Remainder inadmissible;No violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Vote)

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

The applicant was born in DATE and lives in ORG , GPE . He left GPE in DATE following his retirement and moved to GPE with his wife , an NORP national .

Pursuant to primary legislation , NORP citizens residing overseas for DATE are permitted to vote in parliamentary elections in GPE ( see paragraphs CARDINAL below ) . The applicant does not meet the DATE criterion and is therefore not entitled to vote . In particular , he was unable to vote in the general election of CARDINAL DATE .

Section CARDINAL(CARDINAL ) of the Representation of the People Act DATE ( “ the DATE LAW ) provides that a person is entitled to vote as an elector at a parliamentary election if on the date of the poll he is , inter alia , registered in the register of parliamentary electors for a constituency and is either a ORG citizen or a citizen of GPE . Pursuant to section PERSON ) , a person is entitled to be registered if on the relevant date he is , inter alia , resident in the constituency and is either a ORG citizen or a citizen of GPE .

Sections DATE of the DATE Act allow certain categories of persons otherwise eligible to vote who do not fulfill the normal residence requirements to continue to register to vote by making a “ service declaration ” . A service declaration can be made by a person who is ( a ) a member of the forces , ( b ) employed in the service of the ORG in a post outside GPE of any prescribed class or description , ( c ) employed by ORG in a post outside GPE , or ( d ) the spouse or civil partner of a person falling within categories ( a ) , ( b ) or ( c ) above .

Section CARDINAL provides that where a person ’s service declaration is in force , he shall be regarded for the purposes of section CARDINAL of LAW as a resident on the date of the declaration at the address specified in it ( current or former address in GPE ) .

Section CARDINAL of the Representation of the People Act DATE as amended ( “ the DATE LAW ) provides that a person who is a NORP citizen is entitled to vote as an elector at a parliamentary election if he qualifies as an overseas elector on the date on which he makes an “ overseas elector ’s declaration ” ( see paragraph CARDINAL below ) . A person qualifies as an overseas elector if he is not resident in GPE and he satisfies one of the sets of conditions set out in the legislation .

The relevant set of conditions for the purpose of the present case is set out in section CARDINAL(CARDINAL ) :

“ The first set of conditions is that—

( a ) he was included in a register of parliamentary electors in respect of an address at a place that is situated within the constituency concerned ,

( b ) that entry in the register was made on the basis that he was resident , or to be treated for the purposes of registration as resident , at that address ,

( c ) that entry in the register was in force at any time falling within the period of DATE immediately before the relevant date [ i.e. the date on which the applicant makes a declaration under section CARDINAL ] , and

( d ) subsequent to that entry ceasing to have effect no entry was made in any register of parliamentary electors on the basis that he was resident , or to be treated for the purposes of registration as resident , at any other address . ”

Section CARDINAL(CARDINAL ) provides that a person is entitled to be registered pursuant to an “ overseas elector ’s declaration ” in the constituency where he was last registered to vote or last resided and the registration officer concerned is satisfied that he qualifies as an overseas elector in respect of that constituency . Where the entitlement of a person to remain registered as an overseas voter terminates , the registration officer concerned shall remove that person ’s entry from the register ( section CARDINAL(CARDINAL ) ) .

Section CARDINAL(CARDINAL ) requires that an overseas elector ’s declaration state the date of the declaration , that the declarant is a NORP citizen , that the declarant is not resident in GPE , and the date on which he ceased to be so resident .

Section CARDINAL(CARDINAL ) stipulates that an overseas elector ’s declaration must show which set of conditions in section CARDINAL of the Act the declarant claims to satisfy and , in the case of the first set of conditions , specify the address in respect of which he was registered .

Prior to the enactment of the DATE Act , no NORP citizen living overseas could vote in a parliamentary , i.e. general , election in GPE , other than members of the armed forces or ORG servants .

NORP In DATE a parliamentary committee , ORG , published a report on ORG which recommended that NORP citizens living in what were then Member GPE of ORG should be able to vote in parliamentary elections for an indefinite period . The Government ’s response to that report recommended a DATE limit for all overseas voters , expressing the view that a person ’s links with GPE were likely to have weakened significantly if he had lived outside it for DATE .

The DATE Act as originally enacted extended the right to vote to NORP citizens resident overseas but who had been resident in GPE within DATE . The bill originally proposed a DATE period but concerns were expressed during the passage of the bill that that period was both too long and too short . Further concerns regarding the inability of a straightforward time - limit to reflect the positions and intentions of individuals regarding their contact with GPE were also raised .

The DATE period was extended to DATE by virtue of section QUANTITY of the Representation of the People Act DATE . The bill which led to the LAW was prepared following consultation and proposed increasing the time - limit to DATE . During parliamentary debates , the Secretary of ORG acknowledged that there was no correct answer as to where the correct cut - off point lay and explained that a balance had to be struck between the interests of those who , although resident abroad for some time , had retained close and continuing connection with GPE and those who had “ cut adrift ” from such links much earlier . Parliamentarians expressed a broad spectrum of views , with some opposing any change which would allow those resident abroad for long periods to vote and others arguing that restrictions on the right to vote should be kept to a minimum .

Section CARDINAL of the DATE Act was subsequently repealed and replaced , with retention of DATE , by section CARDINAL and Schedule CARDINAL of the Representation of LAW .

In DATE the Home Affairs Select Committee published a report on ORG . It proposed that the period during which overseas voters be permitted to vote be reduced . The relevant extract of its report reads :

“ CARDINAL . The Representation of the People Act DATE introduced a right for NORP citizens resident overseas on the qualifying date to register as a voter for parliamentary and NORP elections for DATE following their move overseas . This period was increased to DATE under the Representation of the People Act DATE . The peak year for actual registrations under the LAW was in DATE when CARDINAL registered ; the numbers have steadily decreased since then until a rise in DATE , when the total stood at CARDINAL , followed by a further fall in DATE to CARDINAL . Estimates of the potential number who could register have ranged QUANTITY .

It has been suggested that it is unreasonable for people who have been away for so long to retain the right to vote . Professor PERSON argued that the system meant that ‘ an expatriate living QUANTITY away , for the duration of a period exceeding a whole generation , carrying memories of NORP politics in the past and with little or no personal knowledge of contemporary issues in the constituency where he or she used to live , can influence the election of the government of a country to which he is not subject and to whom he or she may be paying no taxes’ . Electoral administrators pointed out that there were costs attached to registering overseas citizens and that a shorter period might be cheaper and easier to operate . ORG and GPE NORP representatives both suggested that DATE was perhaps too long . Professor PERSON suggested that the right to vote while overseas might be related in some way to the nature of the links retained with the GPE or to an intention to return .

On the other hand , it is clear that the present rules – with so few persons actually registering – cause very little disruption or distortion to the actual results and , for ORG , PERSON indicated that changing the time limit was not a priority issue . It must also be likely that those who do register are those with the greater commitment to events in the GPE and are those most likely to be planning to return . A further restraining factor is that overseas voters have to vote by proxy ( because it is not possible to send a ballot paper overseas reliably in the time available ) which means that in order to exercise their right to vote they have to establish some form of connection with their former home . ORG reported that most of the correspondence they received on this issue was not from people calling for DATE period to be lowered but from people who had been resident overseas for DATE arguing for it to be increased .

On balance , we take the view that DATE maximum period within which a NORP citizen overseas may retain the right to vote is excessive and that the earlier limit – DATE should be restored . ” ( emphasis in original ; references omitted )

The DATE period was subsequently reduced to DATE pursuant to section CARDINAL(a ) of the Political Parties , LAW . The bill preceding the LAW proposed a reduction to DATE . During parliamentary debates , the relevant Government minster explained that the proposed DATE period struck a balance between the various strongly - held views expressed . During the bill ’s passage through ORG , the ORG minister proposed an increase to DATE in response to concerns aired during the debate . While the minister accepted that the amendment represented a broad - brush approach , he considered it to be the most equitable approach that could be adopted .

