomplices were found and brought before the investigating authorities .

According to the applicant , he was not informed about the decision to suspend the proceedings and he only found out at a later , unspecified , date .

On DATE the applicant filed a lawsuit with the NORP ORG complaining of the unlawfulness of the prosecutor ’s actions and requesting the court to discontinue the proceedings . He complained that the criminal charges against him were unfounded and based solely on the testimony of police officers . He also complained that his case was still at the preliminary investigation stage despite the fact that the proceedings had been instituted DATE . No procedural act had been carried out during that period . He pointed out that he remained under an obligation not to leave his place of residence and , as a result , could not obtain an international passport or travel abroad on personal business .

On DATE ORG dismissed the applicant ’s complaint and upheld the prosecutor ’s decision . In essence , it reiterated the prosecutor ’s reasons for suspending the proceedings and found them lawful . Its decision was silent as to the applicant ’s continued inability to leave his place of residence and obtain a passport . On DATE ORG upheld ORG decision . Under the domestic rules of criminal procedure , ORG was the highest instance for appeals against procedural decisions of investigative authorities .

Following requests by the applicant to ORG to discontinue the proceedings , on DATE the criminal investigation was resumed . On DATE the prosecutor decided that the offence with which the applicant was charged under LAW of the former LAW was to be recharacterised under LAW of the new LAW , which had entered into force on DATE . Accordingly , the prosecutor issued a new indictment under LAW .

On DATE the prosecutor of ORG discontinued the proceedings in respect of the applicant because , in accordance with LAW of the former LAW , the criminal charge against him had become time - barred DATE after the date of the commission of the alleged offence . The prosecutor noted that , although under the relevant provisions of the new Criminal Code the same charges would have become time - barred DATE from the date of the offence , these provisions could not be applied retroactively in the present case as they would aggravate the applicant ’s position . The prosecutor also lifted the preventive measure prohibiting the applicant from leaving his place of residence .

The applicant filed a complaint with ORG against the prosecutor ’s decision of DATE . He disagreed with the formal ground that had been given for discontinuing the proceedings , claiming that the proceedings should have been discontinued because of the lack of a criminal element in his actions .

On DATE ORG dismissed the applicant ’s complaint . The applicant appealed . On DATE ORG upheld ORG decision .

In accordance with the former Criminal Code of DATE , which was in force before DATE , the offence of obstructing state officials by the actual or threatened use of force was punishable by imprisonment for a term of DATE ( Article CARDINAL - CARDINAL § CARDINAL of the former Criminal Code ) . Charges in respect of offences punishable by imprisonment for a term of DATE became time - barred DATE after the date of their commission ( LAW of the former LAW ) .

In accordance with the new Criminal Code of DATE , a provision of criminal law which aggravates the position of a person who has committed an offence shall have no retroactive effect ( Article CARDINAL ) .

Offences are classified according to CARDINAL levels of gravity : offences which do not pose a major public threat , less serious crimes , serious crimes , and especially serious crimes ( LAW ) . Offences punishable by a prison sentence of DATE and DATE are considered as “ less serious crimes ” ( Articles CARDINAL and CARDINAL of the new Criminal Code ) . Charges in respect of “ less serious crimes ” become time - barred DATE after the date of their commission ( LAW of LAW ) .

The use of violence against , or the violent obstruction of , a state official acting in the course of his or her official duties , or the actual or threatened use of violence against the relatives of a state official is punishable by imprisonment for a term of DATE , and accordingly constitutes a “ less serious crime ” ( LAW ) .

In accordance with LAW ( “ CCrP ” ) of DATE , the investigator may suspend criminal proceedings if , inter alia , an accused has not been identified or has absconded ( Articles CARDINAL , TIME and CARDINAL ) . If the criminal proceedings involve CARDINAL or more accused persons and if the ground for the suspension of the proceedings does not apply to all of them , the investigator may either sever the relevant part of the proceedings and suspend it or suspend the whole proceedings ( Article CARDINAL ) .

While the proceedings are suspended , the prosecution must carry out all procedural acts which can be carried out in the absence of the accused and take all necessary measures for finding him or her ( Articles CARDINAL and CARDINAL ) . The proceedings remain suspended until such time as the ground for the suspension ceases to exist ( Article CARDINAL ) . The suspended proceedings must be discontinued when the criminal charges become time - barred , unless the accused is evading prosecution , or is charged with crimes punishable by life imprisonment or other grave crimes , such as crimes against humanity and war crimes ( Article CARDINAL ) .

Article CARDINAL of ORG provides for CARDINAL types of preventive measures , including inter alia an obligation not to leave one ’s place of residence ( Article CARDINAL.CARDINAL.CARDINAL . ) . Preventive measures may be imposed by the preliminary investigator , an investigator , a supervising prosecutor or a court ( Article CARDINAL ) .

The obligation not to leave the place of residence is a preventive measure under which the suspect or accused is required to give a written undertaking to remain at the disposal of the prosecuting authority , not to leave his or her place of residence ( city , town , village or other type of settlement ) without the prosecuting authority ’s permission , not to abscond , not to engage in criminal activity , not to impede the investigation or judicial examination of the case , to comply with any summons issued by the prosecuting authorities and courts , and to inform them of any change of address ( Article CARDINAL ) . The obligation not to leave the place of residence is imposed by the prosecuting authority ( Article CARDINAL ) .

NORP The maximum permitted length of an active pre - trial investigation in respect of a person charged with a “ less serious crime ” is DATE , including all possible extensions of the initial DATE investigation period ( Articles CARDINAL , CARDINAL , CARDINAL.CARDINAL.CARDINAL , CARDINAL and DATE ) .

Complaints against the procedural acts and decisions of a prosecuting authority are subject to judicial review by a single judge of the relevant court of first instance ( Articles CARDINAL.CARDINAL.CARDINAL , CARDINAL and CARDINAL ) . A further appeal against a decision of the court of first instance may be lodged with an appellate court ( Article CARDINAL ) . The decision of the appellate court is final and not subject to further appeal ( ORG CARDINAL and CARDINAL ) .

In accordance with LAW into and Departure from the Country and on Passports of DATE , the right of a person charged with a criminal offence to leave the country may be temporarily suspended until the end of the criminal proceedings .


The applicant is a NORP national of NORP origin , born in GPE in DATE , and is currently detained in the GPE . He is represented before the ORG by Ms T. Spronken , a lawyer practising in GPE .

In DATE , the GPE judicial police department ( ORG ) took statements from CARDINAL NORP women , namely PERSON , PERSON , PERSON and PERSON , who declared that they had been forced to prostitute themselves in the GPE and that together they had fled to GPE .

