No violation of Article 6+6-3-d - Right to a fair trial (Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses)

Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Helen Keller;Mark Villiger;Paul Lemmens

The applicant was born in DATE . He is currently detained in a cantonal prison in GPE in GPE .

On DATE , shortly after TIME , GPE was killed by a gunshot in the back of his neck in front of the post - office in ORG . The applicant was suspected of having carried out the shooting .

On DATE and CARDINAL DATE , the prosecution authority of the canton of GPE interrogated GPE as a witness . X declared that he had been at the crime scene and that he had been able to see , from a distance of QUANTITY , that the applicant had shot the victim in the back of his neck . During the interrogations , the witness , the investigating judge , a police officer and a translator were sitting in a separate room , while the applicant , the former coaccused PERSON , their respective defence counsel and CARDINAL police guards were sitting in another room . The interrogation was transmitted via a sound link , and the NORP voice was distorted in order to protect the ORG anonymity . Following the interrogation , the defence counsel were given the opportunity to put additional questions via the sound link .

At the beginning of each interrogation the applicant ’s counsel declared that the modalities of the witness interrogations did not allow for an adequate exercise of the rights of the defence .

On DATE , X was interrogated before ORG of the canton of GPE ( GPE ) . While the judges , the jury and an interpreter were sitting directly together with the witness in the hearing room , the applicant , his counsel , the interpreter , the civil parties , the public prosecutor and the journalists were placed in CARDINAL of the court ’s deliberation rooms . The interrogation was transmitted via a sound link and the NORP voice was distorted in order to prevent his being identified .

The applicant and his counsel were allowed to put additional questions to X. The latter , however , refused to answer a number of questions which the defence counsel considered to be important , notably the following :

“ Why had PERSON arranged a meeting with GPE ? How did X react after the crime ? Did X approach the body ? Did he wait for the police ? Did he consume drugs ? Was he afraid of someone close to the applicant ? Had he been concretely threatened by someone ? Did X have an argument with the applicant or with LOC ? Where did X go after the crime ? Was he on foot or did he have a vehicle ? Did he have a criminal record ? Was he residing legally in GPE ? Did he wear spectacles ? ”

On DATE , the jury court convicted the applicant of manslaughter ( vorsätzliche Tötung ) and of several counts of drug - trafficking and sentenced him to DATE and QUANTITY months’ detention . The court considered that the testimony given by PERSON was credible and pertinent . It further considered that the conditions to allow the NORP anonymity were met . It noted that ORG had submitted in a credible and convincing way that his life was in danger in case he testified , as persons close to the applicant and to PERSON were ready to take revenge and did not even hesitate to kill somebody . According to X ’s submissions , he was the only person who had observed the crime and who dared to testify . It thus appeared comprehensible that X feared reprisals . It was further obvious that the applicant had a motive to take revenge on the witness who had contributed to his conviction and to prevent him from making further testimonies .

The fears expressed by X were in line with the overall picture conveyed by the other witnesses , who showed fear which was sometimes even bordering to panic when it came to making any concrete incriminating statements . The court considered that there were concrete indications that the applicant lived in an extremely violent environment in which recourse to violence and even to arms was frequent even for seemingly minor reasons . Moreover , there were specific indications that persons who had been ready to testify before the jury court had been exposed to death threats .

The court further considered that the measures taken were both necessary and sufficient to prevent identification of the witness X. The court had taken a number of measures to compensate the restrictions imposed on the rights of the defence . Firstly , the witness had not been examined by the regional prosecutor ( GPE ) , but by the president of the court . Secondly , the identity of X had been confirmed by the police - officer in charge of the investigation and had been known to the regional prosecutor and to the president of the court .

Thirdly , the police officer and the regional prosecutor gave testimony about X ’s reputation and credibility . It had thus been known that X had no criminal record and that there was no indication that he had any contact with the drug trafficking scene . There was further no indication that X had been in any way involved in the crime . It was further known that PERSON spoke the Serbo - Croatian language . Conversely , the regional prosecutor refused to divulge any detailed information on X ’s private and professional background , his education , his family situation and his residence status . The jury court considered , however , that this information was of minor importance for the assessment of credibility and that the information available gave the court a sound basis for assessing the general credibility of the witness .

The court further noted that X had been interrogated in front of the complete court and that all persons participating in the decision - making process could gain a personal impression of the witness and of his reaction to the questions put to him . Furthermore , the court had taken into account that , under the case - law of ORG , a conviction could not be exclusively based on testimony given by an anonymous witness . The principle of a public hearing had been safeguarded by allowing the press directly to follow the interrogation from the separate room in which the defence was seated . The court considered that the core rights of the defence had been safeguarded and that the measures taken had been proportionate .

Referring to the ORG ’s case - law , the jury court considered that a criminal conviction must not be exclusively based on testimony given by an anonymous witness . Accordingly , the court considered that it could not rely on the anonymous ORG testimony insofar as this constituted the only evidence available . The jury court resumed its examination by laying out general principles for the assessment of the credibility of evidence by witnesses . It considered that the applicant ’s own submissions , according to which he could not have been present at the crime scene as he first entered NORP territory in DATE and thus after the victim had been killed – were contradictory and thus lacked credibility . Conversely , the court considered the testimony given by the anonymous witness , who submitted that he had seen the applicant shooting the victim , to be credible .

The jury court further considered that there had been other evidence linking the applicant to the crime . There was , in particular , witness and circumstantial evidence allowing the conclusion that the applicant had been residing in the GPE region since DATE , that he had known the victim and that he had engaged in drug trafficking with him . As regarded the shooting of the victim , the court considered that the statements made by the witness PERSON , who had declared in a credible and convincing way to the police that the applicant had explained to him DATE after the incident that he had killed GPE before the latter could kill him , weighed heavily against the applicant , notwithstanding the fact that PERSON did not repeat these allegations during the court proceedings , but stated that he could not remember what had happened . The testimony given by PERSON during the police investigation was supported by the convincing submissions made by the anonymous witness , and by testimony given by a witness who had presumably met the applicant immediately after the crime . Relying on all available evidence , the jury court concluded that there was no doubt that PERSON had been shot by the applicant . With regard to the concrete factual circumstances , the jury court considered that the prosecution based its submissions mainly on testimony given by the anonymous witness . It followed that , for formal reasons , these circumstances could not be taken into account and that it had to be assumed in the applicant ’s favour that the concrete circumstances had not been proven . It followed that there was no sufficient factual basis which would allow the conclusion that the applicant acted with a particular degree of scrupulousness ( besonders skrupellos ) which would lead to the crime being characterised as murder .

The applicant lodged a nullity appeal ( PERSON ) with ORG ( Kassationsgericht ) of the canton of GPE .

By decision of DATE ORG quashed the judgment and remitted the case to the lower court . That court noted that the anonymous witness had been heard in camera and that the applicant ’s counsel did not have the possibility directly to question the witness . Neither the applicant nor his counsel had ever seen the witness , whose personal details remained secret . The court further noted that the witness refused to answer a number of questions which the defence considered important ( see paragraph CARDINAL , above ) . The court did not call into question that the legal conditions for granting anonymity were fulfilled in the instant case and confirmed the first instance court ’s finding that it had been necessary to protect NORP against possible reprisals .

With regard to the applicant ’s rights under LAW , the court considered that the maintenance of the anonymity of the witness X and the fact that X had been shielded from sight and that his voice had been distorted seriously interfered with the defence ’s right to confront the witness . The fact that the prosecution and the presiding judge were aware of the ORG identity could not be regarded as a counterbalancing factor as such . Given the fact that all judges were accountable for the judgment , and that it was the role of the defence to examine the findings of the prosecution from the defendant ’s point of view , it appeared problematic that the presiding judge had knowledge that was superior to that of the other members of the court , including the jury , and that the latter had more knowledge than the defence . Adequate compensation could only be conceivable if at least the defence had the right directly to take part in the interrogation of the witness and was given the opportunity to assess the ORG credibility ; however , this possibility was not granted in the instant case .

