Remainder inadmissible;Violation of P4-2;Non-pecuniary damage - award

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

The applicant was born in DATE . He lived at the GPE space launch site in GPE which is rented by , and under the administration of , GPE and is under joint NORP jurisdiction .

From DATE to DATE the applicant served as a military officer in the NORP ( later NORP ) ORG at the GPE site . On DATE he received security clearance and was granted access to information concerning rocket test launches , including the military unit responsible , launch parameters and test results , which were classified as top secret .

On DATE the applicant signed a standard contract concerning access to ORG secrets , which provided in the relevant part as follows :

“ Pursuant to LAW and other normative regulations concerning the protection of ORG secrets , of which I am aware , I take upon myself an obligation to keep confidential any information constitutive of ORG secrets and accept a temporary restriction on my rights which may affect :

the right to go abroad for DATE ... ”

By an order of CARDINAL DATE , the applicant retired from the military upon reaching the age limit . His service travel document was taken away from him and destroyed .

On DATE the applicant asked the passports and visas service of the GPE police department to issue him with a travel passport ( заграничный паспорт ) .

On CARDINAL DATE the passports and visas service sent him a notice which stated that his right to leave GPE had been temporarily suspended until DATE “ on the basis of recommendation no . CARDINAL of DATE and the decision of the command of military unit DATE ” . According to the information submitted by the Government , the applicant was last exposed to secret information on DATE and the restriction on his right to travel was due to expire on DATE .

NORP The applicant complained to a court . He submitted that , lacking a travel document , he was unable to return to GPE from GPE or go to LOC , which is the NORP exclave between GPE and GPE on LOC .

On DATE ORG of the CARDINALth Garrison rejected the applicant 's complaint . It found that the refusal to issue a travel passport had been lawful because the applicant had previously had knowledge of ORG secrets during his service in the military . Access to ORG secrets had not been granted to him against his will , and he had received a pay rise on that ground . Furthermore , the applicant did not need a travel document to return to GPE or to go to LOC , his identity document ( общегражданский паспорт ) was sufficient for these purposes .

On DATE ORG upheld , on an appeal by the applicant , the judgment of CARDINAL DATE .

The applicant sued the military commander of ORG , claiming that he should have received full title to his service flat on his retirement .

On DATE ORG of the CARDINALth Garrison dismissed the action as having no grounds in domestic law . On DATE ORG upheld the judgment on appeal .

Section CARDINAL provides that the right of a NORP citizen to leave GPE may only be restricted on the grounds of , and in accordance with , the procedure set out in LAW . LAW ) provides that the right of a NORP national to leave GPE may be temporarily restricted if he or she has had access to especially important or top - secret information classified as a ORG secret and has signed an employment contract providing for a temporary restriction on his or her right to leave GPE . In such cases the restriction is valid until the date set out in the contract , but for no longer than DATE from the date the person last had access to especially important or top - secret information . ORG for ORG can extend this period up to a maximum of DATE .

The granting of access to ORG secrets presupposes the consent of the person concerned to partial and temporary restrictions on his or her rights in accordance with LAW ( section CARDINAL ) .

The rights of persons who have been granted access to ORG secrets may be restricted . The restrictions may affect their right to travel abroad during the period stipulated in the work contract , their right to disseminate information about ORG secrets and their right to respect for their private life ( section CARDINAL ) .

The relevant part of Opinion no . CARDINAL ( DATE ) on GPE 's request for membership of ORG , adopted by ORG on DATE ( CARDINALth Sitting ) , reads as follows :

“ CARDINAL . ORG notes that the ORG shares fully its understanding and interpretation of commitments entered into ... and intends :

xv . to cease to restrict DATE with immediate effect – international travel of persons aware of state secrets , with the exception of those restrictions which are generally accepted in ORG member GPE ... ”

NORP The laws of the founding members of ORG have not restricted the right of their nationals to go abroad for private purposes since the inception of the organisation . ORG , which was originally signed on DATE by CARDINAL States and has , to date , been implemented by CARDINAL , has removed border posts and checks in much of the NORP part of LOC and abolished any outstanding restrictions on NORP travel .

Many other ORG , including , in particular , the former NORP countries , repealed restrictions on international travel by persons having knowledge of “ State secrets ” , a common legacy of the ORG regime , during the process of democratic transition ( for example , GPE , GPE , GPE , GPE , GPE and GPE ) . Among ORG , with the exception of GPE , GPE was the last to abolish such a restriction in DATE . Nevertheless , CARDINAL member GPE ( GPE , GPE and GPE ) provide for temporary restrictions on permanent emigration – but not on international travel for private purposes – for persons who have had access to ORG secrets .

Article CARDINAL of LAW ( “ NORP ” ) , to which GPE is a party , defines the right to freedom of movement in the following terms :

“ CARDINAL . Everyone lawfully within the territory of a ORG shall , within that territory , have the right to liberty of movement and freedom to choose his residence .

Everyone shall be free to leave any country , including his own .

The above - mentioned rights shall not be subject to any restrictions except those which are provided by law , are necessary to protect national security , public order ( ordre public ) , public health or morals or the rights and freedoms of others , and are consistent with the other rights recognized in the present LAW . ”

General Comment No . CARDINAL : Freedom of movement ( LAW ) , adopted by ORG under LAW of the ORG on DATE ( CCPR / C/CARDINAL/Rev.CARDINAL/Add.CARDINAL ) , reads as follows :

“ CARDINAL . Liberty of movement is an indispensable condition for the free development of a person ...

The permissible limitations which may be imposed on the rights protected under LAW must not nullify the principle of liberty of movement , and are governed by the requirement of necessity provided for in article CARDINAL , paragraph CARDINAL , and by the need for consistency with the other rights recognized in the LAW .

Freedom to leave the territory of a ORG may not be made dependent on any specific purpose or on the period of time the individual chooses to stay outside the country . Thus travelling abroad is covered , as well as departure for permanent emigration ...

NORP ... Since international travel usually requires appropriate documents , in particular a passport , the right to leave a country must include the right to obtain the necessary travel documents . The issuing of passports is normally incumbent on the State of nationality of the individual . The refusal by a ORG to issue a passport or prolong its validity for a national residing abroad may deprive this person of the right to leave the country of residence and to travel elsewhere ...

Article CARDINAL , paragraph CARDINAL , provides for exceptional circumstances in which rights under paragraphs CARDINAL and CARDINAL may be restricted ...

Article CARDINAL , paragraph CARDINAL , clearly indicates that it is not sufficient that the restrictions serve the permissible purposes ; they must also be necessary to protect them . Restrictive measures must conform to the principle of proportionality ; they must be appropriate to achieve their protective function ; they must be the least intrusive instrument amongst those which might achieve the desired result ; and they must be proportionate to the interest to be protected .

States have often failed to show that the application of their laws restricting the rights enshrined in article CARDINAL , paragraphs CARDINAL and CARDINAL , are in conformity with all requirements referred to in article CARDINAL , paragraph CARDINAL . The application of restrictions in any individual case must be based on clear legal grounds and meet the test of necessity and the requirements of proportionality . These conditions would not be met , for example , if an individual were prevented from leaving a country merely on the ground that he or she is the holder of ORG secrets ... ”


The applicant was born in DATE and lives in GPE , GPE .

The applicant intended to set up a “ specialised television programme ” , ORG , limited to a particular subject ( PERSON ) , namely all aspects of car mobility and private road traffic , including news on cars , car accessories , traffic and energy policies , traffic security , tourism , automobile sport , relations between railways and road traffic and environmental issues . The television programme was to be broadcast via cable television in NORP in the NORP - speaking areas of GPE , and in NORP in the LANGUAGE - speaking areas . Initially , the programme was to TIME , to be repeated continuously over DATE and a new one shown once DATE ; later it was to be extended in duration . The applicant was to be the company 's managing director . The programme was to be prepared in close cooperation with industry , automobile associations and the specialist media .

On DATE the applicant filed with the government in the name of ORG a request for a licence ( PERSON ) to broadcast the intended programme . ORG replied on DATE , pointing out the lack of prospects of success of such a request . By a letter of CARDINAL DATE the applicant informed ORG that he wished to pursue his request and submitted further documents . From the latter it transpired that ORG would now include in its programme matters concerning the transport needs of non - motorists and set up an independent programme commission .

On DATE ORG PERSON ) dismissed the request . ORG noted that there was no right , either under NORP law or LAW , to obtain a broadcasting licence . With reference to the instructions for radio and television listed in section CARDINAL(CARDINAL ) of ORG ( Bundesgesetz über ORG – “ the ORG ” ; see “ Relevant domestic law ” below ) the decision continued :

“ ... The electronic media have the task of conveying content that serves the development of informed democratic opinion . They should furthermore actively contribute to a culture of communication serving as the basis for cultural development and for an integral democratic discourse .