On DATE , the applicant was arrested and detained on suspicion of trafficking in persons in respect of CARDINAL NORP women . In the course of the subsequent preliminary judicial investigation ( gerechtelijk vooronderzoek ) against the applicant and QUANTITY others , a GPE Commission PERSON travelled to GPE in order to take oral evidence from QUANTITY women . ORG PERSON consisted of the responsible investigating judge ( rechter - commissaris ) of ORG ( Arrondissementsrechtbank ) of GPE , a registrar , the public prosecutor , CARDINAL NORP police officers and CARDINAL defence lawyers .

On DATE , DATE and DATE , ORG PERSON took evidence in GPE from CARDINAL women ; PERSON , PERSON , PERSON , PERSON , and PERSON The different defence lawyers attended these hearings and were allowed to put direct questions to the witnesses . Although the NORP authorities had summoned the witness PERSON , she had failed to appear . Consequently , no evidence could be taken from her .

The applicant was summoned to appear on DATE before ORG of GPE on charges of , inter alia , trafficking in persons . It was specified in the summons that this charge related to CARDINAL women , including PERSON

On DATE , ORG started its examination of the case of the applicant and CARDINAL co - accused . Although the criminal proceedings against each of the CARDINAL accused remained formally separated , ORG would hear the respective cases simultaneously .

Upon request of the applicant 's lawyer , ORG ordered that evidence should be taken from PERSON and requested the prosecution to inform the court whether she would be willing to give evidence in the GPE . If this would be the case , the court would adjourn the proceedings against the applicant until this witness would appear either before ORG or before the investigating judge ( rechter - commissaris ) . On DATE , ORG heard the applicant and the CARDINAL co - accused .

In the course of the hearing held on DATE , ORG considered a formal record ( proces - verbaal ) of CARDINAL DATE of the police officer P. According to this record , PERSON had informed PERSON , the Chief of ORG of the Police Presidium in GPE on DATE by telephone of the request of the public prosecutor to establish the whereabouts of PERSON He was told by PERSON that an investigation would be carried out . On DATE , PERSON informed PERSON by telephone that he had spoken with PERSON , who had recently spoken with PERSON by telephone . PERSON had told him that PERSON had told her that she wished to forget the suffering caused to her as soon as possible and that she did not wish to have any contacts with the police or department of justice in connection with what had happened to her in the GPE . From her conversation with PERSON , PERSON had gathered that she was now residing somewhere in the centre of GPE . PERSON further told PERSON that she did not have a telephone number where PERSON could be reached . Mr PERSON further informed P. that an attempt had been made to contact PERSON at her last known addresses , but without any results .

Holding that , in these circumstances , it would be useless to call or summon PERSON , ORG decided not to order the prosecution to summon or call this witness . Further hearings before ORG were held on CARDINAL and DATE .

In its judgment of DATE , following adversarial proceedings , ORG convicted the applicant of , inter alia , trafficking in persons and sentenced him to DATE imprisonment . It rejected the argument of the defence that the formal records containing statements taken by the police from PERSON could not be used in evidence , as the defence had not been able to question her . It held in this respect that the applicant 's conviction of trafficking in persons in relation to PERSON was based for a substantial part on statements of others who had been heard before a judicial authority or NORP criminal investigation official . The applicant filed an appeal with ORG ( Gerechtshof ) of GPE .

On DATE , the Procurator - General to ORG of The Hague issued a summons ordering PERSON to appear on DATE before ORG in order to give evidence in the criminal proceedings against the applicant .

During the hearing held on DATE before ORG , it was noted that PERSON had not appeared . The public prosecutor informed the court that PERSON was residing in GPE and that she had stated , after having been contacted in person , that she was absolutely not willing to come to the GPE . Since it was not very likely that she would appear before ORG within a reasonable time , the prosecution submitted that a renewed summons appeared to be of little use . The defence maintained its request to hear PERSON , as the defence had so far not been able to question her .

After having deliberated , ORG decided that a renewed summons for PERSON , who was residing abroad , was pointless . It considered that it was not to be expected that she would appear before the court within an acceptable delay , as it appeared from both the formal record of DATE by the police officer PERSON and the information submitted by the prosecution that she had no intention of coming to the GPE and that she was completely unwilling to be heard as a witness .

A further hearing before ORG was held on DATE .

In its judgment of DATE , following adversarial proceedings , ORG quashed the judgment of DATE , convicted the applicant of repeated commission of trafficking in persons committed by CARDINAL or more persons in unison and of having inflicted actual bodily harm and grievous bodily harm on PERSON , and sentenced him to DATE imprisonment .

ORG based the applicant 's conviction of trafficking in persons , including in relation to PERSON , on :

- a statement made by the applicant before ORG in which he confirmed that he knew PERSON , who , together with other women and himself , had lived in a house in GPE ;

- a statement made by PERSON on DATE to the investigating judge in which she declared that she had been forced by the applicant , who had taken away her passport , to prostitute herself in the GPE and that , together with PERSON , she had run away ;

- a statement made by PERSON on DATE to the investigating judge and a statement given by her on DATE to the GPE judicial police department , in which she declared that she had been forced by the applicant , who had taken away her passport , to prostitute herself in the GPE and that , together with PERSON and PERSON , she had run away ;

- a statement given by PERSON on DATE to the GPE judicial police department in which she declared that she had been forced by the applicant , who had taken away her passport , to prostitute herself , that she had worked in the NORP , PERSON and B. club , that PERSON had been mainly made to work in the PERSON club and that , together with PERSON , PERSON and PERSON , she had decided to flee to GPE ;

- a statement given by PERSON on DATE to the investigating judge and a statement given by her on DATE to the GPE judicial police department , in which she declared that she had been forced by the applicant , who had taken away her passport , to prostitute herself in the GPE , that she had worked together with PERSON in the PERSON club and that , together with PERSON , PERSON and PERSON , she had gone to GPE ;

- a statement given by PERSON on DATE to the investigating judge and statements given by her on CARDINAL , DATE and DATE to the NORP police , in which she declared that the applicant had forced her to prostitute herself , that she knew PERSON , PERSON , PERSON and PERSON , that she had worked as a prostitute in the NORP and B. club , that the applicant had taken away the passports of PERSON and PERSON , that she , PERSON and PERSON had been brought in the applicant 's car to GPE in order to work there as prostitutes , and that in DATE a number of the applicant 's women - PERSON , PERSON , Dada and PERSON - had not come back to the house in GPE after their work ;

- a statement given by PERSON on DATE to the investigating judge and statements given by her on CARDINAL , DATE and DATE to the NORP police , in which she declared that the applicant had forced her to prostitute herself , that she knew PERSON , PERSON and PERSON with whom she had lived in a house in GPE , that together with PERSON she had worked in the NORP club , and that in DATE , PERSON , PERSON , PERSON and PERSON had escaped ;

- a statement given by PERSON on DATE to the investigating judge and a statement given by her on DATE to the NORP police , in which she declared that she had met PERSON , PERSON , PERSON and PERSON who had lived in a house in GPE , that none of the women had of their free will worked as a prostitute , that the applicant had taken away the passport from PERSON ; and

- a set of photographs - including photographs of the applicant , the co - accused and the victims - that had been put to the applicant and the witnesses for identification purposes .

