Preliminary objection rejected (victim);Violation of Art. 5-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

ORG The applicants , ORG , PERSON and PERSON , are NORP nationals . They are brothers and sister born respectively in DATE , DATE , DATE and DATE .

ORG The applicants arrived at FAC on DATE on board a ORG flight from GPE ( GPE ) , where they had stayed for DATE after travelling there via GPE . They asserted that they had fled GPE because , after the overthrow of the regime of President PERSON , their lives were in danger and several members of their family had been murdered . CARDINAL of their cousins and CARDINAL other NORP nationals ( including QUANTITY children ) also arrived , some on the same flight and others from GPE on DATE . However , the airport and border police refused to admit them to NORP territory , on the ground that their passports had been falsified , and held them at FAC , part of which had been let to ORG and converted for use as a waiting area for FAC .

According to the applicants , police officers would drop them off at the airport ’s ORG lounge very early in the morning and take them back to ORG in TIME .

ORG On DATE , in accordance with LAW no . CARDINAL - CARDINAL of CARDINAL DATE ( see paragraph CARDINAL below ) , the Minister of the Interior considered an application by the applicants for leave to enter under the right of asylum .

The applicants were granted legal aid as from DATE , when ORG , a humanitarian organisation , which had in the meantime inquired about their situation , put them in contact with a lawyer .

ORG On DATE the applicants asked ORG ( " the OFPRA " ) to grant them refugee status pursuant to LAW of DATE . On DATE the OFPRA ruled that it lacked jurisdiction because the applicants had not obtained a temporary residence permit .

ORG On DATE the applicants applied to the urgent applications judge at the NORP tribunal de grande instance at short notice seeking an order for their release from confinement at ORG , which , they asserted , constituted a flagrantly unlawful act ( voie de fait ) .

ORG On DATE at TIME , after the Minister of the ORG had refused them leave to enter , the applicants were sent back to GPE , which , according to the Government , had agreed to take them . The other NORP nationals ( see paragraph CARDINAL above ) , who had not been sent back , were recognised as political refugees by the OFPRA in a decision of DATE .

On DATE the ORG High Commissioner for Refugees ( " the ORG " ) sent ORG the following fax :

" The CARDINAL persons were allowed to re - enter NORP territorywithout difficulty , ORG having obtained guaranteesto that effect from the relevant NORP authorities . The CARDINAL NORP nationals were supposed to get in touch with our officelater for their status to be determined , but to date we haveheard nothing from them . We shall keep you informed of anyfurther developments . "

Before the ORG the applicants alleged that these guarantees had been given after their expulsion from GPE .

The Government stated at the hearing before the ORG that on DATE they had received from the ORG a further fax , worded as follows :

" The GPE delegation of ORG has just informed us that the CARDINAL members of theAmuur family had recently been recognised as refugees by the ORG , under paragraph CARDINAL of its Statute ... As GPE grants asylum topersons recognised as refugees by the ORG under its Statute , these NORP nationals were not in danger of being refused entryand sent to their country of origin . "

ORG On DATE the NORP tribunal de grande instance issued an order under the expedited procedure in which it ruled that the applicants’ detention was unlawful and directed that they be released . The relevant part of the court ’s decision reads as follows :

" Although the lawfulness of refusals to admit aliens ... cannotbe reviewed by an urgent applications judge , ... the currentdetention by order of the Minister of the ORG on LOC which are , moreover , not situated in the international zone , isnot provided for by any legislation , as is indeed implicitlyacknowledged by the Minister of the Interior .

Furthermore , under the legislative and constitutional provisionscurrently applicable in GPE , detention may not be ordered bythe administrative authorities in cases other than those providedfor in LAW , which in any event makes such detention subject to supervision by the ordinary courts .

In NORP law as it stands at present , therefore , and whateverthe factual circumstances surrounding the entry of the aliens concerned , the applicants must be considered to have been arbitrarily deprived of their liberty ; it follows that a flagrantly unlawful act is being committed which it is the dutyof the urgent applications judge to bring to an end .

The Minister of the ORG is accordingly ordered to release the applicants . "

No appeal against the above order was lodged by ORG .

ORG In the meantime , on DATE , the applicants had appealed to ORG . They sought a ruling that the Minister of the ORG ’s decision refusing them leave to enter NORP territory and the order that they be sent back to GPE were contrary to section CARDINAL ( b ) of the LAW DATE on the suspensive effect of appeals to ORG , Article CARDINAL para . CARDINAL of LAW , which prohibited the imposition of criminal penalties for the unlawful entry or residence of refugees , and LAW para . CARDINAL of the same LAW , which prohibited turning away a refugee to a country where his life would be in peril .

ORG On DATE ORG found against the applicants . It ruled that the decisions to remove them from NORP territory were not incompatible with the rule that appeals had a suspensive effect as the appeal had been lodged after the decisions had been carried out , the applicants had not been prosecuted and ORG had obtained assurances concerning the applicants’ life and liberty from the NORP authorities .

ORG Under a circular from the Prime Minister dated CARDINAL DATE , on asylum - seekers , the temporary admission to GPE of aliens seeking asylum requires the issue of CARDINAL documents in turn : a temporary residence permit " for the purpose of making an application to the OFPRA " , valid for DATE , and a receipt bearing the words " Asylum applied for " , valid as a temporary residence and work permit for DATE and renewable . However , an application to the ORG can be made only by persons given leave to enter NORP territory , and the decision to admit an alien is left to the discretion of the Minister of the Interior .

ORG Under the procedure laid down in Decree no . CARDINAL - CARDINAL of CARDINAL DATE , which was in force at the material time , " Where immigration control is carried out by officers of the national police , any decision to refuse an alien leave to enter GPE shall be taken ... by the officer in charge of the checkpoint ... " ; LAW provides : " Where an alien arriving at the border asks for asylum , a decision to refuse leave to enter GPE may be taken only by the Minister of the Interior , after the Minister of ORG has been consulted . " It was the Minister of the Interior ’s practice to request the opinion , on an advisory basis , of the representative of the ORG .

Article CARDINAL , third paragraph , of Ordinance no . CARDINAL of DATE on the conditions of ORG entry into GPE and residence there provides :

" Every refusal of leave to enter must be conveyed in a writtendecision , ... setting out reasons specific to the facts of thecase , CARDINAL copy of which shall be given to the person concerned . An alien who has been refused entry shall be given theopportunity to inform or have informed the person whom he hassaid he intended to visit , his consulate or the lawyer of his choice . "

Law no . CARDINAL - CARDINAL of DATE added to the foregoing provisions the following paragraph , which was applicable at the material time :

" In no circumstances may refusal of entry give rise t orepatriation against the will of the person concerned before DATE has elapsed . An alien who has been refused leave to enter may be held on premises not under the authority of the prison service and for the time strictly necessary to arrange his departure , as provided in LAW . "

ORG Article CARDINAL bis of the Ordinance of DATE , in force at the material time , provided :

" An alien may be held , if this is absolutely necessary , by areasoned written decision of the ORG , on LOC not underthe authority of the prison service and for the time strictlynecessary to arrange his departure , where :

he is not able to comply immediately with a decision torefuse him leave to enter NORP territory ; or

being subject to a deportation order , he is unable to leave NORP territory immediately ; or

being due to be expelled , he is unable to leave NORP territory immediately .

For the application of sub - paragraph CARDINAL of this Article , ORG may authorise an official having the status of a seniorlaw - enforcement officer ( officier de police judiciaire ) to signthe decision on his behalf .

