Preliminary objection rejected (non-exhaustion);Violation of Art. 6;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

Mr PERSON , a retired lawyer ( avocat ) , was born in GPE in DATE , and his wife PERSON , a housewife , was born at GPE in GPE in DATE . They both had NORP nationality when they lodged their application but PERSON acquired NORP citizenship in DATE , and PERSON acquired it in DATE . They have been domiciled in GPE ( GPE ) since DATE .

ORG Following an extradition request made by GPE on DATE , PERSON was taken into custody DATE at FAC pending extradition . He was extradited on DATE and held in custody at FAC before being conditionally released on DATE under a ministerial decree of DATE which did not impose any restrictions on his movements ; he was thus able to rejoin his wife in GPE . In the normal course of events he will be eligible for permanent release on DATE .

ORG From DATE to DATE Mr Bricmont was the friend , lawyer and agent of PERSON of GPE , Count of PERSON and former Regent of GPE ( who died on DATE ) ; he was responsible for managing some of the Prince ’s assets , and on various occasions was assisted in this task by PERSON .

ORG Among other cases he dealt with was one concerning a former manager of the Prince ’s assets , Baron PERSON , who was prosecuted on various charges of forgery , uttering forged documents , breach of confidence and deception . It ended with a judgment by the GPE tribunal de première instance ( regional court of first instance ) on DATE , in which the court ruled that several of the charges were statute - barred and acquitted the defendant on the remaining charges .

Evidence had been taken from the Prince during the judicial investigation , but he had not received the necessary authorisation to appear at the trial .

Mr Bricmont also sold various items of the Prince ’s movable property and real estate . On DATE , the Prince concluded with Baron PERSON a settlement under which the Prince recovered large amounts of land . The properties were : ( i ) the PERSON estate , comprising land - owned by PERSON , a non - commercial partnership governed by NORP law , PERCENT of whose shares were owned by PERSON , a company incorporated under NORP law - and buildings in GPE ; and ( ii ) land at FAC , owned by PERSON , a non - commercial partnership under NORP law , CARDINAL of whose shares belonged to LOC , an institution incorporated under GPE law . In DATE , Baron PERSON also reassigned a debt which he was owed by the PERSON company .

ORG On DATE , PERSON , acting on the PERSON ’s behalf , negotiated the sale of the ORG estate through ORG , a sale which was subsequently not completed . Both earlier and subsequently , he allegedly effected sales through various ORG which resulted in the GPE estate becoming the property of the ORG and ORG . The Volpone Anstalt , which was transferred to LOC , was allegedly finally absorbed by ORG .

ORG On DATE , all relations between Mr Bricmont and the Prince ceased , and at ORG request the PERSON signed a general discharge covering all the managerial acts performed .

ORG The PERSON ’s new general agent , PERSON , who had been asked by the Prince to clarify the situation regarding the latter ’s property , requested PERSON to provide information about the movement of funds and shares belonging to the Prince ; in particular , he tried to trace what had become of the assets returned by Baron PERSON . When PERSON refused in a letter of CARDINAL DATE , PERSON became convinced that the PERSON ’s assets had come under the control of LOC , which belonged to third parties who could only be the applicants .

ORG On DATE , acting on behalf of the Prince , Mr PERSON lodged a criminal complaint with ORG alleging forgery of documents , uttering of forged documents , breach of confidence and misappropriation of assets . On DATE , the Prince joined the criminal proceedings as a civil party seeking damages ; he accused Mr Bricmont of having divested him of his fortune by making him sign a series of documents effecting transfers of assets . PERSON , it was claimed , had at the time explained to the Prince that the transfers were designed solely to protect his assets from creditors , the tax authorities and his statutory heirs by depersonalising them behind the veil of Anstalten - which supposedly belonged to him but in reality were under the control of the applicants .

ORG After questioning PERSON and PERSON , the investigating judge charged them on DATE . PERSON was questioned on several other occasions during DATE .

ORG Under Articles CARDINAL and CARDINAL of LAW , princes of the blood can " never be summoned as witnesses " , unless a special royal decree has authorised them to appear in court ; with that exception , their evidence is given in writing and taken by the President of ORG or the presiding judge of the tribunal de première instance , as the case may be . In accordance with these provisions , evidence was taken from the Prince by the President of ORG on DATE and DATE ( see paragraphs CARDINAL - CARDINAL below ) .