The applicant filed an appeal in cassation with ORG ( PERSON ) in which he complained , inter alia , that ORG had used in evidence statements given by PERSON whereas the defence had not been provided with the opportunity to question her and whereas her statements were insufficiently supported by other evidence .

In its judgment of DATE , referring to LAW ( Wet op de Rechterlijke Organisatie ) , ORG rejected the applicant 's appeal in cassation as not prompting a determination of legal issues in the interest of legal unity and legal development .


Preliminary objection dismissed (non-exhaustion of domestic remedies);No violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 8 (entry of the applicant's apartment by the police);Violation of Art. 8 (refusal to allow the applicant to meet with his wife during his detention on remand);Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant was born in DATE and lives in PERSON .

The applicant was the director of ORG in LOC . His application relates to criminal proceedings instituted against him , the circumstances of which are described below .

According to the applicant , at TIME on DATE several armed policemen in masks burst into his flat without his consent . The policemen presented a police investigator 's decision to the applicant and his wife . It was dated DATE and accused them , together with several others , of extortion . The investigator suspected the accused of having forced the owner of a limited liability company to transfer his shares in the company and his car to a third party .

According to the Government , the police had come to the applicant 's door and entered the apartment with the applicant 's permission . The purpose of their visit had been to deliver the investigator 's decision to the applicant and his wife .

NORP The applicant was brought to ORG in GPE . The applicant 's wife was allowed to take their daughter to the kindergarten and she too was subsequently escorted to ORG , where she and the applicant were questioned . The applicant was held in a cell until TIME on DATE when a public prosecutor ordered his release .

On DATE an officer of ORG in PERSON wrote a report on the visit to the applicant 's apartment on DATE . It indicated that the purpose of the visit had been fulfilled and that the applicant had been escorted to ORG . It had not been necessary to use any coercive measures , no one had been injured and no damage had been caused .

On DATE the applicant filed a complaint about the incident of DATE . It was transferred to ORG of ORG within ORG .

On DATE the applicant stated to the investigator that the police had entered his apartment without a search warrant after he had opened the door . They had delivered an envelope to him and had looked around the apartment without his consent .

On DATE the applicant 's wife was questioned . She stated that she had been in bed when the police arrived . After her husband had opened the door she had heard him asking the policemen what had happened and what they wanted . She had gone to the door and seen CARDINAL policemen in the corridor , CARDINAL of whom were wearing masks . She was asked to sign a document . Subsequently , the masked policemen had left with her husband and CARDINAL officers in plain clothes had remained in the apartment with her , before accompanying her to the kindergarten . The officers had then taken her to ORG . No force had been used . She said that she had not heard her husband give the policemen permission to enter the apartment .

The investigator took statements from CARDINAL policemen who had gone to the applicant 's apartment on DATE . On DATE Officer B. of the police interventions unit stated that the applicant had asked to be allowed to read the charge and to get dressed . The officers of the criminal police had therefore asked him whether they could enter the apartment . According to Officer PERSON , the applicant had replied in the affirmative . CARDINAL members of the criminal police and CARDINAL members of the police interventions unit had entered the apartment . On DATE Officer PERSON stated that the applicant had invited them into the corridor of his apartment as he had not wanted to deal with them at the front door . The police had served the charge on both the applicant and his wife . They had not used force and did not search the apartment . Finally , on CARDINAL DATE Captain PERSON stated that the applicant had invited them into his apartment as he considered that the whole matter was a mistake . No search had been carried out .

On DATE ORG of ORG dismissed the applicant 's complaint about the police 's entry into his apartment on DATE . The decision was based on statements of the applicant and his wife and on the explanations given by the CARDINAL policemen involved . The inspection department concluded that there was no evidence of an offence having been committed .

On DATE the police again arrested the applicant . On DATE a judge of ORG remanded him in custody with effect from DATE . Reference was made to LAW . The judge found that PERSON , the alleged victim , had described in detail the acts the accused were alleged to have committed , including threats of physical liquidation . There was nothing to indicate that those statements were wholly unsubstantiated . The judge therefore considered the detention of the accused necessary to prevent them from exerting further pressure on the alleged victim .

On DATE ORG dismissed the applicant 's complaint against the decision to remand him in custody . It found that the acts the applicant and his co - accused were alleged to have committed had been described in detail by the alleged victim and several witnesses . Both the serious nature of those accusations and the need to take further evidence justified the conclusion that the accused 's release could jeopardise the investigation .

NORP In a letter dated DATE , the applicant asked for his release . He argued that the available evidence showed that the accusations the alleged victim had made against the applicant were false .

The request for release was filed with ORG on DATE . The public prosecutor refused to release the applicant and submitted his request to ORG DATE .

On DATE ORG dismissed the request on the ground that the available evidence did not indicate that the alleged victim 's statements were false and the applicant 's detention was still necessary within the meaning of LAW ) of LAW . The decision was served on the applicant and his lawyer on DATE respectively .

On DATE and CARDINAL DATE the applicant filed a complaint . He alleged that despite the fact that the investigation had been under way for a long time , no direct evidence had been obtained against him . The applicant had been cross - examined in the presence of the alleged victim , who had expressly stated that the applicant had exerted no pressure on him .

The file was submitted to ORG on DATE . On CARDINAL DATE ORG dismissed the applicant 's complaint for the reasons set out in ORG decision . It added that the applicant 's detention was also necessary on the ground that he had attempted , on DATE , to send a letter to his wife from the prison in secret . The decision was served on the applicant on CARDINAL DATE .

On DATE Judge PERSON , CARDINAL of the CARDINAL judges at ORG in GPE then dealing with criminal matters , informed the President of that court that she had a conflict of interest as she had earlier acted as a lawyer of the alleged victim and had had contact with the applicant and his wife . The judge stated that she agreed to her replacement by a different judge pursuant to LAW . On DATE Judge PERSON formally requested ORG to allow her to stand down . ORG granted the request on DATE . The decision stated that Judge PERSON had asked to be allowed to stand down after the applicant 's request for release was submitted to her for a decision .

In the meantime , on DATE , Judge PERSON , the other ORG judge involved in criminal matters , extended the period of detention of the applicant and CARDINAL other accused until DATE . As regards the applicant , the decision stated that he had attempted to send a letter to his wife from the prison in secret . His wife had consulted the file on the premises of ORG without the prior consent of the public prosecutor or investigator and in the absence of the judge dealing with the case . There was a risk that the accused might interfere with witnesses and their co - accused or hamper the investigation into the case .