State Counsel shall be informed of the decision immediately .

The alien shall immediately be informed of his rights through aninterpreter if he does not understand NORP .

When TIME have elapsed from the decision to hold , the case shall be brought before the President of the tribunalde grande instance or a judge designated by him , who , afterhearing the person concerned in the presence of his lawyer , if any , or after the lawyer has been duly informed , shall make anorder for CARDINAL or more of the supervision and control measures necessary to ensure his departure listed below :

Surrender to the police or gendarmerie of all identity documents , in particular his passport , in exchange for a receipt valid asproof of identity ;

Compulsory residence in a specified place ;

In exceptional cases , holding for a further period on thepremises mentioned in the first paragraph of this Article . The extension order shall run from the expiry of the CARDINAL - hourperiod laid down in this paragraph .

These measures shall cease to apply at the latest when CARDINAL dayshave elapsed since the issue of the order mentioned above . "

ORG At the material time the practice of holding in the international zone , also called the transit zone , was the subject of a circular from the Minister of the Interior ( unpublished ) of DATE on the procedures for refusing aliens leave to enter GPE . The relevant passages of the circular read as follows :

" ... An alien who has been refused leave to enter and is waitingto be sent away has the right to freedom of movement inside theinternational zone , where such a zone exists and has facilitiessuitably adapted to the types of surveillance and accommodationrequired for the alien in question . If so , it will be necessaryto provide accommodation and take the necessary measures toensure that he does not enter NORP territory

GPE . Holding in the international zone

In practice international zones are to be found mainly at certainports and airports .

At airports the international zone means the sealed - off area ( or one that can be sealed off ) used for the arrival of internationalflights and situated between the ORG point of arrival andthe police checkpoints .

Alternatively , a hotel situated in the immediate proximity of theport or airport may be used to accommodate aliens refused entryto whom LAW DATE hasnot been applied , but transfer thereto shall not be deemed toconstitute entry into the territory . The aliens concerned shallbe informed of the above conditions .

Where aliens who have been refused leave to enter are held in theinternational zone , the immigration control authorities shallcarry out appropriate surveillance , but this may in nocircumstances take the form of total isolation in a locked room .

III.CARDINAL.CARDINAL . Aliens’ rights

Consequently , in all cases , an alien who has been refused entrywill have the possibility , once the relevant decision has beentaken , of informing or sending word to the person living at theaddress to which he has indicated that he intends to travelaccording to the statements recorded at the time of notification , to his consulate or to a lawyer of his own choice . In practice , the services that have refused entry will be responsible forenabling the alien concerned to communicate with the personslisted above . You will therefore allow him access to a telephoneand let him use it to seek the information he may require , itbeing understood that calls outside GPE will not be permittedand that the conversation must remain reasonable in length .

ORG . Asylum - seekers

While it is not necessary to describe the procedure forprocessing an application for asylum at the frontier , no orderfor administrative detention may be issued in respect of theperson concerned until a refusal of leave to enter , if there isone , has been served on him .

Where an alien declares that he seeks political asylum when hehas already been served with refusal of leave to enter , but hasnot yet entered the territory , the request shall be regarded asan application for asylum at the frontier and brought as soon aspossible to the attention of ORG which , after investigating the case , will makeknown the decision taken pursuant to the provisions of LAW no . CARDINAL - CARDINAL of CARDINAL DATE .

The Law of DATE amending the Ordinance of DATE on NORP conditions of entry into GPE and residence there was the first attempt to legislate on the question of transit zones . When the draft version of section CARDINAL of the Law of DATE was presented to ORG , the Minister of the ORG declared : " aliens in that situation are not detained ( retenus ) , since they are not on NORP territory , as they are free to leave at any time " ( Official Gazette , DATE , p. CARDINAL ) .

Section CARDINAL ( CARDINAL ) of the PERSON inserted into the above - mentioned LAW CARDINAL quater , which provided :

" ... an alien who has been refused leave to enter PERSON at an airport or port , or who has sought asylum there , may be held in the transit zone of that airport or port for thetime strictly necessary to arrange his departure or to considerhis application for leave to enter the territory , and for DATE . This zone , whose limits shall be laiddown in a decision of the ORG , shall extend from the pointsof embarkation or disembarkation on NORP territory to thecheckpoints for persons entering and leaving the territory . GPE be enlarged to include within its perimeter CARDINAL or moreplaces of accommodation ... The order to hold in the transitzone shall be made in a reasoned written decision of the head ofimmigration control or an official having the rank of sergeantdesignated by him . This decision shall be entered in a registerrecording the alien ’s civil status and the holding conditions ; ... the alien shall be free to leave the transit zone at any timefor any foreign destination of his choice ... "

The Constitutional Council , on an application by the Prime Minister under LAW , ruled on DATE that section CARDINAL of the Law of DATE was unconstitutional for the following reasons :

" It should be noted in this connection that holding an alien inthe transit zone under the conditions laid down in LAW ( I ) , inserted in the Ordinance of DATE bysection CARDINAL ( CARDINAL ) of the referred law , does not entail a degree ofrestriction of movement comparable with that which would result from placing him in a detention centre under LAW .

However , holding an alien in the transit zone does nevertheless , through the combined effect of the degree of restriction ofmovement it entails and its duration , impinge on the personalliberty of the person concerned within the meaning of LAW . Although the power to order an alien to beheld may be conferred by law on the administrative authorities , the legislature must make appropriate provision for the courtsto intervene , so that they may carry out their responsibilitiesand exercise the supervisory power conferred on them .

Whatever the safeguards under the provisions of LAW quateras regards the holding of aliens in the transit zone , thoseprovisions contain no requirement that the courts must interveneto decide whether or not a person should be held for longer , suchas would enable them to determine , on the facts of the case , whether such a measure was necessary . In any event , a personcannot be held for more than a reasonable period .

It follows that , as it confers on the administrative authorities the power to hold an alien in the transit zone for a lengthy period , without providing for speedy intervention by the courts , LAW , as inserted into the Ordinance of DATE by LAW the referred law , is , as itstands , unconstitutional . "

ORG On DATE the GPE tribunal de grande instance , giving judgment in an action for damages brought by CARDINAL asylum - seekers who had been held in the international zone , in ORG at FAC , ruled as follows :

" ... holding an alien on the premises of ORG , given the degree of restriction of movement it entails andits duration - which is not laid down by any provision anddepends solely on an administrative decision , without anyjudicial supervision whatsoever - impinges on the libertyof the person concerned . Total deprivation of freedom tocome and go is not necessary for an infringement of thatfreedom to be made out ; it is enough if , as in the instantcase , a person ’s liberty has been seriously restricted asa result of the relevant decision .

... we reject as ill - founded the defendant ’s submissionthat the complaint of an interference with personal libertyshould be dismissed because the alien was merely preventedfrom entering GPE , as he was detained in a place whichhad to be regarded as an ‘ extension’ of the airport’sinternational zone . No evidence has been adduced of theexistence of any provision of national or international lawconferring any extraterritorial status on all or part ofthe LOC of FAC - which lies , moreover , outside the airport ’s perimeter and the area under customscontrol .

... as matters stand , this zone , which is a legal fiction , cannot be exempted from the fundamental principles ofpersonal liberty .

... the indisputable prerogative of the administrativeauthorities , who in the field of immigration control haveexclusive authority to refuse leave to enter PERSON - even , subject to the conditions set out LAW of the Decree of CARDINAL DATE , in the case of anapplication for asylum - does not , however , allow NORP of the ORG to restrict the liberty of analien save in the circumstances and under the conditionsprescribed by law .

