S.A.R.L. DU PARC D'ACTIVITES DE BLOTZHEIM AND LA S.C.I HASELAECKER v. FRANCE

The applicants , ORG d’activités PERSON ( “ ORG ” ) , a limited company ( société à responsabilité limitée – “ ORG ” ) , and ORG , a non - commercial partnership ( société civile – “ ORG ) , were both incorporated under NORP law and have their registered office in GPE ( GPE ) . They were represented before the ORG by Mr P. ORG , of ORG . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , Director of ORG at ORG .

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

The Mulhouse - Rhin - Mines outline development scheme , approved in a prefectoral order of DATE , made provision for the building of an industrial estate in the vicinity of FAC ( whose LOC are situated on land in the NORP municipalities of GPE , GPE , GPE and GPE ) .

On DATE and CARDINAL DATE the managing director of ORG ( whose memorandum and articles of association were drawn up before a notary on DATE ) submitted a project to the mayor of ORG for the development of industrial , business and service - sector activities on a site within the municipality ’s boundaries , adjoining FAC . On DATE ORG gave the mayor its consent for the sale to ORG of municipal land within the area covered by the project . It also gave its approval for , among other things , the municipality to undertake to waive its right of pre - emption over the land which the company intended to use , a special planning area ( zone d’aménagement concerté – “ PERSON ) to be created on the site and the procedure for revision of the municipality ’s land - use plan ( plan d’occupation des sols ) to be initiated .

By notarial deeds of DATE ORG purchased various plots of land in GPE from the municipality .

On DATE the town council decided to take steps to create a ZAC , to set in motion the appropriate procedure and to revise the land - use plan accordingly . A public consultation meeting was held on CARDINAL DATE about the proposal to create the ZAC . On DATE , in the light of the findings of the consultation process , the town council formally decided to create the PERSON .

In the meantime , on DATE , ORG board of directors had adopted , confidentially , a general development plan in which it was proposed , in particular , to acquire additional land and build a third runway on the same site which the developers of the ORG industrial estate intended to use .

On DATE ORG submitted its building project to the airport ’s board of directors . In a letter to the board dated DATE it had emphasised that the project would not hinder the development of the airport ’s activities .

On DATE the board of directors decided to take the necessary steps to set aside the land it required in order to implement its development plan . On DATE it had decided to apply to the prefect of the département of ORG to set in motion the procedure by which the development plan could be designated as a “ project in the public interest ” .

In an order of CARDINAL DATE the prefect of ORG designated the development plan as a “ project in the public interest ” and served formal notice on the municipality of ORG to revise its land - use plan to take the project into account . As the mayor of ORG did not reply within the statutory time - limit , the prefect made an order on DATE for the revision of the land - use plan .

After ORG board of directors had amended its development plan and the statutory DATE period had expired without the above - mentioned orders having been confirmed , the prefect of ORG made further orders on DATE ( designating the plan as a “ project in the public interest ” and serving formal notice on the mayor ) and DATE ( requiring the revision of the land - use plan ) .

The municipality of ORG , ORG and ORG applied to ORG , which in a judgment of CARDINAL DATE set aside the decision taken by ORG board of directors on DATE and the prefect ’s orders of CARDINAL May and DATE and DATE and CARDINAL DATE .

Ruling on a preliminary objection as to admissibility lodged by ORG , the court held that ORG had an interest in seeking to have set aside the decision taken by ORG board of directors on DATE and the subsequent orders , on the ground that prior to that date the municipality of ORG had promised to sell it the land in question .

As to the merits , the court pointed out that FAC was governed by the PERSON - Swiss treaty signed in GPE on DATE , which provided , among other things , for the building of CARDINAL runways and for the expropriation of CARDINAL ha of land ( Articles I and FAC to the treaty ) , and that under the treaty , although the airport ’s board was empowered to draw up plans to expand the airport , its exercise of that power was subject to the limits laid down in the treaty regarding both the airport ’s infrastructure and the maximum area of land to be expropriated . Noting that in the instant case the development plan adopted by the airport ’s board had exceeded those limits , the court set aside the decisions in issue .

On DATE ORG board of directors decided to ask the governments concerned to revise the specifications appended to the PERSON - Swiss treaty of DATE in accordance with LAW , and to increase the maximum area that could be expropriated for use by the airport from CARDINAL ha to CARDINAL ha with a view to building a third runway .

That proposal was agreed to in an exchange of notes ( on CARDINAL and DATE ) between ORG and ORG ; the agreement came into force on DATE . On CARDINAL DATE the NORP President issued a decree publishing the agreement .

On DATE the applicant companies applied to the ORG d’Etat seeking to have the decree annulled . Observing that the ratification of the PERSON - Swiss treaty of DATE had been authorised by a law of CARDINAL DATE , they submitted that in accordance with LAW ( which provides that “ ... treaties or agreements ... entailing a financial commitment on the part of the State ... may be ratified or approved only by an LAW of ORG ” ) and with the principle that power to enact and amend legislation should be vested in the same authority , such an amendment required the legislature ’s intervention and could not be carried out by the simplified method of an exchange of notes . They added that the decree in issue and the agreement published in it contravened LAW ( by which “ amendments to the articles of association and specifications following a decision by CARDINAL majority of the serving members of the board may be effected by agreement between the CARDINAL Governments ” ) in that they went beyond the purpose of the simplified amendment procedure . The companies further submitted that the exchange of notes published by the decree in issue incorrectly stated that the requirements of paragraph CARDINAL of the specifications appended to the treaty had been satisfied . Whereas paragraph CARDINAL made the procedure laid down in LAW conditional on the production of a detailed description and estimate – entailing the acquisition by ORG of the land needed for the airport – a significant portion of the QUANTITY of land corresponding to the maximum area that could be expropriated had not been acquired by ORG . Lastly , they argued that the agreement in issue contravened the treaty ’s financial clauses . ORG

The PERSON d’Etat dismissed the application in a judgment of CARDINAL DATE . It pointed out that by the PERSON of DATE ORG had authorised the ratification of the PERSON - Swiss treaty of CARDINAL July DATE , which had from the outset provided for the possibility of extending the airport ’s LOC , and that ORG should therefore be regarded as having “ by that law authorised the expenditure associated with the development and operation of additional structures or facilities designed to compensate for the inadequacy of existing structures or facilities ” , so that there had been no breach of LAW . As regards the applicant ORG other submissions , the ORG d’Etat held :

“ Although the applicant companies submit that the agreement of CARDINAL and DATE has a broader purpose than the mere drawing up of an amendment to the specifications appended to the treaty of DATE and that , consequently , it could have not been concluded under the simplified procedure provided for in LAW , the choice of the means by which international treaties and agreements are to be concluded is indissociable from the conduct of diplomatic relations and , accordingly , can not be challenged in proceedings before the administrative courts .

Nor is it the task of the ORG d’Etat , acting in its judicial capacity , to review the assessment by ORG and ORG of whether the requirement to produce a detailed description and estimate , as laid down in paragraph CARDINAL of the specifications appended to the treaty , was satisfied and whether the expansion of FAC was necessary .

Lastly , although the applicant companies criticised the content of the exchange of notes published by the impugned decree in relation to the provisions of the treaty of CARDINAL July DATE , it is not for the PERSON d’Etat , acting in its judicial capacity , to rule on the validity of an international undertaking in relation to other international undertakings . ”

“ The President of the Republic shall negotiate and ratify treaties .

He shall be informed of all negotiations leading to the conclusion of an international agreement not subject to ratification . ”

“ Peace treaties , commercial treaties and treaties or agreements relating to the organisation of international affairs , or entailing a financial commitment on the part of the ORG , or amending legislative provisions , or relating to the status of persons , or entailing the cession , exchange or acquisition of territory , may be ratified or approved only by an Act of ORG .

They shall take effect only after having been ratified or approved .

No cession , exchange or acquisition of territory shall be valid without the consent of the populations concerned . ”

“ Treaties or agreements that have been lawfully ratified or approved shall , upon publication , prevail over Acts of ORG , subject , in respect of each agreement or treaty , to its application by the other party . ”

“ The Minister for Foreign Affairs shall have sole responsibility for ensuring the ratification and publication of international treaties , agreements , protocols and regulations to which GPE is a signatory or by which GPE is bound . The same shall apply to the renewal or denunciation of such agreements . ... ”

“ After transmission to the Minister for ORG and , where necessary , ratification , the treaties , agreements , protocols and regulations referred to in the preceding Articles , where their implementation is liable to affect the rights or obligations of individuals , shall be published in ORG of GPE . ... ”


Violation of Art. 5-1-f;No violation of Art. 5-1-f;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi

The applicant was born in DATE and lives in GPE .