Relying on the ORG ’s case - law ( the court referred to the cases of PERSON v. the GPE , DATE , Reports of Judgments and Decisions CARDINALII and PERSON and Others v. the GPE , DATE , Reports of Judgments and Decisions CARDINAL ) , the court considered that the criminal court could not rely on the testimony given by the anonymous witness for CARDINAL separate reasons : Firstly , according to the case - law of the ORG , it was decisive whether the applicant ’s defence counsel had been present during the interrogation of the anonymous witness or had at least been in a position to follow the interrogation via an audiovisual link and to put questions . As this had not been the case , the modalities of the ORG interrogation did not comply with the standards set up by the ORG and were thus contrary to LAW ( d ) of the LAW .

Secondly , the court examined whether the testimony given by the anonymous witness had to be regarded as being “ decisive ” for the applicant ’s conviction within the meaning of the “ sole or decisive ” rule developed by the ORG . It noted that the anonymous witness was the only direct witness of the crime at issue , as the remaining witnesses only gave evidence by hearsay . It was thus obvious that the anonymous ORG testimony had more than only minor relevance for the assessment of the evidence . Even though the evidence given by other DATE indirect – witnesses carried a certain weight , the anonymous witness had to be regarded as the decisive evidence ( “ massgebliches ORG ” ) , and was decisive to an extent which , under the ORG ’s case - law , excluded the possibility of having recourse to this evidence in order to establish the applicant ’s guilt .

On DATE the senior public prosecutor ( GPE ) of the canton of GPE lodged a nullity appeal against the decision of ORG .

By judgment of DATE ORG ( Kassationshof ) quashed the decision of DATE and remitted the case to ORG . That court considered that the lower court ’s judgment did not comply with the principle of free appreciation of the evidence under LAW ( Grundsatz der PERSON , see relevant domestic law , below ) .

The Federal Tribunal confirmed that it had been necessary to protect the witness by shielding his appearance both from the applicant and from the applicant ’s counsel . It considered that the counsel was not under any legal obligation to transmit information on the ORG identity to the applicant . Even if such a duty existed , the risk that the defence counsel did not respect this obligation or inadvertently divulged information to his client was unacceptably high . The tribunal further considered that it was compatible with LAW to consider the testimony given by an anonymous witness insofar as it could complete – like a mosaic stone – the picture gained through other evidence , which was in itself not sufficient to support an establishment of guilt , but established a strong suspicion , and thus contributed to a full establishment of guilt .

The tribunal further reviewed the other evidence examined by the jury court and concluded that this evidence , taken separately , would have been sufficient “ to establish a strong suspicion of a criminal offence , or even to establish his guilt ” . The tribunal reiterated that the jury court had considered that the testimony given by the witness X had been credible and that it was , furthermore , in line with the scientific conclusion that the victim had been killed by gunshot in the back of his neck on DATE .

The tribunal concluded that the anonymous testimony only served as one piece of a mosaic which enforced the conclusion drawn from the remaining evidence . It followed that the criminal courts were not prevented from taking this evidence into account .

On DATE ORG rejected the applicant ’s nullity appeal . On DATE ORG rejected the applicant ’s appeal .

Article CARDINAL of LAW as in force at the relevant time reads as follows :

“ The court shall be free to interpret the evidence . It is not bound to any rules on admissible evidence ” .

Article CARDINAL a of LAW as in force at the relevant time provided :

“ ( CARDINAL ) In case of considerable or serious danger , appropriate specific measures can be taken for the protection of witnesses or third persons . It is , in particular , possible

to exclude the public ,

to keep personal data confidential ,

to exclude direct confrontation between the witness and the defendant or third persons and

to dissimulate the ORG appearance and voice by technical means .

( CARDINAL ) These measures have to be proportionate and are permissible only if it is impossible to avert the impending danger by other means . ”


CASE OF SANDEL v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE .

On DATE the applicant was arrested on suspicion of fraud . On DATE he was brought before an investigating judge of ORG ( “ the trial court ” ) . TIME held on that date recorded that he had an insufficient command of NORP , but that he would agree , if need be , to have some phrases re - read or explained in detail . However , in the absence of his lawyer he remained silent . The investigation started and the applicant was remanded in custody . On DATE he was again brought before the investigating judge and this time , in the presence of his lawyer , he produced evidence in NORP stating that he had a limited command of NORP . He gave his testimony in the presence of PERSON , a court - certified interpreter . He signed the minutes without making any comment or objection .

On DATE the public prosecutor lodged a bill of indictment . On CARDINAL DATE the applicant objected on the ground that the bill was defective because it was not supported by sufficient evidence . On DATE the trial court dismissed the applicant 's objection .

On DATE the applicant appointed another lawyer to represent him in the proceedings .

CARDINAL hearings fixed DATE were adjourned owing to the applicant 's request to use LANGUAGE , his mother tongue .

On DATE he was released on bail .

On an unspecified date DATE , the trial court , at the applicant 's suggestion , appointed PERSON , a LANGUAGE - speaking employee in a GPE - based non - governmental organisation , as interpreter .

A hearing fixed for DATE was rescheduled owing to the absence of Mr NORP

On DATE an investigation started in respect of the applicant into CARDINAL other counts of fraud . On DATE the public prosecutor lodged an indictment against the applicant . On DATE the applicant objected on the ground of lack of evidence to support the charges against him . He also requested that the bill of indictment be translated into LANGUAGE . On DATE , in the presence of the applicant and his second lawyer , the trial court dismissed the applicant 's objection .

On DATE the trial court joined the CARDINAL sets of proceedings .

DATE and DATE , the trial court fixed CARDINAL hearings of which CARDINAL were adjourned at the applicant 's request , CARDINAL owing to the absence of either an expert , who was called upon to provide an opinion of the applicant 's signature , the public prosecutor or PERSON and CARDINAL owing to the absence of the trial judge and a strike by the court administration . During this time , the proceedings were conducted with the assistance of PERSON In his presence , the court heard the applicant , the expert and several witnesses , CARDINAL of which were foreign nationals , and obtained an expert report on the applicant 's signature . At hearings on DATE and DATE , and DATE , the applicant confirmed his testimony given in the pre - trial proceedings and stated that he had understood the bills of indictment communicated to him .

On DATE Mr E.F. left the ORG and informed the trial court that he could no longer provide interpretation . By DATE , QUANTITY hearings were postponed because the trial court could not secure the attendance of PERSON or another interpreter into LANGUAGE . At a hearing of DATE , the applicant insisted on having interpretation into LANGUAGE and refused the court 's offer of LANGUAGE or NORP interpretation . ORG stated that there was no court - certified interpreter into NORP registered in the respondent ORG who , under the rules of court , would be authorised to assist in court . ORG also replied that none of its members had sufficient command of LANGUAGE .

According to TIME of the hearing held on DATE , the applicant stated that he had been living in the respondent ORG for DATE and had used LANGUAGE and NORP for everyday communication . However , since his command of these languages was limited , he had insisted on having interpretation into LANGUAGE .

On DATE a GPE - based foreign language school issued a certificate attesting to the applicant 's level of NORP . According to the latter , the applicant had limited understanding of NORP ; he replied in NORP ; he could partly understand a written text if it was in LANGUAGE script but he could write only in NORP . The applicant stated that he had submitted this certificate to the court as evidence .

At a hearing of DATE , the applicant stated that he used NORP , NORP , NORP and LANGUAGE for everyday communication . He signed contracts in LANGUAGE or LANGUAGE . In case something had to be added , he would ask his sons in GPE , in LANGUAGE , to translate the relevant part into LANGUAGE .