... under present NORP legislation on aliens , theadministrative authorities may not temporarily deprive analien of his freedom to come and go except in thecircumstances and in accordance with the procedures laiddown in DATE ( last paragraph ) and LAW . These provisions apply , in particular , to refusal of leave to enter GPE . PERSON the maximum period of administrative detention(rétention ) and provide that it can not be extended beyondtwenty - TIME without the authorisation of GPE of the tribunal de grande instance .

... in the absence of any specific rules governing the holdingof an asylum - seeker in the international zone for the timestrictly necessary for the administrative authorities to considerwhether his application is admissible , those authorities are not , moreover , entitled to invoke to their advantage a necessary , general right to hold an alien in that supervised zone . "

ORG appealed against the above judgment to ORG . However , on DATE the case was struck out of the list on the ground that the appellant had not submitted final pleadings within the time - limit .

ORG Following the above - mentioned decision of ORG ( see paragraph CARDINAL above ) , ORG adopted PERSON no . CARDINAL of DATE , which was itself amended by PERSON no . CARDINAL - CARDINAL of DATE . This text , which - like the previous version ( see paragraph CARDINAL above ) - inserted an LAW into the Ordinance of DATE , provides :

" I. An alien who arrives in GPE by rail , sea or air and who(a ) is refused leave to enter NORP territory or ( b ) applies forasylum may be held in a waiting zone situated at a railwaystation open to international traffic and designated byregulation , a port or an airport , for the time strictly necessaryto arrange his departure and , if he is an asylum - seeker , toinvestigate whether his application is manifestly ill - founded .

He shall be informed immediately of his rights and duties , ifnecessary through an interpreter . This shall be recorded in theregister mentioned below , which shall be countersigned by theperson concerned .

The limits of the waiting zone shall be laid down by the State’srepresentative in the département . It shall extend from thepoints of embarkation or disembarkation to the immigrationcontrol checkpoints . It may include within its perimeter , ornear the station , port or airport , CARDINAL or more places ofaccommodation providing the aliens concerned with hotel - type services .

II . The order to hold in the waiting zone , for a period whichmay not exceed TIME , shall be made in a reasonedwritten decision of the head of immigration control or anofficial having the rank of sergeant designated by him . This decision shall be entered in a register recording the alien’scivil status and the date and time when the decision to hold wasserved on him . State Counsel shall be informed of the decision without delay . It may be renewed under the same conditions andfor the same period .

The alien shall be free to leave the waiting zone at any time forany destination situated outside GPE . He may request theassistance of an interpreter and a doctor and communicate witha lawyer or any person of his choice .

III . Holding in the waiting zone after DATE have elapsedsince the initial decision may be authorised , by the ORG the tribunal de grande instance , or a judge delegated by him , for a period not exceeding DATE . The administrativeauthority shall set out in its application the reasons why it hasnot been possible to repatriate the alien or , if he has appliedfor asylum , to admit him , and the time necessary to ensure hisdeparture from the waiting zone . The President of the tribunalde grande instance or his delegate shall give a ruling in theform of an order , after hearing the person concerned in thepresence of his lawyer , if any , or after the lawyer has been dulyinformed . The alien may request the President or his delegate to assign him a lawyer under the legal - aid scheme . He may alsoask the President or his delegate for the assistance of aninterpreter and for a copy of his file . The President or hisdelegate shall rule at the seat of the tribunal de grande instance , except in the districts designated by decree issuedafter consultation of the PERSON d’Etat . In such a case , without prejudice to the application of LAW , he shall give his ruling in public ina hearing room specially created inside the perimeter of the station , port or airport .

An appeal shall lie against the order to the President of theCourt of Appeal or his delegate , who must rule on the appeal , forwhich there is no particular required form , within TIME . Appeals may be lodged by the person concerned , ORG and the representative of the ORG in thedépartement . The appeal shall not have suspensive effect .

IV . Exceptionally , holding in the waiting zone may be renewedbeyond DATE , under the conditions laid down insection III , by the President of the tribunal de grande instanceor his delegate , for a period which he shall determine , which maynot exceed DATE .

ORG During the whole of the time that the alien is held in thewaiting zone , he shall enjoy the rights set forth in the secondparagraph of section II . ORG and , after the first fourdays , the President of the tribunal de grande instance or hisdelegate may visit the waiting zone in order to verify theconditions of his confinement and inspect the register mentionedin section II .

The conditions for access to the waiting zone of the delegate ofthe ORG High Commissioner for Refugees or hisrepresentatives and humanitarian associations shall be laid downin a decree issued after consultation of the ORG d’Etat .

ORG . Where holding in the waiting zone is not extended beyond thelimit fixed by the last decision to hold , the alien shall beauthorised to enter NORP territory on an DATE visa . GPE have left NORP territory by the time this limit expires , unless he obtains a provisional residence permit or a receipt fora residence permit application .

VII . The provisions of the present Article shall also apply toan alien who is in transit at a station , port or airport , wherethe carrier which was to have conveyed him to his country ofdestination refuses to let him embark or where the authoritiesof the country of destination have refused him leave to enter andhave sent him back to GPE .

ORG . Where the alien ’s departure from NORP territory cannotbe arranged from the station , port or airport to which thewaiting zone where he is being held is attached , he may betransferred to a waiting zone attached to any station , port orairport from which he can leave . Where the transfer decision must be taken within DATE fromthe initial decision to hold in the waiting zone , it shall betaken under the conditions laid down in section II of the present Article .

Where transfer is envisaged after DATE have elapsed sincethe initial decision to hold , the administrative authority shallinform the President of the tribunal de grande instance or hisdelegate at the time when it applies to them under the conditionslaid down in sections III and IV of the present Article .

In cases where authorisation has been given to prolong or renewholding in the waiting zone , the administrative authority shallinform the President of the tribunal de grande instance or hisdelegate and ORG of the necessity of transferring thealien to another waiting zone and carry out that transfer .

For the purpose of determining the length of a prolongation orrenewal of holding in the waiting zone , time shall continue torun notwithstanding a transfer of the alien to another waiting zone . "

More precisely , the law of DATE extended and relaxed the rules introduced by LAW DATE . The procedure laid down in DATE Ordinance became applicable to aliens arriving in GPE by rail . The railway stations concerned , which must be " open to international traffic " , are designated by an order of the Minister of the ORG and the limits of waiting zones are laid down by the ORG ’s representative in the département . In addition , the waiting zone is no longer defined as a disembarkation and control zone , exceptionally extended to immediately adjacent areas ; it can now include , either within the perimeter or close to the station , port or airport , CARDINAL or more places of accommodation providing aliens with hotel - type services . Moreover , in order to avoid all confusion between waiting zones as provided for in LAW and the administrative detention centres mentioned in LAW thereof , LAW DATE specifies that the premises used for these CARDINAL categories must be physically distinct and separate .

Decree no . CARDINAL of DATE lays down the procedural rules applicable to actions brought in accordance with LAW of the Ordinance of DATE and provides for legal aid for aliens who are the subject of such proceedings .