The applicant left GPE in DATE and , travelling via GPE , entered ORG through GPE . He did not apply for asylum at that point .

On DATE he attempted to cross the border with GPE , where he was arrested on suspicion of having used false documents . He was subsequently convicted . The applicant made an application for asylum on the grounds that he feared persecution by the NORP authorities .

On DATE the NORP authorities submitted a request to GPE to take charge of the asylum application under LAW ( ORG ) no . CARDINAL/CARDINAL ( see DATE below ) . On DATE the NORP authorities acceded to the request .

On DATE the applicant was transferred to GPE .

During his stay in GPE , from DATE to DATE , he was detained in an accommodation centre for foreign detainees ( ORG ārzemnieku izmitināšanas centrs ) in ORG ( “ ORG accommodation centre ” ) . The centre was a closed facility located within the territory of a prison and held illegal immigrants and certain categories of asylum seekers . According to the Government , there were dining and recreation areas equipped with television , newspapers and reading matter , a gym and a specially designated worship room . The detainees were granted TIME of outdoor exercise per day . They were provided with food and basic hygiene supplies ; access to the toilets and showers was not restricted . The Government contended that the centre was equipped with information stands which provided information in several languages on detainees’ rights and obligations , and that additional information was available concerning non - governmental organisations providing legal assistance . According to the applicant , the access to legal assistance in GPE accommodation centre was very limited , especially for persons who did not speak the local language . Effective protection of his rights had therefore been impossible .

Olaine accommodation centre was closed on DATE pending renovation work . The illegal immigrants and asylum seekers held in that centre were transferred to a new facility in GPE .

On DATE , on his transfer to GPE , the applicant handed ORG an application for asylum in LANGUAGE . On the same date an officer of ORG filled in the asylum application form ; a note was made to the effect that the applicant knew and could communicate in LANGUAGE , LANGUAGE and LANGUAGE .

On DATE a personal interview with the applicant was conducted by an officer of ORG . The applicant explained that he had a very good command of NORP , only colloquial LANGUAGE and some NORP . The interview was conducted in NORP with the assistance of an interpreter . It lasted for TIME , during which the applicant explained the reasons why he feared persecution in GPE , which related to his participation in demonstrations on CARDINAL and DATE in GPE organised by the main opposition party , ORG . He was not a member of that party .

On DATE ORG ( GPE migrācijas lietu pārvalde ) decided to refuse the applicant ’s asylum application . It was expressly noted that the application had been examined under the ordinary procedure ( section CARDINAL , paragraph CARDINAL of the old Asylum Law ) . Having examined the case materials , the division did not accept that the applicant faced a real and personal risk of persecution in GPE .

On DATE the applicant lodged an appeal against that decision and , at the same time , applied for legal aid provided by the ORG .

On DATE the competent authority appointed a lawyer as the applicant ’s representative , informed him of this fact and scheduled a TIME meeting for DATE in ORG accommodation centre . The applicant consulted his lawyer at another twohour meeting on DATE .

In the meantime , before having consulted a lawyer at the scheduled meeting of DATE , the applicant , by letter dated DATE , withdrew his appeal against the decision of CARDINAL DATE .

On CARDINAL DATE ORG terminated the administrative proceedings concerning his application for asylum , on the ground that the applicant had withdrawn his appeal . The ruling of ORG was final ( see paragraph CARDINAL below ) , despite a note in the decision itself stating that a complaint could be lodged against the ruling with a higher court .

On DATE , in response to a complaint on the merits lodged by the applicant against the ruling of CARDINAL DATE , ORG stated that , pursuant to domestic law , that ruling had been final .

The applicant was not assisted by a lawyer throughout these proceedings , apart from TIME of consultation after he had withdrawn his appeal ( see paragraph CARDINAL above ) . The rulings of DATE and CARDINAL DATE were adopted by written procedure ; thus , no hearings were held .

On DATE ORG issued detention order no . CARDINAL and detained the applicant on the basis of section DATE , paragraph CARDINAL , part CARDINAL of the old Asylum Law , since his identity had not been determined ( see paragraph CARDINAL below ) . The applicant did not have a valid travel document or passport ; he had only his birth certificate , which he handed over to the authorities .

On DATE , following a hearing in the applicant ’s presence , a judge authorised his detention until DATE . The judge examined the material brought before her and , with the assistance of a LANGUAGE - speaking interpreter , heard evidence from the applicant . The applicant was not assisted by a lawyer . The judge concluded that there were grounds to detain the applicant as his identity had not been determined and he had no means of subsistence ( see paragraphs CARDINAL and CARDINAL below ) .

On DATE another judge examined the material brought before him and heard evidence from the applicant . The applicant was not assisted by a lawyer , but an interpreter was present . The judge confirmed that the applicant ’s identity had not been determined and that he had no means of subsistence . The judge authorised the applicant ’s detention for a further DATE .

On DATE the same judge held another hearing . In this hearing the applicant revealed that his asylum application had been refused , that he had appealed against it and that he had withdrawn the appeal on CARDINAL DATE ( see paragraph CARDINAL above ) . The judge concluded , once again , that the applicant ’s identity had not been determined and that he had no means of subsistence . He therefore authorised a further CARDINAL months’ detention .

On DATE , at TIME , the applicant was released on the basis of order no . CARDINAL “ Release of an alien who has been detained in accordance with the Asylum Law ” . The order did not refer to any legal provisions . Instead , the grounds given for release were the following facts : the decision of DATE , the applicant ’s appeal against that decision , its withdrawal and the ruling of CARDINAL DATE terminating the asylum proceedings .

On DATE the deportation procedure was commenced and ORG issued a deportation order , no . CARDINAL . The factual background to the order included the decisions and rulings taken within the asylum proceedings . The deportation order referred to cabinet regulations no . CARDINAL ( DATE ) ( see paragraph CARDINAL below ) .

After having found a lawyer , the applicant tried to initiate proceedings for judicial review of the deportation order . He did so through CARDINAL avenues . Firstly , on CARDINAL DATE , he applied directly to ORG and , secondly , on DATE , he applied to a court seeking to dispute the validity of the order and to have the deportation order suspended .

In his application of CARDINAL DATE to ORG the applicant asked for the deportation order to be suspended by means of the lifting of order no . CARDINAL . On DATE his request was refused for lack of reasons . The applicant also applied to ORG , which , in turn , refused his request on DATE . On DATE the ORG refused to admit the applicant ’s appeal against that refusal because in substance it was an attempt to obtain judicial review of order no . CARDINAL , which was already the subject of judicial scrutiny in another set of administrative proceedings ( see paragraph CARDINAL below ) . An ancillary complaint by the applicant against the decision of DATE appears not to have been accepted for examination as it had not been properly signed .

In his application of CARDINAL DATE to ORG the applicant complained that he had never received a translation of the deportation order in NORP and that the content of the order , including the appeals procedure , had not been explained in a language he could understand . For that reason he asked for his belated appeal against order no . CARDINAL to be accepted for examination . On CARDINAL DATE a judge refused that request . On the basis of the report of his personal interview , the judge considered that the applicant was able to communicate not only in NORP but also in LANGUAGE and was therefore aware of the deportation procedure . Moreover , he had been aware of the content of order no . CARDINAL at least since DATE , as evidenced by his complaint against it ( see paragraph CARDINAL above ) , and thus there was no reason to accept his appeal to the court , which had been submitted out of time . The decision of CARDINAL DATE was upheld by the appellate court on DATE . That court also considered that the applicant understood LANGUAGE sufficiently well to grasp the meaning of order no . CARDINAL , that is to say , that he was to be deported from GPE .

On DATE , at TIME , ORG , on the basis of section CARDINAL , paragraph CARDINAL , part CARDINAL of LAW ( see paragraph CARDINAL below ) , issued detention order no . CARDINAL , with a view to the execution of the deportation order issued on DATE ( see paragraph CARDINAL above ) .

On DATE ORG asked ORG to contact the embassy of GPE in GPE with a view to requesting a document for the applicant ’s return to GPE .