NORP Under section CARDINAL(CARDINAL)(a ) of the ORG , a licence shall only be granted if radio and television can achieve the aims mentioned in section CARDINAL ) of the ORG as a whole . It is unnecessary that each venture comply with all aspects of the instructions mentioned . Rather , a positive contribution is required which will further the culture of communication in our country and which will under no circumstances run counter to the aims of the RTA .

A comprehensive and broad - based democratic discourse is guaranteed first of all by means of programmes which are committed to a public service and can be considered to be comprehensive . These are directed at the entire public and have as their subject matter all aspects of political and social life . Specialised programmes concentrate on particular themes and are directed at particularly interested sectors of the public . The result may be the formation of public opinion influenced by the media by way of specific content , and no longer primarily by way of broad - based , comprehensive programmes . Such a development indubitably has consequences for the culture of communication . Communicative integration via the electronic media is impaired , and leads to a society increasingly shaped by segmentation and atomisation .

Against this background , the broadcasting of specialised programmes runs counter to the democratic considerations of the general instructions for radio and television ( Section CARDINAL(CARDINAL ) of the ORG ) . These instructions are oriented towards the integration and promotion of an integral culture of communication . As a result , stricter conditions must apply to specialised programmes than would be required for a programme with a varied content . Therefore , when examining the conditions for a licence under section CARDINAL(CARDINAL)(a ) of the ORG , qualified criteria shall be adduced , since the active contribution of specialised programmes towards the culture of communication must generally be called into question .

Nevertheless , granting a licence to specialised programmes continues to remain possible under qualified conditions . A licence shall be considered if the negative effects of the programme are at least compensated by its valuable contents within the meaning of section CARDINAL ) of the ORG . This could be the case with programmes in the areas of culture ( music , films , etc . ) or the formation of political opinions ( parliamentary broadcasts , etc . ) .

The request for a licence by ORG aims at a specialised programme which has car mobility as its content and places the car at its centre . According to the criteria set out in subsections ( CARDINAL ) , it must be considered with the greatest restraint . As a result , granting a licence will only be considered if the disadvantages resulting from a specialised programme are compensated by its valuable contents , offering a particular contribution to the general instructions mentioned in section CARDINAL ) .

NORP However , the orientation of the programme of ORG is not able to offer the required valuable contribution to comply with the general instructions for radio and television . The programme focuses mainly on entertainment or on reports about the automobile . ORG does not therefore meet the requirements for a licence under section CARDINAL(CARDINAL)(a ) of the ORG . ”

Article CARDINAL bis § § CARDINAL and CARDINAL of LAW ) , in the version in force at the relevant time , provided as follows :

“ CARDINAL . Radio and television shall contribute to the cultural development , free expression of opinion and entertainment of the public . They shall have regard to the characteristics of the country and the requirements of the cantons . They shall depict events objectively , and express the variety of opinions adequately .

NORP The independence of radio and television and their autonomy in respect of programmes are guaranteed subject to paragraph CARDINAL . ”

These provisions are now set out in LAW and QUANTITY of LAW .

Based on the provisions of LAW , section CARDINAL(CARDINAL ) of ORG ( Bundesgesetz über ORG ) provides :

“ Instructions

Radio and television shall as a whole :

contribute to the free expression of opinion , to the provision of general , varied and objective information to the public and to their education and entertainment , and convey civic awareness ;

have regard to , and bring closer to the public , the diversity of the country and its population and advance the understanding of other peoples ;

promote NORP cultural enterprise and stimulate the public to participate in cultural life ;

facilitate contact with NORP expatriates and promote the presence of GPE abroad and understanding of its concerns ;

have particular regard to NORP audiovisual production , namely films ;

have particular regard to NORP productions . ”

Section CARDINAL(CARDINAL ) and ( CARDINAL ) of the ORG provide :

“ GPE and autonomy

( CARDINAL ) The operators are free in the manner in which they manage their programmes ; they bear the responsibility thereof .

( CARDINAL ) Unless federal law provides otherwise , the operators are not bound by the instructions of the federal , cantonal or municipal authorities . ”

Under section ORG ) , nobody is entitled to receive , or to have renewed , a broadcasting licence . Section CARDINAL(CARDINAL ) establishes the government , that is ORG PERSON ) , as the authority that grants broadcasting licences for radio and television .

Section CARDINAL(CARDINAL)(a ) of the ORG mentions various conditions for the granting of a licence , among which are the conditions stated in section CARDINAL(CARDINAL ) ; namely , that the applicant must be a citizen and resident of GPE or a company with its registered office in GPE ; and that the applicant must disclose his financial situation .

Under section CARDINAL(CARDINAL ) , cable companies are in principle free to transmit all radio and television programmes , although subsection ( CARDINAL ) lists certain broadcasts which the cable company is obliged to transmit . Section CARDINAL limits the freedom of cable companies to transmit programmes in so far as they contravene international regulations . In accordance with section CARDINAL of the ORG , the relevant authority shall monitor compliance by all licence holders with international and domestic regulations , although the supervision of programmes is not permitted .


Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre

The first applicant is a NORP national born in DATE . She is the mother of a child born in DATE , which child currently lives in GPE . She is also the mother of the second applicant ( a NORP national born in GPE in DATE ) and of the third applicant ( born in GPE in DATE and , therefore , a citizen of GPE ) . The CARDINAL applicants all currently live in GPE and are represented before the Court by PERSON , a solicitor practising in GPE .

On DATE the first and second applicants arrived in GPE . DATE the first applicant gave birth to the third applicant . The latter became an NORP citizen by virtue of his birth in GPE at that time .

On DATE the first applicant applied for refugee status under LAW DATE , as amended ( “ the DATE LAW ) by completing the LAW questionnaire . She requested that the second applicant be included in her application and she reported that the whereabouts of her husband were unknown . She was called for an interview on DATE but did not attend . Since she did not attend or explain her absence , by letter dated PERSON DATE she was notified that ORG Commissioner was recommending to the Minister for ORG , LAW ( “ the Minister ” ) that she should not be declared a refugee . The applicant did not pursue her request for refugee status any further .

In DATE as well as in DATE the Minister announced the establishment and details of a scheme known as the “ IBCCARDINAL Scheme ” . It was designed to deal with pending parental applications for leave to remain as regards children born in GPE before DATE . Applications were to be received from DATE .

On DATE the first applicant applied for leave to remain under the IBCCARDINAL Scheme . The application was received by the Minister on DATE . By letter dated CARDINAL DATE the first applicant was informed that her application could not be considered under the IBCCARDINAL Scheme as she had applied after DATE . Following a re - submission of the application in DATE , on DATE the Minister confirmed the position regarding the expiry of the relevant time - limit and enclosed a copy of his letter of CARDINAL DATE .

On DATE the applicants were granted leave to apply for judicial review seeking CARDINAL reliefs .

In the first place they requested an order of certiorari quashing the decision of the Minister refusing to consider the first applicant ’s application , under the IBCCARDINAL Scheme , for leave to remain in GPE . They submitted that the Minister ’s decision was unlawful in that it was taken without any consideration of the personal rights of the NORP citizen child guaranteed by LAW and by LAW . Secondly , they requested an order of mandamus directing the Minister to consider the application of the first applicant to reside in the ORG . ORG judgment later summarised the Minister ’s response :

“ The essence of the submission made in response on behalf of the respondent was that having regard to the time limit specified in ORG respondent was not under any obligation to consider the rights of the NORP citizen child either by reason of Article CARDINAL of the LAW or article CARDINAL of the LAW . It was further submitted that the second application made by Ms. PERSON ’s solicitors on her behalf on DATE should properly be construed as simply a repeat of her application under the revised arrangements on ORG and should not be considered as a separate or a “ free - standing ” application for permission to remain in the ORG or residency . ”

The hearing before ORG took place at the same time as the hearings in a number of other judicial review applications , all concerning the Minister ’s rejection of , or refusal to consider , applications by parents of NORP born children for leave to remain under the IBCCARDINAL Scheme .

On DATE the High Court delivered its lead judgment in those cases finding that the Minister ’s decision to refuse the parent ’s application under the IBCCARDINAL Scheme was unlawful because it was taken in breach of the citizen child ’s rights under Article CARDINAL of the LAW and in breach of the Minister ’s obligations under section CARDINAL(CARDINAL ) of ORG DATE .

Although that decision meant that there was an outstanding application under the IBCCARDINAL Scheme to be considered , ORG nevertheless examined PERSON request for an order of mandamus . Following the rejection of his application under the IBCCARDINAL Scheme , PERSON had made a further application for leave to remain to the Minister which , apart from being acknowledged , had not been responded to by the time leave to apply for judicial review had been granted ( DATE ) .