Mr and PERSON requested the investigating judge to arrange a confrontation with the Prince and to hear various witnesses including Mr PERSON and PERSON .

Mr PERSON ( who subsequently died ) was the manager of ORG , which were formed and had their registered address at the office of his employer , PERSON , the PERSON ’s lawyer in GPE . Mr PERSON was very actively involved with the PERSON estate in GPE as a chartered surveyor .

On DATE , the investigating judge questioned the Prince , and on DATE he held a confrontation - authorised by a royal decree of DATE ( see paragraph CARDINAL below ) - between the Prince and PERSON .

ORG At the request of a large number of journalists , the Senior Assistant Crown Prosecutor in GPE held a press conference in DATE . He confirmed that the Prince had lodged a complaint alleging misappropriation of funds ; and , in reply to questions , he added that the investigating judge had ordered a number of measures including searches , CARDINAL of which had been made at ORG home . He also disclosed that PERSON name was cited in the complaint . Several NORP DATE newspapers mentioned the prosecutor ’s statement .

ORG Once the investigation was completed , the file was put before the chambre du conseil ( ORG ) of the GPE tribunal de première instance , which held CARDINAL hearings DATE and DATE .

ORG On DATE and DATE respectively , PERSON and Mr Bricmont filed pleadings in which they applied for a declaration that the investigation was null and void . They submitted that the DATE press conference ( see paragraph CARDINAL above ) had infringed the rights of the defence , as had the inclusion in the criminal file of confidential correspondence between lawyers ( see paragraph CARDINAL below ) , the investigative measures based on that correspondence and the procedure for taking evidence from the Prince . In the alternative , they asked the chambre du conseil to stay the proceedings until various investigative measures had been taken .

ORG In an order of CARDINAL DATE the chambre du conseil held that it had not been shown that ORG conduct had been designed to predispose the witnesses and judges against the accused or that it had had that effect . It also ruled that there had been no breach of professional confidentiality and that evidence had been lawfully taken from the Prince , as a party seeking damages , without his taking an oath . As to the application for a stay , it considered that the requested investigative measures were not necessary at that stage .

The chambre du conseil accepted that there were extenuating circumstances in respect of the offences to which criminal penalties attached and committed the accused for trial by the tribunal de première instance . It endorsed the following charges against Mr Bricmont : CARDINAL counts of forgery and uttering forged documents , CARDINAL of deception , CARDINAL of misappropriation of assets , CARDINAL of handling and CARDINAL of breach of professional confidentiality ; and the following against PERSON : CARDINAL counts of forgery and uttering , CARDINAL of deception , CARDINAL of misappropriation of assets , CARDINAL of theft and CARDINAL of handling .

These counts included :

( a ) count ACARDINAL , against PERSON , of forgery and uttering , in respect of the sale to LOC of the shares of PERSON , a company incorporated under NORP law ;

( b ) count ACARDINAL , against PERSON , of forgery and uttering , in respect of the sale on DATE of GPE to LOC ;

( c ) count ACARDINAL , against both accused , of forgery and uttering , in respect of a deed of gift dated DATE ( see paragraph CARDINAL below ) ;

( d ) count ACARDINAL , against PERSON , of forgery and uttering , in respect of a contract creating a trust ( contrat de fiducie ) of DATE ;

( e ) count ORG , against PERSON , of forgery and uttering , in respect of the discharge from agency dated DATE ( see paragraph CARDINAL above ) ; and

( f ) count CCARDINAL , alleging that PERSON and PERSON misappropriated CARDINAL PERSON shares to the detriment of the Prince .

ORG On DATE , ORG of ORG declared the ORG appeal against the order of the chambre du conseil inadmissible . It held that in challenging the lawfulness of the investigating judge ’s appointment to deal with the case and the validity of the investigation , PERSON and PERSON had not raised a plea of no jurisdiction within the meaning of LAW , which was the only ground of appeal available to them .

ORG The applicants appealed on points of law against the order of CARDINAL DATE and the judgment of PERCENT .