The applicant complained that the judge who had extended his detention on DATE had not been entitled to deal with the case as by the time no decision had been taken on the request by the other judge to withdraw from the case .

On DATE ORG found that the decision of DATE to extend the applicant 's detention had been taken in accordance with LAW . The letter stated , inter alia , that the President of ORG had found no reason for proceeding pursuant to LAW , and that the judge had therefore asked on DATE to be allowed to stand down . The decision on the extension of the applicant 's detention on remand and the decisions on the judge 's request to withdraw were independent of each other and did not affect the merits of the case .

The Government submitted a statement made by the President of ORG on DATE explaining that , at the relevant time , Judges PERSON and NORP dealt with all criminal matters . The public prosecutor 's proposal to extend the detention of the applicant and his co - accused had been registered as a new matter in Judge PERSON 's division in accordance with the work schedule for DATE that had been issued by the President of ORG . It had been allocated file number QUANTITY . Judge PERSON had ruled on the proposal on CARDINAL DATE .

As regards Judge PERSON , the applicant 's request for release had fallen to be examined by her . The file was registered under number CARDINALTp CARDINAL/CARDINAL . Following Judge PERSON 's complete withdrawal from the criminal case concerning the applicant , the applicant 's request for release had been assigned to Judge PERSON

The practice had been to register separately all new submissions on which ORG was required to decide at the pre - trial stage of the criminal proceedings against the applicant and his co - accused . As a result , different judges had determined various issues concerning the same accused .

On DATE ORG dismissed the applicant 's request for release for the reasons set out in its decisions of DATE and DATE . The decision was taken in response to the applicant 's complaint of CARDINAL DATE to ORG about his detention . The complaint was treated as an application for release and was submitted to ORG on DATE for decision .

On DATE the applicant filed another request for release . Referringvarious witnesses , he claimed that there was no evidence against him . There was nothing to suggest that he had threatened the alleged victim . The content of the letter he had attempted to send to his wife from the prison was purely personal and had no bearing on the criminal proceedings . His wife had consulted the case - file in accordance with the relevant provisions of LAW in the presence of CARDINAL employees of ORG .

NORP The public prosecutor submitted the request to ORG on DATE , which dismissed it on DATE . The decision was served on DATE . It stated that the case was complex and that the available evidence indicated that the alleged victim 's fear that the applicant might interfere with the witnesses in the event of his release was justified .

On DATE and DATE the applicant filed a complaint in which he alleged that the investigation into the accusation against him had ended , that the witnesses had been heard and that there was no evidence that he had attempted to interfere with the witnesses or anybody else .

On DATE ORG dismissed the applicant 's complaint . ORG held that the evidence taken did not weaken the suspicion that the applicant had committed the offence of which he was accused . The serious nature of the offence in question and the fact that it was likely that it had been committed by an organised group justified the conclusion that the applicant 's continued detention was necessary within the meaning of LAW ) of LAW . The file was returned to ORG on DATE . ORG decision of CARDINAL DATE was served on the applicant on DATE .

On DATE the applicant requested ORG in GPE to deal with the charges against him and his wife in a separate set of proceedings pursuant to LAW . He explained that several other charges against the other accused were being examined in the proceedings . As a result , there had been no progress in the investigation in respect of the accusation against the applicant for DATE . There was no reason for his continued detention as the investigation into the accusation against him had ended in DATE .

On DATE ORG dismissed the applicant 's request of DATE for release . The judge found that the reasons for the applicant 's detention on remand , as set out in the above decisions , were still relevant . The offences in question were serious and there was a suspicion that they had been committed in the context of organised crime . The decision was served on DATE .

On DATE ORG dismissed a complaint filed by the applicant on DATE against ORG decision . ORG decision was served on the applicant on DATE .

In the meantime , on DATE , ORG extended the detention of the applicant and CARDINAL other accused until DATE . The decision stated that the case was complex and that several of those involved had been accused of further offences . Co - operation with the NORP authorities was necessary with a view to establishing the relevant facts . There was a risk that the accused would interfere with the witnesses or otherwise hamper the investigation into the case . The decision referred to the previous decisions on the detention of the accused . It contained no specific reasons on the need for the further detention of the applicant .

On DATE the applicant filed another request for release . The public prosecutor submitted it to ORG on DATE . ORG dismissed the request on DATE . The decision stated that CARDINAL of the accused had been arrested in GPE and would be extradited to GPE . Further investigations needed to be carried out including investigations into the criminal activity of which the applicant had been accused . The decision became final on DATE .

In the meantime , on DATE , the applicant again applied for release . On DATE ORG informed him that under LAW of LAW he was not allowed to re - apply for release until DATE after the date the decision on his previous request had become final .

On DATE the applicant filed a further application for release . He argued that there was no indication that he had been involved in the offences that were under examination .

The public prosecutor submitted the file with the application for release to ORG on DATE . On DATE ORG dismissed the request , holding that the applicant 's continued detention was necessary within the meaning of LAW ) of LAW .

On DATE the applicant filed a complaint . He argued that the investigation into the case had ended . The file was submitted to ORG on DATE . ORG dismissed the complaint on DATE .

In the meantime , on CARDINAL DATE , the applicant and his counsel examined the file . On DATE the public prosecutor indicted the applicant , his wife and CARDINAL others before ORG . The applicant and his wife were indicted on CARDINAL count of extortion committed as members of an organised group . The indictment comprised CARDINAL other counts which did not concern the applicant or his wife .

On DATE ORG in PERSON dismissed a request by the applicant for release . On DATE the applicant filed a complaint . He alleged that he had not threatened Mr NORP , the injured party , who in any event was abroad . There existed no relevant reason for his continued detention .

On DATE ORG in PERSON dismissed the applicant 's further request for release . The decision referred to a statement by NORP according to which the applicant had threatened him on DATE .

The applicant was released from custody on DATE . During his time in detention he had not been allowed any visits from his wife until DATE . Prior to that , on DATE , counsel for the applicant and his wife had requested that her clients be allowed to meet , if need be in the presence of the investigator . Reference was made to the suffering caused by the lengthy separation of the applicant from his wife and also to the fact that the investigation into the offences in issue had practically ended .

DATE . On DATE the applicant 's wife complained that her request for leave to visit the applicant on DATE had not been accepted . She referred to a statement by the investigator of DATE that he did not intend to carry out further questioning of the applicant or his wife .

On DATE the Banská Bystrica Regional Court acquitted the applicant and his wife pursuant to Article CARDINAL ) of LAW , as it had not been shown that they had committed extortion . The court convicted CARDINAL other defendants .