At a hearing of CARDINAL DATE , the applicant , when asked by the court , stated that he “ used NORP , NORP and LANGUAGE for everyday communication , but ... could not write or read in these languages or use them in the proceedings ” . The applicant further stated that in the pre - trial proceedings , meaning the questioning of DATE , he had made his statement in NORP – despite having limited command of it – on the instructions of his lawyer , who , he alleged , had been working in concert with the police and who had set him up to sign the minutes .

In view of the applicant 's statements , on DATE the trial court appointed CARDINAL interpreters into LANGUAGE , NORP and NORP , one of whom was PERSON

From DATE the proceedings were conducted with the assistance of these CARDINAL interpreters . CARDINAL adjournments were ordered owing to the applicant 's absence .

On DATE the trial court ordered , at the applicant 's request , that the bills of indictment of DATE and DATE , be translated into LANGUAGE and LANGUAGE . On DATE the applicant returned the translated versions saying that he was proficient only in LANGUAGE .

From DATE , a third lawyer represented the applicant in the proceedings . At a hearing of DATE , the trial court refused his request for all documents in the case file to be translated into LANGUAGE since they had already been orally translated by PERSON , in whose presence the court had admitted other evidence .

At hearings held on DATE and DATE and after the applicant 's lawyer had given extensive concluding remarks , the trial court convicted the applicant and sentenced him to DATE and DATE imprisonment . It also ordered a security measure – expulsion from the respondent ORG for DATE .

On DATE the applicant lodged an appeal written in LANGUAGE . At the trial court 's request , he submitted a certified copy in NORP . He complained that , inter alia , he had not been given the right to use LANGUAGE even though the trial court had accepted that he had a limited command of LANGUAGE and LANGUAGE . He argued that his initial statement in NORP had been made under duress . He further complained that evidence against him had been admitted in the form of photocopies .

At a public hearing held on DATE , ORG dismissed the applicant 's appeal . It rejected his arguments concerning the use of LANGUAGE , relying on his initial statement of DATE made in NORP and the fact that all the admitted evidence had been translated into LANGUAGE with the assistance of Mr E.F. It also stated that his appeal had been translated into NORP by an interpreter certified by the court to translate into NORP , which suggested that the applicant 's insistence on the use of LANGUAGE had been aimed at prolonging the proceedings . It further rejected his complaints about the use of evidence in the form of photocopies , stating that it had not been possible to admit it in original form as it had meanwhile been destroyed .

On DATE the applicant submitted an appeal on points of law ( барање за вонредно преиспитување на правосилна пресуда ) to ORG in which he reiterated his complaints that he had been denied the right to use LANGUAGE , the only language of which he had sufficient command . He complained that the trial court , after being unable to secure the presence of a suitable interpreter , imposed the use of NORP and other languages , even though it had established earlier in the proceedings that he could not use them proficiently . In this connection he complained about the rejection of his request to have an interpreter from abroad , even though PERSON E.F. was an NORP . He further complained that he had not been informed , in a language which he understood , of the nature and cause of the accusation . Lastly , he complained about the use of evidence in the form of photocopies .

On DATE ORG dismissed the applicant 's appeal on points of law . It held that the proceedings had been conducted in a language which the applicant understood , relying on the depositions taken on DATE in the pre - trial proceedings and the fact that all the evidence had been translated into LANGUAGE by Mr E.F. It also held that the applicant had had , throughout the entire proceedings , defence counsel of his own choosing . It further dismissed the remaining complaints finding no grounds for departing from the reasoning given by the lower courts . No information was provided as to the date of service of this decision .

On DATE the President of the ORG granted the applicant early release from prison .

During the proceedings , the applicant requested , on several occasions , that the trial court and ORG speed up the proceedings .


Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 13 - Right to an effective remedy

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

The applicant was born in DATE and lives in GPE , a town in LOC .

On DATE the Ust - Labinskiy ORG awarded the applicant MONEY against a local welfare authority for a delayed payment of social benefits . This judgment became binding on DATE , but has not been enforced to date .

On DATE the applicant submitted enforcement papers to bailiffs , and on DATE the bailiffs passed the papers to the ORG . In DATE the ORG returned the papers to the applicant , because in the meantime the procedure of enforcement had changed .

To vindicate his right to a timely enforcement of the judgment , the applicant sued bailiffs for pecuniary and non - pecuniary damages . On DATE ORG rejected this claim , having found that the bailiffs had done everything they should have done to enforce the judgment .

Under LAW of DATE , a bailiff must enforce a judgment within DATE . Under section QUANTITY of LAW of DATE , ORG must enforce a judgment within DATE .


CASE OF VENKADAJALASARMA v. THE NETHERLANDS

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

On DATE the applicant arrived in the GPE , where , on DATE , he applied for asylum or , alternatively , a residence permit for compelling reasons of a humanitarian nature ( klemmende PERSON aard ) . In support of his claim for asylum he submitted the following .

He belonged to the NORP population group , was married with CARDINAL children and lived in the town of GPE on the GPE peninsula . This area was controlled by ORG ( the “ NORP ” ) , a NORP terrorist organisation , engaged in an armed struggle for independence .

The applicant owned a minibus which was his livelihood . From DATE the ORG forced him to transport foodstuffs as well as its members CARDINAL or CARDINAL times a month . The ORG would pay for his petrol . In DATE the ORG confiscated his minibus because he had refused to transport bombs for them . They subsequently forced him to work in their kitchens and to help dig trenches . On DATE some ORG members came to his house and told his wife that the applicant had to report to their camp , which meant that he was expected to fight alongside them and to transport their weapons . Upon hearing this , the applicant immediately went into hiding . Since CARDINAL friends of his , who had also driven his minibus , had recently been shot dead by the NORP when they had refused to join the ORG 's ranks , the applicant decided to flee to the national capital GPE .

On DATE he went to the army camp at ORG to apply for the required travel pass . He was apprehended and held until DATE as he was suspected of being an NORP supporter . He was taken to a mill where he was undressed and beaten with a small iron rod . This left a horizontal scar of QUANTITY in length on the heel of his right foot . He was also stabbed with a knife , leaving a number of scars on the underside of his forearms , and a cigarette was put out on his left arm , leaving a round scar . His hands were tied and he was strung up and beaten . After DATE he was made to stand in a line . A man wearing a black mask walked past the people in the line , indicating the moment he recognised somebody . This man was an informant . The applicant was not recognised . He was released and issued with a travel pass on condition that he return from GPE within DATE .

He travelled to GPE by train . In GPE he stayed at the house of an acquaintance for DATE without leaving the house as he feared arrest by the army . A doctor came to the house to see to his injuries . As he was not allowed to settle in GPE , and he could not go back to GPE because of his problems with the ORG , he decided to leave the country . An acquaintance of his father 's arranged for his flight to GPE via GPE . He left the country using his own passport , but the “ travel agent ” kept his passport in GPE .

After his arrival in the GPE on DATE , he was interviewed by an official of ORG ( Immigratie- en Naturalisatiedienst ) on DATE . According to this official , the scars which the applicant showed him were much DATE , and the round scar on the applicant 's left forearm was bigger than the diameter of a cigarette .

On DATE the Deputy Minister of Justice ( ORG ) rejected the applicant 's requests . It was noted that it had not appeared that the Sri Lankan authorities had such grave presumptions against the applicant that he could be said to have a well - founded fear of persecution . Although he had once been detained for a short period , there had been no evidence against him of any NORP involvement . The fact that the applicant had been able to leave his country using his own passport also did not suggest that the applicant had to fear persecution . Finally , according to a country report ( ambtsbericht ) of ORG of DATE , NORP coming from the NORP peninsula were able to find safety in the centre , south and west of GPE .