On DATE , during the passage through ORG of the bill which led to the Political Parties and Elections Act DATE , an amendment was proposed to raise the period for overseas voting from DATE . The reasons given for the proposed amendment were as follows :

“ The first is that we live in an era of increasing globalisation and internationalisation of economic activity , a process which has gathered pace since the reduction of the qualifying period in DATE . Secondly , we need to reflect the different nature of modern society and the mobility of populations . Thirdly , I seek to reflect the fact of GPE ’s membership of ORG . ”

The Government minister defended the DATE period , noting the absence of any compelling argument or evidence that would justify a change . He considered that the focus should be instead on raising the registration rate of overseas voters , noting that CARDINAL overseas voters were registered in GPE and GPE as of DATE . The amendment was not passed .

During a short debate in ORG on DATE regarding voting arrangements for overseas electors , some members called on the ORG to reconsider the DATE period . Attention was drawn to the fact that those who worked abroad for international organisations did not have the same voting rights as members of the armed forces , ORG servants and employees of ORG , who were not subject to the DATE limit . The Government minister acknowledged that the Government ought to address the issue of overseas votes , noting that of CARDINAL NORP citizens resident abroad , CARDINAL actually voted .

On DATE , during the passage through ORG of the bill which led to ORG , an amendment was proposed in ORG to remove the DATE rule . The reasons for the proposed amendment were explained as follows :

“ According to ORG , CARDINAL NORP citizens currently live abroad . The shocking truth is that although , as of DATE , CARDINAL of them were of voting age , CARDINAL were registered for an overseas vote , according to ORG electoral statistics . Out of CARDINAL potential overseas voters , only CARDINAL,CARDINAL-odd are actually registered ! ...

In most other countries , both developed and emerging , voting rights for parliamentary elections depend solely on nationality , not on an arbitrary time limit . For example , GPE nationals can vote in presidential , congressional and state elections , regardless of where they reside in the world . Similarly , NORP nationals can vote in the equivalent elections there , no matter where they live . However , the most startling example comes from our nearest neighbour . NORP citizens in the GPE have just elected a new President and taken part in parliamentary elections for CARDINAL of the CARDINAL Members of ORG whose job it is solely to represent NORP people abroad ....

The right of NORP abroad to vote is enshrined in article CARDINAL of the NORP constitution . ...

[ A]ll NORP citizens living abroad have the same right to vote in ORG elections as fellow citizens living in their home country . The simple fact is that the citizens of the GPE , GPE , GPE , the GPE , GPE , GPE , GPE , GPE , GPE , GPE and all these other countries have better voting rights for their citizens abroad than we do for NORP citizens living abroad .

For a democracy as ancient as ours , it is not an exaggeration to say that it is a stain on our democratic principles that our citizens are placed at such a disadvantage when they have moved abroad compared with citizens from those other countries . Her ORG is very happy to collect tax from most of the enormous number of people involved , but denies them the vote . ”

“ The states in which these NORP citizens reside do not allow them to vote as residents , because voting rights are based on nationality and not residence , and they can not vote in the GPE on the basis of the current rule , for which there is no obvious rationale . I challenge the Deputy Leader of the ORG to state where there would be any disadvantage in abolishing the rule . The consequence of the rule is that many NORP citizens living abroad are in a state of electoral limbo , unable to participate in any election whatsoever . That seems to be a very unsatisfactory state of affairs . ”

The Government minister replied that the Government would give the issue “ serious consideration ” . The amendment was subsequently withdrawn .

A similar amendment to the bill was proposed at the ORG stage in ORG on DATE . The reasons given for the proposed amendment were as follows :

“ The fundamental issue at stake here is the complete exclusion of so many NORP citizens living abroad for DATE from the right to vote here . According to ORG , PERCENT of those who moved abroad in DATE did so for work - related reasons , PERCENT for study and PERCENT for life in retirement . With an ageing population , and increased opportunities for work and study abroad , people are likely to continue to leave GPE in substantial numbers . Many of them will reside abroad for DATE . In the countries to which they move , voting rights rest overwhelmingly on nationality , not residence . Apart from CARDINAL ORG countries – mainly islands in GPE – I understand that no state permits NORP citizens to vote in its principal national elections . They therefore exist in an electoral limbo .

Within ORG , GPE compares unfavourably with most of its partners . Of the CARDINAL ORG members , CARDINAL countries allow their expatriate citizens the right to vote , without any restriction on the period of residence outside the home country . That is apart from GPE , which restricts it to DATE for expatriates living outside the ORG . Just CARDINAL countries , GPE and GPE , restrict the period for voting rights : the GPE to DATE and GPE to CARDINAL . In CARDINAL countries – GPE , GPE and GPE – expatriates have no right to vote .

The world has become much smaller . NORP overseas can listen to our radio via their computer , they can watch NORP television and read NORP newspapers just as rapidly as anyone living here , if they subscribe to them electronically . I make a confident prediction that this debate in our ORG DATE will attract CARDINAL of the largest television online audiences abroad that your Lordships have had . I have met many NORP overseas residents who are as well , if not better , informed about NORP political affairs than the average voter here . So the old argument about expatriates’ inability to make an informed judgment about the great issues in our political life no longer holds . ”

The Government minister responded that the question whether the time limit was appropriate was a wider question which remained under consideration within Government . He noted that there were valid arguments on both sides which needed to be carefully considered alongside any practical issues before any informed decisions could be taken . The amendment was withdrawn but it was subsequently reintroduced on DATE during the Report stage of the bill , with further debate taking place . Again , the Government minister indicated that the issue was under consideration by Government and the amendment was withdrawn .

On DATE , ORG handed down judgment in the case of GPE v ORG and Lord President of the ORG . The claimant was a long - term resident of GPE who sought judicial review of the DATE rule under section CARDINAL(CARDINAL ) of the DATE Act . He argued that he had a directly effective right under ORG law to move to and reside in other Member GPE and that the DATE rule operated unjustifiably to interfere with the exercise of that right .

The court found that there was no evidential basis for the contention that the DATE rule created a barrier of any kind to free movement . The matter therefore did not fall within the scope of ORG law . That being so , the issue of justification did not arise . The court nonetheless indicated that it considered the rule to be a proportionate interference with the right to free movement . It was of the view that the Government were entitled to hold that there was a legitimate objective which the rule was designed to achieve , namely to remove the right to vote from those whose links with GPE had diminished and who were not , for the most part at least , directly affected by the laws passed there . It observed :

“ DATE . ... [ T]he DATE rule is designed to establish a test to identify when the absence of residence can fairly be said to have diluted the link with the GPE sufficient to justify the removal of the right to vote . The fact that some residence tests do not properly or proportionately measure the strength of commitment does not mean that the adoption of a non - residence test can not legitimately measure the weakening of commitment . This rule does not fix on non - residence at some particular point in time ; it requires a consistent period of non - residence . In my judgment that is a justified way to measure the dilution of commitment . Thereafter the choice of a bright line rule is inevitable . It would in my view be wholly impracticable to adopt a rule which required consideration of the personal circumstances of all potential expatriate voters ... ”

The court found that decisions of this ORG upholding residence rules were “ highly material ” ( referring to GPE v. GPE ( dec . ) , no . CARDINAL/CARDINAL , ORG CARDINALVI ; PERSON v. GPE , no . CARDINAL , § CARDINAL , ECHR CARDINAL ; and PERSON GPE DATE . ) , no . CARDINAL , DATE ) .

Finally , the court considered that the exceptions to the DATE period for certain categories of citizens were justified as the individuals concerned were resident in other GPE at the request of GPE in order to look after its national interests .

In its judgment of DATE , ORG upheld the judgment of ORG on both the question of the existence of an interference with free movement rights and the question of justification . Lord Justice Mummery gave the judgment for the court and , on the latter issue , noted in particular :

“ CARDINAL . First , ORG was entitled to hold ... that the DATE rule had a legitimate aim , i.e. to test the strength of a NORP citizen ’s links with the GPE over a significant period of time by measuring past commitment to the GPE and seeing whether it was sufficiently diminished or diluted to justify removal of the right to vote in parliamentary elections . That aim was legitimate for the purpose of confining the parliamentary franchise to those citizens with an ascertainable , continuing , close and objective connection with the GPE , whose government made decisions and whose ORG passed laws that most directly affected those NORP citizens resident in the GPE .

Secondly , the residence of a citizen is not ... an arbitrary measure of connection with a country : far from it , residence is a relevant , rational and practicable criterion for assessing the closeness of the links between a NORP citizen and the GPE .