At TIME on DATE ORG arrived at ORG accommodation centre to take the applicant to ORG where a decision was to be made concerning his further detention . The applicant alleges that excessive force was used to take him to the hearing . The Government denied these allegations and submitted that the applicant had been handcuffed for TIME because he had resisted .

On DATE a judge examined the material brought before her and heard evidence from the applicant with the assistance of a LANGUAGE - speaking interpreter . The applicant was not assisted by a lawyer . During the hearing the applicant admitted that he understood that action was being taken with a view to his deportation . On the grounds of section CARDINAL , paragraph CARDINAL , parts CARDINAL and CARDINAL of LAW ( see paragraphs CARDINAL and CARDINAL below ) , the judge authorised the applicant ’s detention for a further DATE .

On his return from the court hearing on DATE the applicant was placed in an isolation cell in GPE accommodation centre , where he was kept for DATE .

On DATE a non - governmental organisation for which the applicant ’s lawyer was working requested that ORG allow their representatives to meet the applicant . On DATE ORG replied that they could meet the applicant in the period from DATE to DATE only , owing to “ the high workload of personnel ” .

On DATE ORG approached the embassy of GPE in GPE with a view to requesting a valid passport or a certificate for the applicant ’s return to GPE .

On DATE ORG received a letter from ORG informing them that the applicant was still an asylum seeker , since “ [ ORG complaint has been forwarded to ORG . Thus , no final decision in [ the applicant ’s ] case has been adopted ” .

On DATE , at TIME , the applicant was released on the basis of order no . CARDINAL “ Release of an alien who has been detained in accordance with the Immigration Law ” . The order did not refer to any legal provisions . Instead , the grounds for release were noted as follows : according to the information provided by ORG , the applicant was an asylum seeker ; thus , the order for his deportation was suspended and his detention in accordance with LAW was not permissible .

On DATE ORG issued detention order no . DATE and detained the applicant on the basis of section DATE , paragraph CARDINAL , parts CARDINAL of the old Asylum PERSON ( see paragraph CARDINAL below ) , without giving any individual reasons save for the fact that the asylum proceedings in his case had been reopened .

On DATE a new Asylum Law entered into force .

On DATE , following a hearing in the applicant ’s presence , a judge authorised his detention until DATE . The judge examined the material brought before her and , with the assistance of a LANGUAGE - speaking interpreter , heard evidence from the applicant . The judge considered that the applicant was still an asylum seeker , since he had submitted a complaint against the ruling of CARDINAL DATE ( see paragraph CARDINAL above ) . She referred to the provisions of the newly adopted Asylum PERSON and concluded that there were grounds to detain the applicant since his identity had not been determined and there were reasons to believe that he had misused the asylum procedure and that he posed a threat to national security or public order and safety ( see paragraph CARDINAL below ) . However , the ruling did not indicate any facts which led the judge to consider that the applicant had misused the asylum procedure or posed any threat . She merely referred to the following facts : that the applicant could not legally stay in GPE , that he did not have any means of subsistence and could not acquire them legally , that action was being taken with a view to his deportation and that the deportation order could not be executed for reasons beyond the control of ORG .

On DATE the applicant appealed in NORP against the ruling of CARDINAL DATE . The appeal was received at ORG on DATE and DATE was sent to the competent domestic authority for translation as soon as possible . DATE , on DATE , that authority dispatched the translation to ORG , where it was received on CARDINAL DATE . The following day it was sent together with the case materials to ORG for examination .

On DATE the case materials were received at ORG and a hearing was scheduled for CARDINAL DATE . At the hearing , the applicant ’s lawyer and a LANGUAGE - speaking interpreter were present . The judge considered that the applicant was still an asylum seeker as he had submitted a complaint against the ruling of CARDINAL DATE . She found the applicant ’s detention to be justified under section CARDINAL , paragraph CARDINAL , part CARDINAL of LAW because his identity had not been determined . However , the court agreed with the applicant that he had not in fact misused the asylum procedure .

On DATE the applicant ’s continued detention was authorised for a further DATE ; that decision was upheld on appeal on CARDINAL DATE . Both decisions contained a reference to the applicant ’s second application for asylum ( see paragraph CARDINAL below ) . In those proceedings the applicant was represented by his lawyer .

In the meantime , on DATE , the applicant lodged another application for asylum . On DATE ORG reviewed the applicant ’s request in detail and concluded that it should not be examined ( see paragraph CARDINAL below ) because the relevant circumstances in GPE had not changed to an extent that would merit granting the applicant refugee or alternative status .

On DATE ORG informed the applicant to the opposite effect – that examination of his application for asylum had been resumed and that the order for his deportation had been suspended . On CARDINAL DATE ORG , in response to a request from the applicant to be released ( which was outside its sphere of competence ) , informed the applicant of the decision of DATE not to examine his second application for asylum . Reference was also made to section DATE , paragraph CARDINAL of LAW which provides that the lodging of an appeal against such a decision does not entitle the person concerned to the status of asylum seeker ( see paragraph CARDINAL below ) .

On DATE ORG accepted the applicant ’s appeal against the decision of DATE for examination . On DATE a judge examined the case in detail and dismissed the appeal . She found that the applicant ’s asylum application did not contain any information concerning a change in circumstances which would allow it to consider the application .

On DATE , at TIME , ORG issued detention order no . CARDINAL . on the basis of LAW , paragraph CARDINAL , parts CARDINAL and CARDINAL of LAW ( see paragraphs CARDINAL and CARDINAL below ) . According to the order , the applicant had infringed the rules on residence in the country as he did not have a valid travel document and a visa or residence permit . The reasons for the applicant ’s detention were noted as follows : the decision of DATE ; deportation order no . CARDINAL ; the second application for asylum ; the decision of DATE and , implicitly , the final ruling of DATE , following which the applicant ’s legal status in GPE had changed .

DATE . On DATE , TIME , the applicant called his lawyer to inform her that he had refused to sign several documents and that the officers had told him in LANGUAGE that his status had expired and had detained him . The lawyer then called ORG with a view to finding out the reasons for his detention . She was told that he had probably been detained under LAW of LAW , a fact which they confirmed on DATE . She received a copy of order no . CARDINAL on DATE , DATE , a fact which the representative of ORG confirmed during a subsequent hearing before ORG .

The domestic courts reviewed and rejected the applicant ’s complaints against order no . CARDINAL at CARDINAL instances , on DATE and DATE . At first instance , before ORG , the applicant complained that his procedural rights had been breached in that he had not been informed of the reasons and grounds for his detention , that neither the appeals procedure nor his rights had been explained , that his lawyer had not been informed of his detention and that there had been no LANGUAGE - speaking interpreter . The judge ruled that order no . CARDINAL was lawful and that the applicant ’s detention had been justified as he had been residing in GPE illegally and deportation order no . CARDINAL had been in force . With regard to his procedural rights , she referred to the applicant ’s submissions to the effect that he had known that he was no longer an asylum seeker and to the fact that , in a telephone conversation with his lawyer , he had confirmed his detention .

At second instance , before ORG , the applicant maintained his complaint against order no . CARDINAL . In a ruling of DATE the judge rejected the complaint .

On DATE a judge of ORG extended the applicant ’s detention for a further DATE . On DATE ORG upheld that ruling . The applicant , his lawyer and a LANGUAGE - speaking interpreter were present at those hearings .

On DATE ORG approached the embassy of GPE in GPE with a view to requesting a valid passport or a certificate for the applicant ’s return to GPE . On DATE the return certificate was issued .

On DATE ORG received the necessary travel documents for the applicant ’s deportation . Initially , the deportation was scheduled for DATE but it could not take place owing to security considerations within the airline company . Another attempt at deportation , scheduled for DATE , could not take place because of security considerations .

On DATE at TIME ORG carried out the applicant ’s deportation from GPE .

In the meantime , on DATE , the applicant submitted an application for asylum on humanitarian grounds to ORG . In his application he referred in general terms to the humanitarian situation , human rights issues and social problems in his country ; with reference to his specific case he considered that he faced an increased risk of persecution in GPE in view of the contacts between ORG and the embassy of GPE in GPE in DATE .