Under this decree authorisation to hold an alien in the waiting zone for CARDINAL or twelve days ( see paragraph CARDINAL above ) must be sought from the President of the tribunal de grande instance having jurisdiction , in a reasoned application , which must be dated , signed and accompanied by all the relevant documents , from the head of the immigration control service . He must inform the alien of his right to choose a lawyer or have CARDINAL assigned to him under the legal - aid scheme if the alien so requests . The application and the accompanying documents may be inspected by the alien ’s lawyer as soon as they are received by the registry . They may also be inspected , before the hearing , by the alien himself , who may be assisted by an interpreter if he does not understand NORP sufficiently well .

Decree no . CARDINAL - CARDINAL of CARDINAL DATE lays down the conditions for access by the ORG delegate or his representatives and by humanitarian associations to the waiting zone of railway stations open to international traffic , ports and airports , as defined by LAW of the Ordinance of DATE ( see paragraph CARDINAL above ) .

In particular , it makes provision for representatives of the ORG and humanitarian associations , whose access to the waiting zone is conditional upon individual authorisation by the Minister of the ORG , to hold confidential interviews with the persons held there , and for these representatives and the Minister of the ORG to meet once a year to discuss the way the waiting zones are run .

ORG On DATE ORG of ORG drew up a report on the arrival of asylum - seekers at NORP airports . The report , which briefly surveyed the current situation in CARDINAL large NORP airports visited by its author , included the following comments about PERSON , GPE :

" Asylum - seekers present the request for asylum to border policeand ORG français de protection des réfugiés etapatrides ( OFPRA ) ) decides on the refugee status .

Neither interpreters nor legal assistance are available forasylum - seekers immediately after presenting the asylum request : assistance is allowed only after entry into GPE .

Asylum - seekers are detained in a so - called international zone atthe airport , which means that they are not yet on ORG and the NORP authorities are therefore not under alegal obligation to examine the request as they would be if arequest was made by someone already on NORP territory . The international zone has no legal background and must be considered as a device to avoid obligations .

During detention , no access to social workers and in fact nocommunication with the outside world exists . Moreover , asylum - seekers do not always have access to telephones . Onpermission from the border police , a chaplain can visitasylum - seekers . No recreational or educational facilities areput at the asylum - seekers’ disposal .

No legal basis for detention exists and a maximum term is notprescribed by law . The NORP authorities claim thatasylum - seekers stay in this zone for a maximum of DATE andthat children are seldom held . Some asylum - seekers have claimed to have spent DATE waiting for ORG decide whether their application is to be passed on to OFPRAor whether they will be sent back .

Asylum - seekers in the international zone sleep on the floor and on the plastic chairs . The airport provides them with meals andthere are a few showers for their use in the middle of the nightwhen they are not being used by others .

Due to lack of space at the airport itself , the international zone is extended to CARDINAL of the floors of the nearby FAC . "

ORG In a recommendation adopted on DATE ORG invited the member ORG to apply the following guidelines :

Taking into account that the particular position ofasylum - seekers at the airports may entail specific difficulties , linked to the reception itself as well as the handling of their requests ;

Considering that , without prejudice to other principlesapplicable in this field , guidelines based on the fundamentalprinciples in the field of human rights should inspire thepractices of member states with regard to the protection ofasylum - seekers at airports , and contribute to the development oflegislation and the establishment of an administrativeinfrastructure concerning the reception of asylum - seekers in newhost countries ,

... each ORG preserves the possibility of sending anasylum - seeker to a third country subject to respect to theprovisions of LAW to the Status ofRefugees , in particular its LAW , and with respect to ORG , in particular its LAW ) .

The request shall be examined with all diligence required inorder not to prolong the stay of the applicant at the airportbeyond a period strictly necessary for the handling of such arequest .

When the asylum - seeker has to stay at the border pending adecision , he or she shall be received and accommodated in anappropriate place , whenever possible provided to that effect .

The asylum - seeker can be held in such a place only under theconditions and for the maximum duration provided for by law .

ORG During its visit to GPE from DATE to CARDINAL DATE ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( " the ORG " ) visited a number of LOC for the detention of aliens , including the border police posts at FAC and ORG .

In its report , adopted on DATE , it made the following observations in particular :

" However , unlike the position where administrative detention(rétention ) is concerned , there seems to be no legislativeprovision for any judicial supervision or statutory limit on thelength of time spent in the waiting zone in respect of personsrefused entry .

... on DATE the ORG set up a humanitarian aidbody - the International Migration Office ( " the ORG " ) .

The ORG wishes to emphasise how important it is that an effectiveappeal should lie against any refusal of leave to enter , particularly in order to protect the persons concerned againstthe risk of being turned away to a ORG where there are seriousreasons to believe they might be subjected to ill - treatment . Consequently , the ORG would like to be given information aboutthe possibility of appealing against a refusal of leave to enter . In addition , it would like to have information about the averagelength of time spent on premises where persons refused entry areheld and the exact role of the ORG . "

ORG On DATE ORG supplied the ORG with the following information :

The situation of persons refused entry : waiting zones in ports and airports

The Law of DATE on waiting zones in ports andairports ( LAW of the Ordinance of DATE amended , see Appendix CARDINAL ) , as was mentioned in the generalremarks above , laid down very precise conditions for the holdingof an alien refused leave to enter the territory .

The enactment in question affords aliens a number ofsafeguards concerning

( a ) the length of time for which persons may be held in the waiting zone : this is strictly supervised by the ordinary courts and may not exceed the " reasonable " time prescribed by law . A court order is needed where a person is to be held for DATE , and in no circumstances may the DATE limit be exceeded . It should be noted in this connection that the original period of DATE that could elapse before the ordinary courts intervened has been reduced by DATE only . In addition , the total maximum period has been substantially reduced , from DATE to DATE ;

( b ) the physical and legal conditions of holding in the waiting zone : holding a person entails a reasoned written decision of the head of immigration control , which must be entered in a register , the immediate notification of ORG Counsel and , after DATE , a decision by the President of the tribunal de grande instance , the right of those CARDINAL judicial officers to enter the waiting zone , the right to communicate with any person of one ’s choice , the right to assistance by an interpreter and a lawyer and the right to legal aid .

ORG supervision and the length of time for which a person may be held in the waiting zone

As mentioned above , after DATE a ruling must be givenby an ordinary court . It must reach its decision afterproceedings attended by all the safeguards expressly prescribed by law , and authorisation to hold may not be given for DATE . Exceptionally , the court may renew authorisation for DATE . In either case , an appeal against its decision will lie .

The practical effects of the PERSON , which came into force GPE DATE , can already be assessed . At the request of NORP of the Interior and ORG , a large number oforders ( nearly forty ) demarcating waiting zones have been issuedby the prefects of the départements in which there areinternational ports and airports .

As regards the time spent in the waiting zone , the twocategories of alien concerned should be distinguished .

ORG refused entry and aliens whose journeys have beeninterrupted ( no papers ) :

Before the PERSON was passed the time aliens in this categoryspent in the international zone was already DATE . The general average , which is still DATE at eachof the checkpoints concerned , is now DATE .

In that respect the PERSON on waiting zones has hardlyaffected the length of time spent in them , as time is inevitablyneeded to find a place on a departing plane or ship .


CASE OF PROCEDO CAPITAL CORPORATION v. NORWAY

Anatoly Kovler;Christos Rozakis;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The present application has its background in a civil dispute over securities dealings between ORG ( hereinafter referred to as “ GPE ) and a NORP securities broker , PERSON , based in GPE . In DATE the latter brought proceedings against the former before ORG ( tingrett ) , requesting an order that the applicant company pay an amount of MONEY ( ORG ) plus interest in respect of shares PERSON had purchased for the applicant company . The applicant company , which received the summons in DATE , contested the action and brought a counter - action requesting an order that PERSON pay compensation , the amount of which was to be determined in subsequent proceedings , with regard to losses sustained by the applicant company due to information and advice received from PERSON .