ORG found that , while there was no legislative provision enabling the parent of an NORP born child to apply for residency or leave to remain outside of a proposal to deport is made under PERSON CARDINAL of the Act of DATE , it was “ undisputed that [ the Minister ] as part of the executive power of the ORG has an inherent right and power to exercise a discretion to consider and determine and grant if he considers it appropriate residency to the parent of an NORP born child . ... such discretion must be exercised in accordance with the LAW which includes having regard to the ORG guarantee of the personal rights of the citizen child under LAW . ” Accordingly , and having regard to the guarantee of the personal rights of the NORP citizen child in Article CARDINAL ( including the right to live in GPE and the welfare rights set out in PERSON v. An ORG ( [ DATE ] ORG ) ) , it was not open to the Minister either to fail to deal in a substantive way with the application or to refuse , without considering the relevant facts and rights of the citizen child , to consider the application .

On DATE ORG applied the principles established in the lead Bode judgment to the present applicants’ request for an order of certiorari concerning the rejection of their IBCCARDINAL application . ORG found that the decision to refuse to consider the first named applicant ’s application under the IBCCARDINAL Scheme , without considering the constitutionally protected personal rights of the NORP citizen child under Article CARDINAL as well as that child ’s rights under LAW , was invalid . ORG therefore quashed the decision of CARDINAL DATE as confirmed in the re - issued letter of DATE . The Minister appealed .

On DATE ORG delivered its judgment in the appeal in the lead Bode case .

As regards the executive power of the ORG to operate immigration controls , ORG noted as follows :

‘ ‘ In every ORG , of whatever model , the ORG has the power to control the entry , the residency , and the exit , of foreign nationals . This power is an aspect of the executive power to protect the integrity of the ORG . It has long been recognised that in GPE this executive power is exercised by the Minister on behalf of the ORG . This was described by PERSON in ORG v. GPE [ DATE ] I.L.R.M. CARDINAL at CARDINAL as :

“ In relation to the permission to remain in the ORG , it seems to me that the ORG , through its ORG , must have very wide powers in the interest of the common good to control aliens , their entry into the ORG , their departure and their activities within the ORG

The special role of the ORG in the control of foreign nationals was described by PERSON in ORG v. GPE [ DATE ] I.R. CARDINAL at CARDINAL . He stated at p.CARDINAL:—

‘ ‘ That it is in the interests of the common good of a ORG that it should have control of the entry of aliens , their departure and their activities and duration of stay within the ORG is and has been recognised universally and from earliest times . There are fundamental rights of the ORG itself as well as fundamental rights of the individual citizen , and the protection of the former may involve restrictions in circumstances of necessity on the latter . The integrity of the ORG constituted as it is for the collective body of its citizens within the national territory must be defended and vindicated by the organs of the ORG and by the citizens so that there may be true social order within the territory and concord maintained with other nations in accordance with the objectives declared in the preamble to the ORG

I would affirm and adopt this description . While steps taken by a ORG are often restrictive of the movement of foreign nationals , the ORG may also exercise its powers so as to take actions in a particular situation where it has been determined that the common good is served by giving benefits of residency to a category of foreign nationals — as a gift , in effect . ”

As regards the request for an order of certiorari ( to quash the Minister ’s refusal to consider their application under the IBCCARDINAL Scheme ) , ORG summarised its conclusions as follows :

“ The application [ by the PERSON family to ORG ] was misconceived . The ORG CARDINAL Scheme was a scheme established by the Minister , exercising executive power , to deal administratively with a unique group of foreign nationals in a generous manner , on general principles . The parameters of the scheme were set out clearly ... .

At no stage was it intended that within the ambit of the scheme the Minister would consider , or did the Minister consider , LAW rights of the applicants . Thus the terms of the pleadings and of the appeal relating to LAW the applicants were misconceived and premature . Applicants who were not successful in their application under the ORG CARDINAL Scheme remain in the same position as they had been before their application .

The ORG has established a statutory scheme providing that the Minister , in considering the situation of foreign nationals , shall have regard to a wide range of issues when making a decision under s.CARDINAL of LAW , DATE , as amended . LAW rights are appropriately considered at that stage . If there is a change of circumstances then an application may be made to the Minister to consider further matters under LAW , DATE , as amended .

Consequently , I would allow the appeal and reverse the decision of ORG . LAW rights of the applicants have yet to be considered by the Minister . Such consideration may arise in the future in the statutory process under s.CARDINAL of LAW , DATE , as amended . If necessary , further matters may be considered at DATE under s.CARDINAL(CARDINAL ) Immigration Act , DATE , as amended . ”

As regards their request for an order of mandamus ( to order the Minister to consider PERSON free - standing application for leave to remain ) , ORG found that :

“ ORG found it unnecessary to make an order of mandamus to require the Minister to consider [ Mr Bode ’s ] stand alone application to remain in the ORG , per letter dated DATE . However , ORG then went on to consider the Minister ’s legal obligation to consider stand alone applications .

This is not now relevant in view of my decision on the nature of the ORG CARDINAL Scheme , and the consequences , and the applicability of the s.CARDINAL procedure under LAW of DATE . However , I consider it important to state my opinion , to clarify the consequences of the decision .

The appropriate process within which to consider LAW rights of applicants is on the process under s.CARDINAL of LAW of DATE . This is the relevant statutory scheme .

In addition , within the statutory scheme there is provision to revoke a deportation order , see s.CARDINAL(CARDINAL ) of the Act of DATE ...

Thus , a person , such as [ Mr Bode ] , could notify the Minister of any altered circumstances since the making of a deportation order , such as the birth of an NORP born child . On such notification the Minister would have a duty to consider the new information to determine whether to revoke a deportation order . As the statutory scheme makes this provision for such an application , there is no need to seek a further process for a right to apply . The integrity of the system should be maintained , as long as it protects the rights of the applicants , which it does in this case .

Consequently , it is my view that there is no free standing right of [ Mr Bode ] to apply to the Minister . The appropriate procedure is under s.CARDINAL of the Act of DATE , as amended , with the potential right to apply under s.CARDINAL(CARDINAL ) in the future if the need to make such an application should arise . ”

On DATE ORG applied , to the present applicants’ appeal , the principles it had established in its judgment on the appeal in the lead Bode case . It concluded as follows :

“ The application was misconceived . The ORG CARDINAL Scheme was an administrative scheme established by the Minister exercising executive power to deal with a unique group of foreign nationals in a generous way , on the criteria of the scheme . The parameters of the scheme were clearly set out and included time limits for applications . The scheme was administered by the Minister within the criteria of the scheme .

At no time was it intended , within the ambit of the scheme , that the Minister would consider LAW rights of applicants . The grounds of the application and the appeal relating to LAW rights were misconceived , and premature . Applicants who are unsuccessful on an application to the LAW are in the same position after the application as they were prior to the application . LAW rights await consideration .

It was a requirement of the scheme that applications be made within a specified time . The first named applicant did not make his application within the time required in the scheme . The Minister consequently acted correctly within the scheme in refusing to consider the application .

Bearing in mind the analysis of the ORG CARDINAL Scheme in Bode , and the extent of judicial review of such an administrative scheme , I would allow the Minister ’s appeal on this matter , and reverse the decision of ORG .

The LAW rights of the applicants remain to be considered in another , appropriate , process . ”

The applicants continue to reside in GPE . They do not refer to any change in their immigration status or submit that there has been any indication of an intention to deport them .

LAW provides :

“ It is the entitlement and birthright of every person born in the island of GPE , ... , to be part of ORG .... ”

Article CARDINAL(CARDINAL)(CARDINAL ) provides :

“ The ORG guarantees in its laws to respect , and , as far as practicable , by its laws to defend and vindicate the personal rights of the citizen . ”

“ The ORG recognises the Family as the natural primary and fundamental unit group of ORG , and as a moral institution possessing inalienable and imprescriptible rights , antecedent and superior to all positive law . ”

Section CARDINAL of LAW is entitled “ Declaration that person is a refugee ” and subsection CARDINAL provides as follows :

“ The Minister may , at his or her discretion , grant permission in writing to a person who has withdrawn his or her application or to whom the Minister has refused to give a declaration to remain in the ORG for such period and subject to such conditions as the Minister may specify in writing . ”

Section CARDINAL of the DATE Act confers on the Minister the power to make deportation orders in respect of certain categories of persons ( Article CARDINAL(CARDINAL ) of MONEY ) having satisfied himself or herself that the deportation would not breach the prohibition of refoulement ( section CARDINAL of LAW ) and having had regard to the “ humanitarian ” factors listed in LAW . LAW , in so far as relevant , provides as follows :

CARDINAL ) Subject to the provisions of LAW ) of LAW , DATE , and the subsequent provisions of this section , the Minister may by order ( in this LAW referred to as “ a deportation order ” ) require any non - national specified in the order to leave the ORG within such period as may be specified in the order and to remain thereafter out of the ORG .