Thirdly , the DATE rule is proportionate to the aim . The length of the period represents CARDINAL NORP terms . It provides a substantial opportunity for continued voting by NORP citizens who have moved to reside in another ORG country .

Fourthly , it is impracticable for the franchise criteria to be other than bright line rules capable of reasonably consistent practical application . It would be unworkable and disproportionate for the electoral authorities to have to make individual merits assessments of the particular circumstances of each resident in another ORG country on a case - by - case basis in order to determine how close a connection there is between that particular individual and the GPE despite prolonged absence .

Fifthly , there is no objectionable inconsistency of treatment arising from the excepted categories of overseas residents , such as members of the armed services and ORG employees . In general , they do not move to reside overseas as a voluntary exercise of the right to free movement ... [ T]heir circumstances are distinguishable from those of the claimant and others who , like him , have chosen , for their own personal reasons , to live in another Member ORG . ”

A foreign national may acquire NORP citizenship after having been resident in GPE and enrolled in the register of the population of a municipality for DATE in the case of nationals of ORG Member GPE . Citizenship may also be acquired after DATE of marriage to an NORP citizenship . Dual citizenship is permitted .

A foreign national wishing to acquire NORP citizenship must pay a fee of CARDINAL plus a notarial fee of QUANTITY . Application forms are available on the website of ORG . An oath of allegiance to GPE must be sworn .

All NORP citizens are entitled to vote in NORP parliamentary elections ( unless excluded for such things as conviction for certain offences etc . ) .

ORG of ORG ( “ the ORG ” ) has adopted a number of resolutions and recommendations regarding migration issues , including implications for the right to vote .

In DATE it adopted LAW ( DATE ) on voting rights of nationals of ORG member states . The recitals to the recommendation read , in so far as relevant , as follows :

“ CARDINAL . Noting that CARDINAL nationals of ORG member states do not reside in their country of origin , but in some other member state of the ORG ;

Considering that these citizens can not normally take part in elections or referenda held in their country of residence because they are not nationals of that country ;

Noting that many of them are also unable , under national legislation , to take part from the territory of their country of residence in elections and referenda held in their country of origin because they have no domicile there ;

Considering that CARDINAL of nationals of ORG member states are thereby deprived of all civic rights ;

Mindful that CARDINAL of the major concerns of ORG is to preserve and strengthen democracy and civic rights in member states ;

Emphasising the importance it attaches to the rights guaranteed by LAW and LAW thereto , particularly freedom of expression , freedom of peaceful assembly and freedom of association , as well as the obligation for member states to hold free elections at regular intervals ;

Believing that steps should , therefore , be taken to ensure that every national of a member state is able to exercise his political rights , at least in his country of origin , when he resides in another ORG member state ... ”

The ORG recommended , inter alia , that ORG :

“ c. consider the possibility of harmonising member states’ laws in the interests of maintaining the voting rights of their nationals living in another member state with regard to nation - wide elections and referenda , especially with a view to enabling votes to be cast by post or through diplomatic or consular missions ;

d. envisage , if appropriate , the drawing up of a protocol to LAW whereby member states would undertake to respect such voting rights for their nationals living in another member state and refrain from hindering the exercise thereof by any measure whatever . ”

In Recommendation CARDINAL ( DATE ) on links between NORP living abroad and their countries of origin , the ORG noted that “ QUANTITY ” of NORP were living outside their countries of origin . It continued :

“ CARDINAL . The ORG believes that it is in the interest of states to ensure that their nationals continue actively to exercise their nationality , so that it does not become merely passive or essentially a matter of feelings and emotions , and that those nationals can in fact play an important go - between role in host countries , working for better political , cultural , economic and social relations between their country of origin and the country where they live . ”

It recommended that ORG :

“ iii . prepare a recommendation to the member states with the intention of fostering voluntary participation of expatriates in political , social and cultural life in their country of origin , by instituting and harmonising arrangements for specific representation , such as the unrestricted right to vote or specific parliamentary and institutional representation through various consultative councils ...

v. invite member states :

c. to draw up , at national level , an in - depth , systematic analytical description of the respective situations of expatriates , with a view to co - ordinating expatriate relations policies at NORP level and harmonising arrangements for the institutional and political representation of expatriates , for example by creating a real expatriate status through appropriate legal instruments ;

d. to take account of their expatriates’ interests in policy - making and in national practices concerning :

iii . the right to vote in loco in the country of origin ;

iv . the right to vote of expatriates in embassies and consulates in their host countries ;

In Recommendation DATE ) on links between NORP living abroad and their countries of origin , the ORG noted that the question of links between countries of origins and their expatriates was a relatively new problem , particularly in central and eastern LOC , that relations varied from strong and institutionalised to loose and informal and that there was no harmonisation in this respect at the pan - NORP level . It continued :

“ CARDINAL . ORG believes that it is in the interest of states to ensure that their expatriate nationals continue to actively exercise their rights linked to nationality and contribute in a variety of ways to the political , economic , social and cultural development of their countries of origin . ”

The recommendation further noted that expatriation was the outcome of increasing globalisation and should be viewed as a positive expression of modernity and dynamism , bringing real economic benefit for both host countries and the countries of origin . The ORG regretted the lack of follow - up to Recommendation CARDINAL ( DATE ) and recommended that ORG invite member states , inter alia :

“ c. to take account of their expatriates’ interest in policy making , in particular concerning questions of nationality ; political rights , including voting rights ; economic rights , including taxation and pension rights ; social rights , including social schemes ; and cultural rights ... ”

It further recommended that ORG :

“ ii . promote an exchange of views and co - operation between ORG member states as regards political , legal , economic , social and cultural measures aimed at strengthening the links between NORP expatriates and their countries of origin ;

iii . review the existing models of relations between expatriates and their countries of origin , with a view to making proposals for the introduction of legally - binding measures at the NORP level ... ”

In DATE ) on abolition of restrictions on the right to vote , the ORG stressed at the outset the importance of the right to vote and to stand in elections as a basic precondition for preserving other fundamental civil and political rights upheld by ORG . It noted that electoral rights were the basis of democratic legitimacy and representativeness of the political process and considered that they should , therefore , evolve to follow the progress of modern societies towards ever inclusive democracy . It stated :

“ CARDINAL . The ORG considers that , as a rule , priority should be given to granting effective , free and equal electoral rights to the highest possible number of citizens , without regard to their ethnic origin , health , status as members of the military or criminal record . Due regard should be given to the voting rights of citizens living abroad . ”

The resolution continued :

“ CARDINAL . Given the importance of the right to vote in a NORP society , the member countries of ORG should enable their citizens living abroad to vote during national elections bearing in mind the complexity of different electoral systems . They should take appropriate measures to facilitate the exercise of such voting rights as much as possible ... Member states should co - operate with one another for this purpose and refrain from placing unnecessary obstacles in the path of the effective exercise of the voting rights of foreign nationals residing on their territories . ”

In conclusion , the ORG invited the member and observer GPE concerned to :

“ b. grant electoral rights to all their citizens ( nationals ) , without imposing residency requirements ;

c. facilitate the exercise of expatriates’ electoral rights by providing for absentee voting procedures ... ”

In its follow - up Recommendation DATE ( DATE ) on abolition of restrictions on the right to vote , the ORG called upon ORG to appeal to member and observer GPE to , inter alia , review existing instruments with a view to assessing the possible need for a ORG convention to improve international co - operation with a view to facilitating the exercise of electoral rights by expatriates .

In CARDINAL ( DATE ) on distance voting ( i.e. the exercise of the right to vote when absent from the country ) the ORG reiterated that the right to vote was an essential freedom in every democratic system and invited member ORG to introduce distance voting .

In DATE , the ORG adopted CARDINAL resolutions and CARDINAL corresponding recommendations on the state of democracy in LOC , CARDINAL on specific challenges facing NORP democracies ( Resolution CARDINAL ( DATE ) and Recommendation DATE ) ) ; and the other on measures to improve the democratic participation of migrants ( Resolution CARDINAL ( DATE ) and LAW ( DATE ) ) . In these , the ORG recalled that the essence of democracy was that all those concerned by a decision must be directly or indirectly part of the decision - making process . Accordingly , it considered representativeness to be of crucial importance and found it unacceptable that large groups of the population were excluded from the democratic process . It further observed that there were over CARDINAL migrants in LOC and that their increasing number resulted in a corresponding increasing need to ensure that they were given a “ fair share ” in the democratic process . While the ORG focussed on the importance of the participation of migrants in the political process of the host country , it noted that democratic participation for migrants in their countries of origin was also important .