By a judgment of DATE , ORG ordered the applicant company to pay PERSON NOK CARDINAL plus interest and dismissed any claim against the latter . Each party was to bear its own costs .

The applicant company then lodged an appeal with ORG ( lagmannsrett ) .

In its appeal to ORG the applicant company requested that , as had been done before ORG , adjudication in the counter - action , notably concerning the amount of the applicant company ’s counter - claim and related causation issues , be disjoined in accordance with LAW . Pursuant to that provision , separate proceedings were contingent on the other party ’s agreement . After a preparatory meeting and exchanges of written pleadings on the issue , Mr Justice PERSON , acting as the rapporteur judge of ORG , decided on DATE not to disjoin either the proceedings or the adjudication , finding insufficient basis for an agreement between the parties to this effect .

At the preparatory stage ORG decided , in view of the financial character of the subject matter , to sit with CARDINAL lay members with expertise in financial matters and invited the parties to propose candidates . The applicant company did not make any proposal . PERSON proposed PERSON ( hereinafter referred to as “ Mr A. ” or “ lay member PERSON ) , an economist , and the applicant company did not object within the set time - limit .

On DATE the High Court appointed PERSON as lay member , after having specified the impartiality requirement , and informed the parties about the prospective appointment of a second lay member , Mr NORP , an economist . However , since it turned out that Mr NORP did not satisfy the impartiality requirement , he was replaced by PERSON ( hereinafter referred to as “ Mr B. ” or “ lay member PERSON ) , a chartered accountant .

NORP In the meantime the applicant company appealed against ORG decision of DATE to ORG disputing the necessity and desirability of appointing lay members in general . It also contested the procedure whereby PERSON had been appointed on the proposal of PERSON and not on a joint proposal by the parties . The applicant company questioned whether PERSON professional background made him suitable as an expert in the case . On CARDINAL DATE ORG upheld ORG decision , finding that the appeal had no prospects of success .

ORG held an oral hearing DATE or so between DATE and DATE at which each party was represented by counsel and an assistant lawyer . From the outset it was composed of CARDINAL professional judges – Mr ORG , President , Mr Justice PERSON and Mr Justice Nesheim , ad hoc judge DATE and CARDINAL expert lay judges , PERSON and PERSON

There were no objections to the composition of ORG at the opening of the hearing on DATE ( section CARDINAL of ORG ( domstolloven ) - PERSON of CARDINAL DATE no . CARDINAL , see paragraph CARDINAL below ) . On DATE and on CARDINAL , DATE and DATE the lawyers for the applicant company made their opening address .

On the last - mentioned date the Presiding Judge of ORG drew the parties’ attention to the fact that it was considering whether ( as requested by the applicant company – see paragraph CARDINAL above ) it would be appropriate to disjoin the proceedings , as provided for in LAW ( NORP ) , in respect of point QUANTITY of the counter - action and invited the parties to give further consideration to the matter .

In TIME of DATE counsel for the applicant company continued his address and entered his plea . Thereafter the assistant lawyer for the respondent began his opening address . At some point during this address lay member PERSON informed the parties that , in his capacity as an employee of ORG , he had been involved in an assignment for ORG and ORG in connection with the listing of a company on the stock exchange . The parties gave notice that they wished to consider this matter in further detail and to revert later to the question whether PERSON should be able to sit in the case .

NORP Before adjourning the proceedings on DATE , the Presiding Judge provided the parties with further information on the question of disjoining the proceedings with regard to the first point of the counter - action . The parties were asked to give their final comments on this question before counsel for the respondent commenced his opening address in respect of the counter - action .

When the proceedings resumed on DATE , DATE , the Presiding Judge opened by taking up the question of the eligibility of PERSON in response to the pleadings on this subject submitted by the applicant company ’s lawyer . PERSON then provided further details of his relationship with PERSON . Since some of the questions raised by the applicant company required further investigation by PERSON , it was agreed that the issue of the lay member ’s ability to take part in the case should be adjourned until DATE .

The assistant lawyer for the respondent then continued his opening address and entered his pleas .

The Presiding Judge informed the parties that the ORG intended to rule on the various procedural questions raised in the case DATE .

When the proceedings resumed in TIME of the following day , DATE , counsel for the applicant company asked that PERSON be absent from the pleadings regarding his eligibility . ORG adjourned briefly to consider the question and , when the proceedings resumed , decided that PERSON should not take part in the subsequent exchanges on the question .

Counsel for each of the parties then made submissions on the question of eligibility with reference to section CARDINAL of ORG .

The parties were then given the opportunity to argue their views on the question of disjoining the proceedings as provided for in LAW .

At TIME ORG adjourned the proceedings until TIME and withdrew to deliberate and vote in camera on the questions of eligibility and disjoinder .

At TIME on DATE ( DATE ) ORG convened again , sitting with the professional judges and lay member PERSON delivered CARDINAL decisions , signed by the CARDINAL professional judges and lay member PERSON , but not by lay member PERSON , who had not taken part .

The first decision concerned the disqualification matter , in which ORG observed inter alia :

“ During the appeal proceedings lay member [ Mr A. ] , who is an economist , remembered a circumstance that he thought appropriate to mention to the other members of the bench and which was then passed on to the parties .

[ Mr A. ] is a partner in ORG . At the time of writing this company is engaged in an assignment for ORG ( referred to hereafter as PERSON ) , the parent company of CARDINAL of the parties in this case , ORG ASA . In collaboration with a second company , ORG , ORG has undertaken a consultancy assignment for a company seeking to be listed on ORG . PricewaterhouseCoopers’ assignment consists of providing certain auditing and accounting services in connection with the stock - exchange launch . The assignment was given DATE following a tendering competition and , according to the information provided , most of the work on the assignment is being performed by PricewaterhouseCoopers’ GPE office . [ Mr A ] has been entrusted with the task of providing advice in connection with the assignment and will thus be CARDINAL of the people who will provide the services in question . In this context he has also had some direct contact with a representative of PERSON . According to the submitted documents , the fee for the assignment will be approximately ORG CARDINAL,CARDINAL . The assignment has not yet been completed . The company seeking listing will ultimately be liable for payment to ORG .

After [ Mr A. ] had explained the situation , the [ applicant company ] requested further information from the opposing party and the parties subsequently exchanged pleadings on the question of eligibility . At DATE ’s hearing Advocate PERSON , acting for [ the applicant company ] , filed an objection to the eligibility of lay member [ Mr A. ] . The parties were given the opportunity to comment on the question . [ Mr A. ] was not present in court during the submissions and decision on the question of his eligibility .

[ The applicant company ] argues that lay member [ Mr A. ] is disqualified pursuant to section CARDINAL of ORG . The company refers , among other things , to the information that ORG has obtained MONEY of the commissions carried out for FAC during DATE . A commission concerning a stock market introduction is very prestigious and is currently a rare occurrence . It is obvious that ORG has considerable interest in obtaining this type and other kinds of assignments from FAC , a main actor in this market . As a partner in ORG , [ Mr A. ] has a direct financial interest in the company ’s income and future income potential . What is decisive is how this matter would appear to the public . The counter - action in the case concerns a considerable compensation claim against ORG . According to the information available , there is currently no activity in this company , and it is obvious that , for the purposes of the impartiality issue , this company ought to be identified with PERSON , which has continued the daughter company ’s activity . There is clearly too close a connection between [ Mr A. ] and the respondent for [ Mr A. ] to serve as a judge in the case . A further disqualifying circumstance is that [ Mr E. ] of PERSON is a central witness in the case with regard to the question whether [ the applicant company ’s ] representative during a meeting with ORG , attended by [ Mr E. ] , made statements which could provide a basis for demanding confiscation of assets . It is untenable for [ Mr A. ] to assess whether the witness statement from a person with whom he has a relationship of continuous professional cooperation is valid .