On DATE , they each filed pleadings which contained the following passage :

" The appellants realise that the NORP judiciary in general will continue to refuse them a fair trial because the original complainant was formerly Regent of the GPE and because , secondarily , his associate PERSON , who joined the complaint in the proceedings before the chambre du conseil , has power over certain socialist personalities who in turn control a number of partisan appointments and promotions in the judiciary . "

ORG On DATE , ORG declared the appeal inadmissible because it had been made against an preliminary decision taken at the investigation stage , before the final decision within the meaning of LAW .

ORG At the beginning of the hearing the presiding judge of ORG had asked PERSON and PERSON whether they wished to maintain their allegations . Mr Bricmont agreed to delete the passage reproduced above , but PERSON refused to do so . Following this incident , which was entered in the record , the ORG summoned PERSON and PERSON to appear before the GPE tribunal de première instance on a charge of contempt of court in relation to the NORP judiciary . The court held that the charge was not made out and acquitted PERSON and PERSON in a judgment of DATE .

ORG At the end of proceedings during which , in particular , the defendants had each filed their pleadings on DATE , the GPE tribunal de première instance gave judgment on DATE .

ORG By way of preliminary observation , it stated that all the documents in the file disclosed " a clear and inexplicable want of diligence in seeking the truth " . It noted among other things the following " obstacles " :

( a ) the deficiencies in the investigation , the main examples being : the failure to have the accounts audited ; the failure to take evidence from PERSON , who had died in the meantime ( see paragraph CARDINAL above ) ; the failure to make any inquiries about PERSON and PERSON characters ; the failure to take evidence from PERSON and to arrange a confrontation with the Prince in respect of various charges ; the investigating judge ’s refusal , without giving reasons , to grant the PERSON application for production of the painting " Storm over GPE " ( " ORG " ) ( see paragraph DATE below ) ; the fact that the persons best placed to provide information had been neither summoned nor examined as witnesses , despite PERSON and PERSON formal request ; the failure to arrange a confrontation in respect of all the charges between the applicants and the civil parties , which the court had not been able to remedy - despite its wish and the applicants’ requests - because the civil parties ( who produced , to justify their failure to attend , medical certificates , which in the Prince ’s case had twice been confirmed by a court - appointed medical expert ) had not appeared in person at any of the hearings ;

( b ) the irregularity of the Prince ’s examination on DATE and DATE ( see paragraph CARDINAL above ) owing to the fact that , as a civil party giving evidence , he was not covered by Articles CARDINAL and CARDINAL of LAW , and the investigating judge accordingly had jurisdiction to question him . The court stated that although it was not empowered to quash those steps taken in the investigation which might be null and void , it had to have regard to the irregularities complained of by PERSON and refrain from basing its decision on any irregular proceeding ;

( c ) the fact that PERSON and PERSON had no access to the files until committed for trial as they were not in custody , and the investigating judge ’s absence from the hearings , which was difficult to justify ;

( d ) the failure of the Prince and Mr Mossoux to appear before the court ; and

( e ) the lack of credibility of each of the parties to the case .

ORG The court considered each of the charges on the basis of only those documents which had been lawfully seized or produced . It found that the prosecution was time - barred in respect of some of the charges and that others were not admissible . For the rest , it acquitted the defendants and in consequence declared that it had no jurisdiction to try the claims of the civil parties .

ORG PERSON and the prosecution appealed .

At the hearing on CARDINAL DATE the applicants filed pleadings in which , relying on the impugned judgment , they submitted that the investigation had been null and void .

ORG In its judgment of CARDINAL DATE the Seventh ORG of ORG of Appeal gave a ruling first on the GPE ’s proceedings against PERSON and PERSON and then on other criminal proceedings which ORG had instituted against the Prince on DATE for false accusation .

ORG As regards the former proceedings , ORG first dealt with the applicants’ submissions .

It held in the first place that neither Mr PERSON placing of various lawyers’ letters in the file nor the fact that the file contained a letter of CARDINAL DATE from PERSON to PERSON was a ground for declaring the proceedings null and void . No breach of professional confidentiality had been established against these CARDINAL lawyers , and the investigating judge had seized the aforementioned letter lawfully . ORG did not explicitly rule on an application in the alternative by the PERSON to have Mr Merkt heard as a witness on oath .