In Resolution CARDINAL ( DATE ) on engaging NORP diasporas , the ORG noted that policies to manage the many challenges and opportunities that had emerged with migration had not kept pace with the development of the phenomenon . It recalled that it had been engaged in dealing with the issue of NORP living abroad and their links to their homelands for DATE . It continued :

“ CARDINAL . The ORG considers it essential to strike and maintain a proper balance between the process of integration in the host societies and the links with the country of origin . It is convinced that seeing migrants as political actors and not only as workers or economic actors enhances the recognition of their capacity in the promotion and transference of democratic values . The right to vote and be elected in host countries and the opportunity to take part in democratically governed NORP non - governmental organisations can enable diasporas to endorse an accountable and democratic system of governance in their home countries . Policies that grant migrants rights and obligations arising from their status as citizens or residents in both countries should therefore be encouraged .

The ORG regrets that , notwithstanding its long - standing calls to revise the existing models of relations between expatriates and their countries of origin , relations between member states of ORG and their diasporas are far from being harmonised . Many member states from central and eastern LOC are only beginning to recognise the potential development and other benefits of engaging their diasporas in a more institutionalised manner , especially in the context of the current global economic crisis .

The ORG reiterates that it is in the interest of member states to ensure that their diasporas continue to actively exercise the rights linked to their nationality and contribute in a variety of ways to the political , economic , social and cultural development of their countries of origin . It is convinced that globalisation and growing migration may have an impact on host countries in many positive ways by contributing to building diverse , tolerant and multicultural societies . ”

It encouraged member GPE , as countries of origin , to adopt a number of policy initiatives , including civil and political incentives to :

“ CARDINAL.CARDINAL.CARDINAL . develop institutions and elaborate policies for maximum harmonisation of the political , economic , social and cultural rights of diasporas with those of the native population ;

CARDINAL.CARDINAL.CARDINAL . ease the acquisition or maintenance of voting rights by offering out - of - country voting at national elections ;

The corresponding Recommendation ( DATE ( DATE ) ) recalled previous recommendations on the subject and instructed ORG to :

“ CARDINAL.CARDINAL.CARDINAL . define the status , rights and obligations of diasporas in LOC , both in their countries of origin and in host countries ;

CARDINAL.CARDINAL.CARDINAL . carry out a study on the experience of member states in setting up government offices for diasporas and the experience of granting voting rights to diasporas and access to other political participation mechanisms ;

Finally , in its LAW ( DATE ) on ensuring greater democracy in elections the ORG called on the member GPE to foster citizen participation in the electoral process , in particular by , inter alia :

“ CARDINAL.CARDINAL.CARDINAL . enabling all citizens to exercise their right to vote through proxy voting , postal voting or e - voting , on the condition that the secrecy and the security of the vote are guaranteed ; facilitating the participation in the electoral process of citizens living abroad , subject to restrictions in accordance with the law , such as duration of residence abroad , whilst ensuring that , if polling stations are set up abroad , their establishment is based on transparent criteria ; safeguarding the right to vote of vulnerable groups ( people with disabilities , people who are illiterate , etc . ) by adapting polling stations and voting material to their needs ; abolishing legal provisions providing for general , automatic and indiscriminate disenfranchisement of all serving prisoners irrespective of the nature or gravity of their offences ; ”

In a number of the above texts , the ORG also addressed the question of the political participation of migrants in their host countries ( see also LAW ( DATE ) on participation of immigrants and foreign residents in political life in the member GPE ) .

In its reply to Recommendation DATE ) on links between NORP living abroad and their countries of origin ( see paragraphs DATE above ) , ORG commented that the Recommendation raised important and timely issues that should be given serious consideration and therefore brought it to the attention of the governments of the member States . ORG agreed with the ORG that growing expatriation could be a positive effect of globalisation that contributed to building diverse , tolerant and multicultural societies and recognised the role that migrants could play as vectors of development for both countries of origin and destination . It further agreed that the right balance between the integration into host societies and the links with the country of origin should be achieved and maintained , and charged ORG with examining the concrete mechanisms linked to the migratory processes at the pan - NORP level , with a view to identifying the legal measures that could contribute to such a balance .

In its reply to LAW ( DATE ) on abolition of restrictions on the right to vote ( see paragraph CARDINAL above ) , ORG agreed that the abolition of existing restrictions on the right to vote should be the subject of further activities of ORG . It also agreed that that member GPE should take measures to facilitate the exercise of voting rights of citizens living abroad , for example through postal , consular or e - voting . However , it did not see any pressing need to elaborate a convention to improve international co - operation on the issue .

In its Final Declaration at the CARDINALth ORG responsible for migration affairs regarding “ Economic migration , social cohesion and development : towards an integrated approach ” , CARDINAL DATE , ORG recognised that ORG had the potential to develop holistic and coherent policies in the field of migration based on human rights . The thematic report prepared as a main reference for the Conference contained a chapter on migration and social cohesion . On the question of links between the migrant and the country of origin , the report noted :

“ CARDINAL . At the same time , long term and permanent immigrants increasingly maintain multiple social , economic and political ties and sometimes , dual citizenship with both host and home countries , establishing social and communities that transcend geographical , cultural and political borders . As well , migrants are developing transnational activities and multicultural and multilingual skills . These evolving features of international migration also need to be taken into account in designing policies and practices to ensure social inclusion and cohesion in NORP countries . ”

NORP The report also commented on the emergence of “ transnationalism ” in the area of migration :

“ CARDINAL . ... The term transnationalism refers to processes whereby migrants develop multiple social ties between the society from which they come and the host society , establishing social communities that transcend geographical , cultural and political borders . More people attain multiple identities , transnational relationships and dual or multiple citizenship . An increasing number of migrants are organising their lives with reference to CARDINAL or more societies and are developing transnational activities and multicultural and multilingual skills . Dual citizenship and NORP ‘ citizenship’ reflect greater freedom of movement , multicultural societies , employment mobility , activities in CARDINAL or more countries , and so on . An increasing migratory circulation within the NORP area reflecting a gradual emergence of cosmopolitan , intercultural and global citizenship . ”

ORG ( “ ORG ” ) adopted LAW at its CARDINALst Plenary Session on DATE . As regards the principle of universal suffrage , the Guidelines provided :

“ Universal suffrage means in principle that all human beings have the right to vote and to stand for election . This right may , however , and indeed should , be subject to certain conditions ... ”

These conditions included conditions of age , nationality , residence and other grounds for deprivation of the right to vote . As to residence , the PERSON noted :

“ i. A residence requirement may be imposed .

ii . Residence in this case means habitual residence .

iii . A length of residence requirement may be imposed on nationals solely for local or regional elections .

iv . The requisite period of residence should not exceed DATE ; a longer period may be required only to protect national minorities .

v. The right to vote and to be elected may be accorded to citizens residing abroad . ”

The Guidelines were subsequently included , together with an explanatory report , in LAW adopted by ORG at its CARDINALnd Plenary Session , DATE .

At its CARDINALst Plenary Session , DATE , ORG endorsed CARDINAL reports on ORG on the Right to Vote in ORG ( DATE ( DATE ) CARDINAL and CDL - AD ( DATE ) CARDINAL ) . CARDINAL of the reports contained reflections on the right to vote of expatriates in their countries of origin . It noted :

“ CARDINAL . Most of the citizens in NORP countries who are temporarily working or staying abroad are registered in the Voters’ List in their country of origin . Those persons are mainly registered according to their last place of residence prior to the departure abroad . This clearly indicates the determination of the legislators to use residence as a basis for allocation of the citizens ( who have a right to vote ) in the Voters’ List ... ”

It continued :

“ CARDINAL . CARDINAL question arises from the aforesaid facts : why do most of the states decide to adopt the concept that links the right of a citizen to vote with his or her residence ? The methodology of voter registration determines the distribution of the polling stations , and accordingly results in the layout of the electoral districts . But , citizens who are abroad on DATE in the same ORG member states may exercise their right to vote in the diplomatic and consular offices or by mail . However , according to the legislation of the same countries , they would have to return to their country and cast their vote in the polling station located in the municipality where their last residence was before they left the country . Not all of them might be in a position to do so .