On DATE ORG quashed the relevant part of ORG judgment of DATE . ORG acquitted the applicant and his wife pursuant to LAW , holding that their actions did not constitute an offence .

On DATE the applicant and his wife sought damages from the ORG , as represented by ORG . They claimed compensation for the expenses they had incurred in the criminal proceedings . The applicant also claimed a specific sum in compensation for loss of income . He argued that a sum which ORG had paid to him earlier on that account had not been determined correctly . Finally , the applicant and his wife claimed CARDINAL and CARDINAL NORP korunas ( SKK ) respectively as compensation for non - pecuniary damage .

An initial decision by ORG in PERSON was quashed by ORG in PERSON on DATE . ORG instructed ORG to establish whether the plaintiffs were claiming compensation for damage under LAW of DATE exclusively or whether they were also claiming compensation for non - pecuniary damage pursuant to Articles CARDINAL et seq . of LAW .

On DATE ORG in PERSON ordered the defendant to pay SKK CARDINAL to the applicant and SKK CARDINAL,CARDINAL,CARDINAL to his wife in compensation for damage of a non - pecuniary nature . That decision was based on Articles CARDINAL et seq . of LAW . With reference to LAW DATE , ORG also ordered the defendant to pay SKK CARDINAL plus default interest to the applicant in compensation for lost income as well as SKK CARDINAL plus default interest in reimbursement of the costs and expenses the applicant had incurred in the criminal proceedings .

The ORG appealed , arguing that the first - instance court had erroneously applied Articles CARDINAL et seq . of LAW , that the applicant had been prosecuted and tried in accordance with the relevant provisions of the criminal law , and that the impact of the criminal proceedings on him could not be qualified as an unjustified interference with his personal rights .

On DATE ORG in PERSON reversed the relevant part of the first - instance judgment . It took note of the applicant 's arguments that the criminal proceedings had been unjustified and the decisions taken in those proceedings unlawful , that the applicant had been prohibited from meeting his wife and that his rights under the ORG had been violated . It summed up the ORG 's decision on the admissibility of the present application given on DATE . It also had regard to the documents included in the file concerning the criminal case against the applicant .

ORG concluded that the applicant had not shown that the authorities involved in his criminal case had acted in an unlawful manner . In particular , as regards the entry of the police into the applicant 's apartment on DATE , it noted that neither the applicant nor his wife had complained during their first interrogations on CARDINAL and DATE . They had not submitted any evidence in support of that allegation . As regards the applicant 's detention on remand , ORG found that its length had not been excessive given the complexity of the case and the applicant 's requests for release had been decided within a reasonable time .

Relying on ORG judgment of DATE in a different case ( no . CARDINAL Cdo CARDINAL/CARDINAL ) , ORG held that criminal proceedings conducted in compliance with the applicable law could not constitute unjustified interference with the accused 's integrity even if they ended with his acquittal . The same applied to any other action taken by the competent authorities in respect of an accused in criminal proceedings . There had therefore been no unjustified interference with the applicant 's rights under LAW seq . of LAW .

ORG went on to find , however , that the right of the applicant and his wife under LAW to be presumed innocent had been violated in that public officials had made inappropriate statements about the case in the media . It ordered the Ministry to pay LAW to the applicant and FAC to the applicant 's wife as compensation for non - pecuniary damage they had suffered as a result .

Article CARDINAL § CARDINAL provides that , with a view to expediting the proceedings or for other important reasons , proceedings concerning a particular offence or CARDINAL of the accused may be conducted separately .

Under LAW , where a judge whose impartiality is in question agrees to be replaced , the president of the court concerned may replace him or her by a different judge .

Pursuant to LAW ) , an accused can only be remanded in custody when there are concrete grounds to believe that he or she will interfere with witnesses or the co - accused or otherwise hamper the investigation into the relevant facts of the case .

Article CARDINAL § CARDINAL entitles the accused to apply for release at any time . When the public prosecutor dismisses such an application in the course of pre - trial proceedings , he or she must submit it immediately to the court . The decision on an application for release must be taken without delay . If an application is dismissed , the accused may only renew it DATE after the decision has become final unless he or she invokes other reasons justifying his or her release .

The right to protection of a person 's dignity , honour , reputation and good name is guaranteed by Articles CARDINAL et seq . of LAW .

According to LAW , any natural person has the right to protection of his or her personality , in particular , his or her life and health , civil and human dignity , privacy , name and personal characteristics .

By virtue of LAW , any natural person has the right to request an order restraining any unjustified infringement of his or her personal rights and remedying the consequences of such infringement , and to obtain appropriate satisfaction .

Article CARDINAL § CARDINAL provides that in cases where the satisfaction obtained under LAW is insufficient , in particular because the loss of dignity and social status has been considerable , the injured party is entitled to compensation for non - pecuniary damage .

DATE . Under section CARDINAL(CARDINAL ) , police officers are under a duty to respect people 's honour and dignity while carrying out their duties . They must avoid inflicting unjustified harm or interfering with a person 's rights beyond what is necessary to achieve the aim of their action . Pursuant to paragraph CARDINAL of section CARDINAL , when police action interferes with a person 's rights or freedoms , the police must inform that person of his or her rights as soon as possible .

Section CARDINAL(CARDINAL ) permits the police to open and enter apartments and to take measures with a view to preventing a danger where , inter alia , a person 's life is at risk or where the perpetrator of a serious offence is on the LOC and fails to comply with an order to come out . Paragraph CARDINAL of section CARDINAL requires the presence of an impartial person during such action unless the life or health of the witness is in danger or the circumstances permit no delay .

LAW DATE ( PERSON o výkone väzby ) , the legislation in force at the material time , provided , inter alia , that a person remanded in custody for reasons set out in LAW ) of LAW could receive visits only with the prior written consent of the authority dealing with the case .

Section CARDINAL(CARDINAL ) of Act no . TIME on the liability of the ORG for damage caused by a ORG organ 's decision or by an erroneous official act ( “ LAW ” ) provided that the ORG was liable for damage caused by the unlawful decisions of a public authority .

Section CARDINAL(CARDINAL ) rendered the ORG liable for damage caused in the context of carrying out functions vested in public authorities resulting from erroneous official acts of persons entrusted with the exercise of those functions . An award of compensation could be made when the plaintiff showed that he or she had suffered damage as a result of an erroneous act of a public authority , quantified its amount , and showed that there was a causal link between the damage and the erroneous act in question .

Under the domestic courts ' practice , LAW DATE did not allow for compensation for non - pecuniary damage unless it was related to a deterioration in a person 's health ( for further details see PERSON v. GPE ( dec . ) , no . CARDINAL , CARDINAL DATE ) .