The court considered it regrettable that evidence had been taken from the Prince in an unusual manner , " probably out of consideration for the civil party , consideration which [ was ] not legally justified and which , moreover , appear[ed ] to have given rise to other abnormal but not unlawful circumstances " . It held , however , that the examinations were not such as to render the proceedings null and void and that the disputed statements had only the weight of mere information . It did not expressly rule on the applicants’ submissions that the refusal of the investigating judge and the chambre du conseil to arrange a confrontation with the Prince or to examine him at all had breached LAW .

Nor , in ORG view , were the proceedings vitiated by the breaches of professional confidentiality alleged against the prosecution at first instance on account of the DATE press conference , among other things ( see paragraph CARDINAL above ) . Admittedly , the investigating judge alone had authority to hold a press conference during a judicial investigation , but a breach of professional confidentiality could only entail nullity of proceedings in whole or in part if it had given rise to the judicial investigation or was the only thing which had made it possible to discover the guilty person or prove his guilt . On the other hand , a breach of professional confidentiality by a member of the judiciary or any other person bound by the confidentiality of the investigation in a broad sense could not flaw proceedings in which the evidence had been obtained lawfully ; to decide otherwise would compound the effects of a personal failing on the part of the representative of the ORG by wholly unjustifiable and possibly substantial damage either to law and order or to the victim or victims .

PERSON and PERSON had relied on CARDINAL other grounds of nullity to impugn the committal order of DATE : the failure to deal with their pleadings and the conduct of the investigating judge , who , they said , had merely made a " mini - report " at the first hearing by the chambre du conseil . ORG ruled that on the facts the first complaint was unfounded . It also dismissed the second complaint , as it did not find that there had been any infringement of the rights of the defence or of the principle that judicial proceedings must be adversarial , in view of the fact that the presiding judge of the chambre du conseil had not felt it necessary to recall the investigating judge as he was leaving the room after making his report .

The applicants had further claimed that ORG could not in law judge their case fairly owing to an incident which had occurred on DATE , following which they had been summoned to appear before the GPE tribunal de première instance for contempt of court ( see paragraphs CARDINAL and CARDINAL above ) . ORG held on this point that if this claim were well - founded in law , " it would be sufficient for any person desirous of evading any judicial proceedings " , whether civil or criminal , " to ensure impunity by committing a contempt of court directed at the NORP judiciary in general " .

ORG did not explicitly reply to the PERSON application for discovery of the gouache " Storm over GPE " ( see paragraph CARDINAL below ) .

ORG After considering the merits of the case , ORG set aside the judgment of CARDINAL DATE of the GPE tribunal de première instance . It found that some of the charges were statute - barred and held that others had not been made out , but it convicted on the following counts :

( a ) ACARDINAL , CARDINAL , ACARDINAL and ORG , against ORG ;

( b ) CARDINAL , against PERSON ; and

( c ) CCARDINAL , against both defendants .

As a consequence , ORG sentenced PERSON to DATE imprisonment , PERSON to DATE suspended for DATE and both of them to a fine of MONEY . In its ruling on the civil claim , it ordered Mr and PERSON to pay to the Prince provisional compensation of MONEY and to return certain company shares to him .

As to PERSON proceedings against the Prince , ORG acquitted the latter , holding that he was not guilty of false accusation ; and it accordingly declared that it had no jurisdiction to entertain Mr Bricmont ’s civil claim for damages .

ORG On DATE Mr and PERSON appealed on points of law against the GPE chambre du conseil ’s order of CARDINAL DATE and against ORG judgment of CARDINAL DATE . In pleadings dated DATE they relied on a large number of grounds .

They criticised ORG for , inter alia , not having dealt either with the complaint that the investigation was null and void owing to the fundamental deficiencies in it - which the tribunal de première instance had in their view summed up perfectly ( see paragraph CARDINAL above ) , even if it had not drawn all the legal inferences from them - or with their submissions concerning the presence in the criminal file of various confidential letters , including the CARDINAL of CARDINAL DATE ( see paragraph CARDINAL above ) .

They also claimed that ORG had not given reasons for its decision as required by law , as it had failed to find that the publicity given to the case by ORG at the DATE press conference ( see paragraph CARDINAL above ) and when making submissions in relation to another case infringed their defence rights and their right to a fair trial .

