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

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

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

On DATE CARDINAL PERSON , with whom the applicant had had sexual contact earlier but to whom he was not married , gave birth to a son , P.

It seems that as the applicant had denied being the father of P. , on DATE Ś. initiated civil proceedings before ORG ( Sąd Rejonowy ) for a judicial determination of his paternity .

On DATE , based on the results of a blood - group test ( “ badanie grupowe krwi ” ) on the applicant and PERSON , ORG of ORG ) in PERSON drew up a report , in which it stated that the features of the applicant 's and Ś 's blood were identical and therefore it was neither possible to exclude the paternity of the applicant on the one hand , nor to confirm it on the other .

At a hearing on DATE the applicant confirmed that he had had sexual intercourse with PERSON , but in DATE , that is DATE before the date of birth of P.

On DATE ORG declared that the applicant was P 's father . The court also ordered him to contribute to his maintenance on a DATE basis .

The judgment of CARDINAL DATE became final and binding . The applicant submits that he complied with the court 's decision and the maintenance order . He did not lodge an appeal due to the fact that he already had his own family , did not wish to be involved in possible lengthy proceedings and that his financial situation allowed him to provide support for Mrs. PERSON and P.

It appears that on an unknown date the applicant and PERSON had a dispute , after which the applicant ceased to provide P. with financial support .

On DATE ORG annulled the maintenance order .

On DATE the applicant sought to contest his paternity before ORG . He relied on the fact that his paternity had been determined in DATE on the basis of expert evidence corresponding to the state of science at that time , which neither confirmed nor excluded his paternity and that new methods of establishing paternity , such as DNA testing , allowed for its precise determination .

On DATE ORG dismissed the applicant 's claim on the grounds that his case was res iudicata , that the possible conditions for re - opening the proceedings had not been fulfilled , and finally , that he did not have the right to bring an action to challenge his paternity . In this connection , the court relied on LAW ( “ PERSON i GPE ) according to which only a man married to the mother could lodge such an application .

On DATE , following the applicant 's appeal , ORG ( PERSON ) upheld the first - instance judgment and its reasoning .

On DATE ORG refused to entertain a cassation appeal lodged by the applicant .

Relevant provisions of family law

According to LAW ( “ the LAW ” ) , if there is no legal presumption indicating that the mother 's husband is the father of her child , or if such presumption has been rebutted , the paternity of the child may be established by the recognition of paternity by the father or by a decision of a court .

In respect of children born out of wedlock , LAW provides for the presumption that a man who had intercourse with the mother CARDINAL and DATE before the birth of a child is the father .

A husband can deny paternity in court within DATE of learning that his wife had given birth to a child ( LAW ) . Under LAW the wife may contest her husband 's paternity within DATE of the birth . Similarly , according to LAW a child may deny paternity of a husband of his / her mother within DATE of reaching the age of majority .

According to LAW a denial of paternity is excluded after the child 's death .

Finally , under LAW , paternity may be challenged by a prosecutor at any time , as long as the child is alive .

According to LAW ORG postępowania cywilnego ) a judgment which can no longer be appealed against is final and binding ( prawomocny ) .

Under LAW a party to proceedings can request the re - opening of the proceedings where facts or evidence have come to light which could have an influence on the result of the original proceedings but which the requesting party could not use in the original proceedings .

Article CARDINAL provides that a party to civil proceedings which have terminated with a final judgment on the merits can request that these proceedings be re - opened if ORG has found that the legal provision on the basis of which this judgment was given was incompatible with the LAW , a ratified international agreement , or a law or an act by virtue of which a judicial decision was given .

Article CARDINAL of the LAW provides that

“ ( e ) everyone shall have the right to legal protection of his private and family life , of his honour and good reputation , and to make decisions about his personal life . ”

The relevant parts of LAW provide as follows :

“ CARDINAL . Judgments of the Constitutional Court shall be universally binding and final .

Judgments of ORG , ... shall be published without delay .

A judgment of the Constitutional Court shall take effect from DATE of its publication ; however , ORG may specify another date for DATE the binding force of a normative act . Such time - limit may not exceed DATE in relation to a statute or DATE in relation to any other normative act . Where a judgment has financial consequences not provided for in the ORG , the Constitutional Court shall specify a date for the end of the binding force of the normative act concerned , after seeking the opinion of ORG .

A judgment of ORG on the non - conformity with LAW , an international agreement or statute , of a normative act on the basis of which a final judicial decision , a final administrative decision or settlement of other matters was issued , shall be a basis for re - opening proceedings , or for quashing the decision or other settlement in a manner and on principles specified in provisions applicable to the given proceedings ” .

The Constitutional Court 's judgment of DATE

On DATE ( K CARDINAL/CARDINAL ) ORG ruled on a similar issue concerning the lack of standing of a biological father to lodge with a court an action to have his paternity recognised in respect of a child born out - of - wedlock . Before the respective provisions of LAW were repealed as a result of the judgment , such action on behalf of a father could only be brought by the public prosecutor . ORG reached the conclusion that the lack of standing before a court of the biological father in proceedings to have his biological paternity recognised in law was in breach of LAW , which provided for protection of children 's rights as a constitutional principle . It was further stated that this was also in breach of the father 's right to respect for his private and family life , guaranteed by LAW . Moreover , these provisions breached LAW , which guaranteed the right of access to a court . The relevant extracts from the judgment can be found in the ORG ' s judgment in the case of Różański v. GPE , no . CARDINAL , § § DATE ) .


The applicant is a national of GPE , born in DATE . At present he is imprisoned . Previously he resided in GPE , GPE .

The facts of the case may be summarised as follows .

The applicant came to GPE in DATE and applied for asylum . He stated that he had not been involved in any direct political activities in GPE but that he had encountered problems due to his NORP origin . He maintained furthermore that he had assisted the resistance movement by transporting necessities of life to people in the NORP province . The applicant was considered a de facto refugee by the NORP authorities , and was granted a permanent residence permit . His request for a travel document and a declaration of refugee status was , however , rejected .

The applicant was convicted of theft in DATE and of petty larceny and aggravated assault in DATE . For the last two crimes he was , on DATE , sentenced to DATE and CARDINAL months’ imprisonment by ORG ( tingsrätten ) of GPE .

On DATE ORG convicted the applicant of attempted manslaughter ( försök till dråp ) . He was sentenced to CARDINAL years’ imprisonment . As regards the question of expulsion the court found , with its chairman and CARDINAL of the lay assessors dissenting that , being of NORP origin from the NORP province , the applicant would risk persecution if he returned to GPE . The court , therefore , did not issue an expulsion order also bearing in mind that the applicant had resided in GPE since DATE .

The applicant appealed against the judgment to ORG ( hovrätten ) . During the proceedings before ORG the court obtained an opinion from ORG ( ORG invandrarverk ) as to the applicant ’s need for protection . In its opinion of DATE the ORG submitted that it had formed its opinion on the basis of an overall assessment of the political situation in GPE . The assessment was founded on several reports from the NORP foreign administration covering the political situation after DATE of the PERSON regime in DATE . According to those reports the human rights situation had improved considerably . A new Constitution had been adopted in DATE which established , both generally and in detail , that human rights should be respected . ORG had also signed all essential conventions on human rights . The Board therefore considered that the applicant was no longer in need of protection in GPE .

On DATE ORG , at the same time reviewing the judgment of DATE , sentenced the applicant to CARDINAL years’ imprisonment to be followed by expulsion . The ORG took into consideration , inter alia , that the applicant during DATE had committed CARDINAL serious crimes of violence , that it could be assumed that he would pursue his criminal activities in GPE if he was allowed to stay there , that he , whilst residing in GPE , had been working for only a limited time , that he did not have any relatives in GPE and that he had not learned NORP although he had been living in the country for DATE . Furthermore the court took into consideration ORG opinion that the applicant , due to the new conditions in GPE , was no longer in need of protection in GPE as a de facto refugee .

The applicant appealed to ORG ( ORG domstolen ) . On DATE he was refused leave to appeal .

On DATE the ORG rejected the applicant ’s petition to have the expulsion order revoked .

The applicant may be released on probation on DATE at the earliest . An expulsion may take place as from that date . The enforcement will be carried out by the local police authority .


Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Afghanistan)

David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Ledi Bianku;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva

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

The first applicant , originally from GPE in central GPE , arrived in GPE on DATE and claimed asylum on DATE .