The applicants , Mr PERSON ( the first applicant ) , his wife PERSON ( the second applicant ) and their son PERSON ( the third applicant ) are NORP nationals , who were born in DATE , DATE and DATE respectively and lived in GPE . Before the ORG the applicants , who were granted legal aid , were represented Mr PERSON , a lawyer practising in PERSON .

ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of ORG affairs .

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

On DATE the NORP authorities refused to issue a visa to the applicant spouses , who wanted to visit the first applicant ’s brother in GPE .

On DATE the applicant spouses entered GPE and applied for asylum . In support thereof they explained that the first applicant risked being killed in a blood feud in GPE . In DATE his father had killed a person in a quarrel over some real estate and in DATE the first applicant and his brother in GPE had been told that vengeance was imminent . The first applicant ’s father had stated that he should be the object of the vengeance , but the opposing family had insisted that someone of the same age as the murdered relative should be chosen . Blood feud was an ancient phenomenon , which occurred mainly in the countryside , but in DATE , it had become more frequent as an increasing number of persons were in possession of firearms . The applicants maintained that the police were powerless against blood feuds , and claimed to be aware of other cases of assassination due to blood feud which the police had not been capable of preventing . The first applicant ’s brother had fled to the GPE , whereas the first applicant had remained in GPE . Due to the threat , however , he had been forced to stay in his home and had accordingly been prevented from leading a normal life . The applicant spouses submitted a document ( no . CARDINAL ) issued on DATE by the village “ chief ” in GPE , where the applicant spouses used to live , and a document ( no . CARDINAL ) issued on the same date by the chairman of the GPE , both confirming that the first applicant would be killed in a blood feud . The latter added that so far reconciliation attempts by ORG had failed .

By decision of DATE ORG ( Migrationsverket ) refused to grant the applicant spouses asylum . It observed that recently blood feuds had become more frequent in GPE again , particularly in the northern parts of the country where the applicants came from , and that the authorities were not always capable of protecting the citizens . Nevertheless , finding that nothing seemed to prevent the applicants from moving to another part of the country and thereby avoiding any possible actions of vengeance from the opposing family , ORG concluded that they could not be regarded as refugees within the meaning of LAW .

The applicant spouses appealed to ORG ( Utlänningsnämnden ) and stated that moving to another part of GPE would be to no avail since the country was so small that the opposing family would find them easily . The applicants also stated that they had settled well in GPE and that the first applicant had found a job .

By decision of DATE ORG upheld the decision , adhering to the reasons set out in ORG decision .

Thereafter the applicant spouses lodged a total of CARDINAL new applications for a residence permit .

In the first new application to ORG , the applicant spouses submitted that after DATE of infertility the second applicant had finally become pregnant following in vitro fertilisation in GPE . Due to the deportation decision , however , the second applicant had been very stressed and anxious . Thus , invoking considerations for her life and health , plus the allegedly almost nonexistent maternity care in GPE , the applicants argued that they should be granted residence permits on humanitarian grounds . They added that during pregnancy and following delivery , the possibility of avoiding the blood feud would be practically impossible . Finally , they submitted several documents concerning the second applicant ’s pregnancy .

The application was refused on DATE by ORG , which found that the circumstances invoked by the applicants were not such that they could be considered in need of protection within the meaning of LAW .

On DATE the applicant spouses lodged their second new application to ORG and submitted inter alia a document ( no . CARDINAL ) issued on DATE by PERSON , Director of ORG , GPE , stating that ORG and ORG could not protect the first applicant ’s life as far as the blood feud with the named opposing family was concerned . The applicant spouses submitted a further document ( no . CARDINAL ) , also issued on DATE , by PERSON , President of ORG . The latter indicated that the blood feud between the named families was known to the association , which had informed the authorities , which in response had stated that they would not be able to offer the first applicant protection . Both the association and the village chief had tried to intervene , but to no avail .

On DATE ORG decided to stay the enforcement of the applicants’ deportation and on DATE it sent documents nos . CARDINAL and DATE to ORG in GPE in order to investigate their authenticity ( as GPE has no representation in GPE , the said ORG handles all matters regarding GPE ) .

On DATE the third applicant was born . His request of DATE for a residence permit in GPE was immediately transferred to ORG to enable the ORG cases to be considered jointly .

In an assessment of DATE , submitted to ORG , ORG in GPE found that documents nos . CARDINAL and CARDINAL were forged . It specified that there was no authorisation for anyone within the NORP police to issue any certificate about the possibility of offering someone protection . Moreover , it was very odd that a person representing a police department would make any statement on behalf of ORG . ORG and its representatives , they were unknown both to the ORG and its contacts , which indicated that the organisation did not exist or was inactive . The ORG added that according to the information provided , CARDINAL of the better known NORP organisations in the field was called “ Committee of Nationwide Reconciliation ” .

Having been confronted with the ORG ’s assessment , the first applicant stated that it was his father in GPE who had forwarded the documents . The first applicant had no idea whether the organisation called ORG was active or not . There were a lot of smaller organisations like that , of which the ORG and its contacts could not be aware . Moreover , in his view , the fact that the ORG had referred to the best known organisation indicated that it had been impossible for the ORG to make a further investigation into which smaller organisations actually existed .

On DATE , before ORG the applicants submitted a document ( no . CARDINAL ) in NORP issued on DATE , allegedly by PERSON , the Chief of Police in GPE , and a document ( no . CARDINAL ) , also in NORP , issued on DATE , allegedly by PERSON , representing ORG . The applicants maintained that the documents proved that neither the police nor the organisation against blood feud could protect them upon return to GPE .

On DATE , referring among other things to the findings of ORG in GPE , ORG refused anew to grant the applicants a residence permit . It did not find it necessary to undertake any further investigations as to documents FAC . CARDINAL and CARDINAL .

On DATE , the applicants were reported to have absconded and the police decided to issue a warrant for their detention . The applicants stayed in hiding thereafter .

A third new application , and a request to stay the deportation order , was submitted to ORG on DATE . In this connection the applicants submitted a so - called certificate of DATE ( no . CARDINAL ) signed by PERSON , chairman of ORG , together with a resolution of CARDINAL DATE by the said ORG “ of ORG about the prevention of blood feud and observance of legal state ” , which concerned the general situation in GPE on blood feuds . ORG had document no . CARDINAL translated , in which PERSON stated that ORG had actively attempted mediation between the CARDINAL named families , but so far unsuccessfully . Thus , and since the police had no possibility of protecting individuals involved in blood feuds , ORG had advised the applicants to leave GPE until the tensions had diminished and a reconciliation was within reach .

On DATE ORG rejected the application , stating that the grounds invoked by the applicants had already in substance been assessed in the previous decisions and that the new document ( no . CARDINAL ) did not alter the ORG ’s position .