PERSON added that ORG had likewise not given reasons as required by law for its ruling that counts ORG and CARDINAL were not time - barred or for its decision that count CCARDINAL had been substantiated ( see paragraph CARDINAL above ) .

PERSON complained that she had not been asked to submit a defence to the charge of uttering which ORG had found to be made out against her .

ORG On DATE , Mr and PERSON filed supplementary pleadings . Notwithstanding the terms of the second paragraph of LAW , they considered that these pleadings were admissible having regard to the requirements of a fair trial and the rights of the defence . They complained of a violation of the principle of equality of arms due to the special procedure adopted for questioning the Prince and they developed their plea based on the nullity of the proceedings ( failure to arrange a confrontation , the press conference , proceedings for contempt , etc . ) .

ORG dismissed the appeal on DATE without taking into account the supplementary pleadings , which had been filed outside the time - limit provided for in the second paragraph of LAW .

It declared the appeal inadmissible in so far as it again ( see paragraph CARDINAL above ) related to the order made on DATE by the chambre du conseil of the GPE tribunal de première instance , on the ground that in criminal cases a party could not appeal to ORG twice against the same decision .

In so far as the appeal was directed against ORG judgment of CARDINAL DATE , ORG ruled , firstly , on the plea that the investigation was null and void . When listing , on appeal , the irregularities noted in the judgment at first instance , the applicants had confined themselves to illustrating their complaint that the court below , having failed to draw all the inferences from the situation they had described , had infringed LAW because it was impossible for ORG to " separate the investigative measures which could be accepted from those which [ had to ] be ruled inadmissible , as they [ were ] intertwined with one another to the point of forming an incoherent whole " . In ORG view , ORG had , when closely scrutinising each of the charges , implicitly but definitely decided that the investigation was not incoherent as alleged .

ORG went on to hold that in the impugned judgment - and it cited the reasons given - ORG had dealt with the argument relating to the confidentiality of the letter of CARDINAL DATE .

As regards the argument concerning the publicity given to the case by ORG , ORG held that it could not infer any violation of the rights of the defence or of LAW ( article DATE ) of the LAW from the mere fact that the prosecution had allegedly breached professional confidentiality .

Moreover , in order to assess whether a case had been heard fairly , the trial had to be looked at as a whole ; in view of the fact that PERSON and PERSON had had the opportunity during the proceedings before the trial courts to challenge freely the evidence adduced against them by the prosecution , they could not claim to be victims of an infringement of the rights of the defence or of their right to a fair trial within the meaning of the LAW .

As to the pleas based on the failure to give reasons for the convictions on counts ACARDINAL , CARDINAL and CCARDINAL ( see paragraph CARDINAL above ) , ORG rejected them as lacking any legitimate interest : the sentence passed on PERSON was justified by the other charges which had been proved against him . Nor did the court find any infringement of PERSON defence rights in regard to count ACARDINAL .

Lastly , ORG held that the appeal on points of law which ORG had also lodged as a civil party ( see paragraph CARDINAL in fine above ) was inadmissible , as Mr Bricmont had apparently not had notice of it served on the Prince as the party being directly cited .

ORG On DATE , the Prince wrote to the investigating judge that he wished to give evidence to the President of ORG . In a letter DATE the investigating judge asked the President to take evidence from the Prince , in accordance with LAW ( see paragraph CARDINAL above ) , and he attached a list of some CARDINAL questions .

ORG On DATE , the President took unsworn statements from the Prince . A record was made solely of the replies to the aforementioned questions .

ORG On DATE , the investigating judge informed the President of ORG that he thought it necessary for the Prince to be examined a second time , and he drew up a new list of CARDINAL questions . The PERSON gave evidence - again unsworn - on DATE , and a record was made on this occasion likewise .

ORG By a royal decree of DATE , which referred to LAW ( see paragraph CARDINAL above ) , the Prince was authorised to appear as complainant and civil party before the investigating judge of the tribunal de première instance . The examination took place on DATE and related to counts CARDINAL and ACARDINAL ( see paragraph CARDINAL above ) . The Prince also intimated that he wished to clarify a point in his statement of CARDINAL DATE concerning a will in PERSON favour . He said :

" There has been a misunderstanding ; it is not true that it was PERSON who added a nought to the figure intended for him . I was the one who altered the amount at his request . I wrote CARDINAL instead of CARDINAL .