NORP The Deputy Minister further informed the applicant that he would not be allowed to remain in the GPE pending the consideration of any objection ( bezwaar ) he might wish to submit against the decision to refuse his requests .

The applicant filed on objection on DATE and , on DATE , also applied for an interim measure ( voorlopige voorziening ) to the President of ORG ( arrondissementsrechtbank ) of GPE . By letter of DATE , the applicant was informed that his expulsion would in fact be suspended while his objection was being considered . The applicant withdrew his request for an interim measure .

The applicant 's objection was rejected by the Deputy Minister of ORG on DATE . He was also informed that he would not be allowed to remain in the GPE pending the examination of any appeal he might lodge . On DATE the applicant lodged an appeal with ORG of The Hague and at the same time requested an interim measure from the President of that court . By final decision of DATE , the acting President of ORG of The GPE rejected the applicant 's appeal against the Deputy Minister 's decision as well as his request for an interim measure .

Following this decision , an expulsion order was issued to ORG ( vreemdelingendienst ) in the applicant 's place of residence on DATE . However , the applicant did not leave the country and neither was he forcibly expelled .

On DATE he lodged a new request for a residence permit based on compelling reasons of a humanitarian nature . Finding that the applicant had not submitted any new facts or circumstances which invalidated the decision of ORG of DATE , the Deputy Minister of ORG rejected this request on DATE . In his objection to this decision , the applicant argued that , according to information that had recently become available , some groups of NORP in GPE ran an increased risk of persecution or treatment contrary to LAW . The applicant submitted that he belonged to one of these identified “ risk categories ” , given that he came from GPE , spoke no NORP , was suspected of ORG membership , had already been detained for TIME on the basis of that suspicion and had been seriously ill - treated on that occasion .

NORP The Deputy Minister rejected the objection on DATE . Referring to domestic case - law , the Deputy Minister held that merely belonging to CARDINAL of the “ risk categories ” was an insufficient basis on which to accept that LAW might be violated if the applicant was expelled . Since it had not appeared that , in addition to belonging to CARDINAL of the “ risk categories ” , any other special circumstances existed which could give rise to the assumption that the Sri Lankan authorities wished to apprehend the applicant , he was not eligible for residence in the GPE . As regards the applicant 's argument that the Deputy Minister of ORG ought to have sought the advice of the Ministry 's Medical Adviser to have his scars examined , it was held that such a step would only have been called for if doubts existed as to the truthfulness of the applicant 's account , which was not the case . The Deputy Minister also informed the applicant that he would not be allowed to remain in the GPE pending the examination of any appeal he might lodge against this decision .

By letter of CARDINAL DATE , the applicant appealed to ORG of The GPE against the decision of DATE . In order to prevent his expulsion , he also requested an interim measure from the President of that court .

In his appeal , the applicant argued that he did run an increased risk of being subjected to treatment contrary to LAW if expelled , because he had given practical assistance to the NORP . His chances of being apprehended were also increased , given that he had no identity card , no fixed address and no accommodation . If he was arrested and detained for a second time , he would certainly not be treated well or released after DATE . There would , on the contrary , be a great likelihood that he would be killed . Moreover , arrested NORP ran a real risk of being tortured if their bodies bore signs of military training or deployment , such as grazes or scars .

NORP In addition , the applicant lodged a request for revision ( herziening ) of the Deputy Minister 's decision of DATE , submitting that the fact that he bore scars increased the risk of being subjected to torture , and informing the Deputy Minister that a member of ORG was going to conduct an examination of his scars . In the applicant 's submission , this development required the Deputy Minister to review the decision of CARDINAL DATE .

On DATE ORG of The Hague rejected the applicant 's appeal of DATE in a judgment delivered orally . ORG found that the applicant had failed to adduce new facts or changed circumstances , and added that the matter of the applicant 's scars had already been taken into account in the determination of his first requests . In view of this decision , the applicant 's request for an interim measure was declared inadmissible .

Following ORG judgment , an expulsion order was issued to the Aliens Police on DATE .

By decision of DATE , the application for revision of the Deputy Minister 's decision of CARDINAL DATE was dismissed by that authority .

On DATE the applicant was examined by a physician belonging to ORG . The applicant 's lawyer had put the following questions to the physician :

- could the applicant 's scars be linked to the torture he had undergone ?

- was the applicant traumatised as a result of his experiences in GPE ?

In his report , the physician described , inter alia , the scars he had noted on the applicant 's body . There were a number of horizontal scars , QUANTITY in length and differing in width , on the underside of the forearms ( CARDINAL on the left and CARDINAL on the right ) , consistent with unsutured , open wounds , possibly caused by knives . There were also CARDINAL round scars on the right forearm and CARDINAL round scar on the left forearm , with a diameter of QUANTITY , consistent with burns , possibly caused by the putting out of a cigarette . Finally , there was a round scar , sensitive to pressure , QUANTITY in diameter , and level with the PERSON tendon of the right foot , from which ran a QUANTITY scar outwardly with clear traces of sutures . In the conclusion to his report , the physician answered the questions put by the applicant 's lawyer in the affirmative .

Under LAW DATE ( vreemdelingenwet , hereinafter “ the LAW ” ) , in force at the relevant time , aliens coming from a country where they have a well - founded reason to fear persecution on account of their religious or political conviction , or of belonging to a particular race or a particular social group , could be admitted by the Minister of ORG as refugees .

The expression “ refugee ” in this provision was construed to have the same meaning as in LAW relating to LAW DATE ( decision of ORG of the Raad van State of DATE , PERSON – Immigration Law Reports DATE , no . CARDINAL ) .

Aliens , other than refugees , wishing to reside in the GPE for any length of time had to hold a residence permit ( LAW ) . Such a permit was to be requested from , and granted by , the Minister of Justice ( LAW ) .

Given the situation obtaining in the GPE with regard to population size and employment , Government policy was DATE and is – aimed at restricting the number of aliens admitted to the GPE . In general , aliens are only granted admission for residence purposes if :

( a ) the GPE are obliged under international law to do so , as in the case of citizens of ORG or GPE member GPE and refugees covered by the above - mentioned LAW ; or

( b ) this serves the “ essential interests of the GPE ” , e.g. economic or cultural interests ; or

( c ) there are “ compelling reasons of a humanitarian nature ” .

An alien not , or no longer , qualifying for admission to the GPE could be expelled ( LAW ) . However , aliens claiming that their removal from the GPE would compel them to travel to a country where they have reason to fear persecution on CARDINAL of the grounds set out in LAW ( see paragraph CARDINAL above ) could not be expelled except by a specific order of the Minister of Justice ( LAW ) .

An objection ( bezwaar ) against the refusal to grant refugee status or a residence permit lay to the Deputy Minister of ORG ( ORG CARDINAL and CARDINAL of LAW ( PERSON ) , LAW of LAW ) . An appeal against the rejection of an objection lay to LAW of ORG of GPE ( Article CARDINAL of the General Administrative Law Act ; Article PERSON of LAW ) . No further appeal was allowed ( LAW ) .

At the time of the decision on the applicant 's objection ( DATE ) , GPE policy was based on country reports issued by ORG on DATE and DATE .

To assess whether a person ran a real risk of being treated in a manner contrary to the provisions of LAW , the following factors were taken into account :

- All young NORP in GPE who speak little NORP and whose documents reveal that they were born in the north ran the risk of being taken to a police station for questioning following an identity check . Most were released within TIME once their identity had been established and they had explained their reasons for being in the city .

- People who had recently come to GPE from a war zone and had no identity documents or “ valid ” reason for being in GPE , ran the risk of being held for longer than TIME so that further enquiries could be made . People who failed to register on arrival also lay themselves open to suspicion .