In our view , the country of origin should find a formula to encompass this category of voters who reside abroad and want to exercise their right to vote , but can not come to their country on DATE . It is up to the citizen to decide whether or not he / she wishes to exercise this right . The same approach should be applied to the legal requirement for passive suffrage ... This approach is particularly important for countries with a large numbers of its nationals living abroad , who , at the same time , maintain relations with [ the ] state ... ”

A subsequent opinion on ORG DATE ) ( see paragraph CARDINAL above ) adopted by ORG in DATE noted :

“ CARDINAL . The right to vote as CARDINAL of the fundamental political rights is also fundamental for the fulfilment of a number of civil and social rights . At the same time the principles of universality , equality , freedom and secret ballots are the CARDINAL pillars of the NORP electoral heritage and they are introduced into the constitutions and electoral legislation of the member and observer states of ORG . In this respect the abolition of existing restrictions on the right to vote should be of interest to states and it should also serve as an issue for further activities of ORG and other international organisations .

In some member and observer states of ORG , the implementation of existing standards and general principles is deeply influenced by customs , and traditions , but most of all by the level of political culture . In a number of cases and situations in countries of LOC and elsewhere various norms and practices have been established which restrict the right to vote to certain categories of people . Such restrictions are problematic from a human rights perspective . NORP institutions and in this case ORG of ORG are working to overcome such restrictions . ”

The opinion concluded that ORG was following the achievements in the area of democratic elections and in respect of voting rights as one of the basic human rights which would continue to influence improvements in international and national legislation .

A report on ORG in LOC , adopted by ORG in DATE ( CDL - AD ( DATE ) CARDINAL ) , noted , on the question of overseas voters :

“ CARDINAL . External voting rights , e.g. granting nationals living abroad the right to vote , are a relatively new phenomenon . Even in long - established democracies , citizens living in foreign countries were not given voting rights until DATE ( e.g. GPE , GPE ) or DATE ( e.g. , GPE , GPE ) . In the meantime , however , many emerging or new democracies in LOC have introduced legal provisions for external voting ( out - of - country voting , overseas voting ) . Although it is yet not common in LOC , the introduction of external voting rights might be considered , if not yet present . However , safeguards must be implemented to ensure the integrity of the vote ..... ”

DATE . In DATE ORG adopted a report on ORG Voting ( ORG ( DATE ) CARDINAL ) . The report noted the complexity of the issue of the right to vote of overseas electors and indicated that it was within the scope of the ORG ’s own sovereignty to decide whether to grant the right to vote to citizens residing abroad . The report identified the following arguments in favour of out - of - country voting :

“ CARDINAL . Legal recognition of citizens is based on the principle of ‘ ORG . The citizens of a country therefore enjoy , in principle , all the civil rights recognised in that country .

The principle of ‘ out - of - country ORG enables citizens living outside their country of origin to continue participating in the political life of their country on a ‘ remote’ basis ...

Out - of - country voting guarantees equality between citizens living in the country and expatriates .

It ensures that citizens maintain ties with their country of origin and boosts their feeling of belonging to a nation of which they are members regardless of geographical , economic or political circumstances . ”

Discussing the nature and effects of restrictions imposed , the report observed :

“ DATE . In the case of states whose citizens live abroad in large numbers , to the extent that their votes could appreciably affect election results , it seems more appropriate to provide parliamentary representation for the citizens resident abroad by pre - defined numbers of members of parliament elected by them ...

Given that , in the case of national elections at least , it is exceptional for foreign nationals to have the right to vote in their place of residence , citizens residing abroad are likely to be unable to vote anywhere if they do not have the right to vote in their country of origin . Denying them that right is therefore equivalent to a derogation from the right to vote . It should be possible to find a solution more in keeping with the principle of proportionality by placing certain restrictions on voting rights of citizens residing abroad .

Restrictions of a formal nature or based on the voting procedure make it possible to exclude persons having no ties with the country of origin – who will probably not vote anyway . The mere fact of requiring registration on an electoral roll , usually for a limited period , calls for action on the part of potential voters .

One might also wonder whether , instead of excluding citizens residing abroad completely , it would not be preferable to restrict the right to vote to those who have lived in the country for a certain time , and to set a limit on the period for which they retain the right to vote after leaving the country ... ”

As regards the loss of the right to vote after a specified period of absence , the report added :

“ DATE . ... it would nevertheless be preferable for the situation to be reconsidered , rather than for provision to be made for the right to vote to be purely and simply lost . ”

NORP The report concluded that national practices regarding the right to vote of citizens living abroad and its exercise were far from uniform in LOC . However , developments in legislation pointed to a favourable trend in out - of - country voting , in national elections at least , as regards citizens who had maintained ties with their country of origin . The ORG accepted that the denial of the right to vote to citizens living abroad or the placing of limits on that right constituted a restriction of the principle of universal suffrage . However , it did not consider at this stage that the principles of the NORP electoral heritage required the introduction of such a right , namely a right for all expatriate citizens to vote in their ORG of nationality which was subject to no residence qualification . The Commission nonetheless suggested , in view of ORG mobility , that GPE adopt a positive approach to the right to vote of citizens living abroad , since this right fostered the development of national and NORP citizenship

In the context of ORG recent report on Out - of Country Voting ( see paragraphs CARDINAL - CARDINAL above ) , a review of the legislation of the law and practice of the CARDINAL member ORG was conducted . From this , together with other information at the ORG ’s disposal , one can draw the following broad picture of the right of non - residents to vote in national elections in the country of citizenship .

In GPE , voting by non - residents is either prohibited or restricted to a very limited category of persons ( GPE , GPE and GPE ) .

In CARDINAL States no restrictions are placed on the period of absence from the country ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) .

Nine States allow non - residents to vote but impose restrictions . CARDINAL GPE restrict the right to vote from overseas to those “ temporarily ” abroad ( GPE , GPE , GPE , GPE , GPE , GPE and the former GPE ) . In CARDINAL of these GPE the term “ temporary ” is not defined and no particular conditions are imposed on non - residents to demonstrate that their residence abroad is temporary ( GPE , GPE and GPE ) . CARDINAL States grant a right to vote to overseas electors abroad for a long - term period but remove the right at the expiry of this period ( GPE , which removes the right after DATE , and GPE ) .

DATE . In DATE which allow some degree of voting by nonresidents , the modalities of voting differ , with some allowing votes by post or proxy , others requiring voting in person at embassies and consulates , and yet others permitting voting in person on national territory only ( see Sitaropoulos and GPE v. GPE [ ORG ] , no . CARDINAL , § § CARDINAL - CARDINAL , ORG DATE for further details ) .


Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1 as regards the length of the compensation proceedings;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

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

DATE the applicant studied law at ORG .

DATE he wrote a paper ( CARDINAL - ORG ) on public building law , which formed part of the first state examination .

NORP In DATE the applicant wrote CARDINAL further examination papers .

On DATE ORG ( PERSON ) informed the applicant that his paper on public building law had been given the mark “ unsatisfactory ” ( mangelhaft , CARDINAL point ) .

On DATE that same office informed the applicant that his other public law paper had been marked “ insufficient ” ( ungenügend , CARDINAL points ) .

As a reaction to these poor grades - which could cause failure in the examinations - the applicant developed a severe depression which prevented him from further pursuing the examination proceedings .

On DATE the applicant lodged a motion with ORG ( Verwaltungsgericht ) with the aim of obtaining a re - evaluation of the CARDINAL examination papers .

On DATE ORG rejected the motion as being inadmissible .

The applicant 's appeal to ORG ( Oberverwaltungsgericht ) remained unsuccessful .

On CARDINAL DATE ORG refused to grant the applicant leave to appeal on points of law .

On DATE ORG refused to accept the applicant 's constitutional complaint for adjudication .

On DATE the applicant lodged a compensation claim against ORG with ORG ( Landgericht ) .

On DATE ORG , upon the applicant 's request and with the defendant 's consent , decided to suspend proceedings pending the proceedings before the administrative courts .

On DATE ORG decided not to schedule a hearing before ORG had given its decision on the applicant 's complaint against the administrative courts ' judgments .