( CARDINAL ) ( a ) Subject to subsection ( CARDINAL ) , where the Minister proposes to make a deportation order , he or she shall notify the person concerned in writing of his or her proposal and of the reasons for it and , where necessary and possible , the person shall be given a copy of the notification in a language that he or she understands .

( b ) A person who has been notified of a proposal under paragraph ( a ) may , within DATE of the sending of the notification , make representations in writing to the Minister and the Minister shall—

( i ) before deciding the matter , take into consideration any representations duly made to him or her under this paragraph in relation to the proposal , and

( ii ) notify the person in writing of his or her decision and of the reasons for it and , where necessary and possible , the person shall be given a copy of the notification in a language that the person understands .

( CARDINAL ) In determining whether to make a deportation order in relation to a person , the Minister shall have regard to—

( a ) the age of the person ;

( b ) the duration of residence in the ORG of the person ;

( c ) the family and domestic circumstances of the person ;

( d ) the nature of the person ’s connection with the ORG , if any ;

( e ) the employment ( including self - employment ) record of the person ;

( f ) the employment ( including self - employment ) prospects of the person ;

( g ) the character and conduct of the person both within and ( where relevant and ascertainable ) outside the ORG ( including any criminal convictions ) ;

( h ) humanitarian considerations ;

( i ) any representations duly made by or on behalf of the person ;

( j ) the common good ; and

( k ) considerations of national security and public policy ,

so far as they appear or are known to the Minister .

( CARDINAL ) The Minister may by order amend or revoke an order made under this section including an order under this subsection . ”

Section CARDINAL of this LAW is entitled “ Performance of certain functions in a manner compatible with LAW provisions ” and , in so far as relevant , provides as follows :

“ CARDINAL(CARDINAL ) Subject to any statutory provision ( other than this LAW ) or rule of law , every organ of the ORG shall perform its functions in a manner compatible with the ORG ’s obligations under the ORG provisions .

( CARDINAL ) A person who has suffered injury , loss or damage as a result of a contravention of subsection ( CARDINAL ) , may , if no other remedy in damages is available , institute proceedings to recover damages in respect of the contravention in ORG ( or , subject to subsection ( CARDINAL ) , in ORG ) and the ORG may award to the person such damages ( if any ) as it considers appropriate . ... ”

Section CARDINAL ) of the Nationality and Citizenship Act DATE provided that every person born in GPE was an NORP citizen from birth . An NORP citizen was considered immune from deportation ( as distinct from extradition ) . Further to the judgment of ORG in GPE v. the Minister for ORG , LAW ( [ DATE ] CARDINALIR CARDINAL and see below ) , it became the general practice of the Minister to grant leave to remain in the ORG to non - national parents of NORP born children . DATE the Minister granted leave to CARDINAL non - national parents on this basis . The Minister also had the power to refuse to grant leave when he deemed that such leave would not be in the “ common good ” ( for example , criminal conviction ) . There was no prescribed procedure for applying for such leave to remain or for the Minister ’s examination of such requests .

On DATE ORG found that a foreign national parent of an NORP born child did not have an automatic entitlement to remain in the ORG with the child ( ORG and PERSON the Minister for Justice , LAW [ DATE ] CARDINAL I.R. CARDINAL ) . The Minister was entitled to order the deportation of parents if he was satisfied for good and sufficient reason that the common good required the residence of the parents in the ORG to be terminated , even if an NORP born child had , in consequence , to leave the ORG in order to remain in the care of his parents and within the family unit .

Accordingly , from DATE the Minister discontinued the practice of granting , as a matter of course , leave to remain in the ORG based solely on parentage of an NORP born child . According to ORG v. Minister for ORG , ORG , cited above ) , CARDINAL such applications were pending before the Minister at that point .

In DATE the LAW was amended ( the CARDINALth amendment ) by referendum and the new Article CARDINAL(CARDINAL ) reads as follows :

“ ( CARDINAL ) Notwithstanding any other provision of this LAW , a person born in the island of GPE ... who does not have , at the time of the birth of that person , CARDINAL parent who is an NORP citizen or entitled to be an NORP citizen is not entitled to NORP citizenship or nationality , unless provided for by law .

( CARDINAL ) This section shall not apply to persons born before the date of the enactment of this section . ”

Legislative effect was given to this new LAW provision by ORG “ LAW ” ) which came into force on DATE . This constitutional provision and legislation excludes the automatic grant of NORP nationality and citizenship to a child born after the date of enactment of LAW to parents neither of whom was entitled to be an NORP citizen at the time of birth .

While the DATE Act reduced the number of pregnant foreign nationals arriving in GPE , the Minister set about managing the applications for leave to remain of parents of children born before DATE which were , by then , pending . On DATE the Minister announced ( in national newspapers and on the Minister ’s website ) the establishment and details of the IBCCARDINAL Scheme . It was a Scheme designed specifically to deal with pending parental applications for leave to remain as regards children born in GPE before DATE in a “ decent , pragmatic and common sense way ” . Applications were to be received from DATE . The examination would not touch upon the merits of each individual case , but the Scheme fixed broad qualifying criteria :

- criminal activity would weigh against the granting of leave , as would not being part of the family unit and not taking a role in the upbringing of the child ;

- presence in the ORG for some time would lean in favour of granting leave and a demonstrated continuous residence in the ORG since the birth of the child was a pre - condition for inclusion in the Scheme .

Details of the proofs / evidence required were outlined . A DATE leave to remain was to be initially granted , renewable at the Minister ’s discretion . Such a grant was subject to certain conditions , on which an applicant would have to make a formal declaration including obeying the laws of the ORG , not becoming involved in criminal activity and making every effort to become economically viable .

The Scheme was again announced on DATE , with all application details including an application form ( which stated the closing date ) , advice as to the evidence required and a stipulation as to the necessity to explain if a relevant evidentiary document was missing . A reminder notice was also published on DATE . CARDINAL applications were received and leave to remain was granted to all but DATE which were found not to qualify . In this latter respect , CARDINAL did not prove continuous residence since the birth of the child . Applications lodged after the expiry of the time - limit were not considered .

PERSON and PERSON were NORP and NORP citizens , respectively who moved to GPE in DATE . Their CARDINAL children were born in GPE and were therefore NORP citizens . When Mr. PERSON applied for a work permit , the Minister for Labour refused to grant it and ORG asked him to make arrangements to leave the country .

It was this request , and a fear that a deportation order would be made , which led the plaintiffs to issue proceedings seeking an order restraining the Minister from deporting the plaintiffs ; a declaration that the plaintiffs were entitled to reside within the ORG ; a declaration that such provisions of LAW DATE as purported to empower the Minister to deport them were inconsistent with the LAW / not carried over as laws by LAW ; and , if necessary , an order directing the Minister to grant to the first and second plaintiffs a visa entitling them to remain in the ORG as long as they were members of the family .

The plaintiffs were unsuccessful in the High and ORG , where their action was dismissed on its merits , although the latter found that the Minister should consider the case afresh . ORG held that that , where non - national parents had resided for an appreciable time and had become a family unit within the ORG and had children who were NORP citizens , those children had the constitutional right to the company , care and parentage of their parents within the ORG . However , the Minister was entitled to exercise his powers to exclude such non - national parents from the ORG after due and proper consideration and full recognition of the fundamental nature of the constitutional rights of the family , where he was satisfied that their exclusion was necessitated by the requirements of the common good and where the consequences of this exercise would not be disproportionate to the requirements of the common good .

The plaintiffs were a husband ( non - national ) as well as his wife and their child ( both citizens of GPE ) . The Minister indicated that leave to remain would not be given to the husband unless he produced proof of his ability to maintain himself and any dependants from his own resources . The husband feared deportation ( no deportation order had issued ) and the plaintiffs issued proceedings in ORG seeking a declaration that , inter alia , LAW DATE was unconstitutional and an order restraining the Minister from deporting the husband . This challenge was rejected by ORG on its merits , that court finding , inter alia , that LAW DATE not inconsistent with the LAW .