At the same time , on DATE , his lawyer submitted a request addressed to ORG and the Head of ORG , the Minister of the ORG and the Head of ORG for the applicant to be granted a temporary residence permit in GPE on the basis of section CARDINAL , paragraph CARDINAL of LAW ( see paragraph CARDINAL below ) and for the deportation procedure to be suspended . She also forwarded a copy of the applicant ’s application for asylum on humanitarian grounds to those institutions .

On DATE CARDINAL divisions of ORG dispatched letters to ORG . ORG informed ORG that they had received the applicant ’s application for asylum . ORG stated that “ the execution of deportation order no . CARDINAL is to be suspended ” . The parties are in disagreement as to when these letters were received by ORG . The Government contended that they had been received by post on DATE . The applicant submitted that the letters had been sent by fax and that ORG had received them on DATE .

On DATE ORG informed ORG that on DATE the applicant had been deported to GPE .

On DATE and CARDINAL DATE ORG and ORG dismissed the application for asylum and the request to grant a temporary residence permit since there were no grounds for examining them in view of the applicant ’s deportation .

On DATE ORG replied to the applicant ’s lawyer that disclosure of the information about the applicant to the embassy of GPE in GPE had been justified since he was an illegal immigrant at the time of the disclosure in DATE .

On DATE ORG replied to the applicant ’s lawyer that they had not been officially informed until DATE that the application for asylum had been received and that the deportation procedure was to be suspended .

On DATE ORG replied that it was not competent to answer questions in relation to the asylum procedure . ORG was responsible for reviewing the decisions taken by its officials concerning the applicant ’s deportation .

Having considered the second periodic report of GPE ( CAT / PERSON ) at its CARDINALth and NORP meetings ( CAT / C / SR.CARDINAL and CARDINAL ) , held on CARDINAL and CARDINAL DATE , ORG ( CAT ) , at its FAC and ORG meetings ( CAT / C / SR.CARDINAL and CARDINAL ) , adopted the following conclusions and recommendations .

“ The ORG recommends that the ORG party :

a ) Take measures to ensure that detention of asylum seekers is used only in exceptional circumstances or as a last resort , and then only for the shortest possible time ;

b ) Ensure that anyone detained under immigration law has effective legal means of challenging the legality of administrative decisions to detain , deport or return ( refouler ) him / her and extend , in practice , the right to be assisted by assigned counsel to foreigners being detained with a view to their deportation or return ( refoulement ) . ”

Council Regulation ( ORG ) no . CARDINAL of DATE establishes the criteria and mechanisms for determining the Member State of ORG responsible for examining an asylum application lodged in one of GPE by a third - country national ( “ FAC ” ) .

Under the regulation , the Member GPE must determine , based on a hierarchy of objective criteria ( Articles CARDINAL to CARDINAL ) , which Member ORG bears responsibility for examining an asylum application lodged on their territory . The aim is to avoid multiple applications and to guarantee that each asylum seeker ’s case is dealt with by a single Member ORG .

Where it is established that an asylum seeker has irregularly crossed the border into a Member ORG having come from a third country , the Member ORG thus entered is responsible for examining the application for asylum ( LAW ) .

DATE . Where the criteria in the regulation indicate that another Member ORG is responsible , that ORG is requested to take charge of the asylum seeker and examine the application for asylum ( LAW ) .

The applicant ’s first application for asylum was examined in accordance with the old Asylum Law as in force from DATE until DATE , under the ordinary procedure . Under this procedure , the application had to be examined by the administrative authority within DATE ( LAW , paragraph CARDINAL ) and by ORG within DATE ( section CARDINAL paragraph CARDINAL ) .

NORP Under the old LAW asylum seekers had the right to remain in GPE and retained the status of asylum seeker until the final decision on their application for asylum had been adopted ( section CARDINAL , paragraph CARDINAL and section CARDINAL , paragraph CARDINAL ) .

ORG was responsible for examining applications for asylum ( section CARDINAL , paragraph CARDINAL ) . An asylum seeker had to be made aware of any decision taken on his or her application for asylum and had to receive an explanation of its content and the appeals procedure in a language he or she knew or could be expected to understand ( section CARDINAL , paragraph CARDINAL ) . An appeal could be lodged with ORG against that decision within DATE ( section DATE , paragraph CARDINAL and section CARDINAL , paragraph CARDINAL ) .

The ruling of ORG under the asylum procedure was final , pursuant to section CARDINAL , paragraph CARDINAL of the old Asylum Law , which was a lex specialis in relation to the more general provisions on administrative procedure contained in GPE Procedure . The ruling took effect on its delivery ; it was to be served on the asylum seeker immediately and its content had to be explained in a language he or she knew or could be expected to understand .

The procedure for deportation of a failed asylum seeker under the ordinary procedure was not specified in the old Asylum Law , which referred in this connection to “ provisions established by law ” ( section CARDINAL , paragraph CARDINAL of the old Asylum Law ) . Thus , the general provisions of ORG applied ( see paragraphs CARDINAL below ) . However , the procedure for deportation of a failed asylum seeker under the accelerated procedure was set forth in cabinet regulations no . CARDINAL ( DATE ) ( section CARDINAL , paragraph CARDINAL of the old Asylum Law ) ( see paragraph CARDINAL below ) .

The applicant ’s second application for asylum was examined in accordance with LAW , which took effect on DATE .

NORP Under LAW of LAW , if the relevant circumstances have changed , an asylum seeker may submit another application for asylum if a negative decision on his or her first application for asylum has taken effect . ORG may either accept such an application for examination or decline to examine it ( section CARDINAL , paragraph CARDINAL ) . The decision not to examine the application may be appealed against to ORG within DATE ; however , the person does not have asylum - seeker status during the examination of his or her appeal ( section DATE , paragraph CARDINAL ) .

DATE . Finally , the procedure to be followed for deportation of an asylum seeker under either the ordinary or the accelerated procedure is set forth in LAW , to which LAW now explicitly refers ( section CARDINAL ) .

In accordance with section DATE , paragraph CARDINAL of the old Asylum Law , ORG could detain an asylum seeker for an initial period of DATE if his or her identity had not been determined ( part CARDINAL ) , if there were reasons to believe that he or she was attempting to misuse the asylum procedure ( part CARDINAL ) , or if there were reasons to believe that he or she could not legally stay in GPE ( part CARDINAL ) . An appeal could be lodged with a court against such a detention order ( section CARDINAL , paragraph CARDINAL of LAW ) .

As regards the procedure for detention , the old Asylum PERSON referred to the provisions of LAW which were applicable to illegal immigrants .

Detention for DATE could be authorised only by a court , on an application submitted by ORG , for no longer than DATE at a time . The overall period of detention could not exceed DATE ( section DATE , paragraphs CARDINAL and CARDINAL of LAW ) and it could not , in any event , exceed the time taken to determine the application for asylum ( iesnieguma izskatīšanas termiņu ) ( section CARDINAL , paragraph CARDINAL of the old Asylum Law ) .

When authorising further detention the judge had to examine , among other things , whether the alien concerned had concealed his or her identity or refused to cooperate and whether he or she had any means of subsistence ( section CARDINAL.CARDINAL , paragraph CARDINAL , parts CARDINAL and CARDINAL of LAW ) . The alien had the right to appeal against the detention order issued by the court within TIME of its reception ( section DATE , paragraph CARDINAL of LAW ) .

According to section CARDINAL , paragraph CARDINAL of LAW , ORG has the authority to detain an asylum seeker for a shorter initial DATE if his or her identity has not been determined ( part CARDINAL ) , if there is reason to believe that he or she is attempting to misuse the asylum procedure ( part CARDINAL ) or if the competent ORG authorities , including ORG , have reason to believe that he or she poses a threat to national security or public order and safety ( part CARDINAL ) .

Like the old PERSON , the new PERSON refers to LAW as regards the procedure governing detention , which thus remains unchanged in so far as the applicant is concerned . Hence , an appeal may be lodged with a court against the detention order issued by ORG ; only a court is authorised to extend the detention beyond the initial period , for DATE at a time ; the court has to examine whether the alien concerned is concealing his identity or refusing to cooperate and whether he or she has any means of subsistence . Similarly , the overall period of detention may not exceed DATE nor , most importantly , may it exceed the length of time taken to complete the asylum proceedings ( patvēruma procedūras termiņu ) .

The old Asylum PERSON as in force until DATE provided that asylum seekers had the right to invite another person to provide them with legal assistance ( section CARDINAL , paragraph CARDINAL ) .