You have put before me annexe no . CARDINAL to document CARDINAL in the ‘ Investigation’ bundle ; that is the document in question .

It was PERSON , then , who was appointed executor of the will at his own request . "

ORG The investigating judge also arranged a confrontation between the Prince and Mr Bricmont , on DATE . He put before them , among other things , the deed of gift of CARDINAL DATE ( see paragraph CARDINAL below ) and reminded them of their statements on the subject , which they confirmed . The matter of the will was again discussed .

ORG In the proceedings before the chambre du conseil Mr and PERSON claimed that the investigation was null and void , in particular for having infringed the rights of the defence on account of the procedure adopted for taking evidence from the Prince . They asked the court to stay the proceedings pending implementation of various investigative measures including the examination of the Prince , and further confrontations between them and him , on the other charges ( see paragraph CARDINAL above ) .

ORG In its order of CARDINAL DATE the chambre du conseil considered that the impugned examinations had been held in accordance with LAW and that the measures sought by PERSON and PERSON were not necessary for it to be able , in full knowledge of the facts , to give its decision on the application for a committal for trial ( see paragraph CARDINAL above ) .

ORG A royal decree of CARDINAL DATE , issued under the aforementioned LAW , authorised the Prince to appear as a witness before the GPE tribunal de première instance , where the trial was due to open on DATE . On DATE , PERSON , the PERSON ’s doctor , and PERSON , a hospital physician who was consulted , stated that the PERSON ’s general physical and psychological condition did not permit of his appearing at the court hearings . They considered that the severe psychological and emotional stress to which he would be subjected would overtax him and that he was no longer in a fit state to withstand it .

At the request of ORG , ORG appointed a medical expert on DATE to verify that the Prince ’s health was as described . PERSON , the expert appointed , stated in his report of DATE ( passage translated from the NORP ) :

" He is an old man , fairly tall and rather undernourished . He gives an impression of frailty and vulnerability .

When questioned , he stated that he suffered from asthma , chronic bronchitis , osteo - arthritis and a hiatus hernia which compelled him to sleep in a sitting position . He also said that he easily became impatient in any situation that was at all stressful and that he then tended to react like someone who was panicking . The news of the medical expert ’s visit had in itself sufficed to cause a reaction of this kind . Similarly , in such a situation , he had attacks of tachycardia , lost his ability to react appropriately and was completely at a loss .

When he had to travel he had himself driven by car , as he himself had given up driving DATE .

He walks slowly and hesitantly , limping slightly and leaning on a stick in his right hand .

He speaks in a confidential , emotional , friendly manner which is occasionally slightly naïve and childlike , with a weak , hoarse voice , and coughs from time to time .

He is lucid but has difficulty concentrating for any length of time , occasionally repeats himself and often has to search for words . If in this way he loses the thread of the conversation , he becomes nervous , goes red , loses his self - assurance and seeks support from his listener .

In short , he is an old man growing weak , who is living for the time being in a protective environment , in a fragile , delicate state of balance . It is clear that the slightest stress overtaxes him . At the end of a conversation he is visibly tired .

For these reasons I conclude that his physical and psychological resistance has become insufficient for him to be heard as a witness at the hearing and accordingly precludes him from being so heard . "

ORG Shortly before the end of the trial , ORG requested a further opinion from the forensic medical expert . In a report of DATE PERSON recorded that the state of the Prince ’s health had not improved since the previous medical examination .

ORG In their pleadings of DATE ( see paragraph CARDINAL above ) PERSON and PERSON asked the GPE tribunal de première instance to stay the proceedings until the PERSON ’s health was restored , so that a confrontation with him could be arranged and he could be examined as a witness . The court refused this application in a judgment given on DATE , holding that , having regard to the Prince ’s poor state of health , continuing the trial in his absence could not be deemed an unfair trial contrary to LAW . Mr and PERSON appealed , but subsequently withdrew their appeals .