At the preparatory stage [ the applicant company ] was particularly concerned about the need for any lay members appointed to have sufficient independence from the parties and in this connection the company pointed to the close business relations between the large companies in the financial sector . It should also be emphasised that the law firm of counsel for the respondent carried out commissions for ORG in connection with the stock market introduction . ...

ORG claim that lay member [ Mr A. ] is not disqualified from taking part in the case . His connection to the respondent in the appeal is too loose . This is illustrated by the fact that it never occurred to [ Mr A. ] in the beginning that there could be a ground for disqualifying him . The assignment in question is very small and [ Mr A. ] does not play a central role in it . His role is primarily to provide advice to PricewaterhouseCoopers’ office in GPE , which is handling the consultancy . Bills and fees are addressed to PERSON and ORG , but it is the company which is to be introduced on the stock market which will cover the costs . [ Mr A. ] does not have any DATE or permanent dealing with the consultancy . This is a CARDINAL - off consultancy consisting in objective accountancy considerations . [ Mr A. ] is not personally a contractual party and ORG has no direct or indirect interest in the outcome of the court case . [ Mr A. ] will be removed from the consultancy . No one from counsel ’s law firm who is directly involved in the case has been aware of the matter . The law firm has no commission for ORG in connection with the stock market introduction but only for the company whose introduction is being sought .

The NORP financial milieu is small and there are very few large accountancy firms that are able to take on such consultancies . A strict interpretation of section CARDINAL of ORG would lead to a very narrow choice of competent lay members in cases where particular competence in finance and accountancy is required . ...

ORG is of the view that there is nothing to suggest that lay member [ Mr A. ] is not fully able to reach an impartial decision in the case , notwithstanding the contractual relationship between PERSON and ORG . It is noted that [ Mr A. ] himself did not view this relationship as a problem , and it was not until DATE of the proceedings that it occurred to him that he should mention the relationship . This is not decisive , however , since the question of disqualification must be considered on the basis of a more general assessment of what relationship between a lay member and a party will be deemed unacceptable pursuant to section CARDINAL of ORG .

ORG notes that objections to the eligibility of the lay member have been entered by [ the applicant company ] and the court refers to [ the applicant company ] ’s submissions as cited above . Having considered the matter in its entirety , the ORG is of the view that , in the light of the circumstances , lay member [ Mr A. ] should withdraw .

The decision is unanimous .

Conclusion

[ Mr A. ] is ordered to withdraw . ”

In the second decision ORG decided to disjoin the proceedings :

“ Having put the question to the parties of disjoining the proceedings as provided for in LAW , the ORG unanimously decided with respect to the counter - action – item CARDINAL of the [ applicant company ’s ] statement of claim DATE that the following CARDINAL questions should be considered first :

Whether , in the light of the negotiating situation between the parties , ORG were in breach of their obligations in relation to [ the applicant company ] , in other words whether there was an obligation for SCC not to apply for attachment in GPE , GPE and/or GPE .

Whether there exist other fault - based or strict grounds for liability in connection with the applications for attachment in GPE , GPE and GPE .

The decision means that for the time being the court will not review questions relating to a causal link in respect of the alleged losses or the question whether there should be imputation of liability between the [ the applicant company ] and the company PERSON .

After the proceedings had been completed in accordance with this decision , ORG ruled , following deliberations , that a decision should be rendered in both the primary and the counter - action on the basis of the decision adopted .

When the proceedings resumed on DATE , counsel for the applicant company filed a motion for the case to be discontinued on the grounds of ORG order of DATE requiring lay member PERSON to withdraw . Counsel for the respondent objected . Thereafter the Presiding Judge informed the parties that ORG had unanimously decided that the proceedings should continue , as provided for in LAW ) of ORG ( see paragraph CARDINAL below ) . In this regard ORG stated the following in its judgment of CARDINAL DATE :

“ The disqualification of the lay member [ Mr A. ] did not disqualify the other judges and the need for expert evidence was safeguarded in the further proceedings . ”

According to the transcripts of ORG hearings , it subsequently heard the case from CARDINAL to DATE , DATE and DATE .

In a decision of CARDINAL DATE ORG reiterated its decision of DATE on the disjoinder of the proceedings and affirmed that the appeal proceedings had been conducted in accordance with this decision until DATE . It further stated that , after its deliberations held on DATE and DATE , it had decided to close the proceedings and adjudicate the case DATE both the principal action and the counter - action as it had been pleaded .

By a judgment of DATE , ORG upheld ORG judgment in the main and ordered the applicant company to pay specified amounts for PERSON legal costs both before ORG and ORG .

According to ORG judgment , at an unspecified time after ORG judgment of DATE , ORG ’s broker activity had been taken over by the parent company ORG and since then the former company had had no economic activity .

The applicant company sought to appeal against ORG procedure and judgment to ORG ( PERSON ) .

As to the procedure , the applicant company argued that the High Court judgment ought to be quashed , notably on the ground that the court had been unlawfully constituted . This was due to the participation of lay member PERSON , who had been disqualified under LAW ( LAW , item QUANTITY , of DATE ) . In the alternative , the applicant company maintained that lay member PERSON ’s participation must have had an influence on the High Court judgment ( LAW ) . The proceedings had lasted for “ DATE by the time lay member PERSON was ordered to withdraw . The substantive questions concerned relatively old facts , which meant that the parties’ pleadings and the case documents would be central to ORG determination of the case . Moreover , the respective decisions to disqualify lay member PERSON and disjoin the proceedings had been taken in the same court session . A decision to disjoin the proceedings presupposed that the judges had discussed the substance of the case , an issue that had been raised on DATE of the hearing already . In the further alternative , the applicant submitted that ORG decision to continue the proceedings with reference to section CARDINAL of ORG after A. ’s withdrawal had constituted an error of procedure .

The ORG notes that in its notice of appeal of DATE to ORG , the applicant company reiterated , inter alia , that it “ had consistently argued in favour of disjoining the proceedings before ORG , as had been done before ORG , in accordance with LAW ” .

On DATE ORG ( Høyesteretts kjæremålsutvalg ) refused the applicant company leave to appeal with regard to ORG procedure , finding it obvious that the appeal had no prospects of success . As for the remainder , ORG refused the applicant company leave on the ground that the appeal represented no interest beyond the particular case and that no other reason warranted the appeal being heard by ORG .

The requirements of impartiality of judges and lay members are set out in sections CARDINAL to CARDINAL of ORG ( domstolloven ) – PERSON of CARDINAL DATE no . CARDINAL . In the present case , the national ORG relied on section CARDINAL , which reads :

Section CARDINAL

“ Nor may a person sit as a judge or juror if there are other particular circumstances which are liable to weaken confidence in his impartiality . This applies in particular if a party requests that he withdraws on this ground . ”

As for the procedure for handling questions of impartiality , the following provisions of the CARDINAL Act were relevant :

Section CARDINAL

“ A party wishing to request that a person be excluded from taking part [ in the proceedings ] should do so as soon as he becomes aware of the matter which justifies the request .