The Asylum Law as in force since DATE stipulates that asylum seekers may invite another person to provide them with legal assistance , using their own funds . If they do not have sufficient funds , they have the right to receive legal assistance provided by the ORG ( section CARDINAL , part CARDINAL ) in the manner prescribed by a special law ( see paragraph CARDINAL below ) .

Both before and after DATE the Law on State Legal Assistance explicitly provided for CARDINAL situation in which an asylum seeker must receive free legal assistance , namely for lodging an appeal against a decision on the merits within the asylum proceedings ( section CARDINAL , paragraph CARDINAL prior to the amendments which took effect on DATE ; section CARDINAL , paragraph CARDINAL thereafter ) .

Meanwhile , ORG , which is applicable to all detained aliens including asylum seekers , provides for a right to receive legal assistance ; the alien concerned must be informed of this right upon his or her arrest ( section CARDINAL , paragraph CARDINAL ) .

In accordance with the old Asylum PERSON as in force until DATE , asylum seekers had the right to receive all information about the asylum procedure and their rights and obligations in a language which they knew or could be expected to understand ( section CARDINAL , paragraph CARDINAL ) .

In addition , asylum seekers without a knowledge of NORP had the right to communicate via an interpreter as well as the right to submit applications , to consult the case file and to submit explanations in a language which they knew or could be expected to understand ( section CARDINAL ) .

In accordance with LAW as in force since DATE , asylum seekers have the right to receive information from ORG and ORG about the asylum procedure , their rights and obligations and the powers of the domestic authorities in that respect , in a language which they can be expected to know and in which they are able to communicate ( section CARDINAL , part CARDINAL ) . Furthermore , they have the right to have the decision [ concerning the merits of their asylum application ] and the appeals procedure explained in a language which they can be expected to know and in which they are able to communicate , unless they have a representative or have received free legal assistance ( section CARDINAL , part CARDINAL ) .

Meanwhile , ORG , which is also applicable to all detained aliens including asylum seekers , provides for the right to communicate in a language which the asylum seeker knows , if necessary with the assistance of an interpreter ( section CARDINAL , paragraph CARDINAL ) .

Cabinet regulations no . CARDINAL ( DATE ) , in force until DATE , set forth the deportation procedure for failed asylum seekers under the accelerated procedure . ORG had to issue an order to leave the ORG on DATE following expiry of the time - limit for an appeal against the first - instance decision on the asylum application or , if an appeal had been lodged , on DATE after the alien had received the court ’s ( final ) ruling . When the alien received the order , he or she had DATE to leave the country . If he or she did not comply , ORG had to issue a deportation order .

NORP If an alien had infringed the rules prescribed by law for entry into and residence in the country , ORG had to issue an order to leave in DATE ( section CARDINAL , paragraph CARDINAL of LAW ) . If the alien did not comply voluntarily with the order to leave , ORG had to issue a deportation order ( piespiedu izraidīšanas rīkojums ) within DATE ( section DATE , paragraph CARDINAL , part CARDINAL ) .

Another legal ground for ORG to issue a deportation order within the DATE time - limit was where ORG had detained an alien who had crossed the border illegally or who had otherwise infringed the rules prescribed by law for entry into and residence in the country ( section CARDINAL , paragraph CARDINAL , part CARDINAL ) .

Furthermore , aliens were made subject to a deportation order if they had been convicted in GPE and the domestic courts had ordered their expulsion as an additional penalty ( section CARDINAL ) . Aliens were also made subject to a deportation order if they had served a sentence for a crime committed in GPE and did not have any legal grounds for continuing to reside in GPE ( section CARDINAL , paragraph CARDINAL ) . Lastly , aliens who had been included in the list of persons to whom entry in GPE was prohibited were made subject to a deportation order ( section CARDINAL ) .

Orders to leave and deportation orders issued under either of the paragraphs of section CARDINAL of ORG could be revoked or suspended on humanitarian grounds by the Head of ORG ( section CARDINAL , paragraph CARDINAL and section CARDINAL , paragraph CARDINAL ) .

On DATE wide - reaching amendments to the Immigration PERSON took effect . As a result , the procedures concerning orders to leave the ORG and deportation orders were clarified .

In accordance with LAW , ORG is authorised to detain an alien for a period of DATE with a view to executing a deportation order ( section CARDINAL , paragraph CARDINAL , part CARDINAL ) . An appeal lies against the corresponding detention order ( section DATE , paragraph CARDINAL ) .

Similarly , ORG may detain an alien who has crossed the border illegally or who has otherwise infringed the rules prescribed by law for entry into and residence in the country ( section CARDINAL , paragraph CARDINAL , part CARDINAL ) .

In addition to the rights mentioned before ( see paragraphs CARDINAL and CARDINAL ) , the Immigration PERSON also confers on detained aliens the right to consult the case file concerning their detention , in person or through a representative ( section CARDINAL , paragraph CARDINAL ) .

Section CARDINAL , paragraph CARDINAL of the Immigration PERSON provides for the granting of temporary residence permits to aliens at the discretion of the Minister of the ORG in the interests of the ORG ( part CARDINAL ) and at the discretion of the Head of ORG in accordance with international law or in pursuance of humanitarian considerations ( part CARDINAL ) .


Violation of Art. 6-1;Violation of P1-1;Not necessary to examine Art. 4;Pecuniary damage - financial award;Non-pecuniary damage - financial award

The applicant was born in DATE and resides in the town of FAC , GPE region , GPE .

On an unspecified date the applicant instituted proceedings in the Zhovtovodskyy Town Court of Dnipropetrovsk Region against his employer , a ORG - owned company , ORG ( NORP управління будівництва ) , in order to receive salary arrears and other payments .

On DATE the court found for the applicant and awarded him CARDINAL NORP hryvnias ( “ UAH ” ) ( PERSON міського суду ) .

On DATE the Zhovti Vody Town Bailiffs ' Service ( ORG виконавчої служби Жовтоводського міського управління юстиції ) initiated the enforcement proceedings .

On an unspecified date the applicant instituted new proceedings in the same court against the same enterprise for further payments and compensation .

On DATE the court found for the applicant and awarded him ORG CARDINAL,CARDINAL.CARDINAL .

The applicant received UAH CARDINAL , but , according to him , the rest of the awards remain unpaid .

NORP By letter of DATE , ORG informed the applicant that the enforcement proceedings had been stayed because of the bankruptcy proceedings initiated against the debtor by a decision of DATE of ORG of the Dnipropetrovsk Region . ORG also stated that , according to the PERSON on the Introduction of a Moratorium on the Forced Sale of Property , on DATE a ban on the forced sale of assets belonging to undertakings in which the ORG holds PERCENT of the share capital had been introduced .

By the decree of CARDINAL DATE ORG liquidated the debtor company .

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


The applicant is a NORP national , born in DATE and living in GPE , GPE . She is represented before the ORG by Mr PERSON

DATE ) , the applicant was subjected to repeated and systematic rape and sexual abuse by her step - father , who lived with the applicant , her mother and brother . The applicant was too frightened to report the matter , but eventually her brother , who was also abused by their step - father , informed the police on DATE . The step - father was convicted in ORG in DATE of rape and lewd and libidinous practices . He was sentenced to DATE imprisonment in respect of his offences against the applicant , and a further CARDINAL years’ in respect of those against the applicant ’s brother .

The abuse has had a highly detrimental effect on the applicant . She has attempted suicide on CARDINAL occasions and suffered depression and relationship problems which have led to QUANTITY divorces .

On DATE the applicant lodged an application for criminal injuries compensation with ORG ( “ ORG ” ) . On DATE the ORG wrote to the applicant explaining that her application had been refused under paragraph CARDINAL(b ) of ORG , which expressly excludes the payment of compensation where the criminal injury was received before DATE and the victim and assailant were living together at the time as members of the same family .

The applicant lodged a review against this decision which was refused by the ORG on DATE . She then lodged an appeal to ORG . The appeal was refused on DATE .


CASE OF ENGEL AND OTHERS v. THE NETHERLANDS (ARTICLE 50)

Non-pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient

The only question remaining to be settled is that of the application of LAW ) in the present case . Thus , as regards the facts , the ORG can refer for the main points to paragraphs CARDINAL of its judgment of CARDINAL DATE ( ibid . , pp . DATE ) , confining itself here to giving some brief details .