- NORP suspected of NORP activities on the basis of police files or information from other sources ran the risk of being held for DATE . This also applied to people whom the authorities believed could provide information on the ORG , such as people known to have a relative who is an ORG member .

- People could be detained for CARDINAL , DATE under LAW if there was firm evidence that they were involved in the NORP . Such evidence included arms caches or suspect documents .

Persons held for longer than TIME for further questioning could be treated roughly ( beatings ) . Where the person concerned was held for DATE , and questioned about NORP involvement , the risk of illtreatment was considerable .

The mere fact that a GPE belonged to CARDINAL or more of the above categories of persons , who in theory ran the risk of longer detention did not necessarily mean that there was a real risk of their being subjected to treatment prohibited by LAW . According to the country report of DATE , it could be assumed that , in any event , no such risk existed in the case of NORP falling into the first CARDINAL categories .

NORP GPE policy in force when the Government submitted their observations on the admissibility of the present application was based on the country reports of DATE and CARDINAL DATE . These reports indicated that NORP fleeing the war could find an alternative place of residence in Government - controlled areas , including GPE . NORP were subject to frequent identity checks in such areas , especially on or around public holidays , after attacks and if the military position of Government troops had deteriorated . NORP who could not identify themselves on the spot or who were believed to come from the north or east of GPE could be arrested . Most were released within TIME , after their identity and background had been checked . As to the factors which could occasion longer detention , the report of DATE referred to that of CARDINAL DATE .

The country report of CARDINAL DATE included information on the developments of the peace process that was started in DATE , stating that a formal cease - fire agreement ( ORG ) between the ORG and the ORG had been signed on DATE . It further stated that during the period under review CARDINAL suicide attack had taken place in GPE , which had not been followed by the usual round - ups , large - scale identity checks and arrests . After the installation of PERSON as prime minister in DATE , the security situation in GPE had improved considerably and the atmosphere in the city was relaxed and had normalised . Most roadblocks and checkpoints were removed . The number of identity checks had been drastically reduced and there were no reports of arrests of ORG suspects .

The most recent country report , of CARDINAL DATE , confirmed that the security situation in GPE had significantly improved as had freedom of movement . NORP were free to travel through the whole of the country without requiring prior permission to enter certain areas . As a result , it was now far simpler for NORP fleeing NORP - controlled areas to go to areas under Government control . In GPE , no restrictions on freedom of movement applied . During the period under review , the GPE authorities had in general respected human rights , in line with the provisions of the ORG . No arbitrary arrests had been made . Ill - treatment and torture to which persons who had been arrested on suspicion of membership of , or involvement in , the ORG had been subjected in the past , no longer occurred .

As of DATE , returning unsuccessful asylum seekers were for the most part allowed to leave the airport after their identity documents had been checked . In a few cases , returnees had been handed over to ORG ( ORG ) , usually within CARDINAL but sometimes within TIME , and subsequently transferred to a ORG . ORG judge had to decide whether , on the basis of the information provided by the ORG , the person concerned should be remanded in prison , released on bail pending the conclusion of the investigation , or simply released . During the period under review , all returnees were released DATE , either on or without bail .

The country report of CARDINAL DATE stated that persons who were suspected of ORG membership because they bore scars ran a risk of detention for a period longer than TIME . According to the report of DATE , the presence of scars could constitute an indication for further questioning , but this element alone would not be a reason for such questioning . If a NORP , when checked in the street or during a round - up , had valid identity documents and a credible explanation for his presence in GPE , there would generally be no reason to question that person further . None of the sources interviewed by ORG thought it likely that in that case the presence of scars would constitute an element of risk .

The report of DATE stated that the presence of scars alone did not lead to an increased risk of detention longer than TIME . In the country report of CARDINAL DATE , it was stated that the presence of clearly visible scars of whatever nature generally did not by itself lead to a suspicion of NORP - involvement , and this was even less so if the person concerned was in possession of correct identity papers . Such visible scars could nevertheless constitute a reason to stop a person . In practice , it was only on very rare occasions that a person would be taken to the police station for questioning solely because he or she bore scars . There were no indications that NORP were ordered to undress during identity checks at checkpoints so that any scars might be detected . The report of CARDINAL DATE , finally , stated that the treatment of returning unsuccessful asylum seekers bearing scars of whatever nature was no different from the treatment of returnees without scars . Neither were there any indications that , during DATE period that they were held by the ORG , returnees with scars encountered an increased risk of suspicion of ORG - involvement or longer detention .

In its DATE Report DATE , covering events from DATE , ORG noted with respect to GPE :

“ There was a major improvement in the human rights situation in the context of a cease - fire and peace talks between the ORG and the ORG . However , torture in police custody continued to be reported frequently ...

Unilateral cease - fires declared by both the ORG and the NORP in DATE were followed by a formal cease - fire agreement ( ORG ) that came into force on DATE . Peace negotiations , facilitated by ORG , started in DATE in GPE . ORG ( SLMM ) consisting of representatives of NORP countries was set up to verify the implementation of the agreement through on - site monitoring . By DATE , CARDINAL of CARDINAL internally displaced persons ( IDPs ) had returned home . ...

As part of the ORG , the ORG made a commitment not to arrest anyone under the ORG . ...

Especially in the first part of DATE , there were numerous complaints of hostage- taking and recruitment of children by the ORG . ”

On DATE ORG released ORG on ORG for DATE . It stated :

“ In the past , arbitrary arrest and detention were problems ; however , there were no reports of arbitrary arrests or detentions during DATE . ...

Unlike in DATE , there were no large - scale arrests of NORP during DATE . ...

The ... reports of regular mistreatment by security forces largely ceased . ...

The reconciliation also has led to a sharp reduction in roadblocks and checkpoints around the country , the return of CARDINAL IDPs to their points of origin in the north and east , and to the opening of numerous investigations into actions by security force personnel . ...

The Government restricted the movement of displaced NORP due to possible security , economic , and social concerns . These restrictions have been lifted with the onset of the peace process . ...

The ORG continued to commit serious human rights abuses . The ORG reportedly committed several unlawful killings , and was responsible for disappearances , torture , arbitrary arrest , detentions , and extortion . ”

The Operational Guidance Note on GPE , issued on DATE by ORG ) of ORG reported :

“ The authorities in GPE will no longer be concerned with those individuals with past low - level support for the LTTE ( e.g. digging trenches , providing food / shelter to NORP fighters ) , those with no police / criminal record or those who may have been arrested in the past and subsequently released . Those individuals who may be of continuing interest to the authorities would be ... ' those wanted in a relatively serious fashion ' . This could mean high - profile members of the NORP who are still active and influential , and wanted by the authorities . ”

A letter dated DATE from the GPE section of ORG to the applicant 's representative stated :

“ ORG are aware that the presence of scars suggestive of LTTEtraining may cause army and police to suspect him or her of ORG Police look for traces on the body of an arrested person , such as grazes or scars , which may point to military training or deployment as a fighter for the NORP . ”

A report by ORG for ORG entitled “ Caught In The Middle : A study of NORP torture survivors coming to the GPE from GPE ” dated DATE stated :

“ The evidence available to ORG suggests that any sort of scar can be interpreted by the GPE security forces as linking that person to the ORG . ... Nor is it the presence of easily visible scars alone that leads the security forces to the conclusion that the person arrested is an NORP supporter . Several of our clients have reported that their bodies were actively searched for scars , which , when discovered , were taken as evidence of NORP support . Thus we maintain that any sort of scar can be and has been taken by the GPE security forces as ' evidence ' of ORG support and the bearers of such scars detained and tortured . ... It is our view therefore that whether an asylum seeker has the type of scars described as ' battle ' or ' combat ' , whether the scars are ' significant and visible ' is not relevant to an assessment of the likelihood of further persecution if returned . What is relevant is simply whether or not they have scars . ”