The basis of his asylum claim was his fear of both the ORG and PERSON - i - Islami ( “ HII ” ) due to his perceived connections with ORG and ORG ( “ the ORG ” ) . He claimed that DATE after his birth he had moved to GPE with his family and that , in DATE , he and his family had emigrated to GPE owing to problems that they had had with the ORG primarily as a result of their NORP ethnicity . They had returned to GPE in DATE where they had lived until his departure from GPE . The first applicant claimed that DATE , he had worked as a driver distributing leaflets for the elections and that , in that capacity , he had regularly worked with ORG in GPE ( “ ORG ” ) . DATE until DATE , he had worked as a driver in GPE for ORG , a branch of ORG ( “ ORG ” ) . In DATE , DATE before he had left GPE , he had received a telephone call in the PERSON language from an unknown person ( who he had presumed to be a member of the ORG ) threatening his life and that of his family unless he stopped working with “ foreigners and non - NORP ” . He had spoken to his friends about the phone call but had initially decided to ignore it . DATE , he claimed that the ORG had come to his home , had made further threats against him and , in his absence , had kidnapped his cousin . The first applicant claimed that he had been advised on the phone by his family to leave GPE immediately for his own safety . He had therefore fled to GPE , where his family had joined him DATE . However , in GPE he had felt that he remained a ORG target and so he had arranged his journey through LOC to GPE .

On DATE , the Secretary of ORG refused the first applicant ’s asylum application considering that he had fabricated aspects of his account and that his credibility was undermined by his failure to claim asylum in the NORP countries that he had passed through on his journey . Whilst it was acknowledged that the ORG had been responsible for attacks on NORP in the past , it was not accepted that the first applicant had ever been targeted by the ORG or that he would be at risk in the future . It was similarly accepted that there may well have been incidents of the targeting of those working for foreign or international organisations within GPE , but it was considered to be pure speculation that the threatening phone call that the first applicant had received in DATE had been from the ORG . Further , it was considered to be inconsistent that the first applicant would have been able to work for the ORG for DATE without any incidents occurring earlier . Even if the first applicant ’s cousin had been kidnapped , there was nothing to suggest that the incident related to the first applicant ’s involvement with the ORG or a systematic campaign against him . Even taking the first applicant ’s claim at its highest , it was noted that the first applicant had failed to seek assistance from the NORP authorities , the ORG or any other party in GPE . It was therefore considered that he had failed to demonstrate that a sufficiency of protection was not available to him in GPE or that he could not internally relocate to another area of GPE for safety .

The first applicant appealed against the refusal of his asylum claim and , in a determination published on DATE , the then ORG ( “ the ORG ” ) dismissed his appeal . The immigration judge accepted that the first applicant was of NORP ethnicity and that it was probably true that he had been employed by the ORG as a driver from DATE until DATE . The immigration judge also accepted that the first applicant had probably received a veiled threat in a telephone call from the ORG , which he had decided initially to ignore . He considered that such action demonstrated that the first applicant had had no fear of the ORG at that time . The immigration judge did not believe that there was any truth in the suggestion that the first applicant had been targeted by the ORG who had kidnapped his cousin instead of him . The fact that the first applicant had been able to go home and travel to GPE before fleeing to LOC was found to indicate that he had not been under any specific threat from the ORG . Further , the immigration judge did not believe that the first applicant would be known throughout GPE as a ORG driver . Finally , even if the whole of the first applicant ’s account was true , the immigration judge considered that there was no reason why he could not safely relocate within GPE , particularly to GPE to where he would be removed in any event . In sum , the immigration judge did not accept that there were substantial grounds for believing that the first applicant would face a real risk of suffering serious harm if he were returned to GPE .

The first applicant applied for reconsideration arguing that he would be at risk because of the level of violence in GPE . On DATE , a Senior Immigration Judge refused his application for reconsideration noting that the first applicant had not sought to challenge any of the immigration judge ’s findings in his case but had instead sought to rely on LAW ( see paragraphs CARDINAL - CARDINAL below ) .

On DATE , ORG refused a further application for reconsideration , noting the findings of the Country Guidance determination of ORG ( Article PERSON ) : indiscriminate violence ) GPE CG [ DATE ] UKAIT CARDINAL ( see paragraph CARDINAL below ) and concluding that it would not be unduly harsh or unreasonable to expect a young man , like the first applicant , to return to GPE .

The second applicant left GPE on DATE and arrived in GPE on DATE .

He claimed asylum on DATE on the basis of his fear of the ORG due to his work as an interpreter for GPE armed forces and ORG ( “ NORP ” ) from DATE until DATE . He submitted letters in support from various commanding officers in the GPE forces which confirmed that he had worked with GPE forces in GPE province in north - eastern GPE . He claimed that he had received threats from the ORG including a threat to behead him if he continued to work with foreigners . He also claimed that , in DATE , he had been the interpreter involved in the search and rescue operation of an aid worker , which had ultimately led to the aid worker ’s death and the death of CARDINAL ORG members . He claimed that he had located the aid worker using a scanner and that the ORG were aware of the significance of his role in that operation which had heightened their adverse interest in him . The second applicant had eventually fled GPE after seeing armed ORG outside his house . The second applicant additionally claimed that he would not be able to relocate to GPE for safety because he had relatives who lived there who were involved in the ORG and who would seek to forcibly recruit him into their forces .

On DATE , the Secretary of ORG refused his asylum application . It was accepted that he had worked as an interpreter for GPE forces in GPE . However , it was not accepted that the second applicant had been involved in the search for the aid worker given that the information that he had given regarding the same contradicted the information which was available in the public domain . Additionally , it was not accepted that the second applicant had received threats as he had claimed from the ORG given , inter alia , the discrepancies in his account over the dates of the same ; and the fact that it was not plausible that the ORG would have continued to threaten him rather than harm him , even after he had continued to work as an interpreter despite their earlier warnings . It was also considered that the fact that he had continued to work for GPE forces , despite the threats against him , was at odds with his claimed fear of the ORG . Furthermore , it was not accepted that ORG members had attended his home to kill him in DATE given that they had not fired at him and that he had been able to escape . The second applicant ’s credibility was also considered to be undermined by the fact that he had failed to claim asylum in GPE , despite having spent DATE there on his way to GPE .

In sum , even taking the second applicant ’s claims at its highest , it was not accepted by the Secretary of ORG that his fear of the ORG was well - founded because it was not accepted that he had had any real difficulties with them in the past . Furthermore , it was considered that he had failed to establish a sustained and systemic failure of state protection on the part of the NORP authorities and he could therefore seek protection from the NORP authorities against the ORG . Finally , it was considered that he could internally relocate to GPE for safety if necessary as a fit and healthy man of DATE . In that regard , it had not been accepted that he was at any risk of being forcibly recruited by HII given that he was uncertain whether or not his relatives were even still alive and because such a fear was entirely speculative .

The second applicant appealed against the refusal of his asylum claim and , in a decision of DATE , the First - tier ORG ) ( “ the First - tier ORG ” ) dismissed his appeal . The immigration judge accepted that the second applicant had worked as an interpreter for GPE forces in GPE province , had probably used a scanner and had been given a weapon for his own protection given that he had been working in a volatile area .

NORP However , the immigration judge did not accept that the second applicant had been involved in the rescue operation of the aid worker and found that he had fabricated that part of his claim and spoken of a well known and well publicised incident to embellish a claim that he would be at enhanced risk upon return to GPE . In that regard , the immigration judge considered , inter alia , that the second applicant would have known the aid worker ’s surname had he been so involved in the search operation ; that there were inconsistencies between his account and the account set out in newspaper articles ; and that the dates that he had given were inaccurate and inconsistent with when the rescue of the aid worker had taken place . Furthermore , the immigration judge considered that , if the second applicant had had such a pivotal role in the operation , the GPE forces would have provided a more recent and specific letter of recommendation rather than the general and comparatively out of date letters that he had submitted at his appeal . Furthermore , the immigration judge did not accept that the second applicant would have been the only interpreter involved in such a rescue operation , given the sensitivity of the same , the number of personnel involved and the number of villages that had been searched . The immigration judge also found that the second applicant had not given a credible explanation as to how the ORG would have been aware that he had been the interpreter who had identified the location of the aid worker and that he had been inconsistent about when he had allegedly received threats from the ORG .

The immigration judge further entirely disbelieved that there would be any risk to the second applicant in GPE from members of his family who would force him to join DATE and considered that that issue had been an embellishment of his claim . In that regard , the immigration judge noted that the second applicant had not submitted any evidence regarding the same and that in his asylum interview he had stated that those relatives were missing and may even have died .