Mr. PERSON , Mr. PERSON , Mr. PERSON and Mr. PERSON do not allege that they have suffered any material damage , loss of income , legal expenses or other disbursements , but each of them claims a " purely symbolic " sum of MONEY ( CARDINAL ORG ) , presumably for moral damage .

The ORG ’s delegates think that financial compensation " is due to Mr. PERSON for the breach of LAW para . CARDINAL ( article CARDINAL - CARDINAL ) as such " ; they " suggest to the ORG that it should follow in this respect the method of calculation adopted in the PERSON case " ( judgment of DATE , Series A no . CARDINAL ) . On the other hand , the breach of Article CARDINAL para . CARDINAL ( article CARDINAL ) is said to have caused Mr. PERSON , Mr. PERSON and Mr. PERSON no " special damage " , with the result that " the decision referred to in item CARDINAL " of the operative provisions of the judgment of DATE would for these applications amount , " in itself " , to " just satisfaction within the meaning of LAW ) " .

The Government ask the ORG to " fix the compensation , if any , on a purely symbolic sum " in the case of Mr. PERSON . They agree with the delegates as regards Mr. PERSON , Mr. PERSON and Mr. PERSON .


Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Zdravka Kalaydjieva

The applicant , Mr Nzimirro PERSON , is a NORP national who was born in DATE . He lives in GPE with his mother , PERSON , who has acted on behalf of her under - age son in the national proceedings and in lodging an application under LAW . The applicant was represented before the Court by PERSON , a lawyer practising in GPE .

ORG ( “ the Government ” ) were represented by ORG , Attorney , Attorney - ORG ) , as Agent .

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

On DATE the applicant ’s father , Mr PERSON ( born in DATE ) , died in connection with his being arrested by police officers at ORG ( servicekontor ) in GPE .

Mr PERSON had been visiting ORG to complain about the refusal of a social security allowance . The police were called as employees of the ORG had found his behaviour disturbing and threatening . Upon arrival at around TIME the officers had observed Mr PERSON inside the public area of the LOC . He had approached them and asked whether he had been responsible for their presence . After the employees in the presence of the police had given Mr PERSON an explanation for the refusal of the allowance and had informed him of the possibility to lodge an appeal , the police officers had ordered him to leave the LOC and warned him that should he fail to do so he would be arrested . The decision of CARDINAL DATE , referred to below , described the events which followed .

Since Mr PERSON had refused to comply with the police officers repeated orders to leave the LOC , the police decided to arrest him . Police officers PERSON and PERSON had taken hold of PERSON arms in order to escort him from the building . Mr PERSON had immediately and vigorously resisted . Officer PERSON explained that when he tried to grab Mr PERSON ’s left hand , the latter had struck PERSON very hard in the chest with his elbow . After having tried in vain to grab Mr PERSON ’s left hand in order to avoid further blows , Officer PERSON jumped on Mr PERSON ’s back , gripped Mr PERSON by the throat using his right hand and remained in that position .

The police officers felt that the situation was out of control and that they needed to pacify Mr PERSON , or else they or other persons in ORG might possibly get hurt .

After Mr PERSON had circled a few times with Officer PERSON on his back and with Officer PERSON gripping his right arm , all CARDINAL had fallen to the ground in the public area of the office LOC . When falling , Officer PERSON had kept his grip around Mr PERSON ’s throat , and continued to do so until he and PERSON handcuffed Mr PERSON .

Finding it undesirable and wrong to let Mr PERSON remain on the floor of where they were hindering access and movement of the many people around them , Officers PERSON and PERSON decided to take Mr PERSON outside . They had pulled him by his arms to the landing outside the front door .

On the landing Officers PERSON and PERSON had used considerable force to keep Mr PERSON down as he was struggling hard to free himself . PERSON had used his own body weight while bending Mr PERSON ’s wrist in order to keep him down . Officer PERSON , standing to the right of Mr GPE , had pushed him to the ground .

When Officer PERSON had arrived at the scene , he had noted that Mr PERSON had tried to free himself from PERSON and PERSON and was kicking out . Since PERSON PERSON risked kicking passers - by , Officer PERSON had tried to immobilise his feet by applying a so - called leglock ( benlås ) . He had been prevented by PERSON PERSON from doing so since the latter was trying to get up and was kicking Officer PERSON

While on the landing , Mr PERSON had screamed loudly and repeatedly . After struggling for a while he had calmed down completely . He had fainted and had been placed in a lateral position . The officers had ensured that he could breath .

At TIME Officer B reported that Mr PERSON ’s resistance had been so vigorous that he had fainted and that he had had to call an ambulance . At TIME the officers reported that they would bring Mr PERSON by police van to FAC . In view of the location of the nearest ambulance , it was felt that the police vehicle ( of which Officer PERSON was the driver ) could transport Mr PERSON to the hospital as fast , or even faster , than an ambulance . Mr PERSON was placed on the floor of the police cell at the rear end of the vehicle . Because of its restricted space , QUANTITY in length , his knees were bent upwards . The journey took TIME . Upon arrival at the hospital , a nurse and a doctor detected a weak pulse in Mr PERSON ’s throat . Medical appliances were connected to Mr PERSON ’s body and it was established that his heart had stopped .

ORG hereinafter referred to as GPE ) carried out an investigation of the CARDINAL police officers of PERSON Police District who had taken part in Mr PERSON ’s arrest . The investigation was based on suspicion of offences having been committed under LAW , second alternative , ( bodily infringement resulting in death ) of LAW , Article CARDINAL alternative ( bodily injury resulting in death ) , Article CARDINAL ( manslaughter committed by negligence ) and LAW aggravated neglect in the performance of official duties ) . None of the officers was indicted . On DATE ORG decided to discontinue ( henlegge ) the proceedings . As regards the CARDINAL officers who had been in contact with Mr PERSON , the decision was based on the state of the evidence ; regarding the fourth officer , the decision to discontinue had been taken on the ground that no criminal offence had been proved .

The deceased ’s next - of - kin , including the applicant , complained about the above decision to ORG ) . They disputed that it had been necessary for the police to restrain Mr PERSON and to do so in the manner they did , notably by means of a strangulation grip around his throat , placing him on his stomach while exerting considerable pressure on his back , holding his head and legs and handcuffing him . They further complained of the ORG omission to carry out life - saving measures when they realised that he was unconscious . The plaintiffs moreover complained about the procedure , namely that the first CARDINAL police officers had been represented by the same lawyer and had been interrogated at intervals , enabling them to coordinate their versions of events . They also requested that further evidence be obtained on officer PERSON ’s previous use of strangulation grips . They asserted that on CARDINAL previous occasions officer PERSON had used a strangulation grip when arresting a coloured person , once in the so - called “ GPE case ” , and on another occasion when arresting an NORP , which had led to police misconduct complaints being filed against him . On CARDINAL occasions he had used strangulation grips “ in a dramatic way ” .

The Director of Public Prosecutions requested ORG to take further investigative measures with a view to clarifying certain matters that could be of importance for the assessment of whether a criminal offence had been committed by the police “ in a situation that had ended tragically in PERSON PERSON ’s death ” .

On DATE ORG , after having taken the measures requested , reported back to ORG . In this connection the ORG provided particulars of the QUANTITY police misconduct complaints referred to above and stated that it could not be concluded that ORG had previously used strangulation grips “ in a dramatic manner ” . In the GPE case ORG had not found proof of unlawful or excessive use of force . In the other case , the arrestee had allegedly experienced breathing problems due to pressure being applied to his chest after being placed on the ground . PERSON had conceded that he had gripped him around his neck . ORG had in that case upheld the decision to drop the complaint against ORG , finding that no more force had been used than had been required by the situation . ORG also provided details of a third complaint where the case had been dropped as no criminal offence had been proved .

ORG concluded that no weight could be attached to earlier complaints against ORG , including those instances where he might have gripped an arrestee around the throat or neck , in the assessment of whether ORG could be held criminally liable in the present case . The information did not appear to have any significance for the assessment of the facts in the present case and in the Special Unit ’s view no clear behavioural pattern on V.s part emerged from this information regarding the use of force against persons from a minority background . The use of force appeared on the whole to have been situational . The number of complaints had to be seen against the background of the fact that over a long period he had been assigned to operational service . It should also be emphasised that the complaints against ORG seemed to have been dealt with sufficiently thoroughly and had been dropped .