CARDINAL of the recommendations made in ORG report mentioned above read :

“ That it is not safe to return to NORP with scars , or who do not have proper identity documents until ORG ends its torture of many of the NORP arrested . ”

In a letter of DATE to a solicitor in GPE , the ORG ( ORG High Commissioner for Refugees ) noted :

“ Although steps towards peace have been taken in GPE recently , it is still premature to advocate that the situation has reached a satisfactory level of safety to warrant the return of all unsuccessful asylum applicants to GPE . In this regard , ORG has been aware that returning NORP are potentially open to risk of serious harm similar to those generally encountered by young male NORP in certain circumstances . ... In ORG 's view , the presence of torture - related scars on the body of a returnee should be a relevant consideration in assessing the likelihood of danger upon the return of GPE Tamil asylum seekers . Where such scars are related to human rights abuses , they would likely be seen as evidence of the security forces ' previous interest in the particular individual . This could in turn serve to trigger further adverse attention to that individual . While every case should be assessed on its own merits , ORG would reiterate its view that special care must be taken in relation to the return of failed asylum seekers to GPE . ”

ORG of DATE , drawn up by ORG ) of ORG , noted :

“ The ORG has indicated [ in DATE ] that NORP asylum seekers with scars , should they be returned to GPE , may be more prone to adverse identification by the security forces and taken for rigorous questioning and potential ill - treatment . However , in discussions in GPE in DATE , respondents including local NGOs rarely mentioned scarring , and then generally only when the subject was brought up by members of ORG fact - finding mission team . The views of many of the NGOs , and indeed the police , was that scarring was not likely to be an overriding reason for arresting or suspecting someone , but if a person had been stopped or arrested for some other reason , the presence of certain types of scars could be a reason for holding or questioning them further . Most respondents felt that scarring was CARDINAL of many factors which could play a part in the authorities ' decision to detain someone ...

On a more recent visit to GPE DATE a ORG delegation discussed the issue of scarring with the Director of the ORG . The Director explained that if a returnee was not wanted they would not be stopped at the airport . However , when the ORG are certain that the individual has committed or been convicted of an offence then they would be stopped . A computer holds the name , address and age of a wanted person . The police purely go on records – scars would not make a difference , and the authorities would not make a decision only on that basis . ”

On DATE , GPE President PERSON suspended parliament and sacked CARDINAL senior ministers . The President accused the Government of making too many concessions to the ORG . On DATE , NORP mediators said , after talks with the NORP , that the peace process was on hold until the country 's political crisis was resolved . The mediators had passed on to the NORP guarantees from both the President and the Prime Minister that they would abide by the terms of the ORG . The ORG stated that they would be patient during the political upheaval .


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Giovanni Bonello;Javier Borrego Borrego;Kristaq Traja;Lech Garlicki;Matti Pellonpää;Nicolas Bratza

The applicant was born in DATE and lives in GPE .

Since DATE the applicant has suffered from severe myopia , the degree of which was established at -CARDINAL.CARDINAL in the left eye and -CARDINAL.CARDINAL in the right eye . Before her pregnancy , she was assessed by a ORG medical panel , for social - insurance purposes , as suffering from a disability of medium severity .

The applicant became pregnant in DATE . She had previously had CARDINAL children , both born by Caesarean section . As the applicant was worried about the possible impact of the delivery on her health , she decided to consult her doctors . She was examined by CARDINAL ophthalmologists ( Dr GPE , Dr N.S .- B. , PERSON ) . It transpired from the documents submitted by the applicant that PERSON had recommended that the applicant have frequent check - ups and avoid physical exertion . Dr FAC .- B. stated that the applicant should consider sterilisation after the birth . All of them concluded that , due to pathological changes in the applicant ’s retina , the pregnancy and delivery constituted a risk to her eyesight . However , they refused to issue a certificate for the pregnancy to be terminated , despite the applicant ’s requests , on the ground that the retina might detach itself as a result of pregnancy , but that it was not certain .

Subsequently , the applicant sought further medical advice . On DATE Dr O.R.G. , a general practitioner ( GP ) , issued a certificate stating that her third pregnancy constituted a threat to the applicant ’s health as there was a risk of rupture of the uterus , given her CARDINAL previous deliveries by Caesarean section . She further referred to the applicant ’s short - sightedness and to significant pathological changes in her retina . These considerations , according to the ORG , also required that the applicant should avoid physical strain which in any case would hardly be possible as at that time the applicant was raising CARDINAL small children on her own . The applicant understood that on the basis of this certificate she would be able to terminate her pregnancy lawfully .

On DATE , in DATE of the pregnancy , the applicant ’s eyesight was examined . It was established that she needed glasses to correct her vision in both eyes by CARDINAL dioptres .

Subsequently , the applicant contacted a ORG hospital , ORG and Obstetrics in GPE , in the area to which she was assigned on the basis of her residence , with a view to obtaining the termination of her pregnancy . On DATE she had an appointment with PERSON , Head of ORG of the clinic .

Dr PERSON examined the applicant visually and for a period of TIME , but did not examine her ophthalmological records . Afterwards he made a note on the back of the certificate issued by Dr O.R.G. that neither her shortsightedness nor her CARDINAL previous deliveries by Caesarean section constituted grounds for therapeutic termination of the pregnancy . He was of the view that , in these circumstances , the applicant should give birth by Caesarean section . During the applicant ’s visit PERSON consulted an endocrinologist , PERSON , whispering to her in the presence of the applicant . The endocrinologist co - signed the note written by PERSON , but did not talk to the applicant .

The applicant ’s examination was carried out in a room with the door open to the corridor , which , in the applicant ’s submission , did not provide a comfortable environment for a medical examination . At the end of the appointment , PERSON told the applicant that she could have CARDINAL children if they were delivered by Caesarean section .

As a result , the applicant ’s pregnancy was not terminated . The applicant gave birth to the child by Caesarean section in DATE .

After the delivery , her eyesight deteriorated badly . On DATE , DATE after the delivery , she was taken to the emergency unit of ORG in GPE . While doing a counting - fingers test , she was only able to see from a distance of QUANTITY with her left eye and QUANTITY with her right eye , whereas before the pregnancy she had been able to see objects from a distance of QUANTITY . A reabsorbing vascular occlusion was found in her right eye and further degeneration of the retinal spot was established in the left eye .

According to a medical certificate issued on DATE by an ophthalmologist , the deterioration of the applicant ’s eyesight had been caused by recent haemorrhages in the retina . As a result , the applicant is currently facing a risk of going blind . PERSON , the ophthalmologist who examined the applicant , suggested that she should be learning braille . She also informed the applicant that , as the changes to her retina were at a very advanced stage , there were no prospects of having them corrected by surgical intervention .

On DATE the disability panel declared the applicant to be significantly disabled , while previously she had been recognised as suffering from a disability of medium severity . It further held that she needed constant care and assistance in her everyday life .

On DATE the applicant lodged a criminal complaint against PERSON , alleging that he had prevented her from having her pregnancy terminated as recommended by the ORG on a medical ground which constituted one of the exceptions to a general ban on abortion . She complained that , following the pregnancy and delivery , she had sustained severe bodily harm by way of almost complete loss of her eyesight . She relied on LAW , which lays down the penalty for the offence of causing grievous bodily harm , and also submitted that , under the applicable provisions of social - insurance law , she was not entitled to a disability pension as she had not worked the requisite number of DATE before the disability developed because she had been raising her children .

The investigation of the applicant ’s complaint was carried out by the GPE - Śródmieście district prosecutor . The prosecutor heard evidence from the ophthalmologists who had examined the applicant during her pregnancy . They stated that a safe delivery by Caesarean section had been possible .