On DATE , a fourth new application was submitted , which was rejected by ORG on DATE .

On DATE , a fifth new application was submitted , which was rejected by ORG on DATE .

On DATE the applicants lodged their case with the ORG .

On DATE , a sixth new application was submitted to ORG , which rejected it on DATE .

On DATE the ORG requested that ORG submit their views on the authenticity of the CARDINAL documents ( nos . CARDINAL and DATE ) allegedly issued by the NORP police stating that they would not be able to protect the first applicant upon return to GPE .

On DATE , on the basis of an investigation carried out during a meeting on DATE at the police headquarters in GPE , QUANTITY north of GPE , with the participation of a delegation from ORG in GPE and various NORP police officials in high - ranking positions , the ORG maintained that they had every reason to believe that the documents were forged .

Firstly , having conducted a thorough investigation into whether a blood feud dispute existed between the CARDINAL named families in question , the police in ORG concluded that no such case was registered or known to the police , although normally disputes of this kind were known to the police . The Government added that in a totally different case , the NORP police had actually been able to confirm the existence of a blood feud CARDINAL NORP families , of which a family member had applied for asylum in GPE .

Secondly , the alleged statements were totally incompatible with the official policy and guidelines applied by the police , according to which police certificates may only refer to purely factual circumstances .

Thirdly , the documents contained several obvious formal and other errors , when compared with authentic documents from the police archives , for example as to the letter - head and format of letters . The documents seemed to be typed on a traditional typewriter , whereas most NORP authorities were computerised , notably when it came to official documents .

More specifically as to document no . CARDINAL , there was a Mr Poposhi in the police force in GPE , but he did not hold the position of director . The document contained a number of errors and discrepancies , which indicated that it was false .

As regards document no CARDINAL , the police in ORG affirmed that Mr PERSON had been Head of Police . He had left his post in DATE . His former colleagues , who were well acquainted with his signature , stated that the document was an obvious forgery . They showed documents from the police archives which undoubtedly had been signed by PERSON . The signatures differed clearly . They also noted that the first name of PERSON PERSON was wrongly spelled in the document in question ; NORP instead of GPE .

On DATE ORG submitted a letter to ORG ( no . CARDINAL) signed by the aforementioned Gjin Marku , which stated , among other things :

“ ORG has verified the documents , presented by [ the first applicant ’s father ] to the NORP authorities and confirms that the certificate released by the police authorities is fake . But the relatives of [ the first applicant ] were obliged to take false documents from the police authorities for the protection of [ the first applicant ’s ] life , taking into consideration the very tense situation . ORG is not aware and informed about most of the conflicts for blood feud because denunciation to the police aggravates the conflict and might cause uncontrollable bloodshed at any instant ... ”

On DATE , at the ORG ’s request , the ORG adjourned the application following the enactment of an interim amendment to LAW , on the basis of which the ORG case would be tried anew .

Thus , ORG decided on its own accord to examine whether the applicants could be granted residence permits under the temporary wording of LAW , section CARDINAL b of LAW . The applicants invoked essentially the same grounds as previously and claimed that the certificates and information provided by ORG could not be disputed . They also pointed out that they had settled well in GPE . They submitted various documents , including a copy of a fax of DATE ( no . CARDINAL ) from the said ORG to ORG in GPE , in which PERSON confirmed , among other things , that the ORG had a case file concerning the applicants .

On DATE ORG found against the applicants .

DATE , on DATE the applicants lodged yet another application with ORG under the temporary legislation , arguing that the documents from ORG and “ the statement from the NORP Embassy ” had not been assessed together . It appeared that the applicants referred to the assessment of DATE submitted by ORG in GPE to ORG . It also appeared that the applicants or their counsel believed that the assessment contained a statement from ORG “ that ORG was an objective , trustful and on absolutely objective grounds , a correct official organization to be respected and believed by the NORP aliens authorities . ”

In a decision of CARDINAL DATE ORG rejected the application . It noted among other things that the relevant documents had been assessed in previous decisions , thus the document from ORG had been included in ORG decision of DATE , and the documents from ORG had been included respectively in ORG decision of DATE and ORG decision of DATE .

On DATE the first applicant was detained by the police with a view to deportation . Maintaining , inter alia , that he had filed a complaint to the ORG , he requested that ORG stay the deportation order . His request was refused by the latter on DATE .

On DATE the deportation order against the first applicant was implemented . Since the second and the third applicant did not turn up for a voluntary deportation they were reported as having absconded .

On DATE , the ORG rejected the ORG request for an application of Rule CARDINAL of ORG .

The applicants appealed against ORG decision of DATE to ORG , before which they submitted an email of CARDINAL DATE ( no . CARDINAL ) from PERSON , of ORG , stating that the first applicant was in extreme danger . He was hiding in the mountains in LOC but risked his life every moment that passed . ORG submitted its comments to ORG and enclosed a statement of DATE from ORG in GPE , although it concerned a different case . In the statement , the ORG expressed the opinion that the legal value of certificates from Gjin GPE was questionable and that they could not be relied on as sole ground in matters concerning asylum applications .

On DATE ORG suspended the refusal - of - entry order as to the first applicant and the deportation order as to the second and third applicants .

An oral hearing was held on DATE . The applicants were not present , but were represented by their counsel . ORG noted that both the first and the second applicant had signed the summons to attend the hearing . The summons signed by the first applicant had been handed over to ORG on DATE of the hearing , but disclosed no date of signature . The second applicant had signed on DATE . Counsel maintained that the aliens authorities had failed to take documents nos . CARDINAL , CARDINAL into account . No information was provided as to the applicants’ whereabouts .

By judgment of CARDINAL DATE , finding that no new circumstances had been invoked and noting that it could not be excluded that the first applicant remained in GPE , ORG found against the applicants .

On DATE ORG refused the applicants’ request for leave to appeal against ORG judgment .

On DATE the ORG decided under LAW of ORG to communicate the complaints under Articles CARDINAL and CARDINAL of the Convention and under Rule CARDINAL to give the application priority .

By letter of DATE the ORG counsel informed the ORG that the first applicant had re - entered GPE . He had managed to borrow MONEY ( ORG ) from cousins and friends and to obtain a visa to enter GPE , from where he had joined his wife and child , who were still living in hiding .

A new Aliens Act ( SFS CARDINAL:CARDINAL ) , replacing the DATE LAW , entered into force on DATE . The Act established a new system for examining and determining applications for asylum and residence permits . While ORG continued to carry out the initial examination , an appeal against the ORG ’s decision was determined by CARDINAL of the CARDINAL new ORG . ORG was the court of final instance . It examined appeals against the decisions of ORG , provided leave to appeal was granted . Upon the entry into force of LAW , ORG ceased to exist . ORG acted as the alien ’s opposing party in proceedings before the courts .