The immigration judge commented that during the course of the hearing he had found the second applicant to be an untruthful witness who had been anxious to give a rehearsed story .

Additionally , the immigration judge considered the second applicant ’s claim with reference to the country guidance determination of ORG ( see paragraph CARDINAL below ) and stated that he had considered with care whether the second applicant would fall within an enhanced risk category because of his work as an interpreter for the GPE forces but had concluded that that could not be considered to be the case given that many NORP nationals would have worked for the GPE and international forces . The immigration judge further considered that , as a young man in good health who had been able to travel independently from GPE , it was not likely to be unduly harsh or unreasonable to expect him to relocate to GPE particularly given that he had married sisters apparently living safely there . Finally , the immigration judge considered that the second applicant ’s failure to claim asylum in GPE damaged his credibility .

On DATE , a Senior Immigration Judge refused an application for permission to appeal to ORG finding that , in a very careful and detailed determination , the immigration judge had given cogent and sustainable reasons , which had been fully open to her on the evidence , for concluding that the second applicant had not left GPE because of persecution and that he could return there without facing a real risk of serious harm . The immigration judge had given ample justification for the adverse credibility findings she had made and had adequately explained why the second applicant would not be at risk in GPE , to where he could viably relocate .

Sections CARDINAL(CARDINAL ) and CARDINAL of the Nationality , Immigration and Asylum Act DATE provide for a right of appeal against an immigration decision made by the Secretary of ORG for ORG , inter alia , on the grounds that the decision is incompatible with the Convention .

Appeals in asylum , immigration and nationality matters were until DATE heard by the ORG . Section CARDINAL of the Nationality , Immigration and Asylum Act DATE provided that a party to an appeal could apply to ORG , on the grounds that the ORG had made an error of law , for an order requiring the ORG to reconsider its decision on the appeal . ORG could make such an order if it thought that the ORG may have made an error of law . All applications for reconsideration went through a “ filter procedure ” , so that an application for reconsideration was first made to an authorised immigration judge of the ORG . If the immigration judge refused to make an order for reconsideration , the applicant was able to renew the application to ORG , which would consider the application afresh .

Since DATE , appeals in asylum , immigration and nationality matters have been heard by the First - tier ORG . Section CARDINAL of ORG DATE provides a right of appeal to ORG , with the permission of the First - tier ORG or ORG , on any point of law arising from a decision made by the First - tier ORG other than an excluded decision .

Section CARDINAL of LAW DATE provides that , in determining any question that arises in connection with a Convention right , courts and tribunals must take into account any case - law from this ORG so far as , in the opinion of the court or tribunal , it is relevant to the proceedings in which that question has arisen .

Country guidance determinations of both the former ORG and ORG are treated as an authoritative finding on the country guidance issue identified in the determination , based upon the evidence before the members of the ORG or ORG that determined the appeal . Unless expressly superseded or replaced by a later country guidance determination , country guidance determinations are authoritative in any subsequent appeals so far as that appeal relates to the country guidance issue in question and depends upon the same or similar evidence .

In the country guidance determination of ORG ( LAW ) : Indiscriminate violence ) GPE CG [ DATE ] UKAIT CARDINAL , of DATE , the then ORG held that there was not in GPE such a high level of indiscriminate violence that substantial grounds existed for believing that a civilian would , solely by being present there , face a real risk which threatens the civilian ’s life or person , such as to entitle that person to the grant of humanitarian protection , pursuant to ORG ) and PERSON ) of the Qualification Directive ( see paragraphs CARDINAL - CARDINAL below ) .

In GPE and others ( minors – indiscriminate violence – forced recruitment by ORG – contact with family members ) GPE CG [ DATE ] ORG CARDINAL ( ORG ) , ORG , in a determination dated DATE , concluded , inter alia , that the evidence as to the level of indiscriminate violence affecting civilians generally in GPE which had become available since ORG was not sufficient to show that the guidance given by the ORG in ORG was no longer to be regarded as valid .

In ORG ( unattended children ) GPE CG [ DATE ] ORG CARDINAL ( ORG ) , published on DATE , ORG found that there could be no doubt that the material before it revealed a deterioration in the security situation in GPE since ORG and others . However , ORG found that there was no evidence to suggest that there was any material difference to the risk to which the adult civilian population was subject in GPE .

In AK ( Article PERSON ) ) GPE CG [ DATE ] ORG CARDINAL ( ORG ) , promulgated on DATE , ORG reconsidered the evidence as to the applicability of Article CARDINAL(c ) of the Qualification Directive ( see paragraphs DATE below ) and the level of indiscriminate violence affecting ordinary civilians which had become available since ORG . In its examination , ORG examined a large amount of country of origin information , including that set out below at paragraphs CARDINAL - CARDINAL and paragraphs CARDINAL . With regard to GPE , ORG found that :

“ As regards GPE , even confining attention to GPE city , given the fact that this has a reported population of CARDINAL and that GPE province does not feature in any list of the most violent provinces , the argument for any engagement of the LAW CARDINAL(c ) threshold , if based primarily on civilian deaths , is even weaker : according to the DATE ORG report , the number of civilian deaths in GPE in DATE was DATE . We remind ourselves that the population of GPE is MONEY . ”

In relation to GPE as a whole , ORG concluded as follows :

( i ) This decision replaces ORG ( Article PERSON ) : indiscriminate violence ) GPE CG [ DATE ] ORG CARDINAL as current country guidance on the applicability of Article CARDINAL(c ) to the on - going armed conflict in GPE . ...

( ii ) Despite a rise in the number of civilian deaths and casualties and ( particularly in the DATE period ) an expansion of the geographical scope of the armed conflict in GPE , the level of indiscriminate violence in that country taken as a whole is not at such a high level as to mean that , within the meaning of Article CARDINAL(c ) of LAW , a civilian , solely by being present in the country , faces a real risk which threatens his life or person .

( iii ) Nor is the level of indiscriminate violence , even in the provinces worst affected by the violence ( which may now be taken to include Ghazni but not to include GPE ) , at such a level ... ”

In the country guidance determination of PM and Others ( GPE – PERSON - i - Islami ) GPE CG [ DATE ] UKAIT DATE , the then ORG held , in respect of the ability to internally relocate to GPE , as follows :

“ If the appellants show that they have a well founded fear in their home areas it is reasonable to expect them to live in GPE . GPE is a functioning city . It has a government and some security forces . We acknowledge that it is not the role of GPE to protect individuals , but there is an NORP army and a police force and security forces . GPE is not an entirely lawless place . There are houses to rent , at a price ; and despite a fairly high level of unemployment , there is work . The CARDINAL appellants have spent a considerable time in GPE , they are all relatively educated and may well be in a good position to obtain work with the authorities or an NGO or similar . There is no satisfactory evidence that suggests that it would be unreasonable to expect them to live there , or that they would lead other than a relatively normal life . Insofar as LAW is concerned there is no satisfactory evidence that they would be subject to inhuman or degrading treatment or that they would be at real risk of a breach of any of their fundamental human rights in GPE . It follows from all that we have said that in general returning failed asylum seekers , without more , are able to relocate to GPE , if they can not return safely to their home areas . ”

In ORG ( ORG – PERSON - i - Islami – risk ) GPE CG [ DATE ] UKAIT DATE , the then ORG held that unless there were particular reasons , it would not be unduly harsh to expect an appellant with no individual risk factors to relocate to GPE and assist in the rebuilding of his country .

In AK ( Article PERSON ) ) GPE , see above at paragraph DATE , ORG concluded in relation to internal relocation that :

“ Whilst when assessing a claim in the context of Article PERSON ) in which the respondent asserts that GPE city would be a viable internal relocation alternative , it is necessary to take into account ( both in assessing “ safety ” and “ reasonableness ” ) not only the level of violence in that city but also the difficulties experienced by that city ’s poor and also the many Internally Displaced Persons ( IDPs ) living there , these considerations will not in general make return to GPE unsafe or unreasonable . ”

In addition to regulating refugee status within ORG legal order , ORG DATE ( on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted : “ the LAW ” ) makes provision for granting subsidiary protection status . Article CARDINAL(e ) defines a person eligible for subsidiary protection status as someone who would face a real risk of suffering serious harm if returned to his or her country of origin and who is unable , or , owing to such risk , unwilling to avail himself of the protection of that country .

“ Serious harm ” is defined in DATE as consisting of :

“ a ) death penalty or execution ; or

b ) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin ; or

c ) serious and individual threat to a civilian ’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict ” .