He may no longer request exclusion pursuant to section CARDINAL if he was aware of the particular circumstances but nonetheless proceeded to plead the case before the court .

The request may be submitted either orally or in writing and shall state the reasons relied on .

Section CARDINAL

“ Before the hearing of the particular case begins , the president of the court shall inform the jurors or lay members that they are excluded from serving if they fall within any of the situations referred to in sections CARDINAL or CARDINAL , or if , for their part , such circumstances exist as referred to in section CARDINAL , and he shall call upon them and the parties to disclose the fact if this should be the case . ”

The DATE Act contains the following provision on the possibility to continue a hearing in the event of a member ’s inability to sit :

Section CARDINAL

“ If any member of the court or jury is unable to attend after the main hearing has begun , the hearing may be continued without summoning a replacement provided that there is CARDINAL juror or lay member and CARDINAL judge less than the number normally required . Both in civil and criminal proceedings , a judge who , in accordance with section CARDINAL ) , may serve as the president of the court must always be present .

When ORG is composed only of CARDINAL professional judges , the proceedings may not be continued if any of them is unable to attend . ”

Article CARDINAL of the former ORG ( tvistemålsloven ) – Law of CARDINAL DATE no . CARDINAL , replaced with effect from DATE by a new Code , stated :

Article CARDINAL

“ The court may join CARDINAL or more cases for combined hearing and in such case for joint ruling when the hearing of the case may thus be facilitated or accelerated and when CARDINAL of the parties is the same in all of the cases .

The court may decide that there shall be a separate hearing concerning CARDINAL or more claims combined into a single case or concerning individual issues in dispute concerning the same claim .

The decision of the court in accordance with this section may not be challenged or appealed . ”

The above provision regulated the disjoinder of proceedings only , not the disjoinder of adjudications , which were governed by LAW . The latter provision provided that in a case concerning a compensation claim or other claims the size of which was disputed , the adjudication of the size of the claim could , at the request of both parties , be adjourned .


Violation of Article 6 - Right to a fair trial

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych

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

On DATE ORG ordered the ORG - owned mining company “ PERSON ” ( “ the company ” ) to pay the applicant CARDINAL NORP hryvnyas ( ORG ) in salary arrears and other payments . By another decision adopted on DATE the court ordered the company to pay the applicant ORG CARDINAL.CARDINAL for loss of salary and to rectify the records in his work book ( трудова книжка ) about the date and the reason of his dismissal .

On DATE the same court ordered the company to pay the applicant ORG CARDINAL.CARDINAL for loss of salary and other payments . By the same judgment the court ruled again to rectify the records in his work book about the date of his dismissal .

On DATE the same court ordered the company to pay the applicant ORG CARDINAL,CARDINAL.CARDINAL for loss of salary and other payments . By the same judgment the court ruled to rectify the records in his work book about the date of his dismissal .

On DATE the same court ordered the company to enforce the judgments of DATE .

On DATE the same court ordered the company to provide the applicant with an apartment , as stipulated in his employment contract . On DATE the same court , upon the applicant ’s request , modified the manner of enforcement of the judgment of CARDINAL DATE and ordered the company to pay the applicant ORG CARDINAL,CARDINAL instead of providing him with an apartment .

All the above judgments became final and the enforcement proceedings were instituted by ORG ( “ the Bailiffs Service ” ) .

On DATE ORG informed the applicant that the enforcement proceedings had been suspended due to bankruptcy proceedings pending against the company .

NORP In DATE the applicant instituted proceedings in ORG against ORG seeking compensation for damage caused to him due to the non - enforcement of the above judgments . On DATE ORG rejected the applicant ’s complaints against the alleged inactivity of ORG . On DATE the ORG of Appeal quashed the decision and remitted the case to the first - instance court for a new consideration . According to the applicant ’s submissions , the proceedings are still pending .

The applicant rented a house owned by Mr. PERSON . In DATE the applicant instituted proceedings against the municipal company ORG ) , and ORG управління водопровідно каналізаційного господарства ) claiming ORG CARDINAL,CARDINAL in compensation for non - pecuniary damage , alleging that the water supply to the house rented by him was unsatisfactory . The applicant also sought a recalculation of his water rates .

On DATE ORG allowed the applicant ’s claims in part . On DATE ORG quashed that decision and remitted the case to ORG for a fresh consideration by another judge .

On DATE ORG allowed the applicant ’s claim in part and awarded him UAH CARDINAL in compensation for non - pecuniary damage . On DATE the ORG of Appeal quashed this decision and remitted the case to ORG for a fresh consideration by another judge .

On DATE the President of ORG requested that ORG of Appeal transfer the applicant ’s case to another court on the ground that it only had CARDINAL judges , who had both already considered the case . On DATE ORG granted the request and transferred the case to ORG .

Meanwhile , the applicant appealed in cassation against the ruling of the court of appeal of DATE . On DATE ORG rejected the applicant ’s cassation appeal .

On DATE Mr PERSON . entered the proceedings as a third party . On DATE he requested that ORG suspend the proceedings in the applicant ’s case since he had instituted other proceedings against the municipal company “ GPE in ORG , and their outcome would have a bearing on the consideration of the case . On DATE the court granted the request . On DATE ORG left PERSON . ’s claim unexamined because it lacked jurisdiction over the case . On DATE ORG renewed proceedings in the applicant ’s case .

On DATE ORG allowed the applicant ’s claim in part and awarded him UAH CARDINAL in compensation for non - pecuniary damage . On DATE ORG upheld that decision .

On DATE ORG dismissed the applicant ’s appeal in cassation .

According to the materials in the case file , out of around CARDINAL scheduled hearings , CARDINAL were adjourned due to the absence or at the request of the GPE representatives . CARDINAL were adjourned because of the absence of both parties ; CARDINAL were adjourned because of the absence of the applicant or at his request ; and CARDINAL was adjourned due to the judge ’s illness .

On DATE ORG fined the applicant with UAH CARDINAL because he had submitted his NORP declaration out of time .

In DATE the applicant lodged a complaint with ORG .

On DATE the applicant ’s complaint was transferred to ORG , which left it unexamined on the ground that the dispute fell within the jurisdiction of the commercial courts . On DATE and CARDINAL DATE ORG and ORG , respectively , upheld that ruling .

On DATE the investigator of ORG of the ORG appointed the applicant , acting as a legal advisor , as legal assistant to a minor , PERSON , who was charged with robbery . On DATE ORG of PERSON annulled this appointment ; on DATE B. ’s mother cancelled the legal aid contract .

The applicant alleged that the Vice - President of ORG ordered that lawyers without an advocate ’s licence were not to be appointed as legal assistants .

The relevant domestic law is summarised in the judgments of ORG v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and PERSON v. GPE ( no . GPE , § § CARDINAL , DATE ) .


Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in the village of GPE , in the NORP region of GPE . He was represented before the ORG by Ms N. ORG , a lawyer practising in the same village .

On DATE ORG and the former GPE concluded an agreement on the mutual resettlement of NORP from GPE and NORP from GPE .

In DATE the applicant ’s family was moved from GPE to GPE . In GPE they left behind property , namely a house , a garden and a QUANTITY plot of land .

In DATE the applicant lodged a claim with ORG against ORG , ORG , ORG , and ORG seeking recovery of the property which had belonged to his father and mother who had died in DATE and DATE respectively .