It sets out a legislative framework for the management of inward migration to GPE and lays down principles governing the presence in the ORG of foreign nationals , including the obligation on a foreign national who is unlawfully in the ORG to leave . The executive power and responsibility of the Government to make immigration polices being currently supplemented by , inter alia , LAW , LAW as well as ORG , the DATE PERSON proposes to repeal and replace those statutory provisions . The DATE PERSON also proposes to integrate into a unified process all procedures for claiming protection and otherwise for requesting leave to remain and it therefore repeals and replaces the relevant provisions of , inter alia , LAW . The DATE PERSON also includes provision allowing non - nationals to obtain long - term residence permits and it sets out the rights attaching thereto .

The applicant was refused refugee status and requested leave to remain under LAW . The Minister issued a deportation order which the applicant challenged by way of a request for leave to apply for judicial review . ORG refused leave but it certified that its decision involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to ORG ( section CARDINAL(CARDINAL)(a ) of LAW CARDINAL ) . The point of law so certified was as follows :

“ In determining the reasonableness of an administrative decision which affects or concerns the constitutional rights or fundamental rights , is it correct to apply the standards set out in O’Keeffe v. An PERSON [ DATE ] CARDINAL I.R. CARDINAL ? ”

ORG allowed the appeal ( Chief Justice PERSON , PERSON GPE and PERSON Justice PERSON in the majority , with Mr Justice PERSON and PERSON Justice PERSON dissenting ) . As noted by the Chief Justice , the primary and contemporary reference points for the approach which the courts had to adopt when judicially reviewing such administrative decisions were the decisions of ORG in The ORG ( PERSON ) v. The Stardust Victims Compensation Tribunal ( [ DATE ] I.R. CARDINAL ) and the above - cited case of O’Keeffe v. An PERSON .

As regards the nature and standard of judicial review of administrative decisions including decisions encroaching on fundamental rights , Mr Justice PERSON opined as follows :

“ The question is whether these considerations should lead to a modification of the PERSON or O’Keeffe test . The Minister strongly opposes the adoption of an entirely new threshold of review , whether that of “ anxious scrutiny ” , “ most anxious scrutiny ” or otherwise , for some administrative decisions . He submits that the adoption of such a test would significantly alter the role of the ORG in judicial review and would effectively constitute the ORG as the ultimate appellate tribunal from a vast range of administrative decisions .

At CARDINAL level all this is no more than semantics : what is irrational or unreasonable depends on the subject - matter and the context . ... The appellant ’s written submissions advance the principle of proportionality , in particular the notion of least intrusive interference with constitutional rights , saying that this principle can operate within the confines of the PERSON or O’Keeffe test . I do not consider it necessary to change the test . Properly understood , it is capable of according an appropriate level of protection of fundamental rights . The test as enunciated by PERSON [ in PERSON ] and as explained by PERSON in O’Keeffe lays down a correct rule for the relationship between the courts and administrative bodies . Properly interpreted and applied , it is sufficiently flexible to provide an appropriate level of judicial review of all types of decision . The proposition of the [ Minister ] , is a restatement , without using the word , of the principle of proportionality . The courts have always examined decisions in context against their surrounding circumstances .

DATE . Where decisions encroach upon fundamental rights guaranteed by the LAW , it is the duty of the decision - maker to take account of and to give due consideration to those rights . There is nothing new about this . ... Where a right is not considered at all or is misdescribed or misunderstood by the decision - maker , the decision will be vulnerable to attack on the grounds of a mistake of law or failure to respect the rules of natural justice . In such cases , it may not be necessary to establish that it is unreasonable . It may , however , affect fundamental rights to such a disproportionate degree , having regard to the public objectives it seeks to achieve , as to cross a threshold , and to be justifiably labelled as so unreasonable that no reasonable decision - maker could justifiably have made it . To use the language of LAW [ in PERSON ] , it may “ plainly and unambiguously fl[y ] in the face of fundamental reason and common sense . ”

Where unreasonableness is alleged , the applicant will ask the court to examine the decision to see whether the decision - maker has complied with the duty to take account of and to give due consideration to any relevant rights or interests . There is an infinitely broad spectrum of decisions and of contexts and an infinite gradation of rights . There are constitutional rights , statutory and other legal rights , rights guaranteed by the Convention . In the last case , it is relevant that section CARDINAL of LAW , DATE places an obligation on every organ of the ORG to perform its functions in a manner compatible with the ORG ’s obligations under the provisions of the Convention . In the Convention context , we must be conscious that ORG is influenced by the effectiveness of legal remedies against administrative decisions , when it considers the effectiveness of a national remedy pursuant to LAW .

If we were to adopt the criterion of “ anxious scrutiny , ” it would follow that different standards of review would apply depending on whether the case was concerned with the protection of different types of right . That is the NORP “ sliding scale ” of review . In my view , it is neither appropriate nor necessary to have a different standard of review for cases involving an interference with fundamental , constitutional or other personal rights . ... It seems to me that the principle of proportionality , more fully developed in the judgments which have been delivered by the Chief Justice and of GPE J , can provide a sufficient and more consistent standard of review , without resort to vaguer notions of anxious scrutiny . The underlying facts and circumstances of cases can and do vary infinitely . The single standard of review laid down in PERSON and O’Keeffe is sufficiently responsive to the needs of any particular case .

I prefer to explain the proposition laid down in the PERSON and O’Keeffe cases , retaining the essence of the formulation of PERSON in the former case . I would say that a court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied , on the basis of evidence produced by the applicant , that the decision is unreasonable in the sense that it plainly and unambiguously flies in the face of fundamental reason and common sense . I use the word , “ substantive , ” to distinguish it from procedural grounds and not to imply that the courts have jurisdiction to trespass on the administrative preserve of the decision - maker . This test , properly applied , permits the person challenging the decision to complain of the extent to which the decision encroaches on rights or interests of those affected . In those cases , the courts will consider whether the applicant shows that the encroachment is not justified . Justification will be commensurate with the extent of the encroachment . The burden of proof remains on the applicant to satisfy the court that the decision is unreasonable in the sense of the language of PERSON J [ in PERSON ] . The applicant must discharge that burden by producing relevant and cogent evidence .

This does not involve a modification of the existing test as properly understood . Rather it is an explanation of principles that were already implicit in our law . ”

PERSON GPE considered that the O’Keeffe decision has been construed “ too narrowly ” and judicial review should be an effective remedy especially where , as in asylum cases , access to the courts has been curtailed by law . Where fundamental rights were factors in a review , they are relevant in analysing the reasonableness of a decision and proportionality was inherent in any analysis of reasonableness .


The applicant , PERSON , is an NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE .

By a decision of CARDINAL DATE the Lääne - Viru County Court ( ORG ) discontinued criminal proceedings in respect of the applicant who had been charged with having committed an aggravated fraud involving substantial material damage ( LAW ( DATE ) of LAW ( PERSON ) ) . The decision was taken at the request of the prosecutor , under LAW ORG koodeks ) , according to which criminal proceedings could be discontinued if the punishment liable to be imposed on the accused would be negligible compared to the punishment which would be likely to be imposed on him or her for the commission of another criminal offence . ORG made reference to other proceedings pending before ORG ( PERSON ) which are summarised below .

By a judgment of CARDINAL DATE the ORG convicted ORG and ORG of illicit trafficking of gasoline by a group of persons ( Article CARDINAL § CARDINAL ( CARDINAL ) of LAW ) . The applicant was convicted of aiding and abetting the above offence ( LAW ( CARDINAL ) and LAW ) . He was sentenced to CARDINAL years’ imprisonment , less the time spent in pre - trial detention . PERSON was convicted of misuse of his official position ( LAW ) . The court granted the civil claim of ORG against the applicant , ORG and PERSON in the amount of CARDINAL kroons ( EEK ) ( MONEY ( ORG ) ) . Finally , it decided to confiscate the property ( gasoline ) that had been seized from the applicant , PERSON and ORG in order to meet the civil claim .

On DATE ORG ( Tallinna GPE ) upheld ORG judgment in substance insofar as it concerned the applicant .

ORG ( NORP ) refused the applicant leave to appeal on DATE .

On DATE the applicant requested ORG to postpone the enforcement of his prison sentence for DATE , as he was critically ill with rheumatoid arthritis and in case his medical treatment were to be discontinued , the inflammation of joints would become more acute . The applicant submitted that he was the sole supporter of his sick parents and that he provided subsistence to a DATE child . On DATE ORG postponed the enforcement of the applicant ’s imprisonment for DATE .

On DATE the applicant requested ORG to lift his sentence due to his incurable illness . By a decision of DATE ORG dismissed his request . It found , on the basis of medical certificates submitted by the applicant , that he had been prescribed pills which could also be taken in prison . It considered that the necessary medical examinations ( once DATE ) could be arranged by the prison authorities in cooperation with a hospital . Therefore , ORG dismissed the applicant ’s request and noted that according to ORG decision of CARDINAL DATE the applicant had to appear in FAC on DATE at the latest to start serving his sentence ( DATE , DATE ) .