In decision DATE [ DATE ] ORG CARDINAL of DATE , ORG of GPE examined the asylum appeal of an NORP national of NORP ethnicity who had worked as a truck driver delivering goods for ORG and who claimed that he would be at risk from the ORG if returned to GPE .

In light of the country information available at that time , including the ORG High Commissioner for ORG needs of ORG from GPE dated DATE ( see below at paragraph CARDINAL ) , which indicated that the ORG targeted people who worked for the Government and that outside of the appellant ’s home area of GPE in GPE , the ORG were active , the ORG found that they could not discount the real possibility that the local Mullah with ties to the ORG might seek to seriously harm the appellant . The ORG therefore concluded that the appellant had a well founded fear of persecution on his return to GPE .

NORP In DATE , ORG issued ORG from GPE ( “ the DATE ORG Guidelines ” ) and set out the categories of NORP considered to be particularly at risk in GPE in view of the security , political and human rights situation in the country at that time . The PERSON stated that all indications pointed to a general threat to local and international humanitarian workers , without distinguishing between ORG , NGOs and other humanitarian actors .

On DATE , ORG issued the most recent ORG needs of ORG from GPE ( “ the DATE LAW ” ) .

The Introduction to those Guidelines observed :

“ ORG considers that individuals with the profiles outlined below require a particularly careful examination of possible risks . These risk profiles , while not necessarily exhaustive , include ( i ) individuals associated with , or perceived as supportive of , ORG and the international community , including the ORG ; ( ii ) humanitarian workers and human rights activists ; ( iii ) journalists and other media professionals ; ( iv ) civilians suspected of supporting armed anti - Government groups ; ( v ) members of minority religious groups and persons perceived as contravening Shari’a law ; ( vi ) women with specific profiles ; ( vii ) children with specific profiles ; ( viii ) victims of trafficking ; ( ix ) lesbian , gay , bisexual , transgender and intersex ( PERSON ) individuals ; ( x ) members of ( minority ) ethnic groups ; and ( xi ) persons at risk of becoming victims of blood feuds . ”

In relation to the risk to individuals perceived as supporting ORG or the international community , the LAW set out that :

“ There is a systematic and sustained campaign by armed anti - Government groups to target civilians associated with , or perceived as supporting , ORG or the international community , particularly in areas where such groups are active .

Attacks by armed anti - Government groups , which have ranged from intimidation , assassinations , abductions and stand - off attacks , to the use of improvised explosive devises ( IEDs ) and suicide attacks , increasingly target civilians associated with or perceived as supportive of the ORG and the international community / ORG . Targeted civilians include Government officials and civil servants , Government - aligned tribal leaders , ORG ( a national NORP body ) members , religious scholars , judges , doctors , teachers , and workers on reconstruction / development projects .

The majority of targeted attacks on civilians by armed anti - Government groups have occurred in those groups’ strongholds . However the number of targeted assassinations and executions of civilians has also increased in other parts of the country previously considered more secure . In the south - eastern and central regions , the number of assassinations and executions allegedly committed by armed anti - Government groups in DATE has increased in comparison to DATE . Such targeted attacks rose dramatically in parts of the southern region , particularly in GPE , where the ORG have been conducting a systematic and targeted assassination campaign since DATE . An average of CARDINAL assassinations per week ( compared to CARDINAL per week during the same period in DATE ) was recorded from DATE to mid - September DATE , mostly in the southern and south - eastern regions .

ORG considers that persons associated with , or perceived as supportive of , the ORG and the international community and forces , including Government officials , Government - aligned tribal and religious leaders , judges , teachers and workers on reconstruction / development projects , may , , be at risk on account of their ( imputed ) political opinion , particularly in areas where armed anti - Government groups are operating or have control . ”

With regard to the particular risk to civilians perceived as supporting ORG , the PERSON stated that :

“ A recently intercepted message from PERSON , the spiritual leader of the ORG movement , ordered ORG members to capture and kill any NORP who is supporting or working for Coalition forces or the Government of GPE , as well as any NORP women who are helping or providing information to Coalition forces . The message , which departs from his previous instructions to minimize civilian deaths , has fuelled fears of ORG retaliation among ORG civilian support personnel , such as NORP interpreters .

The increased targeting of civilians is perceived as part of an effort by armed anti - Government groups to gain control over territories and populations . Local inhabitants are reportedly coerced into supporting anti - Government groups through threats or the use of force ... ”

In relation to internal relocation , the PERSON stated that :

“ In order for an IFA / IRA [ internal flight alternative / internal relocation alternative ] to be a relevant consideration in any given case , the area must be found to be accessible and without factors that could constitute a well - founded fear of being persecuted .

Given the wide geographic reach of some armed anti - Government groups , a viable internal relocation alternative may not be available to individuals at risk of being targeted by such groups . It is particularly important to note that the operational capacity of the ORG ( including the PERSON network ) , the PERSON ( GPE ) and other armed groups in the southern , south - eastern and eastern regions is not only evidenced by high - profile attacks , such as ( complex ) suicide bombings , but also through more permanent infiltration in some neighbourhoods and the regular distribution of threatening “ TIME - letters ” .

Furthermore , some non - State agents of persecution , such as organized crime networks , local commanders of irregular or paramilitary outfits and militias , as well as the ORG and the PERSON ( GPE ) , have links or are closely associated with influential actors in the local and central administration . As a result , they largely operate with impunity and their reach may extend beyond the area under their immediate ( de facto ) control .

ORG generally considers [ internal relocation ] as a reasonable alternative where protection is available from the individual ’s own extended family , community or tribe in the area of intended relocation . Single males and nuclear family units may , in certain circumstances , subsist without family and community support in urban and semi - urban areas with established infrastructure and under effective Government control . A case - by - case analysis will , nevertheless , be necessary given the breakdown in the traditional social fabric of the country caused by DATE of war , massive refugee flows , and growing internal migration to urban areas . ”

The UNAMA Annual Report DATE on Protection of Civilians in Armed Conflict ( “ the UNAMA DATE Report ” ) of DATE was prepared with ORG ( “ NORP ” ) and was compiled in pursuance of the ORG ’s mandate to , inter alia , monitor the situation of civilians in GPE .

The executive summary stated that the human cost of the armed conflict in GPE had grown again in DATE . PERCENT of civilian deaths were attributed to anti - government elements . The overall rise in civilian deaths in DATE was reported to be attributed to the increase use of GPE ( “ improvised explosive devices ” ) , targeted assassinations by anti - government elements and intensified military operations particularly in southern GPE . Although the majority of fighting in DATE had occurred in the southern and south - eastern regions , the insecurity and volatility of the conflict had continued to spread to the northern , eastern and western regions . All regions apart from the eastern region had experienced major increases in the number of civilians killed compared to DATE . CARDINAL of all civilian assassinations had occurred in southern GPE .

The most alarming trend in DATE was considered to be the huge number of civilians assassinated by anti - government elements . Persons and relatives of persons perceived to be supportive of the Government of GPE and/or international military forces , high - level provincial government officials , such as governors , district governors , shura and provincial council members and religious elders and ordinary civilians such as doctors , teachers , students and construction workers had reportedly been targeted and killed .

That conclusion was reiterated in ORG ’s DATE Report DATE on ORG ( “ the UNAMA DATE Report ” ) of DATE which reported that targeted killings of civilians by anti - government elements had persisted in DATE , exceeding the rate recorded in DATE . Provincial and district governors , local government officials and workers , provincial and peace council members and local community and tribal elders had been deliberately targeted . Antigovernment elements had also deliberately targeted and killed civilians who supported , or were perceived as supporting , ORG or international military forces .

In its DATE Country Report on ORG , GPE , published in DATE ( “ the ORG ” ) , ORG observed , in relation to unlawful or arbitrary deprivation of life , that the ORG had committed a string of high - profile , targeted killings of regional police commanders , provincial police chiefs , and other officials and had also killed numerous civilians .

With regard to the excessive use of force and other abuses in the conflict in GPE , ORG reported , inter alia , that the ORG had continued to engage in indiscriminate use of force , attacking and killing villagers , foreigners , and NGO workers ; and that insurgents had targeted national and government officials , foreigners , and local NGO employees .

GPE Operational Guidance Note on GPE of DATE ( “ the ORG ” ) stated that insurgents had continued to conduct a campaign of intimidation , through the targeted assassination of high ranking Government officials , members of the security forces and influential local political and religious leaders . The ORG concluded that the risk from anti - government groups and forced recruitment into the ORG was highest in areas where armed antigovernment groups were operating or had control .