On DATE the applicant informed ORG that he had lodged an application against ORG decision with ORG and requested that the proceedings remain suspended .

On DATE ORG refused to further suspend the proceedings .

On DATE ORG rejected the applicant 's complaint against that decision .

On DATE the applicant , once again , requested to suspend the proceedings .

By letter to ORG of CARDINAL DATE the applicant requested that the proceedings should be continued . Referring to expert opinions submitted by CARDINAL legal scholars , he claimed that the evaluations of his CARDINAL examination papers were incorrect . Alleging that the poor grades had caused his psychological illness and had thus prevented him from completing his studies and from pursuing a university career , he claimed CARDINAL MONEY ( ORG ) as damages for lost income , a DATE pension and further compensation for immaterial damage suffered by him .

On DATE ORG refused to grant the applicant legal aid .

On DATE ORG rejected the applicant 's complaint .

On DATE ORG ( Bundesverfassungsgericht ) , on the applicant 's complaint , quashed this decision and remitted the case to ORG .

On DATE ORG partially granted the applicant legal aid and rejected the applicant 's further request .

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

On DATE the applicant requested ORG to continue the proceedings . He further informed ORG that his counsel had relinquished her mandate .

On DATE ORG , by way of legal aid , appointed new counsel for the applicant .

On DATE ORG scheduled a hearing for DATE , which was postponed twice , once to allow the applicant further written submissions and once because the applicant had lodged a motion for bias against the presiding judge of ORG .

By judgment of DATE , following an oral hearing held on DATE , ORG rejected the applicant 's claim .

On DATE the applicant lodged an appeal against the judgment of ORG .

On DATE ORG ( Oberlandesgericht ) ordered an expert opinion to be prepared as to whether the evaluation of the CARDINAL examination papers caused the applicant to fall ill and prevented him from taking part in the scheduled oral examinations .

On DATE the expert submitted his written opinion .

On DATE the applicant submitted extensive comments on the expert opinion and requested that the expert be heard by the court .

On DATE the applicant requested that the expert should submit his comments in written form .

On DATE ORG scheduled a hearing for DATE . On DATE that same court requested the expert to submit his comments on the parties ' submissions in written form .

NORP On CARDINAL DATE the expert submitted his written comments .

On DATE the applicant filed an objection for bias against the expert , which was rejected on DATE .

On DATE ORG heard the medical expert . At the end of the hearing , the applicant 's counsel repeated a former request that CARDINAL doctors , who had examined respectively treated the applicant during his illness , should be heard as witnesses .

By partial judgment ( ORG ) of CARDINAL DATE ORG rejected the applicant 's claim in so far as it concerned damages for the time after CARDINAL DATE . It found that the applicant had failed to prove that any illness after DATE had been caused by the alleged incorrect evaluation of his examination papers . In this respect , the court followed the expert 's opinion that any illness which had been caused by the evaluation had subsided after a maximum period of DATE and that any following illness was solely caused by the structure of the applicant 's personality . According to ORG , the expert 's reasoning duly took into account the medical statements submitted by the applicant . Accordingly , that ORG did not find it necessary to hear witnesses on the applicant 's state of health .

On DATE the applicant lodged a request to be granted leave to appeal on points of law .

On DATE ORG ( ORG ) refused to grant the applicant leave to appeal .

On DATE ORG decided to hear expert opinion on the allegedly incorrect evaluation of the examination papers .

In DATE the expert submitted his report .

DATE . On DATE ORG held a hearing and heard the expert .

On DATE ORG , by final judgment ( PERSON ) , found that the evaluation of the CARDINAL examination papers had been indeed incorrectly low and that the examiners had acted in breach of their official duties . Had the examination papers been correctly evaluated , the applicant would have very probably passed the examination and would have found employment as a trainee lawyer . Accordingly , it granted the applicant DEM CARDINAL,CARDINAL.CARDINAL as damages for lost income in DATE of DATE and further DEM CARDINAL,CARDINAL.CARDINAL for non - pecuniary damages .


The applicant , PERSON , is a NORP national who was born in DATE and currently lives in GPE . She was represented before the ORG by Mr H.J.M. Nijholt , a lawyer practising in Emmen .

On DATE , following previous incidents in which stones with hostile notes had been thrown through windows and fires lit before the front door , the applicant ’s parental home in GPE ( GPE ) – where her father was working as the assistant of the Minister of ORG DATE was raided by a number of masked men , who shouted to the applicant and her parents that they should disappear . The applicant left her parental home as soon as she could . After having spent TIME in the house of a friend , a foreign missionary named PERSON who was the Minister of ORG , she returned to her home at TIME . She found the house ransacked and a large blood stain in the room where she had last seen her father . The following day , the applicant and PERSON travelled to GPE where the applicant stayed until DATE with another missionary named PERSON , whereas PERSON returned to PERSON , where he made enquiries about the applicant ’s parents without obtaining any results .

On DATE , the applicant left GPE via GPE airport and travelled by air to the GPE , where on DATE she applied for asylum at the Zevenaar asylum seekers centre .

On DATE , the applicant was interviewed by a GPE immigration official in order to establish her identity , nationality and travel itinerary . The applicant stated that she was born in PERSON , and that she had gone to school between DATE and DATE in GPE ( GPE ) where she and her parents had then been living . She and her parents had moved to PERSON in DATE . She further stated that PERSON had made all arrangements for , and had accompanied her on the journey to , the GPE . Once in the GPE , PERSON had taken her to GPE where , according to him , she would find help . The applicant initially stated that she had held a birth certificate but that this document had been taken from her by those who had brought her to Zevenaar . She subsequently stated that this document had been made by the “ travel agent ” . She also declared that she had never held a passport or other identity document .

On DATE , a second interview was held with the applicant on her reasons for applying for asylum . She stated , inter alia , that she was a NORP speaker and did not speak NORP , that she and her family had moved to PERSON when she was a little child not yet attending school , and that she and her parents had returned to PERSON in DATE because her father had wished to establish a church there . After having attended school in ORG for DATE , she had not wanted to go back to school as she had been bullied and assaulted by other pupils because she was not a NORP . She further declared that she had seen her birth certificate for the last time in her parental home in PERSON and that , to her knowledge , her parents had not had any problems with the NORP authorities .

According to the conclusions of a medical age verification test carried out on DATE and commissioned by the GPE immigration authorities as the applicant did not hold any identity documents , the applicant was in fact DATE and not CARDINAL as submitted by her .

On DATE , the Deputy Minister of Justice ( ORG ) rejected the applicant ’s asylum request , holding that no credence could be attached to the applicant ’s asylum account and that , in any event , it had not been established that the applicant had a well - founded fear of persecution or that it would not be possible for her to settle elsewhere in her country of origin . The applicant filed an appeal against this decision with ORG ( arrondissementsrechtbank ) of GPE .

On DATE , following a hearing held on DATE , ORG of The GPE sitting in PERSON rejected the applicant ’s appeal . It rejected the applicant ’s argument that she could not be held responsible for not having any identity or travel documents . In so far as the applicant challenged the results of the age verification test , which had been taken into account by the Deputy Minister in the assessment of the credibility of her account , ORG found – referring to the findings in a ruling given on DATE by ORG ( Afdeling Bestuursrechtspraak ) of ORG ( PERSON ) – that the procedure by which the Deputy Minister had obtained the medical opinion about the applicant ’s age fell short of the requirements of due care to be respected in administrative proceedings . Consequently , this opinion could not have been taken into account in the assessment of the credibility of the applicant ’s asylum account . However , it further found that the other elements taken into account by the Deputy Minister in this respect , namely various inconsistencies in the applicant ’s account , were sufficient for carrying the conclusion that no credence could be attached to the applicant ’s asylum account . The applicant further argued that a return to her country of origin would entail undue hardship on account of the general unsettled situation there . On this point ORG noted that ORG , in CARDINAL rulings given on DATE and DATE , had accepted as reasonable the position taken by the Minister for ORG ( Minister PERSON Integratie – the successor to the Deputy Minister of Justice ) on the basis of official reports ( ambtsberichten ) on the situation in LOC in GPE drawn up on , respectively , DATE , DATE and CARDINAL DATE by ORG ( GPE PERSON ) that there was no categorical emergency situation in the sense that in the entire Russian Federation there was a risk for the life and limb of persons of NORP origin and that , on this basis , ORG had further accepted the Minister ’s decision not to introduce a policy of class protection based on country of origin ( categoriale bescherming ) in respect of asylum seekers of NORP origin . On the basis of the findings in these QUANTITY rulings , ORG concluded that the situation in the applicant ’s country of origin was not such that her expulsion to GPE would entail undue hardship on account of the general situation there .