The provisions mainly applied in the present case were to be found in the DATE LAW , now repealed . In accordance with the LAW , an alien staying in GPE for DATE had to , as a rule , have a residence permit ( chapter CARDINAL , section CARDINAL ) . A residence permit could be issued , inter alia , to an alien who , for humanitarian reasons , was to be allowed to settle in GPE ( chapter CARDINAL , section CARDINAL ) . Serious physical or mental illness could , in exceptional cases , constitute humanitarian reasons for the granting of a residence permit .

An alien who was considered to be a refugee or otherwise in need of protection was , with certain exceptions , entitled to a residence permit in GPE ( chapter CARDINAL , section CARDINAL ) . The term “ refugee ” referred to an alien who was outside the country of his nationality owing to a well - founded fear of being persecuted for reasons of race , nationality , membership of a particular social group , or religious or political opinion , and who was unable or , owing to such fear , unwilling to avail himself of the protection of that country . This applied irrespective of whether such persecution was at the hands of the authorities of the country or whether those authorities could not be expected to offer protection against persecution by private individuals ( chapter CARDINAL , section CARDINAL ) . An “ alien otherwise in need of protection ” denoted , inter alia , a person who had left the country of his nationality because he had a well - founded fear of being sentenced to death or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment ( chapter CARDINAL , section CARDINAL , subsection CARDINAL ) . By making that a separate ground for granting a residence permit , the legislature had highlighted the importance of such considerations . The correspondence between national legislation and LAW had been emphasised as a result .

In enforcing a decision on refusal of entry or expulsion , the risk of torture and other inhuman or degrading treatment or punishment was taken into account . In accordance with a special provision on impediments to enforcement , an alien could not be sent to a country where there were reasonable grounds for believing that he would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment ( chapter CARDINAL , section CARDINAL ) . In addition , he could not , in principle , be sent to a country where he risked persecution ( chapter CARDINAL , section CARDINAL ) .

Until DATE an alien who was to be refused entry or expelled in accordance with a decision that had gained legal force could be granted a residence permit if he filed a so - called “ new application ” with ORG based on circumstances which had not previously been examined in the case concerning refusal of entry or expulsion . A residence permit could then be granted if the alien was entitled to a residence permit under LAW , section CARDINAL , of the LAW or if it would be contrary to the requirements of humanity to enforce the refusal - of - entry or expulsion decision ( chapter CARDINAL , section CARDINAL b , in its wording before DATE ) .

Amendments to LAW , section CARDINAL b , of the DATE LAW entered into force on DATE , whereby a new legal remedy of a temporary nature was introduced . The new procedure for obtaining a residence permit replaced the rules relating to new applications for a residence permit laid down in chapter CARDINAL , section CARDINAL b , in its previous wording . Furthermore , the amendments to the DATE Act introduced additional legal grounds for granting a residence permit to aliens against whom a final expulsion order had been made . The object of these temporary amendments was to grant residence permits to aliens who , inter alia , had been in GPE for a very long time or where there existed “ urgent humanitarian interests ” ( humanitärt angeläget ) . Special consideration was given to the situation of children . The temporary provisions remained in force until the new LAW entered into force on DATE . ORG continued , however , to examine applications which it had received before that date but had not yet determined .

C. Relevant background material

GPE became a member of ORG on DATE and ratified LAW on DATE .

ORG , stated inter alia in its Operational Guidance Note , GPE , of DATE :

“ CARDINAL.CARDINAL Blood feuds

ORG Some claimants will apply for asylum or make a human rights claim based on ill - treatment amounting to persecution as a result of a ‘ blood CARDINAL . The term blood feud can often be used in a very loose sense , which does not always refer to the strict code of honour and shame and related provisions in the Kanun and as such the reasons cited for involvement in a blood feud can include disputes with neighbours over land , accidental death caused by traffic accidents or fights , or resurfaced pre - communist disputes .

CARDINAL Treatment . GPE continued to experience high levels of violent crime during DATE with many killings occurring as the result of individual or clan vigilante actions connected to traditional ‘ blood feuds’ or to criminal gang conflicts . According to the interior ministry , CARDINAL persons were killed during DATE in blood feuds based on the medieval Code of Lek Dukagjini ( the kanun ) . In DATE , ORG ( ORG ) , a nongovernmental organisation ( NGO ) that worked on blood feud issues , estimated that there were CARDINAL deaths from feuds nationwide . Corruption also remained a major problem during DATE .

CARDINAL Under the kanum , only males are acceptable targets in blood feuds ; however , women and children were often killed or injured in attacks in DATE . According to ORG , CARDINAL families were effectively self - imprisoned during DATE due to blood feuds . Property disputes accounted for CARDINAL of formally declared blood feuds during DATE , with the remainder pertaining to issues of honour or violations of the home ( e.g. , theft , trespassing , etc . ) . The ORG estimated that there were CARDINAL additional blood feuds stemming from trafficking , which are typically not formally declared out of shame . Of the CARDINAL families reported effectively self - imprisoned in DATE , CARDINAL left the country , including CARDINAL families that sought formal political asylum in other countries . The ORG claimed that fear of revenge prevented CARDINAL children from attending school in DATE , CARDINAL of whom were permanently confined to their houses .

CARDINAL.CARDINAL.CARDINAL Police investigations into the DATE murder of PERSON , head of ORG that worked exclusively on blood feud issues was still on - going in DATE . A suspect was arrested but has not yet been formally charged .

CARDINAL In DATE , parliament approved a law establishing a co - ordination council , chaired by the president , to develop a national strategy against blood feuds and co - ordinate activities of government agencies . However , the council was inactive during DATE . The court of serious crimes tried blood feud cases in DATE and the law provides for DATE to life imprisonment for killing in a blood feud .

CARDINAL.CARDINAL.CARDINAL Sufficiency of protection . In DATE , ORG was transferred to the authority of a new ORG . Local police units report to ORG and are the main force responsible for internal security . ORG ( ORG ) employed CARDINAL officers . As noted above , the law provides for DATE to life imprisonment for killing linked to a blood feud . There is no evidence to indicate that individual NORP fearing the actions of those seeking to carry out a blood feud can not access protection from the NORP police and pursue these through the legal mechanisms that have been set up to deal with blood feuds .

CARDINAL Internal relocation . The law provides freedom of movement within GPE and in DATE the Government generally respected this right in practice . However , due to significant internal migration , many citizens no longer had local registration and status , leading to a loss of access to services such as education and medical care . Whilst there may be some difficulties accessing local services internal relocation to escape the localised threat of a blood feud will not generally be unduly harsh . Whether internal relocation would enable an individual to avoid a threat in an individual case will depend on the tenacity of those attempting to enforce the blood feud .