The applicant did not appeal against the decision .


GÜLER, SAHIN, YILMAZ, KOYUNCU, CAKMAK, YILMAZ, YAMAN and OTHERS, DÖNER and DURSUN, TUNCER v. TURKEY

The applicants , PERSON , PERSON , PERSON , ORG , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , ORG , ORG , ORG and PERSON , are NORP nationals , represented before the ORG by PERSON , a lawyer practising in GPE .

The facts of the cases , as submitted by the applicants , may be summarised as follows .

ORG and Highways expropriated a plot of land belonging to the applicant . The amount which was assessed by a committee of experts was paid when the expropriation took place .

On DATE the applicant commenced legal proceedings before ORG for additional compensation .

On DATE the court awarded the applicant additional compensation plus an interest at the statutory rate of PERCENT per annum , starting from DATE .

On DATE ORG upheld the decision of ORG .

The due amount was paid to the applicant on DATE .

On DATE the court awarded the applicant additional compensation plus an interest at the statutory rate of PERCENT per annum , starting from CARDINAL OctoberCARDINAL .

On DATE the applicant commenced legal proceedings before ORG of First Instance for additional compensation .

On DATE the court awarded the applicant additional compensation plus an interest at the statutory rate of PERCENT per annum , starting from CARDINAL PERSON .

On DATE the court awarded the applicant additional compensation plus an interest at the statutory rate of PERCENT per annum , starting from CARDINAL NovemberCARDINAL .

ORG and Highways expropriated a plot of land belonging to the applicants . The amount which was assessed by a committee of experts was paid when the expropriation took place .

On DATE the applicants commenced legal proceedings before ORG of First Instance for additional compensation .

The due amount was paid to the applicants on DATE .

ORG and Highways expropriated CARDINAL plots of land belonging to the applicant . The amount which was assessed by a committee of experts was paid when the expropriation took place .

On DATE the court awarded the applicant additional compensation plus an interest at the statutory rate of PERCENT per annum , starting from DATE and DATE respectively .

The first letter concerning these applications was received on DATE .

A letter was sent by ORG on DATE requesting further information as the applications were incomplete .

As the ORG did not receive any reply , the provisional file concerning the application no GPE was destroyed on DATE .

As the ORG did not receive any reply , the provisional file concerning the application no PKCARDINAL was destroyed on DATE .

The first letter concerning the application was received on DATE .

Warning letter was sent from the ORG on DATE requesting clarification and proof for the purpose of the respect of the DATE rule .

As the ORG did not receive any reply , the provisional file concerning the application no ORG was destroyed on DATE .

The first letter concerning this application was received on DATE .

The warning letter was sent from ORG on DATE requesting clarification and proof for the purpose of the respect of the DATE rule .

On DATE and CARDINAL DATE the ORG representative wrote CARDINAL letters addressed to the Registry complaining about the destruction of the provisional files concerning these applications . She claimed that she did not receive any letters and that there was no mention of the destruction of the application in the Rules of Court in case of alleged inactivity of the applicants . She alleged that she had pursued her cases via telephone conversations with the Registry and not by writing letters to the ORG and that therefore she could not have been considered as inactive . She also stated that she had submitted around CARDINAL similar cases DATE some of which were pending and others concluded by friendly settlements whereupon she inquired about the developments in these cases . Therefore she requested that the running of DATE of these applications be calculated from the date of their original applications .


The applicant , Mr PERSON , a NORP citizen , who was born in DATE , died on DATE . His wife , PERSON expressed a wish to pursue the application . ORG are represented by their Agent Ms Lidija PERSON .

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

On DATE the applicant instituted civil proceedings before ORG ( PERSON u GPE ) seeking damages from GPE .

Before CARDINAL DATE , when the LAW entered into force in respect of GPE , the first instance court adopted a judgment which was quashed upon the applicant ’s appeal . The first instance court then adopted a new judgment which was upheld upon the applicant ’s appeal by ORG ( PERSON u GPE ) on DATE .

On DATE the applicant filed a request for revision on points of law .

On DATE ORG rejected the applicant ’s request . On DATE the decision to that effect was forwarded to ORG Case - Law Study Department ( Služba evidencije , praćenja i proučavanja sudske prakse ) in order to secure its conformity with ORG case - law .

On DATE the above - mentioned ORG forwarded the decision to ORG .

On DATE the decision was forwarded to ORG and from there , on CARDINAL DATE , to ORG . The latter served the decision on the applicant on DATE .

On DATE the applicant filed a constitutional complaint .

On DATE ORG invited the applicant to file additional submissions . The applicant did so on DATE .

On DATE ORG sent the case - file to ORG .

On DATE ORG forwarded the applicant ’s complaint to ORG ( ORG odvjetništvo PERSON ) .

On DATE ORG rejected the applicant ’s complaint .


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

Alvina Gyulumyan;András Sajó;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;Giorgio Malinverni;Ineta Ziemele;Ireneu Cabral Barreto;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Khanlar Hajiyev;Ledi Bianku;Loukis Loucaides;Mirjana Lazarova Trajkovska;Nicolas Bratza;Nona Tsotsoria;Päivi Hirvelä;Peer Lorenzen;Riza Türmen;Snejana Botoucharova;Sverre Erik Jebens

The applicant was born in DATE and currently lives in GPE .

NORP In DATE , at DATE , the applicant lawfully entered GPE together with his parents and CARDINAL siblings . Subsequently , he was legally resident in GPE . His parents , who were lawfully employed , acquired NORP nationality . The applicant attended school in GPE .

NORP In DATE criminal proceedings were instituted against the applicant . He was suspected of , inter alia , having broken into cars , shops and vending machines ; having stolen empties from a stock ground ; having forced another boy to steal CARDINAL NORP schillings from the latter ’s mother ; having pushed , kicked and bruised this boy ; and of having used a motor vehicle without the owner ’s authorisation .

On DATE the applicant was granted an unlimited settlement permit ( Niederlassungsbewilligung ) .

On DATE ORG ( GPE ) convicted the applicant on CARDINAL counts of aggravated gang burglary and attempted aggravated gang burglary ( gewerbsmäßiger Bandendiebstahl ) , forming a gang ( Bandenbildung ) , extortion ( GPE ) , assault ( NORP ) , and unauthorised use of a vehicle ( unbefugter MONEY ) , offences committed DATE and DATE . He was sentenced to DATE months’ imprisonment , CARDINAL of which were suspended on probation . The sentence was accompanied by an order to undergo drug therapy .

On DATE the applicant was arrested and further criminal proceedings were opened against him relating to a series of burglaries committed DATE and DATE . The applicant and his accomplices were suspected of having broken into shops or restaurants , where they stole cash and goods . On DATE ORG remanded him in custody .

On DATE ORG convicted the applicant on CARDINAL counts of aggravated burglary and attempted aggravated burglary , and sentenced him to QUANTITY months’ imprisonment . When fixing the sentence the court noted the applicant ’s confession as a mitigating circumstance , and the number of offences committed and the rapid relapse into crime after the last conviction as aggravating circumstances . It also observed that the applicant , though still living with his parents , had completely escaped their educational influence , had repeatedly been absent from home and had dropped out of school . It further noted that the applicant had failed to comply with the order to undergo drug therapy . Consequently , the suspension of the prison term imposed by the judgment of DATE was revoked . Following ORG judgment , the applicant served his prison term .

On DATE ORG ) , relying on section CARDINAL(CARDINAL ) and CARDINAL(CARDINAL ) of LAW DATE ( PERSON ) , imposed a DATE exclusion order on the applicant . Having regard to the applicant ’s convictions , it found that it was contrary to the public interest to allow him to stay in GPE any longer . Considering the applicant ’s relapse into crime after his first conviction , the public interest in the prevention of disorder and crime outweighed the applicant ’s interest in staying in GPE .

The applicant , assisted by counsel , appealed . He submitted that the exclusion order violated his rights under LAW as he was a minor who had come to GPE at DATE , his entire family lived in GPE and he had no relatives in GPE . He also referred to section CARDINAL(CARDINAL)(CARDINAL ) of LAW DATE , pursuant to which an exclusion order could not be issued against an alien who had been lawfully residing in GPE from DATE .

By a decision of DATE , ORG ) dismissed the appeal . It confirmed ORG finding .

On DATE the applicant lodged complaints both with ORG ( Verwaltungsgerichtshof ) and ORG ) . He stressed that he had come to GPE at DATE , had attended school in GPE and could not speak NORP . He had no relatives or other social contacts in GPE . He also stressed the fact that he was still a minor .