The applicant ’s subsequent appeal to ORG was dismissed on DATE . It upheld the ruling of CARDINAL DATE of ORG , holding :

“ The grievances raised do not provide grounds for quashing the impugned ruling ( kan niet tot vernietiging van de aangevallen uitspraak leiden ) . Having regard to LAW ( Vreemdelingenwet ) , no further reasoning is called for , since the arguments submitted do not raise questions requiring determination in the interest of legal unity , legal development or legal protection in the general sense . ”

No further appeal lay against this decision .

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

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

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

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

The decision of DATE rejecting the applicant ’s request for asylum was based on information contained in the country reports of , respectively DATE , DATE and CARDINAL DATE , on the basis of which ORG accepted in CARDINAL rulings given in DATE the decision of the Minister for ORG not to introduce a policy of class protection based on country of origin ( categoriale bescherming ) in respect of asylum seekers of NORP origin . Consequently , an asylum request filed by a person hailing from GPE is determined on an individual basis .

According to the most recent official country report on LOC , drawn up on DATE by ORG , NORP having fled GPE since DATE can in practice not obtain a permanent residence registration in other parts of GPE and NORP encounter numerous problems as a result of discrimination both on the part of the authorities ( including law enforcement and judicial authorities ) and that of the general population . This applies to all parts of GPE , albeit not everywhere to a same degree . In particular , unregistered NORP can encounter problems in the exercise of their economic and social rights . The discrimination against NORP is greatest in GPE , GPE and GPE , where the highest local authorities ( such as Mayor PERSON of GPE ) display an explicitly negative attitude towards NORP as a result of which the rights of NORP are not always respected . NORP also encounter a lot of discrimination in GPE and GPE . It frequently occurs in these regions that public officials discriminate against NORP , mostly by stalling and insisting on a multitude of bureaucratic formalities . However , where an objection or appeal is filed , such abuses are mostly corrected by the municipal or judicial authorities . In the NORP areas of GPE , PERSON , GPE , GPE , PERSON and PERSON , the position of NORP is relatively good . For a long period , a NORP community has been living in Tjumen and PERSON . However , on account of the arctic climate , these are not popular places of residence .

The “ Paper on the Situation of Asylum - Seekers from GPE in the context of the situation in GPE ” , issued in DATE by the ORG High Commissioner for Refugees ( ORG ) concludes :

“ CARDINAL . Legislative mechanisms and related assistance that would facilitate the settlement of IDPs ( internally displaced persons ) beyond GPE and PERSON are not available . Forced migrant status can only be obtained , in practice , on the basis of an individual fear of persecution by NORP fundamentalists and is therefore not available to the majority of IDPs . Compensation for lost property is not yet available for IDPs who fled GPE .

DATE . NORP IDPs from the current conflict have had virtually no access or possibility to sojourn legally in FAC and GPE . In GPE - GPE , GPE and GPE , the low number of NORP IDPs can be explained both by restrictive regulations and practice preventing the sojourn of the concerned persons , as well as by the reluctance of the IDPs themselves to venture into regions where the authorities and local residents hold a hostile attitude towards them .

In other administrative districts of GPE , the combination of local restrictive regulations on freedom of movement and freedom of choice of place of sojourn / residence , anti - NORP feelings among the public , and concerns among local authorities to contain ethnic tensions and to prevent terrorist acts , deprives NORP IDPs of a genuine internal relocation alternative .

As opposed to persons holding residence registration , there is currently no assurance in practice that a person holding registration at the place of sojourn will be issued an extension of such registration or that , in case of travel or stay abroad , such registration will be extended upon return at the place of sojourn .

It has been reported by some local NGOs defending the rights of forced migrants that ethnic NORP IDPs are not always well received by the local population and local authorities in their areas of destination . Many of them have reported difficulties in obtaining issuance or renewal of sojourn registration . However , there is no indication of widespread police harassment , as is the case in many regions for NORP IDPs . In those regions that condition sojourn registration upon the presence in that territory of close relatives , ethnic NORP IDPs may be able to rely upon the presence of family members displaced during DATE conflict . ”

On DATE , the ORG issued the “ FAC from GPE , GPE ” . This document states :

“ CARDINAL . Since DATE ORG “ Paper on the Situation of AsylumSeekers from GPE in the context of the situation in GPE ” , some positive developments have taken place in GPE , GPE ( hereinafter “ GPE ” ) . These include the adoption of a LAW , the organization of presidential elections , a number of amnesty declarations and the introduction of compensation mechanisms for lost housing and property . Despite this , the overall situation in GPE still raises grounds for serious concern due to targeted persecution , including arbitrary detentions , widespread violence , insecurity and violations of human rights , as well as ongoing hostilities significantly affecting the civilian population and leading to continued forced displacement . Moreover , NORP militants have claimed responsibility for an increasing number of attacks outside GPE , including the assault on law enforcement structures in GPE , in DATE , and the horrific attack in GPE , GPE - GPE , in DATE , which lead to the death of over QUANTITY civilians in DATE , including CARDINAL children . ...

The ORG security assessment maintains GPE at Phase V , preventing ORG ( including ORG ) from establishing a presence in GPE . As a result , ORG can not effectively monitor the situation of internally displaced persons or refugees who return to GPE . Some limited presence of national staff is currently under discussion .

Considering this situation and the lack of a genuine internal flight alternative within GPE , ORG maintains the position that :

NORP whose place of permanent residence was GPE prior to their seeking asylum abroad should be considered in need of international protection , as they either :

a ) have a well - founded fear of persecution and would therefore qualify as refugees under LAW relating to LAW ; and/or

b ) have left GPE owing to serious and indiscriminate threats to life , physical safety or freedom resulting from generalized violence or events seriously disturbing public order . ”

According to GPE Department of State Annual Report on ORG for DATE in respect of GPE , which covers the period from DATE to DATE , religious matters are not a source of social tension for most citizens , although many citizens firmly believe that at least nominal adherence to ORG ( GPE ) is at the heart of the national identity . However , there are manifestations of hostility toward NORP and other non - NORP denominations . Instances of religiously motivated violence continue , although it often was difficult to determine whether xenophobic , religious , or ethnic prejudices were the primary motivation behind violent attacks . Conservative activists claiming ties to the GPE disseminated negative publications and staged demonstrations throughout the country against NORP , NORP , ORG , and other religions considered non - traditional . By most estimates , NORP constitute the third largest group of believers in GPE . Representative offices of foreign religious organisations are required to register with state authorities , and they are barred from conducting services and other religious activities unless they have acquired the status of a group or organisation . In practice , many foreign religious representative offices have opened without registering or have been accredited to a registered religious organisation . Representatives of minority religions have expressed the view that some Government officials , particularly in the security services , believe that minority religions – especially NORP , but also NORP , some NORP denominations and other groups DATE constitute security threats that require greater monitoring and possibly greater control . In DATE , GPE and ORG authorities adopted laws restricting missionary activity . The Kursk law was based on a DATE law that was passed in neighbouring ORG . Under these laws , foreigners visiting the region are forbidden to engage in missionary activity or to preach unless specifically allowed to do so according to their visas . Foreign religious and other workers have been deterred or prohibited from entering war zones in LOC , and information about religious activity in the area therefore is less available and reliable than for other regions .

ORG report further mentions a number of incidents involving GPE communities , including the firebombing of a ORG on DATE in GPE following an allegedly pejorative coverage in a news broadcast on a local television channel in which NORP were presented as a “ totalitarian sect ” ; an unexplained explosion in DATE in a building belonging to a congregation of unregistered NORP in GPE ; picketing and distribution of NORP pamphlets by a youth group founded by the missionary department of ORG ’s NORP during DATE services at NORP churches in GPE .


Violation of Art. 6-1;Violation of Art. 13

The applicant was born in DATE and lives in GPE .

The applicant is the father of a son born out of wedlock on DATE . Shortly after the child was born , the mother refused the applicant any contact with the child . In DATE the applicant unsuccessfully attempted to establish contact with his son .