ORG In its judgment of CARDINAL DATE ( see paragraphs DATE above ) the GPE tribunal de première instance included among other deficiencies in the investigation the failure to arrange a confrontation between the applicants and the Prince on all the charges ; despite its earnest wish , it had not been able to remedy this situation as , on the strength of medical certificates , the Prince had not appeared in person at any of the hearings . The court also held that the examinations of the Prince by the President of ORG on DATE and DATE were irregular , as the Prince had been heard as a civil party , not as a witness , so that Articles CARDINAL and CARDINAL of LAW did not apply and the evidence should have been taken by the investigating judge . Admittedly , the court had no jurisdiction to set aside any investigative measures that might be null and void , but it had to have regard to the irregularities complained of by PERSON and to grant his request that it should not base its decision on any irregular proceeding .

ORG In their appeal pleadings of CARDINAL DATE ( see paragraph CARDINAL above ) PERSON and PERSON complained in particular of the manner in which evidence was taken from the Prince on DATE . PERSON also criticised the investigating judge and the chambre du conseil for having refused to arrange a confrontation between him and the Prince and to question the Prince on all the charges ; they had , in his view , thus infringed LAW ( d ) ( article CARDINAL - CARDINAL-d ) of the LAW . He also relied on LAW ) on the ground that the prosecution had not requested , in accordance with the aforementioned LAW , a royal decree authorising the Prince to appear before ORG as a witness .

ORG On DATE , Mr and PERSON had the following entered in the record of the hearing : " The prosecution stated that it was willing to accept as true that the Baron PERSON was recently walking with the Count of PERSON in FAC .

ORG In its judgment of CARDINAL DATE ( see paragraphs CARDINAL above ) ORG deemed it regrettable that evidence had been taken , on DATE and DATE ( see paragraphs CARDINAL - CARDINAL above ) , from the Prince in an unusual manner , " probably out of consideration for the civil party , consideration which [ was ] not legally justified and which moreover appear[ed ] to have given rise to other abnormal but not unlawful circumstances " . It held , however , that this did not amount to a ground for declaring the proceedings null and void ; in particular , it noted that :

" ... as the Count of PERSON was not questioned as a witness , since he was a complainant , or moreover by the judge who would have had jurisdiction if he had been examined as a witness , the disputed statements have only the weight of mere information , just as if the Count of PERSON had provided the same explanations in a formal letter to the investigating judge or orally to a police officer , or again exactly as if the investigating judge had taken evidence from him without administering an oath , which he is entitled to do and which is to be recommended in respect of a civil party . "

ORG In a letter of CARDINAL DATE Mr PERSON gave the Senior Assistant Crown Prosecutor the name of certain people who might be able to provide particulars of the case . CARDINAL of them were summoned , including PERSON ( see paragraph CARDINAL above ) .

ORG In their pleadings filed with the chambre du conseil ( see paragraph CARDINAL above ) PERSON and PERSON applied for Mr PERSON and PERSON to be examined ( see paragraph CARDINAL above ) . The chambre du conseil did not , however , consider it necessary to hear evidence from those persons in order to decide whether the applicants should be committed for trial .

ORG In a formal notice sent to ORG following PERSON death and served by bailiff on DATE , PERSON and PERSON requested that letters rogatory should be issued with a view to having PERSON examined on a statement he had signed on DATE concerning count ACARDINAL ( see paragraph CARDINAL above ) . This statement , which was filed with the chambre du conseil , clarified the content of CARDINAL others , which were dated DATE and had been included in the criminal file . In it Mr PERSON described a conversation he claimed to have had with the Prince in DATE , in which the PERSON allegedly stated that he had received a sum of MONEY as the sale price for his rights in the PERSON partnership , which owned the PERSON estate ( see paragraph CARDINAL above ) . The formal notice served by the bailiff read as follows :

" During the judicial investigation into [ Mr Bricmont ] ... no evidence was taken from the CARDINAL persons who , together with [ Mr and PERSON ] and the complainant , were the vital witnesses of the main facts which were to be set out in the prosecution ’s application of DATE for committal for trial , namely Mr PERSON , a non - lawyer colleague of Mr PERSON of ORG , and PERSON , a chartered surveyor and consultant to the courts in GPE ;

All applications to the chambre du conseil by [ Mr and PERSON ] for additional investigative measures were rejected , as the prosecution was opposed to any examination of the witnesses PERSON and PERSON ;