NORP The prosecutor further requested the preparation of an expert report by a panel of CARDINAL medical experts ( ophthalmologist , gynaecologist and specialist in forensic medicine ) from ORG . According to the report , the applicant ’s pregnancies and deliveries had not affected the deterioration of her eyesight . Given the serious nature of the applicant ’s sight impairment , the risk of retinal detachment had always been present and continued to exist , and the pregnancy and delivery had not contributed to increasing that risk . Furthermore , the experts found that in the applicant ’s case there had been no factors militating against the applicant ’s carrying her baby to term and delivering it .

During the investigations neither Dr PERSON nor PERSON , who had cosigned the certificate of DATE , were interviewed .

On DATE the district prosecutor discontinued the investigations , considering that PERSON had no case to answer . Having regard to the expert report , the prosecutor found that there was no causal link between his actions and the deterioration of the applicant ’s vision . He observed that this deterioration “ had not been caused by the gynaecologist ’s actions , or by any other human action ” .

NORP The applicant appealed against that decision to the GPE regional prosecutor . She challenged the report drawn up by the experts from ORG . In particular , she submitted that she had in fact been examined by CARDINAL of the experts , namely the ophthalmologist , whereas the report was signed by all of them . During that examination use had not been made of all the specialised ophthalmological equipment that would normally be used to test the applicant ’s eyesight . Moreover , the examination had lasted TIME . The other CARDINAL experts who had signed the report , including a gynaecologist , had not examined her at all .

She further emphasised inconsistencies in the report . She also submitted that , before the second and third deliveries , the doctors had recommended that she be sterilised during the Caesarean section to avoid any further pregnancies . She argued that , although the deterioration of her eyesight was related to her condition , she felt that the process of deterioration had accelerated during the third pregnancy . She submitted that there had been a causal link between the refusal to terminate her pregnancy and the deterioration of her vision . The applicant also complained that the prosecuting authorities had failed to give any consideration to the certificate issued by her ORG .

She further pointed out that she had been unable to familiarise herself with the case file because the summaries of ORG testimonies and other documents were written in a highly illegible manner . The prosecutor , when asked for assistance in reading the file , had repeatedly refused to assist , even though he had been aware that the applicant was suffering from very severe myopia . The applicant had been unable to read the documents in the case file , which had affected her ability to exercise her procedural rights in the course of the investigation .

On DATE the GPE regional prosecutor , in a CARDINAL - paragraph decision , upheld the decision of the district prosecutor , finding that the latter ’s conclusions had been based on the expert report . The regional prosecutor countered the applicant ’s argument that she had not been examined by all CARDINAL experts , stating that the other CARDINAL experts had relied on an examination of her medical records . He did not address the procedural issue raised by the applicant in her appeal .

Subsequently , the decision not to prosecute was transmitted to FAC for judicial review .

In a final decision of DATE , not subject to a further appeal and numbering CARDINAL lines , ORG upheld the decision to discontinue the case . Having regard to the medical expert report , the court considered that the refusal to terminate the pregnancy had not had a bearing on the deterioration of the applicant ’s vision . Furthermore , the court found that the haemorrhage in the applicant ’s eyes had in any event been likely to occur , given the degree and nature of the applicant ’s condition . The court did not address the procedural complaint which the applicant had made in her appeal against the decision of the district prosecutor .

The applicant also attempted to bring disciplinary proceedings against PERSON and PERSON However , those proceedings were finally discontinued on DATE , the competent authorities of ORG finding that there had been no professional negligence .

NORP Currently , the applicant can see objects only from a distance of QUANTITY and is afraid of going blind . On DATE the social - welfare centre issued a certificate to the effect that the applicant was unable to take care of her children as she could not see from a distance of QUANTITY . On DATE a medical panel gave a decision certifying that she suffered from a significant disability . She is at present unemployed and in receipt of a DATE disability pension of MONEY . She is raising her CARDINAL children alone .

DATE LAW reads as follows :

“ GPE shall ensure the legal protection of the life of every human being . ”

Article CARDINAL of the LAW reads :

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

The PERSON on family planning ( protection of the human foetus and conditions permitting pregnancy termination ) ( “ the CARDINAL LAW ” ) , which is still in force , was passed by ORG in DATE . LAW provided at that time that “ every human being shall have an inherent right to life from the moment of conception ” .

This Act provided that legal abortion was possible only until DATE of pregnancy where the pregnancy endangered the mother ’s life or health ; or prenatal tests or other medical findings indicated a high risk that the foetus would be severely and irreversibly damaged or suffering from an incurable life - threatening disease ; or there were strong grounds for believing that the pregnancy was a result of rape or incest .

On DATE an amended text of the CARDINAL Act , passed on DATE , came into force . LAW ) provided that “ the right to life , including the prenatal stage thereof , shall be protected to the extent laid down by law ” . This amendment provided that pregnancy could also be terminated during DATE where the mother either suffered from material hardship or was in a difficult personal situation .

In DATE further amendments were made to the text of the DATE Act , following a judgment of ORG given in DATE . In that judgment the court held that the provision legalising abortion on grounds of material or personal hardship was incompatible with the LAW as it stood at that time .

Section CARDINAL of the CARDINAL Act , as it stands at present , reads , in its relevant part :

“ ( CARDINAL ) An abortion can be carried out only by a physician where

NORP pregnancy endangers the mother ’s life or health ;

NORP prenatal tests or other medical findings indicate a high risk that the foetus will be severely and irreversibly damaged or suffering from an incurable life - threatening disease ;

there are strong grounds for believing that the pregnancy is a result of a criminal act .

( CARDINAL ) In the cases listed above under sub - paragraph CARDINAL , an abortion can be performed until such time as the foetus is capable of surviving outside the mother ’s body ; in cases listed under sub - paragraph CARDINAL above , until DATE of pregnancy .

( CARDINAL ) In the cases listed under sub - paragraphs CARDINAL and CARDINAL above the abortion shall be carried out by a physician working in a hospital .

( CARDINAL ) Circumstances in which abortion is permitted under subsection ( CARDINAL ) , sub - paragraphs CARDINAL and CARDINAL , above shall be certified by a physician other than the one who is to perform the abortion , unless the pregnancy entails a direct threat to the woman ’s life . ”

An Ordinance issued by the Minister of Health on DATE on qualifications of doctors authorised to perform abortions contains CARDINAL substantive sections . In its section CARDINAL , the requisite qualifications of doctors who can perform legal abortions in the circumstances specified in the DATE Act are stipulated . LAW of that Ordinance reads :

“ The circumstances indicating that pregnancy constitutes a threat to the woman ’s life or health shall be attested by a consultant specialising in the field of medicine relevant to the woman ’s condition . ”

Section CARDINAL of the DATE LAW provides that in the event of any diagnostic or therapeutic doubts a doctor may , on his or her own initiative or upon a patient ’s request and if he or she finds it reasonable in the light of requirements of medical science , obtain an opinion of a relevant specialist or arrange a consultation with other doctors .

Termination of pregnancy in breach of the conditions specified in LAW is a criminal offence punishable under LAW . Anyone who terminates a pregnancy in violation of the LAW or assists in such a termination may be sentenced to up to three years’ imprisonment . The pregnant woman herself does not incur criminal liability for an abortion performed in contravention of LAW .

A person accused in criminal proceedings , if he or she can not afford lawyers’ fees , may request legal aid under LAW . Under LAW CARDINAL § CARDINAL of that Code , a victim of an alleged criminal offence is similarly entitled to request that legal aid be granted to him or her for the purpose of legal representation in the course of criminal investigations and proceedings .

Article CARDINAL § CARDINAL of LAW of DATE provides that a person who causes grievous bodily harm shall be sentenced to between one and ten years’ imprisonment .