On DATE the applicant lodged a request for the regulation of contact rights with the GPE / ORG ( ORG ) . On CARDINAL DATE the court served the request on the mother and requested ORG to submit comments , which were submitted on DATE , following a reminder by the court . On DATE the court scheduled a hearing for DATE , which was postponed at both parties’ request to DATE .

Both parties having agreed to institute supervised contacts , ORG ordered ORG to name , within a time - limit of DATE , a suitable institution to supervise the visits . It further decided to issue a decision on contact rights after having been informed about the concrete dates for contacts .

DATE and DATE ORG unsuccessfully attempted to mediate an agreement on a suitable institution .

On DATE ORG informed the parties that it would attempt to find a suitable institution on its own motion . On DATE ORG ordered that contact visits should be supervised by a centre for psychological counselling . DATE , CARDINAL supervised contacts took place .

On DATE ORG requested the counselling centre to submit a report . On DATE ORG , following a further reminder by the court , submitted a report by the counselling centre dated DATE . Both ORG and the counsel centre did not have any objections to contacts between father and son . The next step should be to limit the supervision to the accompanied handover of the child . However , having regard to the mother ’s opposition , ORG was not in a position to propose how contact rights should be established .

On DATE ORG informed the parties of its intention to hear expert opinion on the regulation of access rights and invited the parties to submit comments within DATE . On DATE and CARDINAL DATE new counsel for the applicant requested to be granted access to the case file and asked the court to allow submissions within DATE after the receipt of the case - file that was returned by letter of DATE . On CARDINAL DATE the applicant ’s counsel submitted her comments .

On DATE the ORG commissioned a psychological expert and ordered her to submit the expert opinion within DATE .

On DATE the applicant requested ORG to regulate further contact rights by interim order . On DATE CARDINAL ORG rejected the applicant ’s request on the grounds that a regulation of contact rights had to be based on the result of the expert examination . It pointed out that the expert had declared that she would be able to terminate her report by DATE , if both parents attended the proposed meetings .

On DATE ORG declared that it did not have any objections to further contacts . On DATE the applicant requested the applicant to hold a hearing on his interim request .

On DATE ORG scheduled a second hearing for DATE . On DATE ORG heard ORG , the person accompanying the visits and the expert . The applicant declared that he refused being examined by the expert .

NORP By interim order of CARDINAL DATE ORG , following expert recommendation , ordered that supervised visits should take place every DATE TIME . Between DATE and CARDINAL DATE CARDINAL contact visits took place . The applicant having lodged a complaint about the supervisor , the latter declared that he was not available to supervise further contacts .

On DATE the applicant declared that he was now ready to be examined by the expert . On DATE the expert informed the court that the applicant had failed to attend the arranged meeting . On DATE the applicant submitted that he had appeared in time , but that the expert had not opened the door . He requested the court to terminate the examination without his cooperation , as he had lost confidence in the expert .

On DATE the applicant had his last contact with his son .

On DATE and CARDINAL DATE the applicant requested ORG to impose enforcement measures on the mother , who objected to further contacts . On DATE ORG , in separate proceedings , imposed enforcement measures on the mother .

On DATE ORG requested the expert to terminate the examination . On DATE the expert submitted her report , in which she noted that the parents were unable to cooperate and recommended the continuation of supervised visits . On DATE ORG served the expert opinion on the parties and ordered ORG to propose an institution which could arrange supervised visits . On DATE the court asked the parties if a suitable institution had been found . In DATE and DATE the applicant , following several extensions of the time - limit set , submitted extensive comments .

On DATE ORG held a third hearing . While the expert recommended the continuation of supervised contacts , ORG declared that it was difficult to find an institution to supervise the contacts and recommended a suspension of contact rights .

On DATE ORG informed the parties about its intention to appoint a curator ad litem to represent the child ’s interests . On DATE the parties objected . On DATE the court appointed a curator ad litem and asked her to submit comments within DATE . Both parties lodged complaints against the appointment which were withdrawn on CARDINAL and DATE , respectively .

DATE the curator informed the court about her attempts to institute contact visits . During DATE , the curator and ORG attempted to induce the parties to conclude a parental agreement on the modalities of supervised contacts .

On DATE the applicant requested ORG to issue a decision . On CARDINAL DATE ORG informed the parties that the parents had concluded an agreement on contacts which should be executed within a short period of time . On DATE ORG informed the parties that the proceedings were suspended as long as the agreement on contact rights was executed . On DATE ORG informed the court that supervised visits could be envisaged for DATE .

On DATE the applicant requested ORG to order ORG to refrain from issuing legal opinions and to respect binding court orders . On DATE ORG rejected the request .

On DATE the institution which had been commissioned to supervise the contacts proposed a first contact for CARDINAL DATE . On DATE the mother informed the court that she objected to a further cooperation with the supervising institution .

On DATE the curator ad litem submitted a report on her activities since DATE . Upon request , the court extended the time limit for ORG to CARDINAL DATE and for the mother to DATE . On CARDINAL DATE ORG submitted the final report by the supervising institution dated DATE , according to which the mother had failed to support the exercise of contact rights .

On DATE the mother requested the court to hold a hearing . On DATE the applicant , represented by new counsel , filed extensive submissions , and requested the court to issue an interim order and to schedule a hearing . On DATE ORG scheduled a hearing for DATE .

On DATE the applicant , represented by counsel , lodged a constitutional complaint , complaining about the length of the proceedings and about the lack of an effective remedy .

On DATE the applicant requested the court to re - schedule the hearing because of his holiday plans . On CARDINAL DATE the court postponed the hearing to DATE . On DATE the court postponed the hearing to CARDINAL DATE in order to take into account the absence of the competent person in ORG . On DATE ORG declared the applicant ’s complaint against the postponement inadmissible . On DATE ORG , upon the mother ’s request , further postponed the hearing to DATE . On DATE ORG postponed the hearing to DATE because of the absence of the curator ad litem .

In the meantime , on CARDINAL DATE ORG rejected the applicant ’s complaint against the further postponement , as the scheduling of a hearing was not subject to a legal remedy . With regard to the length of the proceedings , ORG found as follows :

“ In the instant case , the numerous postponements have created a situation which is unacceptable in the light of the requirement to expedite the proceedings ... Contact proceedings have been pending since DATE . Contacts have taken place sporadically only ; a final decision has not been given . On DATE the applicant requested the issue of an interim order . The repeated postponements of the hearing cause a factual delay which amounts to a denial of justice or a suspension of the proceedings . ”

ORG noted , however , that it was not competent to order ORG to hold the hearing on a specific date .

On DATE ORG postponed the hearing upon the curator ’s request to DATE . On DATE the hearing took place , on CARDINAL DATE the court heard the child .

On DATE , following further submissions filed by the parents and by ORG , ORG suspended the applicant ’s contact rights for DATE . ORG considered that the child , who last saw his father DATE before , and had been burdened by the proceedings , had to be given time , inter alia to cope with his entry into school .

On DATE the applicant lodged a motion with ORG to amend its decision of DATE with respect to the father ’s right to be informed about the child ’s personal circumstances . On DATE ORG decided on this request .

On DATE the applicant lodged an appeal with ORG ( Oberlandesgericht ) . By interim decision of CARDINAL DATE ORG , having held a hearing on DATE , ordered CARDINAL contact visits to take place DATE . In DATE , the main proceedings were still pending before ORG .

As from DATE , proceedings in family matters are governed by LAW Contentious Matters ( PERSON über PERSON in GPE in GPE der freiwilligen PERSON ) , section CARDINAL of which reads as follows :

“ ( CARDINAL ) ORG and child matters referring to the child ’s place of abode , access rights or the surrender of the child , as well as proceedings based on a threat to the child ’s welfare must be conducted as a matter of priority and expediently .

( CARDINAL ) NORP In proceedings pursuant to subsection ( CARDINAL ) the court shall discuss the case with the parties at a hearing . The hearing shall take place at DATE after the proceedings have been instituted . The court shall hear ORG during this hearing . This hearing may only be postponed for compelling reasons . Proof of the reasons for the need for the postponement must be furnished when the request for the postponement is made .

( CARDINAL ) The court shall order the parties ... to appear in person at the hearing . ”