ORG also considered previous complaints against officer PERSON but found none of these to be relevant . It informed ORG that no previous police misconduct complaints had been made against officers PERSON and H.

In his final comments of CARDINAL DATE on the supplementary investigative measures taken by ORG , the applicant did not specifically address the latter ’s findings regarding previous police misconduct cases .

On DATE , ORG rejected the appeal against ORG decision of CARDINAL DATE .

By way of a preliminary observation he endorsed ORG findings that the information obtained about previous police misconduct complaints was not capable of shedding light on the sequence of events and the question of guilt in the present case . He found inter alia as follows .

A combination of factors had caused Mr PERSON ’s death . To all appearances his death had occurred as a result of asphyxia and his reactions to this . The asphyxia had been caused by PERSON own efforts when resisting arrest , combined with breathing problems when pressure had been exerted on his throat and , not least , with his having been placed by the police on his stomach for a certain period of time and being subjected to the use of force by the police while in this position .

Forensic experts had documented the fact that restraining agitated persons by placing them on their stomach entailed a risk of positional asphyxia ( leiebetinget kvelning ) . This position could hinder movements in the chest and could over time lead to a dramatic reduction in lung capacity , heart palpitation frequency , blood pressure and blood volume , and could lead to death if the person ’s craving for oxygen or oxygen deficit was not compensated in time . There had been reason to believe that the factors described had played a significant role in Mr PERSON ’s death .

The circumstances surrounding the arrest were obviously not such as would have justified the use of methods that could have put Mr PERSON ’s life in danger . A central question was whether the officers could or ought to have been aware of the possibility that placing him on his stomach together with the other means of restraint used could lead to Mr PERSON ’s death .

The Director of Public Prosecutions found it beyond doubt that neither the police officers involved nor the Sør - Trøndelag Police District had known of the dangers of restraining persons by placing them on their stomach on the ground . Nor had employees of ORG or of ORG possessed such knowledge prior to the present case . Awareness of the risk had not been particularly widespread among health personnel either .

ORG had reported that the type of restraint at issue had been standard procedure for the arrest of obstructive persons . ORG students had been taught that every person arrested , if placed on the ground , should end up flat on the stomach and that the person was to be immobilised by inter alia bending his arms and shoulders from this position . Accordingly , the officers who had put Mr PERSON on his stomach in this position had applied the method which they had been taught to use in such situations .

Even though ORG and ORG practices had been deficient with regard to the collection of information about the risks involved in using the impugned restraining method , ORG found no ground for qualifying the omissions as gross neglectNorwegian ORG and ORG liable pursuant to LAW . In making this assessment , regard had been had to the submission by medical experts that knowledge about the dangers of asphyxiation connected with the relevant restraint measures had not been particularly widespread among health personnel .

The Director of Public Prosecutions emphasised that he presumed that ORG would quickly place all relevant material at the disposal of ORG and ORG so as to promote education , training and the dissemination of information as well as the introduction of central directives and control measures for preventing asphyxiation caused by the position of the arrestee during arrest . The ORG would presumably review Circular CARDINAL/CARDINAL of CARDINAL DATE in light of the experience gained from the present case and consider whether it sufficiently fulfilled the need to have directives on situations in which restraining a person by placing him on the stomach could be justified , the length of time a person could be kept in such a position and , not least , checking the situation of the arrestee during and after his being kept in such a position . Of central importance was the further elaboration of guidelines on the manner in which continuous checking of the arrestee ’s situation was to be carried out and on how to move rapidly to other less dangerous methods while maintaining the necessary control .

In the course of DATE and DATE of DATE several attempts were made on behalf of the deceased ’s children to obtain compensation from the ORG but to no avail .

On DATE the applicant and another son of the deceased , Mr Prince PERSON , born in DATE and resident in GPE , GPE , instituted civil compensation proceedings against the ORG before ORG . They claimed compensation for loss of their father ’s financial support and for non - pecuniary damage under , respectively , sections CARDINAL ) and CARDINAL - CARDINAL(CARDINAL ) of LAW DATE .

On DATE the Parliamentary Ombudsperson ( Civil Matters ) gave of his own motion an opinion ( case DATE ) on PERSON death and on the issue of responsibility for police practices in respect of techniques of use of force on arrest , in particular restraining a person by placing him on the stomach . The PERSON endorsed ORG and ORG findings mentioned above . After carrying out a detailed review of the ORG ’s case - law in relation to LAW , he observed that the question whether at the time of Mr PERSON ’s death the NORP authorities ought to have been aware of the risk of death as a result of placing an arrestee on the stomach , depended on a concrete assessment of the circumstances . Among other factors , regard ought to be had to whether the police officer had done all that could reasonably be expected to reduce the risk , bearing in mind the seriousness of the risk , its probability and immediacy , whether it was for the ORG to assess the risk and the vulnerability of the victim .

Considering the matter as a whole , the ORG found that GPE had not sufficiently complied with its obligations under LAW the use of restraint by placing the arrestee on the stomach upon arrest . The ORG ought to have been aware of the health hazards involved in the use of this technique . Such knowledge would have provided the requisite basis for regulating its use and ensuring adequate training of the police with a view to avoiding loss of life or serious injury . Against the background of the information available regarding the dangers of restraining a person by placing him on the stomach , it would not have entailed an excessive burden for the NORP authorities to acquire by the time of PERSON PERSON ’s death the necessary knowledge about the health hazards of the technique . The necessary knowledge could have been acquired without considerable expense .

The NORP authorities’ lack of knowledge appeared to have been caused by deficient practices for updating medical and police knowledge about techniques of arrest . The risks accompanying restraint of an arrestee by placing him on the stomach could clearly have been reduced if the ORG had been aware of such risks , and death resulting from using this technique could have been avoided .

The responsibility for violation of the obligations to protect human rights lay with the ORG . This followed directly from public international law and was stated expressly in LAW . In this connection it was unnecessary to consider further where to place the responsibility for the violation of LAW . In light of the information provided by ORG it seemed that the principal responsibility for the lack of regulation of the use of the impugned restraint method lay primarily with ORG . However , this case also showed that ORG had failed in its role by not developing and updating techniques of arrest for the purposes of training .

On DATE - that the PERSON issued his opinion , the ORG concluded a friendly - settlement agreement with the applicant and his brother . By virtue of this agreement , the applicant was to be paid ORG MONEY ( and his brother NOK CARDINAL ) in respect of their above - mentioned compensation claims and payment of these amounts was to constitute “ full and final settlement of any claim against the ORG in connection with Mr PERSON death ” . The proceedings before ORG were discontinued .

On DATE the Registry invited the applicant to clarify whether in light of the above friendly - settlement agreement he wished to maintain his application to the ORG . On DATE his lawyer replied in the affirmative , pointing out that the agreement had settled the financial aspects of the case but did not imply that the ORG accepted criticism or acknowledged responsibility for PERSON death or a human rights violation in this respect .

On DATE , the President of the Section to which the case had been allocated decided , under Rule CARDINAL § CARDINAL ( b ) of ORG , that notice of the application should be given to the Government of GPE and that the Government should be invited to submit written observations on the admissibility and merits of the case .

On DATE the Government ’s observations of CARDINAL DATE were transmitted to the applicant ’s representative , who was requested to submit any observations together with any claims for just satisfaction in reply by QUANTITY DATE . The applicant did not respond .

By a letter dated DATE , sent by registered post , the applicant ’s representative was notified that the period allowed for submission of the applicant ’s observations had expired on CARDINAL DATE and that no extension of time had been requested . The applicant ’s representative ’s attention was drawn to LAW ( a ) of the LAW , which provides that the ORG may strike a case out of its list of cases where the circumstances lead to the conclusion that the applicant does not intend to pursue the application .

On DATE the applicant ’s representative replied enclosing a letter to the ORG dated DATE ( which had not been received ) . It stated that the applicant had “ no further comments to the application ” , that he agreed with the respondent ORG that the parties had settled the financial dispute , that there was no financial loss in the case and that “ due to the amicable settlement of the case the ORG did not admit [ to ] any responsibility for the death of PERSON . ” The settlement agreement had not covered his legal costs incurred in the LAW proceedings . He would therefore maintain his application .