On DATE the court found against the applicant . It established that he was CARDINAL of the heirs of his deceased parents and on this basis he had claimed compensation for the property left behind by them in GPE DATE . According to information obtained by the court from ORG , payments to resettled people had been conducted through local governments prior to DATE and special funds had been allocated for the implementation of the Agreement of DATE . The court further noted that since DATE no funds had been allocated for implementation of the above - mentioned Agreement and current NORP legislation did not provide for compensation for property left behind in GPE . On this basis , the court rejected the applicant ’s claim as unsubstantiated .

On DATE ORG upheld the decision of the first - instance court . Having agreed with its reasoning , the court of appeal noted that the applicant had not proved that his father had not received any compensation for the property in question or that his father had made any claims for such compensation whilst he had still been alive and during the period that such compensation had been paid .

On DATE ORG rejected the applicant ’s appeal in cassation as unsubstantiated .

The Agreement between ORG and the Government of the NORP GPE on the evacuation of NORP citizens from the territory of the GPE and of the NORP population from the territory of GPE ( GPE pomiędzy ORG a ORG Republiki Rad dotyczący ewakuacji obywateli polskich z terytorium GPE i ludności ukraińskiej z terytorium ORG між ORG і Польським NORP визволення про евакуацію українського населення з території NORP і польських громадян з території УРСР – “ the Agreement ” ) was signed on DATE and entered into force the same day . It was officially published in ORG DATE , on DATE .

The Agreement provided , in so far as relevant , as follows :

Article CARDINAL

“ ... The Government of the NORP GPE declares that [ persons ] evacuated to the territory of the GPE Soviet GPE shall be settled according to their wishes either on a collective farm or on a plot of land to be used as an individual farm , such plot to be no smaller than that used prior to the evacuation up to a maximum of QUANTITY per farm ... ”

Article CARDINAL

The following benefits shall be established for persons evacuated from the NORP ORG to GPE and from GPE to the territory of the NORP ORG :

( a ) the writing off of all arrears accumulated by such persons in respect of deliveries in kind , pecuniary taxes and insurance premiums ; ...

( c ) NORP exemption from all State pecuniary taxes and insurance premiums due in DATE and DATE in respect of all the evacuated households , both on the territory of GPE and on the territory of GPE ;

( d ) the grant of a DATE pecuniary loan of MONEY or zlotys per household to evacuees at the place of their resettlement for their financial and other needs ; ...

Evacuees shall be allowed to take with them clothing , footwear , linen , bedding , foodstuffs , household goods , farming inventory stock , harnesses and other articles for household and agricultural use , up to a total weight of QUANTITY per family , as well as any cattle and poultry belonging to the evacuated farm .

Persons with specialised professions , such as workmen , craftsmen , doctors , artists and scholars , shall be accorded the right to take with them objects needed in the exercise of their professions .

The following may not be taken upon evacuation :

( a ) NORP cash , banknotes and gold and silver coins of any type , with the exception of NORP banknotes up to a maximum of MONEY per person , or NORP currency up to a maximum of MONEY per person ;

( b ) NORP gold and platinum in alloy , powder or scrap form ;

( c ) precious stones in unworked form ;

( d ) works of art and antiques whenever they constitute a collection , or even as individual items , unless they are the evacuated person ’s family property ;

( e ) firearms ( with the exception of hunting rifles ) and military equipment ;

( f ) photographs ( other than personal photographs ) , charts and maps ;

( g ) automobiles and motorcycles ;

( h ) furniture , whether by rail or by motor vehicle , because of the transport problems caused by the war .

The value of movable belongings left behind upon evacuation , and also of immovable property , shall be returned to the evacuated person on the basis of insurance valuations , in accordance with the applicable laws in GPE and in the NORP GPE , as the case may be . In the absence of an insurance valuation , the value of movable and immovable property shall be assessed by ORG of the Parties . The Contracting Parties shall undertake to ensure that town and village houses vacated as a result of resettlement are made available to resettled persons on a priority basis . ”

On DATE the Government of GPE and ORG , the NORP GPE , the GPE Soviet GPE and the Lithuanian Soviet Socialist Republic concluded an agreement on the mutual settlement of accounts in connection with the evacuation of population groups and the delimitation of the NORP - Soviet State border ( Umowa między PERSON , z jednej strony i ORG Republik Radzieckich , PERSON , PERSON Republiki Radzieckiej i ORG PERSON , z drugiej strony , o wzajemnych rozliczeniach , wynikłych w związku z ewakuacją ludności i delimitacją polsko - radzieckiej granicy państwowej CARDINAL “ the DATE LAW ) . LAW provided :

“ With a view to the complete and definitive mutual settlement of accounts for movable and immovable property , agricultural products and seed left on the territories of GPE and of the GPE by persons evacuated and resettled in connection with the delimitation of the NORP - Soviet State border , the Government of GPE undertake to pay the Government of the GPE the sum of CARDINAL ( CARDINAL ) MONEY . ”

In GPE no specific legislation has been adopted or commitment made to compensate former NORP residents who were resettled in GPE under LAW DATE . However , in DATE other legislative measures have been introduced .

In DATE the Cabinet of Ministers of GPE submitted a War Veterans ( Amendment ) PERSON to PERSON ( “ ORG ” ) . The bill mentioned for the first time people resettled in GPE . ORG passed the bill with some amendments . In particular , they introduced a requirement of proof of work during the war , depending on the age of the person concerned . In its final version of DATE , as enacted by ORG , the relevant parts of LAW read as follows :

Section CARDINAL . Persons to be considered war participants

“ The following persons shall be considered war participants :

( CARDINAL) ... Persons who worked during the Great Patriotic War in territories which after DATE were integrated into the former ORG , and persons who were resettled after DATE on the territory of GPE from the territory of other GPE , as well as citizens who were assigned by ORG bodies of the former GPE to work in countries allied to the GPE , shall also be considered war participants .

For persons who were born on or prior to DATE and have valid reasons for failing to submit documentary evidence of their work during the war , the status of war participant may be established by a motion of a special committee under the procedure established by ORG .

For persons born after DATE , the status of war participant may be established only by the production of documents and other evidence that unequivocally prove that they worked during the war ... ”

By LAW of DATE , section CARDINAL was changed and the categories of resettled persons , including individuals resettled prior to and in DATE , were listed separately in a new paragraph of the LAW with no other conditions attached . This provision reads as follows :

“ ... ( CARDINAL ) persons resettled after DATE on the territory of GPE from the territory of other GPE . ”

The decree provides for a number of events to commemorate the forced resettlement but is silent on the question of compensation for pecuniary and non - pecuniary damage for those who were resettled .

This bill was submitted to ORG in DATE but was not adopted . LAW bill proposed compensating resettled people for pecuniary and non - pecuniary damage by granting them war - participant status and facilitating their travel to GPE to visit the areas where they had previously resided . The bill further stated that provision could be made in domestic legislation for other benefits and forms of compensation to be furnished to resettled people .

“ International treaties that are in force and have been agreed to be binding by the Verkhovna Rada of GPE are part of the national legislation of GPE . ”

“ ... [ I]nternational treaties concluded and duly ratified by GPE shall constitute an inalienable part of the national legislation of GPE and shall be applied according to the rank prescribed for norms of national legislation . ”

Section CARDINAL - Validity of International Treaties of GPE on GPE

“ CARDINAL . International treaties that are in force and agreed to be binding by PERSON of GPE are part of the national legislation of GPE and are applied in the order foreseen for the norms of national legislation ... ”