On DATE ORG dismissed the complaint and found that the exclusion order was justified under LAW . It observed that the applicant had come to GPE only at DATE , whereas DATE according to its constant case - law – section CARDINAL ) of LAW DATE prohibited an exclusion order only in respect of aliens who had been legally resident from DATE or younger . Considering the gravity and number of offences committed by the applicant , the fact that the first conviction had rapidly been followed by a second one and the severity of the penalties imposed , it found that the exclusion order did not constitute a disproportionate interference with the applicant ’s rights under LAW , despite his lengthy residence and family ties in GPE .

By a decision of DATE , ORG suspended the effects of the exclusion order pending its decision .

The applicant was released from prison on DATE not having benefited from early release . According to the information given by counsel at the hearing , the applicant finished school during his prison term and helped in his father ’s transport business after his release .

On DATE the Constitutional Court declined to deal with the applicant ’s complaint for lack of prospects of success .

NORP In DATE a number of unsuccessful attempts were made to serve an order on the applicant to leave GPE .

On DATE ORG issued a fresh order requiring the applicant to leave GPE .

On DATE the order was served on the applicant at his GPE address and subsequently ORG ordered his detention with a view to his expulsion . He was arrested on DATE .

On DATE the applicant was deported to GPE . According to information given by counsel at the hearing , the applicant did not commit any further offences in GPE and has found employment there .

At the hearing , the Government informed the ORG that the exclusion order will expire on DATE , that is DATE after its issue ( see paragraph CARDINAL above ) .

At the material time LAW ( PERSON ) was in force . Sections CARDINAL to CARDINAL , in so far as relevant , read as follows :

“ ( CARDINAL ) An exclusion order can be issued against an alien if it can justifiably be supposed , on the basis of specific facts , that his residence

NORP endangers public peace , order and security ; or

NORP runs counter to other public interests specified in LAW .

( CARDINAL ) The existence of specific facts within the meaning of paragraph CARDINAL shall be made out , in particular , if an alien

NORP has been sentenced by a domestic court to an unsuspended term of imprisonment of DATE ; to a term of imprisonment partly suspended on probation ; or to a term of imprisonment of DATE suspended on probation ; or has been convicted by final judgment more than once for the same pernicious tendency to commit criminal acts . ”

“ ( CARDINAL ) Should there be an interference with the alien ’s private or family life on account of ... an exclusion order , such a deprivation of the right of residence shall be permissible only if necessary as a matter of urgency in furtherance of CARDINAL of the aims set out in LAW .

( CARDINAL ) ... an exclusion order shall not in any case be issued if its effects on the alien and his family ’s situation outweigh the adverse consequences of not taking such a measure . In weighing the above factors , regard shall be had in particular to the following circumstances :

NORP the period of residence and the extent to which the alien or members of his family have integrated ;

the strength of family or other ties . ”

“ ( CARDINAL ) An exclusion order shall not be issued if

the alien has grown up in the host country from early childhood and has been lawfully settled there for DATE . ”

ORG held that only aliens who had grown up in GPE from DATE or younger had grown up there “ from early childhood ” within the meaning of section CARDINAL ) of LAW ( see , for instance , decision of DATE , no . CARDINAL/CARDINAL/CARDINAL ; judgment of DATE , no . CARDINAL/CARDINAL/CARDINAL ; and judgment of DATE , no . CARDINAL/CARDINAL/CARDINAL ) .

Article CARDINAL § CARDINAL of LAW ( ORG ) provides :

“ Minors are persons who have not yet reached DATE . ... ”

This version of LAW entered into force on DATE . Before that date the age of majority was DATE .

The following CARDINAL ORG are of particular interest in the context of the present case .

The first one is Committee of Ministers Recommendation Rec(CARDINAL)CARDINAL concerning the security of residence of long - term migrants , adopted on DATE , which states , inter alia :

“ CARDINAL . As regards the protection against expulsion

( a ) Any decision on expulsion of a long - term immigrant should take account , having due regard to the principle of proportionality and in the light of ORG Rights’ constant case - law , of the following criteria :

– the personal behaviour of the immigrant ;

– the duration of residence ;

– the consequences for both the immigrant and his or her family ;

– existing links of the immigrant and his or her family to his or her country of origin .

( b ) In application of the principle of proportionality as stated in paragraph CARDINAL ( a ) , member GPE should duly take into consideration the length or type of residence in relation to the seriousness of the crime committed by the long - term immigrant . More particularly , member GPE may provide that a long - term immigrant should not be expelled

– after DATE of residence , except in the case of a conviction for a criminal offence where sentenced to in excess of CARDINAL years’ imprisonment without suspension ; and

– after DATE of residence , except in the case of a conviction for a criminal offence where sentenced to in excess of CARDINAL years’ imprisonment without suspension .

After DATE of residence , a long - term immigrant should no longer be expellable .

( c ) ORG - term immigrants born on the territory of the member ORG or admitted to the member ORG before DATE , who have been lawfully and habitually resident , should not be expellable once they have reached DATE .

Long - term immigrants who are minors may in principle not be expelled .

( d ) In any case , each member ORG should have the option to provide in its internal law that a long - term immigrant may be expelled if he or she constitutes a serious threat to national security or public safety . ”

The second one is Committee of Ministers Recommendation Rec(CARDINAL)CARDINAL on the legal status of persons admitted for family reunification , adopted on DATE . It states that where the withdrawal of or the refusal to renew a residence permit , or the expulsion of a family member , is being considered :

“ ... member GPE should have proper regard to criteria such as the person ’s place of birth , his age of entry on the territory , the length of residence , his family relationships , the existence of family ties in the country of origin and the solidity of social and cultural ties with the country of origin . Special consideration should be paid to the best interest and well - being of children . ”

The United Nations Convention on the Rights of the Child of DATE , to which GPE is ORG , provides :

“ For the purposes of the present Convention , a child means every human being below DATE unless under the law applicable to the child , majority is attained earlier . ”

“ In all actions concerning children , whether undertaken by public or private social welfare institutions , courts of law , administrative authorities or legislative bodies , the best interests of the child shall be a primary consideration . ”

“ GPE Parties recognise the right of every child alleged as , accused of , or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child ’s sense of dignity and worth , which reinforces the child ’s respect for the human rights and fundamental freedoms of others and takes into account the child ’s age and the desirability of promoting the child ’s reintegration and the child ’s assuming a constructive role in society . ”

The Committee on the Rights of the ORG , in its concluding observations on the second periodic report of GPE ( see ORG / C/CARDINAL/Add . CARDINAL , DATE , § § DATE and DATE ) , expressed its concern about the increasing number of persons below the age of CARDINAL placed in detention , a measure disproportionately affecting those of foreign origin , and recommended with regard to LAW that appropriate measures to promote the recovery and social integration of children involved in the juvenile justice system be taken .

In its General Comment no . CARDINAL ( DATE ) on children ’s rights in juvenile justice ( see ORG / C / GC/CARDINAL , DATE , § MONEY ) , ORG emphasised with regard to measures in the sphere of juvenile justice :

“ ... that the reaction to an offence should always be in proportion not only to the circumstances and the gravity of the offence , but also to the age , lesser culpability , circumstances and needs of the child , as well as to the various and particularly long - term needs of the society . A strictly punitive approach is not in accordance with the leading principles for juvenile justice spelled out in LAW on the Rights of the LAW ] ... In cases of severe offences by children , measures proportionate to the circumstances of the offender and to the gravity of the offence may be considered , including considerations of the need of public safety and sanctions . In the case of children , such considerations must always be outweighed by the need to safeguard the well - being and the best interests of the child and to promote his / her reintegration ” .

Given the membership of GPE to ORG ( as from DATE ) and of GPE ( as from DATE ) the following CARDINAL directives should be noted among those dealing with matters of migration , including the requirements for expulsion of nationals of another member ORG and third - country nationals .

NORP The first one is ORG of DATE concerning the status of third - country nationals who are long - term residents . It provides :

“ CARDINAL . Member GPE may take a decision to expel a long - term resident solely where he / she constitutes an actual and sufficiently serious threat to public policy or public security .

NORP The decision referred to in paragraph CARDINAL shall not be founded on economic considerations .

NORP Before taking a decision to expel a long - term resident , member GPE shall have regard to the following factors :

( a ) the duration of residence in their territory ;

( b ) the age of the person concerned ;

( c ) the consequences for the person concerned and family members ;

( d ) links with the country of residence or the absence of links with the country of origin .

The second one is Council Directive CARDINAL/CARDINAL/EC of ORG and of ORG on the right of citizens of the Union and their family members to move and reside freely within the territory of the member States . It provides :

“ CARDINAL . Subject to the provisions of this chapter , member GPE may restrict the freedom of movement and residence of Union citizens and their family members , irrespective of nationality , on grounds of public policy , public security or public health . These grounds shall not be invoked to serve economic ends .

Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned . Previous criminal convictions shall not in themselves constitute grounds for taking such measures .

The personal conduct of the individual concerned must represent a genuine , present and sufficiently serious threat affecting CARDINAL of the fundamental interests of society . Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted .

“ CARDINAL . NORP Before taking an expulsion decision on grounds of public policy or public security , the host member State shall take account of considerations such as how long the individual concerned has resided in its territory , his / her age , state of health , family and economic situation , social and cultural integration into the host member ORG and the extent of his / her links with the country of origin .

NORP The host member ORG may not take an expulsion decision against Union citizens or their family members , irrespective of nationality , who have the right of permanent residence on its territory , except on serious grounds of public policy or public security .

An expulsion decision may not be taken against Union citizens , except if the decision is based on imperative grounds of public security , as defined by member ORG , if they :

( a ) have resided in the host member ORG for DATE ; or

( b ) are a minor , except if the expulsion is necessary for the best interests of the child , as provided for in LAW on the Rights of the Child of DATE . ”

The case - law of ORG of ORG ( ECJ ) shows that measures of non - admission or expulsion have to rely on the individual conduct of the person concerned and on an assessment of whether the person concerned presents a genuine , present and sufficiently serious threat to public policy , public security or public health .

In its LOC and Others and PERSON v. PERSON judgment of DATE ( Joined Cases C–CARDINAL/CARDINAL and CCARDINAL/CARDINAL , operative part , points CARDINAL - CARDINAL ) the ECJ stated :

“ CARDINAL . Article CARDINAL of Directive CARDINAL/CARDINAL precludes a national practice whereby the national courts may not take into consideration , in reviewing the lawfulness of the expulsion of a national of another member ORG , factual matters which occurred after the final decision of the competent authorities which may point to the cessation or the substantial diminution of the present threat which the conduct of the person concerned constitutes to the requirements of public policy . That is so , above all , if a lengthy period has elapsed between the date of the expulsion order and that of the review of that decision by the competent court .

Article CARDINAL ORG and LAW CARDINAL/CARDINAL preclude legislation and national practices whereby a national of another member ORG who has received a particular sentence for specific offences is ordered to be expelled , in spite of family considerations being taken into account , on the basis of a presumption that that person must be expelled , without proper account being taken of his personal conduct or of the danger which he represents for the requirements of public policy .

Article CARDINAL ORG and Directive CARDINAL do not preclude the expulsion of a national of another member ORG who has received a particular sentence for specific offences and who , on the one hand , constitutes a present threat to the requirements of public policy and , on the other hand , has resided for DATE in the host member ORG and can plead family circumstances against that expulsion , provided that the assessment made on a case - by - case basis by the national authorities of where the fair balance lies between the legitimate interests at issue is made in compliance with the general principles of Community law and , in particular , by taking proper account of respect for fundamental rights , such as the protection of family life . ”

In its Commission of the NORP Communities v. GPE judgment of DATE ( Case C-CARDINAL/CARDINAL , operative part , point CARDINAL ) the ORG stated :

“ ... by refusing entry into the territory of LOC to the Agreement on the gradual abolition of checks at their common borders , signed on DATE at ORG , to Mr PERSON , and by refusing to issue a visa for the purpose of the entry into that territory to Mr PERSON and Mr Bouchair , nationals of a third country who are the spouses of member - State nationals , on the sole ground that they were persons for whom alerts were entered in FAC for the purposes of refusing them entry , without first verifying whether the presence of those persons constituted a genuine , present and sufficiently serious threat affecting CARDINAL of the fundamental interests of society , GPE has failed to fulfil its obligations under LAW Directive CARDINAL of CARDINAL DATE on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy , public security or public health . ”


The applicant , born in DATE , is a citizen of former GPE residing in GPE ( GPE ) . He is the general manager and a shareholder of a building company . Before the ORG he is represented by PERSON , a lawyer practising in GPE ( GPE ) .

In DATE the applicant arrived in GPE . In DATE and DATE he travelled for short periods to GPE . In DATE he married PERSON , a NORP citizen . He is the father of CARDINAL children , born in DATE and DATE .

On DATE the applicant was arrested and subsequently taken into detention with a view to extradition ( Auslieferungshaft ) . The applicant ’s arrest was based on an international arrest warrant of CARDINAL DATE issued by a court in GPE , GPE ( GPE ) . The applicant was suspected of having raped a woman in DATE in GPE .

On DATE ORG in GPE submitted to the NORP judicial authorities a request for the applicant ’s extradition to GPE .

On DATE ORG ( Oberlandesgericht ) ordered the applicant ’s continued detention with a view to extradition . Subsequently , the court ordered the applicant ’s extradition to GPE and found that there were no obstacles to it . The prosecution of the applicant had not yet become time - barred and concerned an extraditable offence . Furthermore , the applicant was not a NORP citizen . The applicant had denied having committed the offence he was charged with . However , whether or not the accusation was well - founded was not an issue to be addressed in the extradition proceedings , and there was no indication that the request for extradition had been made arbitrarily . Regarding the necessity of the applicant ’s detention with a view to extradition , the court noted that the risk of the applicant ’s absconding existed . In case of a conviction he risked a severe sentence . Furthermore , when he had been arrested in GPE in the context of the criminal proceedings against him in DATE , he had been released on bail and had absconded .

On DATE ORG rejected the applicant ’s request for having his extradition declared unlawful and rejected the request for release from detention with a view to extradition . ORG found that since its decision of CARDINAL DATE the applicant ’s situation had not changed . Neither the fact that the applicant had been recognised as refugee by the NORP authorities nor the fact that he was married to a NORP citizen made him a NORP citizen within the meaning of LAW ) . Therefore he could not rely on the prohibition to extradite NORP citizens provided for in LAW .

On DATE the applicant applied to ORG ( Bundesverfassungsgericht ) . He submitted that the prohibition to extradite NORP citizens should also apply to him because , although not being a NORP citizen , he had close personal and family links to GPE

On DATE ORG declined to accept the appeal for adjudication on the ground that it did not have a sufficient prospect of success .


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

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

By an order of DATE , ORG ( hereinafter “ BDEA ” ) granted the applicant the right of use of a small plot of land measuring QUANTITY . The applicant constructed a small workshop on this plot of land , which he used for providing repair services for small household items . According to the applicant , he paid all the relevant taxes and levies related to the plot of land and the business .

On DATE ORG withdrew the plot of land from the applicant ’s use and destroyed his workshop based on an order of ORG concerning the dismantling of small workshops and other constructions which violated the architectural integrity of the city . As a result , the applicant lost his business .

The applicant filed a lawsuit against ORG , claiming that he had been unlawfully deprived of his possessions and demanding the restoration of his workshop .

On DATE the ORG dismissed the applicant ’s claim , finding that the workshop had been removed in accordance with the city planning rules and in the public interest . On DATE ORG dismissed the applicant ’s appeal and upheld the first - instance judgment . On DATE ORG dismissed the cassation appeal and upheld the lower courts’ judgments .

The applicant filed an additional cassation complaint with the President of ORG , requesting the reopening of the proceedings . The proceedings were reopened and the case was examined by the ORG of ORG . On DATE the ORG quashed ORG decision of DATE and the related judgment of ORG of DATE . The ORG found that the courts had not properly assessed the lawfulness of the destruction of the applicant ’s workshop in the light of the fact that the order granting him the right to use the plot of land had not been repealed . The case was remitted to ORG .

On DATE ORG ruled in the applicant ’s favour and awarded him a compensation of CARDINAL NORP Manats ( GPE . The court found that the applicant had been deprived of his possessions and his business without any lawful compensation .

Both the applicant and ORG filed cassation appeals against this judgment . The applicant claimed that the compensation was too low and demanded MONEY ( ORG ) . BDEA claimed that the compensation was too high and that the applicant had failed to substantiate his claim . On DATE ORG upheld ORG judgment .

Both the applicant and ORG filed cassation appeals against this decision , reiterating their arguments . On DATE the ORG of ORG quashed ORG decision of DATE and the related ORG judgment of CARDINAL DATE . The ORG found that the amount of compensation had not been supported by sufficient evidence and that the courts had not properly substantiated their decision to award this amount . The case was again remitted to ORG .

On DATE ORG found that the applicant ’s compensation claim was too high and largely unsubstantiated . The court awarded the applicant CARDINAL NORP ORG ( ORG ) in compensation . The applicant appealed in cassation against this judgment to ORG . As of the date of the present decision on admissibility , ORG has not delivered its final decision .