The applicant submitted large quantities of documents relating to a number of previous complaints of police misconduct , involving allegations of excessive use of force , filed with a former police complaints authority – ORG ( ORG særskilte etterforsknngsorgan ) - notably against officers PERSON and PERSON This included the so - called “ GPE case ” where Officer PERSON had been charged for swearing ( “ svarte faen ” – normally meaning “ bloody hell ” , literally “ black devil ” ) in the presence of a coloured woman , perceived by her as a racist attack , but had been acquitted by ORG in DATE finding that it had been a spontaneous reaction to his having been bitten by the woman . PERSON had been expressing his frustration and his remark had not been specifically aimed at the woman or linked to the colour of her skin . The investigation into the woman ’s complaints of excessive use of force was apparently dropped on the ground of the state of the evidence .


The applicant is a NORP national , born in DATE and living in GPE . He is a maritime broker .

He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .

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

A.

In DATE , the applicant started a relationship with T. They began living together in DATE and became engaged to be married on DATE . In DATE it was confirmed that T was pregnant . According to the applicant , he and T had deliberately decided to found a family . In DATE their engagement and cohabitation ended .

On DATE , T married a person called NORP In DATE , T gave birth to a daughter called J.

The applicant claims to be the biological father of J. On DATE , on his own initiative , he recognised J as his child before ORG ( lastenvalvoja , barnatillsyningsman ) of GPE .

By virtue of section CARDINAL of the Paternity Act ( isyyslaki , lagen om faderskap ) , the matter of the approval of his recognition came before the ORG Judge ( kihlakunnantuomari , häradshövding ) of GPE . In his decision of DATE , the Judge noted that J was born in wedlock whereby followed a legal presumption of the husband ’s paternity . In the written proceedings T denied the applicant ’s paternity and maintained that she had already had a relationship with her husband around the time of J ’s conception . On the basis of these circumstances , the Judge found that the applicant was not J ’s father . According to section CARDINAL of LAW , no appeal lay from the Judge ’s decision .

The Judge ’s decision was written on a form designed for decisions concerning the recognition of paternity . On the back of the form was attached information for the man about , inter alia , the legal consequences of the recognition .

T refused the applicant ’s offer to pay for a voluntary DNA test . The applicant ’s attempts to see J have been fruitless , apparently due to T ’s opposition thereto .

On DATE , the applicant took legal action seeking a determination of whether he was the biological father of J or not . In doing so , he referred to LAW .

The mother T and the child J were summoned to ORG ( kihlakunnanoikeus , häradsrätten ) of PERSON . During the first hearing on DATE , they objected to the trial , stating that the applicant had no right of action . Furthermore , they based their objection on the failure to summon ORG ’s other guardian R to the court . Subsequently , R was also summoned .

On DATE , ORG held a second hearing in which it considered the matter of the applicant ’s right of action . Both parties submitted to ORG an expert opinion , respectively , concerning the issue of the applicant ’s legal standing . The parties disagreed over whether it was at all possible to start legal proceedings concerning only the determination of whether a person was a natural father or not , or whether the action should include a request for the establishment or annulment of paternity .

On DATE , ORG decided that the claim was not , as such , formulated in a manner that would be contrary to LAW . It found that LAW gave the courts an opportunity merely to declare whether a man and a child were , in reality , close relatives without , at the same time , establishing a legal father - child relation between them . However , ORG also found that , according to LAW , a man claiming to be a father did not have the right of action as regards paternity proceedings relating to a child born in wedlock . ORG considered Articles CARDINAL of LAW No . DATE to the LAW as well as LAW DATE . It concluded that the applicant had no right of action regarding the determination of whether he was PERSON father or not . ORG then dismissed the applicant ’s action without examining it on the merits .

The applicant appealed to ORG ( hovioikeus , hovrätten ) of GPE . He emphasised that the child ’s fundamental right to know her origins could not be denied on the grounds that the other biological parent had opposed it . From the applicant ’s point of view , the focus of his action was whether a woman , who had become pregnant while living in a relationship similar to marriage , had the right to prevent the examination of the paternity and judicially to kidnap the child on the formal ground that she had married somebody else . The applicant stated that he had only requested that the fact that he was the father of J be confirmed , without asking to establish a legal father - child relation . The applicant had a very strong need for the protection of law in the case . He argued that it was in the best interest of the child that the matter be solved before she herself reached DATE , thereby obtaining the right of action of her own . He requested that ORG judgment be quashed and the case be referred back to ORG .

On DATE , ORG rejected the applicant ’s appeal . It reached the same conclusion as ORG but its reasoning differed from that of the latter . ORG noted that the applicant had only requested that it be determined whether or not he had fathered the child born when T was married to PERSON paternity , as a fact separate from the kinship , did not in itself create any rights or obligations for the man or the child . Furthermore , the establishment of such a fact without the consent of the child ’s parents would disturb relations in the child ’s family . The best interests of the child did not require that biological paternity should be determined separately from the kinship . ORG found that the action was not based on LAW . Furthermore , since the action in reality included a request for the annulment of the presumption of the husband ’s paternity , it was contrary to the aim of LAW . ORG found that the applicant had no legal interest to have determined the biological paternity of J on any other grounds either . Lastly , ORG found that the international conventions referred to in ORG judgment did not include provisions pursuant to which the applicant would have had the right to the examination in issue .

The applicant requested leave to appeal . He referred , inter alia , to LAW .

On DATE , ORG ( korkein oikeus , högsta domstolen ) refused the applicant leave to appeal .

B. Relevant domestic law

The Paternity Act ( DATE )

LAW , General Provisions

Section CARDINAL , Presumption of Paternity on the basis of Marriage ( CARDINAL/CARDINAL )

The husband is the father of a child born during marriage . If the marriage is dissolved before the birth of a child due to the death of the husband , he is the father of the child if the date of birth of the child after the dissolution is such that the child could have been conceived during the marriage . However , if the mother has entered into a new marriage before the birth of the child , the latter husband is the father of the child .

Section CARDINAL , Establishment of Paternity by Recognition and Decision of the Court

When a man who was not married to the mother of the child at the time of the birth of the child wants to recognise his paternity , the provisions of chapter CARDINAL on the recognition of paternity shall apply to such recognition ( CARDINAL/CARDINAL ) .

The court shall establish that the man is the father of the child if it is shown that he had intercourse with the mother at the time of conception , and if , in view of the statements of the mother of the child and the man as well as all the other circumstances , it is deemed proven that the man has fathered the child . The provisions of chapter CARDINAL shall apply to the court proceedings for the establishment of paternity .

Section CARDINAL , Annulment of Paternity ( CARDINAL/CARDINAL )

The paternity of the husband may be annulled through recognition . The court may upon an action establish that the husband or a man who has recognised his paternity is not the father . The provisions of chapter CARDINAL shall apply to the annulment of paternity .

LAW , Recognition of Paternity

Section CARDINAL , Issuing a Statement of ORG

A man who wants to recognise his paternity shall notify a child welfare supervisor , a population registrar or a notary public in person that he is the father of the child . ...

Section CARDINAL , Approval by the Child

If the child is legally competent , the recognition shall be subject to his approval . ...

Section CARDINAL ( a ) , Approval by the Mother and Husband ( CARDINAL/CARDINAL )

If the recognition concerns a child referred to in section CARDINAL , the recognition shall be subject to the approval of the mother and the husband .

Section CARDINAL , Enforcement of Recognition

When a man has recognised his paternity , the child welfare supervisor responsible for the investigation of paternity under section CARDINAL , paragraph CARDINAL shall without delay send the documents on the recognition as well as the record of the investigation of paternity for approval to the competent district court judge or city court chairman or other legally trained court member appointed by the city court for this purpose ( CARDINAL/CARDINAL ) .

The judge shall approve the recognition if

ORG ) the recognition has been made in the manner provided in sections DATE , and

CARDINAL ) if there is no cause to assume that the man who has recognised his paternity is not the father of the child .

Chapter CARDINAL , Court Proceedings for the Establishment of Paternity

Section CARDINAL , Right of Action

The child shall have a right of action for the establishment of paternity .

The man shall have a right of action for the establishment of paternity if the judge has not approved the recognition on the grounds referred to in section CARDINAL , paragraph CARDINAL ( CARDINAL ) . The action shall be brought within DATE from the date on which the man was informed of the decision of the judge . However , the man shall not have a right of action if the recognition concerns a child referred to in section CARDINAL ( CARDINAL/CARDINAL ) .