ORG , Landinfo , is an independent body within ORG which was established on DATE . It is responsible for collecting , analysing and presenting objective and updated country of origin information to various actors within the immigration authorities in GPE .

The introduction to ORG on GPE states that the report aims at providing a concise picture of the human rights situation in the context of the ongoing conflict in GPE . In conducting a short military - political assessment of the conflict , the report set out that the NORP conflict was continuing to expand geographically and to intensify in terms of violence .

In considering the attitude of the parties of the conflict towards civilians , the report stated that :

“ In comparative terms , the ongoing NORP conflict has not been particularly bitterly targeted at civilians . Although civilian casualties have gradually increased DATE after DATE , they have done so less than proportionally with the increase in the number of violent incidents from DATE . This suggests that the parties in the conflict have been trying to restrain themselves and contain civilian casualties . In fact in the case of ORG data provided by ORG shows a new decline in the number of civilians killed from DATE . In the case of the insurgents , they have killed more civilians , but not as many as they should have based on the increase in number of acts of violence . Similarly , episodes of targeting of civilians because of their association with CARDINAL of the parties in the conflict have been rare . The main exception is represented by government officials , whom the insurgents have been proactively targeting and increasingly so .

The ORG also forbid any kind of collaboration with the government and particularly with the foreign troops , including of an economic nature . Since contracting for ORG or for western aid agencies is one of the main sources of employment in GPE , the ban has a major impact on the ability of household to earn a livelihood . Unsurprisingly , most NORP ignore it , at their risk and peril . Executions of contractors do occur . Usually the ORG follow a procedure , which includes warning the collaborationists that they are going to be punished if they persist . ”

It was then reported that the NORP government , supported by ORG , still had a hold over most NORP cities with the exception of GPE .

In relation to areas controlled by the insurgents , the report observed an outflow of civilians escaping from them as follows :

“ This is not a massive flow ; most internally displaced people seem to have fled large scale military operations . However , there are CARDINAL of individuals and families who have clashed with the ORG , mostly for having been suspected of collaborating with the government . There are also government officials fleeing from their job towards GPE or the cities in general . The ORG has increasingly developed an ability to strike at will almost anywhere ; harassment and targeting of “ collaborators ” now occurs even in the cities , even if on a small scale in GPE and in the north and west . Those who fled and have given up their jobs , as well as their family members , do not appear to have been actively targeted in the cities . The ORG potentially has the resources and skills to track down people , particularly if these are not in hiding but have to work ; extensive infiltration of the police also helps the ORG ’s information gathering efforts . However , these escapees who no longer collaborate for the government are a low priority target to the ORG , whose assets in the cities are limited and usually devoted to high profile targets , ranking from serving government officials upwards . In GPE , for example , colonels of the police and army have been targeted , as well as commanding officers of the security services . In the provinces , particularly in the south , government officials of any rank , even low ones , have been targeted . The ORG do not seem to systematically transfer information about targeted individuals from CARDINAL area to the other ; they maintain no databases . What typically happens is that the ORG operating in a specific area will request information from other ORG about a suspect individual , whenever needed . The flow of information therefore depends on the intensity of ORG operations : the greater the presence , the greater the request of information . Often individuals apprehended by the ORG as suspect spies are asked to provide references in order to verify their identity and activities . The risk to the escapees from ORG controlled areas seems to derive mainly from chance contact with the ORG , who may consider them an opportunity target . Usually the poorest and the NORP - populated areas of the big cities are the places where most ORG infiltration of the cities occurs ; in GPE these are GPE suburb , south - eastern GPE , southern GPE and parts of western GPE . In central GPE , the ORG are known to have developed a network of informers , among else buying shops in strategic locations and staffing them with members and sympathisers , the purpose being to observe embassies and government buildings . Such effort is clearly geared towards high value targets and collaborators . ”

In conclusion , the report set out the main factors affecting the security and human rights of NORP civilians and stated as follows :

“ The ORG have been consistently expanding their information gathering operations ; some parts of the country , in particular the south but also the south - east , the east and the provinces south and west of GPE ( PERSON , PERSON ) are thoroughly covered and there is little that the ORG do not know , not least because they have extensively infiltrated the police and the state administration . In other parts of the country , like most of GPE , most of the west and most of the north , the ORG ’s presence on the grounds is more modest and their ability to collect information more limited . More importantly , the ORG ’s ability to auction off the information collected is more limited in these areas , where they have to rely on a few hit teams in order to carry out their strategy of targeted killing . As a result , while the ORG target even low level collaborators in the areas where they are present in force , they limit themselves to high profile targets elsewhere . Killings of low profile collaborators of the government is not being reported in these areas . We can expect the policy of targeted intimidation and killing to continue expanding , but the rate of expansion will depend on the ability of the ORG to establish a strong presence in ever newer areas . There are already some areas of the regions less affected by the insurgency , where the ORG are able to extensively target collaborators : a few suburbs of GPE , NORP - populated areas of the north , etc . ”

Various media reports submitted by the first applicant indicated that a number of GPE troops and NORP security officers working with them had been killed in GPE in DATE .

Various media reports submitted by the applicants indicated that DATE , CARDINAL NORP interpreters working for GPE forces , the international community or the ORG had been killed in different parts of GPE .


Violation of Article 6 - Right to a fair trial

Ján Šikuta;Josep Casadevall;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi

The applicant was born in DATE and lives in GPE .

On DATE the applicant filed for a no - fault divorce .

On DATE ORG ( Sąd Rejonowy ) held a reconciliation session with the participation of the applicant and his wife .

On CARDINAL DATE the applicant modified his petition and requested that the divorce be granted on the grounds of his wife ’s fault .

NORP ORG held CARDINAL more reconciliation sessions . On DATE it decided on the applicant ’s contact rights with his minor child .

On DATE ORG ordered the applicant to undergo a psychiatric observation .

CARDINAL hearings were scheduled DATE . However , CARDINAL of them were adjourned and one was cancelled . CARDINAL hearings were adjourned due to the applicant ’s stay in a psychiatric hospital for observation . CARDINAL hearings were adjourned in connection with the examination of the applicant ’s challenge to the impartiality of the presiding judge . CARDINAL hearing was adjourned at the parties’ request . CARDINAL hearing was adjourned because the applicant ’s wife was abroad . CARDINAL hearings were adjourned due to the absence of CARDINAL of the parties . Finally , CARDINAL hearing was cancelled since the presiding judge was ill .

On DATE ORG issued an order determining the use of the matrimonial home and payment of child maintenance .

On DATE the court referred the spouses for counselling at ORG ( Rodzinny Ośrodek Diagnostyczno - Konsultacyjny ) .

On DATE ORG granted a divorce on the ground of the fault of both spouses . The court also ruled on custody rights and child maintenance . The applicant appealed .

On DATE ORG ( PERSON ) quashed the first - instance judgment and remitted the case to ORG .

Following amendments to the applicable law , ORG assumed jurisdiction to examine the case . The total number of hearings held in the renewed proceedings has not been specified by the applicant . It appears that the applicant lodged CARDINAL challenges to the impartiality of a judge . They were dismissed by ORG on DATE respectively .

On DATE ORG granted a divorce on the ground of the fault of both spouses . The applicant appealed .

On an unspecified date the applicant asked for an exemption from court fees in the appeal proceedings . On DATE ORG refused his request . On DATE the applicant lodged an interlocutory appeal against that decision and asked for a full or partial exemption from court fees . It appears that the applicant was asked to complete his appeal and that , ultimately , he was granted the exemption sought .

On DATE ORG ( Sąd Apelacyjny ) dismissed the applicant ’s appeal against the first - instance judgment .

On DATE the applicant complained about the length of the proceedings under LAW of DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) .

On DATE ORG dismissed the complaint . The court held that LAW did not have retroactive effect and , consequently , it examined the applicant ’s claim only in respect of the period between the date of entry into force of LAW ( DATE ) and the date on which the applicant filed the complaint ( DATE ) . ORG found that the impugned proceedings were progressing without any undue delays . It was noted that on DATE ORG had delivered a judgment and that the case was pending on appeal . It was emphasised that any delay in the appeal proceedings was attributable to the applicant who had twice applied for an exemption from court fees on the basis of incomplete information .

NORP The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings , in particular the applicable provisions of LAW , are stated in the ORG ’s decisions in the cases of ORG v. GPE no . CARDINAL/CARDINAL ( dec . ) , § § DATE , ECHR CARDINAL-V and NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII and the judgment in the case of GPE v. GPE , no . CARDINAL , § § DATE , ECHR CARDINAL-V.


Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Violation of Art. 3;Violation of Art. 5;Violation of Art. 13+2;Remainder inadmissible;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicants are :

CARDINAL ) Mr ORG , born in DATE ;

CARDINAL ) PERSON , born in DATE ;

CARDINAL ) PERSON , born in DATE ;

CARDINAL ) Ms Yakha PERSON , born in DATE ;

CARDINAL ) Mr PERSON , born in DATE ; and

CARDINAL ) Ms Ayznat PERSON , born in DATE .

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

The first and second applicants are the parents of Mr FAC , born in DATE , and of the third , fourth , fifth and sixth applicants . At the material time the Ibragimovs lived at CARDINAL FAC , ORG , GPE . Their house had burned down , and the family lived in a refurbished cattle shed consisting of CARDINAL rooms . Since DATE ORG had been working as a construction worker in the town of GPE , ORG . In DATE he came to visit his parents in ORG because he needed to complete some formalities with the military commissariat .

On TIME were sleeping at home , except for the third and fourth applicants . The first applicant was sleeping in the front room , while the second , fifth and sixth applicants and FAC slept in the next room . They were sleeping on the floor because all their furniture had been burned in the fire .

At TIME a group of CARDINAL men in camouflage uniforms forcibly entered the house . CARDINAL of them were wearing balaclava masks . They did not produce identity papers or any documents to justify their actions and gave no explanations . The applicants assumed that they were federal military or security servicemen because they spoke NORP without accent , their faces as far as the applicants could see had NORP features and also because of their arrival during TIME , which was only possible with the military commander ’s permission .

CARDINAL servicemen walked straight to the back room , and QUANTITY others stayed in the front room . The first applicant was told to stay still on his bed and a machine gun was pointed at him . CARDINAL serviceman then announced that it was an “ identity papers check ” . Another serviceman in the back room pointed at FAC and ordered him to get dressed . The first applicant handed a pullover to the serviceman to pass to FAC , but the serviceman threw it aside . FAC was asked where his identity papers were ; when he answered that they were on the windowsill , the servicemen took them , with his driving licence . CARDINAL servicemen took FAC out to the courtyard . He did not put up any resistance . The second applicant was crying and asking the servicemen who they were and where they were taking her son . The first applicant was also asking them to what authority they belonged and where to make enquiries . The servicemen did not answer but told the first and second applicants to remain inside the building . When the first applicant tried to follow them into the courtyard , CARDINAL of the servicemen ordered him to stop , threatening to shoot .

The first applicant nonetheless followed the servicemen , but CARDINAL of them squatted down , put a bullet into his gun and told the first applicant that he would shoot . Having realised the seriousness of the threat , the first applicant stopped .

CARDINAL armed men in camouflage uniforms were standing in the courtyard , all of them unmasked but wearing bullet - proof jackets . More military were waiting outside the gates and across the street .

Across the street from the applicants’ courtyard there was a bakery which had a lamp above the entrance . CARDINAL of the military shot the light out . His weapon made no sound , and the applicants concluded that it was equipped with a silencer . The street lamp was also off , but the moonlight enabled the servicemen ’s movements to be seen .

The first applicant could see that the military were walking down the street in groups of CARDINAL , taking ORG with them . The first applicant followed the servicemen until they crossed the bridge over LOC , turned left and then right . They took FAC in the direction of FAC .

CARDINAL armoured personnel carriers ( “ APCs ” ) and an Ural vehicle were parked at the corner of FAC and FAC , QUANTITY from the applicants’ house .

According to written statements by CARDINAL eyewitnesses about the events of TIME , at TIME CARDINAL APCs and CARDINAL LOC vehicle , all with illegible registration numbers , stopped at the corner of FAC , then around forty armed men in camouflage uniforms crossed the bridge , moving away from the town centre , and returned TIME , bringing back a man who looked like FAC . The vehicles then drove away towards the centre of ORG .

The Government submitted that ORG had established that at TIME on DATE unidentified persons armed with machine guns and wearing camouflage uniforms and masks had entered the house at DATE , FAC , ORG , GPE , and kidnapped FAC , and that the latter ’s whereabouts had not been established .

Since DATE the applicants , primarily the first applicant , have been searching for FAC . They applied to various official bodies both in person and in writing , trying to find out his whereabouts and what had happened to him , arguing that he must have been detained by some representatives of ORG agencies , because the armed men had arrived in a large group during TIME and had worn uniforms similar to those used by the NORP troops . The applicants retained copies of some of their letters to authorities and the answers , which they submitted to ORG . Their attempts to find out the whereabouts of ORG can be summarised as follows .

In TIME of DATE the first applicant visited the department of interior of ORG ( “ ROVD ” ) , the prosecutor ’s office of GPE ( “ the district prosecutor ’s office ” ) and the local administration . He was told there that they did not know who had detained his son or where he was . While visiting the ROVD , the first applicant filed a written declaration concerning the disappearance of his son and attached a description of the events .

On DATE the first applicant complained of his son ’s disappearance to ORG of the NORP President for Rights and Freedoms in GPE . Later his letter was forwarded to the district prosecutor ’s office .

On DATE the district prosecutor ’s office opened criminal investigation file no . DATE into the abduction of FAC by unknown armed persons .

On DATE the first applicant was granted victim status in the criminal proceedings .

On DATE the first applicant wrote to the prosecutor ’s office of GPE , the military prosecutor ’s office of GPE , the local military commander and to the head of the administration of GPE , PERSON , and asked for their assistance in finding his son . On DATE the prosecutor ’s office of GPE forwarded the first applicant ’s letter to the district prosecutor ’s office .

NORP In DATE the district prosecutor ’s office informed the first applicant that the investigation had been suspended .

On DATE the first applicant complained to the prosecutor ’s office of GPE about inaction by the district prosecutor ’s office ’s . He requested that all requisite investigative measures be taken to establish ORG whereabouts .

On DATE the first applicant asked the district prosecutor ’s office for an update on the progress of the investigation .

On DATE the military prosecutor ’s office of ORG ( “ the ORG prosecutor ’s office ” ) forwarded the first applicant ’s complaint to the military prosecutor of military unit no . DATE ( “ the unit prosecutor ’s office ” ) .

On DATE the district prosecutor ’s office informed the first applicant of the suspension of the investigation .

On DATE the district prosecutor ’s office replied to the first applicant ’s letter of DATE , reiterating that the investigation had been suspended on DATE .

On DATE the unit prosecutor ’s office informed the first applicant that there were no grounds to claim involvement of the military in the kidnapping of FAC .

On DATE the first applicant , as part of a group of people whose relatives had disappeared , asked the district prosecutor ’s office for assistance in obtaining documents certifying the past involvement or non - involvement of their disappeared relatives in the hostilities in GPE .

On DATE the prosecutor ’s office of GPE informed the first applicant that the investigation in case no . DATE had been resumed on DATE . The case was referred to as having been opened on DATE and suspended on DATE ( as opposed to the earlier dates given , DATE and DATE ) . It was acknowledged that the investigation conducted previously had not been comprehensive .

On DATE the unit prosecutor ’s office informed the first applicant that there was no involvement of the military in his son ’s kidnapping .

On DATE the district prosecutor ’s office informed the first applicant that the investigation in case no . DATE had been suspended for failure to identify those responsible .

On DATE the first applicant sent a letter to the head of ORG ( “ ORG ” ) alleging the involvement of federal forces , so - called “ power structures ” ( силовые структуры ) , in the abduction of his son and requesting assistance in establishing his whereabouts .

On DATE the first applicant wrote to the prosecutor ’s office of GPE alleging the involvement of the federal “ power structures ” in the abduction of his son and requesting that the investigation be resumed and measures taken to ensure the security of the applicants .

On DATE the prosecutor ’s office of GPE informed the first applicant that the investigation had again been resumed , that the investigation conducted previously had not been comprehensive and that instructions had been given as to which investigative steps were to be taken .

On DATE the first applicant asked the district prosecutor ’s office for an update on the progress of the investigation and requested them to transfer the case to a military prosecutor ’s office .

On DATE ORG informed the first applicant that they were taking all necessary steps to investigate the circumstances of ORG disappearance and to establish his whereabouts . It was stated that he had not been arrested by the ORG , that there had been no legal grounds for his arrest and that he was not suspected of any crime .

On DATE the prosecutor ’s office of GPE informed the first applicant that the investigation had been resumed on DATE .