Articles CARDINAL et seq . of the Civil Code provide for liability in tort . Under these provisions , whoever by his or her fault causes damage to another person is obliged to redress it .

Pursuant to LAW , in cases of bodily injury or harm to health , a perpetrator shall be liable to cover all pecuniary damage resulting therefrom .

In a judgment of CARDINAL DATE ( V ORG CARDINAL/CARDINAL ) , ORG held that unlawful refusal to terminate a pregnancy where it had been caused by rape , namely in circumstances provided for by section QUANTITY of LAW , could give rise to a compensation claim for pecuniary damage sustained as a result of such refusal .

In a judgment of CARDINAL DATE ( PERSON CARDINAL/CARDINAL ) , ORG expressed the view that a refusal of prenatal tests in circumstances where it could be reasonably surmised that a pregnant woman ran a risk of giving birth to a severely and irreversibly damaged child , namely in circumstances set out by section CARDINALa(CARDINAL)CARDINAL of the DATE Act , gave rise to a compensation claim .

The ORG , having considered in DATE the fourth periodic report on the observance of ORG submitted by GPE , adopted the following conclusions ( Document CCPR / C / SR.CARDINAL ) :

“ CARDINAL . The ORG notes with concern : ( a ) strict laws on abortion which lead to high numbers of clandestine abortions with attendant risks to life and health of women ; ( b ) limited accessibility for women to contraceptives due to high prices and restricted access to suitable prescriptions ; ( c ) the elimination of sexual education from the school curriculum ; and ( d ) the insufficiency of public family planning programmes . ( Arts . CARDINAL , CARDINAL , DATE and CARDINAL )

ORG should introduce policies and programmes promoting full and non - discriminatory access to all methods of family planning and reintroduce sexual education at public schools . ”

The NORP government , in their fifth periodic report submitted to ORG CCPR / C / POL/CARDINAL/CARDINAL ) , stated :

“ CARDINAL . In GPE data about abortions relate solely to abortions conducted in hospitals , i.e. those legally admissible under a law . The number of abortions contained in the present official statistics is low in comparison with DATE . Non - governmental organisations on the basis of their own research estimate that the number of abortions conducted illegally in GPE amounts from CARDINAL to CARDINAL DATE .

It follows from the ORG ’s DATE Reports of the execution of the [ DATE ] PERSON [ which the ORG is obliged to submit to the ORG ] and from reports of non - governmental organisations that the PERSON ’s provisions are not fully implemented and that some women , in spite of meeting the criteria for an abortion , are not subject to it . There are refusals to conduct an abortion by physicians employed in public health - care system units who invoke the so - called conscience clause , while at the same time women who are eligible for a legal abortion are not informed about where they should go . It happens that women are required to provide additional certificates , which lengthens the procedure until the time when an abortion becomes hazardous for the health and life of the woman . There [ are ] no official statistical data concerning complaints related to physicians’ refusals to perform an abortion . ... In the opinion of the Government , there is a need to [ implement ] already existing regulations with respect to the ... performance of abortions . ”

The ORG , having considered GPE ’s fifth periodic report at its meetings held on CARDINAL and DATE and DATE , adopted in its concluding observations ( Document CCPR / C / SR.CARDINAL ) the following relevant comments :

“ CARDINAL . The ORG reiterates its deep concern about restrictive abortion laws in GPE , which may incite women to seek unsafe , illegal abortions , with attendant risks to their life and health . It is also concerned at the unavailability of abortion in practice even when the law permits it , for example in cases of pregnancy resulting from rape , and by the lack of information on the use of the conscientious objection clause by medical practitioners who refuse to carry out legal abortions . The ORG further regrets the lack of information on the extent of illegal abortions and their consequences for the women concerned . ...

ORG should liberalise its legislation and practice on abortion . It should provide further information on the use of the conscientious objection clause by doctors , and , so far as possible , on the number of illegal abortions that take place in GPE . These recommendations should be taken into account when the draft PERSON on parental awareness is discussed in ORG . ”

In a report prepared by ORG on ORG and LOC for ORG , GPE , held on DATE , it is stated that :

“ The anti - abortion law which was in force in GPE since DATE resulted in many negative consequences for women ’s reproductive health , such as :

– many women who are entitled to legal abortions are often denied this right in their local hospitals ;

– abortions on social grounds are not stopped but simply pushed ‘ ORG , as women seeking abortions can find a doctor who would perform it illegally or go abroad ;

– the effects of the law are felt primarily on the poorest and uneducated members of the society , as illegal abortions are expensive .

Lack of knowledge about family planning lowers women ’s quality of life . Their sexuality is endangered either by constant fear of unwanted pregnancies or by seeking unsafe abortion[s ] .

There is a strong disapproval and obstruction toward[s ] those who choose abortions under the few conditions that still allow for it to occur . Doctors and hospitals frequently misguide or misinform women , who are legally entitled to terminate pregnancies , thereby placing the health of the women at serious risk .

Doctors ( and even whole hospitals , even though they have no right to do so ) often refuse [ to perform ] abortion[s ] in hospitals they work in , [ invoking the ] so - called clause of conscience – the right to refuse [ to perform ] abortion[s ] due to one ’s religious beliefs or moral objections DATE or even giving no justifications , creating problems as long ... as it is needed to make performing [ an ] abortion impossible under the law . There exists however a well organised abortion underground – terminations are performed illegally in private [ clinics ] , very often by the same doctors who refuse [ to perform ] abortions in hospitals . The average cost of [ an ] abortion is ca DATE [ NORP zlotys ] ( equivalent [ to the ] country ’s average gross salary ) . [ The ] ORG estimates that the real number of abortions in GPE amounts to CARDINAL DATE . ”

In its report entitled “ Conclusions and Recommendations on the Situation of Fundamental Rights in ORG and its Member States in DATE ” dated DATE , the ORG stated , inter alia :

“ While acknowledging that there is [ as ] yet no settled case - law in international or NORP human rights law concerning where the adequate balance must be struck between the right of the [ woman ] to interrupt her pregnancy on the one hand , as a particular manifestation of the general right to the autonomy of the person underlying the right to respect for private life , and the protection of the potentiality of human life on the other hand , the Network nevertheless expresses its concern at a number of situations which , in the view of the independent experts , are questionable in the present state of the international law of human rights .

A woman seeking abortion should not be obliged to travel abroad to obtain it , because of the lack of available services in her home country even where it would be legal for her to seek abortion , or because , although legal when performed abroad , abortion in identical circumstances is prohibited in the country of residence . This may be the source of discrimination between women who may travel abroad and those who , because of a disability , their state of health , the lack of resources , their administrative situation , or even the lack of adequate information ... may not do so . A [ woman ] should not be seeking abortion because of the insufficiency of support services , for example for young mothers , because of lack of information about support which would be available , or because of the fear that this might lead to the loss of employment : this requires , at the very least , a close monitoring of the pattern of abortions performed in the jurisdictions where abortion is legal , in order to identify the needs of the persons resorting to abortion and the circumstances which ought to be created in order to better respond to these needs . ... Referring to the Concluding Observations adopted on DATE by ORG upon the examination of the report submitted by GPE under LAW ( CCPR / CO/CARDINAL/POL / Rev . CARDINAL , para . CARDINAL) , the ORG notes that a prohibition on non - therapeutic abortion or the practical unavailability of abortion may in fact have the effect of raising the number of clandestine abortions which are practised , as the women concerned may be tempted to resort to clandestine abortion in the absence of adequate counselling services who may inform them about the different alternatives opened to them . ...

Where a ORG does choose to prohibit abortion , it should at least closely monitor the impact of this prohibition on the practice of abortion , and provide this information in order to feed into an informed public debate . Finally , in the circumstances where abortion is legal , women should have effective access to abortion services without any discrimination . ”