On DATE the first applicant complained to the prosecutor ’s office of GPE of inaction by the district prosecutor ’s office and requested that the investigation be accelerated . On DATE the prosecutor ’s office of GPE forwarded that request to the district prosecutor ’s office and ordered them to consider it on the merits , to intensify the investigation and to provide the first applicant with a detailed written report on the progress in the case .

On DATE the district prosecutor ’s office informed the first applicant that his complaint had been included in the case file and that since DATE the investigation had been adjourned as the identities of the perpetrators had not been established .

On DATE the first applicant requested the district prosecutor ’s office to take certain investigative measures . On DATE they replied that those measures had already been taken before the first applicant ’s request .

On DATE the first applicant requested the district prosecutor ’s office to allow him access to the investigation file .

On DATE the district prosecutor ’s office resumed the investigation .

On DATE the applicants requested the district prosecutor ’s office to update them on the progress of the investigation .

On DATE the district prosecutor ’s office informed the applicants that all requisite measures had been taken to solve the crime and that the investigation had been suspended on DATE .

On DATE the first applicant complained of his son ’s abduction to the district prosecutor ’s office .

DATE . On DATE the district prosecutor ’s office forwarded the first applicant ’s complaint for a preliminary inquiry to the ROVD .

On DATE the district prosecutor ’s office instituted criminal proceedings related to the disappearance of FAC under LAW of LAW ( aggravated kidnapping ) . The case file was assigned number DATE .

On DATE the first applicant was granted victim status . He was questioned on several occasions and submitted that on TIME unknown masked men armed with machine guns had entered his house and kidnapped his son .

DATE and DATE the investigation in case no . DATE was suspended CARDINAL times for failure to identify those responsible and then resumed . In particular , it was resumed on DATE . The first applicant was informed promptly of all decisions .

On DATE the district prosecutor ’s office questioned the second applicant as a witness . She submitted that at TIME on DATE armed men in masks had ordered her son to get ready and taken him away . She had not seen any cars or APCs .

On DATE the prosecutor ’s office of GPE received a complaint by the first applicant of the district prosecutor ’s office ’s inaction , which stated that the unknown armed persons had arrived in CARDINAL APCs , CARDINAL LOC vehicles and a UAZ vehicle .

On CARDINAL DATE PERSON , the applicants’ neighbour , questioned as a witness , submitted that at TIME she had seen from her window TIME armed men in camouflage uniforms and masks who were escorting a man whose arms were tied . She had not seen any vehicles .

NORP The district prosecutor ’s office repeatedly requested information on ORG abduction from various law - enforcement agencies . On DATE ORG replied that ORG had not been arrested by the ORG and no criminal proceedings against him had been instituted . The military commander of ORG and various branches of ORG of GPE submitted that their servicemen had not arrested ORG and that the latter had not been kept in any temporary detention facilities .

In the course of the investigation the perpetrators were not identified and the hypothesis of involvement of special forces’ servicemen in the crime was not proved .

On DATE the district prosecutor ’s office once again suspended the investigation .

On DATE the district prosecutor ’s office quashed the decision of CARDINAL DATE and resumed the investigation due to the need to verify some newly - established facts . The proceedings were being supervised by ORG .

On DATE the district prosecutor ’s office questioned the third , fifth and sixth applicants . They submitted that on TIME they had seen CARDINAL armed men in camouflage uniforms and masks who had taken their brother away . They had not heard any APCs .

On DATE the district prosecutor ’s office dismissed the ORG request to institute criminal proceedings in relation to the events of DATE under LAW ( unlawful violent intrusion into one ’s dwelling ) for expiry of the statutory limitation period .

On DATE the local administration of ORG informed the district prosecutor ’s office that there had never been any street named “ GPE ” in the town of ORG and that the first applicant resided at FAC .

Despite specific requests by ORG did not disclose most of the contents of criminal case no . DATE , providing only copies of decisions to suspend and resume the investigation and to grant victim status , as well as of several notifications to the relatives of the suspension and resumption of the proceedings . Relying on the information obtained from ORG , the ORG stated that the investigation was in progress and that disclosure of the documents would be in violation of LAW , since the file contained information of a military nature and personal data concerning witnesses or other participants in criminal proceedings .

On DATE ( the exact date was disputed between the parties ) the first applicant brought proceedings before ORG ( “ the town court ” ) challenging the failure on the part of the district prosecutor ’s office to carry out the investigation and requested that the investigative measures be carried out and that he be allowed access to the investigation file .

According to the Government , on DATE a lawyer lodged on the first applicant ’s behalf a similar complaint with the town court .

On DATE the town court found that the investigation had already been resumed on DATE and dismissed the first applicant ’s complaint of the district prosecutor ’s office ’s inactivity . As for the alleged lack of access to the case file , the town court found that the right to have access to the materials of a criminal case file did not arise before the completion of the investigation .

On DATE the first applicant appealed to ORG of GPE , which upheld the town court ’s judgment on DATE .

DATE . For a summary of the relevant domestic law see PERSON and PERSON GPE , no . CARDINAL , § CARDINAL , CARDINAL DATE .


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life;Respect for private life)

The applicant , who was born in DATE , states that he was born from a relationship between his mother and a certain PERSON , a civil law notary ( notaris ) . Although his mother had wanted to marry , PERSON had not ; neither had the CARDINAL ever lived together . P. had not recognised ( erkenning ) the applicant . Nevertheless , he made regular payments towards the applicant 's care and upbringing , gave the applicant presents for his birthday , visited him and , together with the applicant 's mother , went on day trips with him . The applicant called P. “ Daddy ” .

P. died on DATE without leaving a will . His body was cremated . A nephew , PERSON , was identified as his sole heir .

The applicant brought civil proceedings against PERSON , seeking an order that PERSON hand over P. 's estate . The applicant argued that he had had “ family life ” with P. within the meaning of LAW , and that the GPE legal provisions relating to the position of “ illegitimate ” and unrecognised children infringed LAW .

ORG ( arrondissementsrechtbank ) rejected the applicant 's claim by a judgment of DATE . It considered that the difference contained in GPE legislation on succession between children with and children without legally recognised family relationships ( familierechtelijke betrekkingen ) did not constitute an unjustified interference in the “ family life ” of “ illegitimate ” unrecognised children . In view of the rights and interests of third parties in relation to an inheritance , legal certainty required that only persons with a demonstrable legal family connection with the deceased be able to inherit . An “ interference ” with any “ family life ” the applicant might have had with PERSON was thus “ in accordance with the law ” and “ necessary in a NORP society ” . In the light of these considerations , ORG did not find it necessary to determine whether or not PERSON was the applicant 's biological father .

The applicant appealed to ORG ( gerechtshof ) , complaining of ORG interpretation of ORG CARDINAL and CARDINAL of the LAW , as well as of the fact that ORG had declined to rule on the issue of paternity .

Four witnesses were heard before ORG : the applicant , his mother , a friend of his mother and the person who had been the applicant 's co - guardian ( toeziend voogd ) . The latter CARDINAL stated that they were convinced that PERSON was the applicant 's biological father and that he had never denied this fact to them but had , on the contrary , assured them that the applicant would be well provided for . The applicant 's mother stated that she had not known any man other than P. until DATE after the applicant 's birth , and that PERSON had referred to the applicant in public as “ my son ” or “ my little boy ” . In reply to PERSON 's argument that he had not been aware of the applicant 's existence , the applicant stated that PERSON 's mother , who was a sister of PERSON , had been so aware and had met the applicant .

In the proceedings before ORG the applicant also submitted a number of photographs showing himself in the company of P. and his mother .

On DATE ORG gave judgment , dismissing the appeal . While it acknowledged that a situation where a court was unable to determine a case like the present one led to an unsatisfactory outcome for the applicant , ORG saw no possibility of departing from the recent case - law of ORG ( PERSON ) to the effect that it went beyond the jurisprudential task of the judiciary to determine the consequences of the possible incompatibility of GPE law with LAW taken in conjunction with LAW judgment of DATE , reported in PERSON ( GPE Law Reports – “ GPE ” ) DATE , no . CARDINAL ) .

The applicant lodged an appeal on points of law ( cassatie ) with ORG , which was dismissed on DATE . ORG held that , although an inability to inherit based solely on the ground of illegitimacy would be contrary to Article CARDINAL taken in conjunction with Article CARDINAL , objective and reasonable grounds could exist to justify other kinds of restrictions on the intestate succession of “ illegitimate ” children . It then noted that in DATE a law had come into force aimed at bringing the position of “ illegitimate ” recognised children into line with the requirements enunciated by ORG in ORG v. GPE ( judgment of DATE , Series A no . CARDINAL ) . During the debate on the bill in ORG , the then Minister of ORG had declared that the question of the position of “ illegitimate ” unrecognised children in relation to their biological fathers was a valid one , but that it fell to be dealt with in the planned reform of the law of succession .

Since then a number of attempts had been made to bring about this reform and , at the time of ORG examination of the present case , a bill was before ORG . It thus appeared that the legislature was of the view that a reform of the law of succession required the making of important political choices and that the legislative process had not yet come to an end . From this , ORG concluded in the first place that the absence in GPE law at the time of a rule making “ illegitimate ” unrecognised children the heirs of their biological fathers was not based solely on illegitimacy but on the difficulty , inherent in a reform of legislation , of reaching a sound balance between all the interests involved in the law of succession . Secondly , it followed that the choices to be made fell beyond the scope of the judiciary 's jurisprudential tasks and that it was not possible to anticipate legislative developments by judgment . The judgment of ORG was published in GPE DATE , no . CARDINAL , with a critical annotation by a learned author .

Under LAW § CARDINAL of LAW ( PERSON –“CC ” ) , only those persons who have a legally recognised family relationship ( familierechtelijke betrekking ) with a person who has died intestate may inherit from that person .

Legally recognised family relationships between a father and a child exist where a child is born to a married couple or if it is born within DATE following the dissolution of the marriage ( Article CARDINAL of the ORG ) . An “ illegitimate ” child will have a legally recognised family relationship with its father ( who does not have to be the biological father ) if it has been recognised ( erkenning ) by the father , either before or after its birth ( Article CARDINAL of the ORG ) .

NORP Moreover , according to LAW , a legally recognised family relationship will also come into existence with the granting of letters of legitimation if it is established that the father , having died before the child was born and without having recognised it , was aware of the pregnancy and had intended to marry the mother .

According to the rules of intestacy , if a deceased does not leave any children with whom he has a legally recognised family relationship or a spouse , his parents and siblings ( or their descendants ) will inherit from him ( LAW ) . If there are such children or a spouse , the parents and siblings are excluded from the inheritance ( ORG CARDINAL and CARDINAL of the ORG ) .

Within DATE of the death of the father , a minor child with whom the late father had no legally recognised family relationship may request that an obligation be imposed on the father 's heirs to make a lump sum available for his care and upbringing . In the determination of this amount , the court dealing with the request may not exceed the legally reserved portion of the estate ( wettelijk erfdeel ) to which the child would have been entitled had he had a legally recognised family relationship with his father ( Article CARDINAL:CARDINAL § CARDINAL of the ORG ) .

This is an elaboration of the principle enunciated in LAW that , where there is no legally recognised family relationship between a father and his child , the former is only bound to provide maintenance ( levensonderhoud ) for the child until it has come of age . The legally reserved portion of an estate is that part of a person 's estate which will be attributed , according to the rules of intestacy , to the heirs who are direct descendants or ascendants , and which the testator is unable to dispose of by way of donation when alive , or by will .

On DATE a bill was presented in ORG aimed at amending , inter alia , the law of descent ( afstammingsrecht ; ORG ( ORG ) DATE , CARDINAL , ORG . CARDINAL - CARDINAL ) , and on DATE a change to the Civil Code came into force . It introduced a judicial declaration of paternity ( gerechtelijke vaststelling van vaderschap , LAW ) which may be requested by the mother or the child . A declaration of paternity has retroactive force to the time of the child 's birth , but it does not adversely affect any rights acquired in good faith by third parties .

According to the explanatory memorandum to the bill , the possibility of having paternity determined judicially exists in all neighbouring countries . The absence of this possibility could be in conflict with LAW taken in conjunction with LAW , since it could lead to a situation where a child was deprived of a father if the latter were unwilling to recognise it . It was felt that this defect could not be remedied by the fact that a request for determination of a parental maintenance contribution could be made against the father pursuant to LAW .


The applicant was born in DATE and lives in GPE .

On DATE the applicant brought a civil action , claiming back the money which she had lent to a private person on DATE , further to a note envisaging repayment within DATE .

On DATE the respondent replied in writing , claiming that she had repaid the debt and that the applicant 's action was time - barred under Articles CARDINAL and CARDINAL of LAW ( “ the ORG ” ) .

On DATE FAC allowed the applicant 's claim at an oral hearing . The court found that the respondent 's assertion about payment of the debt was unsubstantiated . It did not reply to the time - bar objection .

On DATE the respondent appealed , reiterating , inter alia , that the applicant 's action was time - barred . The latter replied that , in view of the respondent 's continuous promises to discharge the debt , she could not have concluded that her rights had been breached DATE .

On DATE the NORP ORG quashed the judgment of DATE and decided the case anew , dismissing the applicant 's action as time - barred . The appellate court found that the limitation period had started to run from the date of non - compliance with the note of DATE , that is DATE after the loan , on DATE . It noted that the case materials did not substantiate the applicant 's assertion that the respondent had continuously promised to return the money .

On DATE the applicant lodged a cassation claim . Referring to varioushe reiterated that the respondent 's verbal assurances had prevented her from applying to the court earlier . She consequently claimed that the appellate court had wrongly applied Articles CARDINAL and CARDINAL of the ORG .

On DATE ORG of GPE declared the applicant 's cassation claim admissible but decided to dispense with an oral hearing on the merits . Both parties were informed of that decision on DATE . On DATE , the cassation claim was forwarded to the respondent for comments . No reply was forthcoming from the latter .

On DATE ORG dismissed the applicant 's cassation claim . Endorsing the facts of the case as established by the appellate court , the cassation court found that the disputed Articles CARDINAL and CARDINAL of the ORG had been correctly interpreted and applied in the appellate judgment of DATE and that , consequently , there was no ground , under LAW and CARDINAL of LAW , to quash it .

Pursuant to Articles CARDINAL § CARDINAL and CARDINAL , the period for bringing contractual claims was limited to DATE , and it started to run from the moment the person learnt or should have learnt about the breach of his or her rights .

Pursuant to LAW , only the lawfulness of an appellate judgment could be challenged in cassation . The disputed judgment could be found to be unlawful if the appellate court had wrongly applied or interpreted the law .

Article CARDINAL § CARDINAL ( f ) required the appellant to mention in his or her cassation claim those facts which supported the alleged breaches of procedural law if the cassation claim was calling into question the application of procedural legal provisions .

Article CARDINAL § CARDINAL

“ The cassation court shall review the [ disputed ] judgment only in so far as challenged in the cassation claim . The cassation court can not go beyond the facts referred to under LAW ( f ) and inquire of its own motion into other procedural breaches . ”

“ The cassation court shall take into account the party 's submissions only in so far as disclosed by the case file or the appellate judgment ; only the facts submitted under LAW ( f ) can be taken into account .

The establishment of the facts [ by the appellate court ] is binding on the [ cassation ] court , unless an additional and well - founded cassation argument has been raised . ”

“ In the event the cassation court finds it appropriate ... , it can decide the case without an oral hearing . The parties shall be notified of such a decision . ”

Article CARDINAL

“ The cassation court shall take a [ final ] decision

Article CARDINAL § CARDINAL and CARDINAL

“ If it is not possible for the cassation court to decide the case in accordance with LAW , it shall quash the appellate judgment and remit the case for a retrial .

ORG dismissed the applicants ' complaint challenging LAW of the ORG , which provided for the possibility to dispense with an oral hearing in cassation proceedings .

ORG noted that , unlike an appellate court which established facts , the cassation court could only review the application of legal provisions . It could however examine , on the basis of ORG CARDINAL § CARDINAL ( f ) and QUANTITY of the ORG , the facts which have been explicitly raised by the appellant in relation to the alleged violations of procedural law .

Consequently , whilst the scope of the review was mostly limited to the assessment of the application of procedural and substantive law , ORG concluded that the right to an oral hearing in cassation proceedings was not absolute .

In its judgment of DATE in the case of “ NORP ” v. “ NORP ” ORG , ORG defined the notion of an “ additional and well - founded cassation argument ” ( LAW ORG ) , as follows :

“ ... ' An additional and well - founded cassation argument ' is ... a reference to those procedural breaches which , having been committed by the appellate court during the examination of the case , have resulted in an erroneous assessment of the matters of fact and/or the incorrect interpretation and application of substantive legal provisions . ”