Mr PERSON has died , and his death makes it much more difficult to establish the truth and , consequently , for [ Mr and PERSON ] to defend themselves ;

[ Mr and PERSON ] DATE run a considerable risk of being deprived of the vital evidence of Mr PERSON if he is not very soon examined under letters rogatory , as he is elderly and has just overcome serious health problems ;

Mr PERSON must be asked to confirm the terms of his statement of CARDINAL DATE before a judicial authority who will also put to him any questions necessary for establishing the truth and who will at the same time be able to report to the office of ORG on PERSON professional and personal reputation ;

The said statement of CARDINAL DATE has a direct bearing on the merits of the charge of forgery ( " faux intellectuel " ) allegedly founded on the receipt signed by ORG on DATE , a charge on which the subsequent charges depend ;

It is necessary as a matter of urgency to remedy this shortcoming in the investigation consisting in refusing PERSON and PERSON request for an examination of the CARDINAL witnesses who , because of the extent of their exclusive personal knowledge of vital facts , could have shown the complainant ’s accusations to be baseless ... ;

The application is based on LAW ( d ) ( article CARDINAL - CARDINAL-d ) of LAW ;

In the applicants’ submission , an examination of PERSON would have enabled them to clear themselves of the CARDINAL main charges against them found to be established , namely counts ACARDINAL , ACARDINAL and CCARDINAL ( see paragraph CARDINAL above ) .

ORG On DATE , the public prosecutor in ORG gave effect to letters rogatory issued by the office of ORG , who had requested that PERSON should be examined concerning : " ( CARDINAL ) the relations he [ had ] had and [ might ] still have with PERSON and PERSON ; and ( CARDINAL ) the content of the appended ‘ PERSON " .

When examined by the LOC police on DATE , PERSON answered the first question and confirmed his statement of CARDINAL DATE .

ORG In its judgment of CARDINAL DATE ( see paragraphs DATE above ) the GPE tribunal de première instance noted among other deficiencies in the investigation the failure to take evidence from Mr PERSON - who had died since the investigation had been completed - and the fact that the persons best placed to provide information had been neither summoned nor examined as witnesses , despite PERSON and PERSON formal request .

ORG In their appeal pleadings of CARDINAL DATE ( see paragraph CARDINAL above ) PERSON and PERSON applied for Mr Merkt to be examined under oath ( see paragraph CARDINAL above ) , " in order to discover the date on which and the circumstances in which the photocopy of the confidential letter which his colleague and client PERSON had sent him on DATE [ had come ] to leave his chambers " ( see paragraph CARDINAL above ) . Relying on DATE ( article CARDINAL ) of the LAW , they maintained that in so doing they were not abusing their defence rights , as Mr Merkt was the only person from whom they were asking the court to take evidence .

ORG In DATE , the applicants produced a fresh statement by PERSON , dated DATE , in which he said that he was at the judicial authorities’ disposal to confirm on oath the content of his earlier statements ( see paragraph CARDINAL above ) .

ORG In its judgment of CARDINAL DATE ( see paragraphs CARDINAL above ) ORG did not expressly rule on the application for PERSON to be examined but when considering the ground of nullity allegedly arising from the presence of the letter of CARDINAL DATE ( see paragraph CARDINAL above ) in the file , held that no breach of professional confidentiality had been made out against Mr Merkt ; it expressed no view on the weight to be attached to Mr PERSON ’s statements .

ORG On DATE , the investigating judge in GPE sent a telegram to his colleague at the tribunal de grande instance at FAC ( GPE ) , requesting him to issue a warrant to search an estate at ORG occupied by PERSON and PERSON and seize on those premises any documents relating to CARDINAL companies and GPE . On DATE , he telegraphed the investigating judge in GPE asking him , firstly , to have the home of PERSON , an accountant who had succeeded PERSON , searched and all the shares of a particular company and the documents relating to CARDINAL ORG seized , and , secondly , to obtain from Mr Merkt the books , files and correspondence relating to various ORG .

On DATE , the investigating judge in GPE duly made an order to this effect . PERSON letter of CARDINAL DATE to PERSON ( see paragraph CARDINAL above ) was seized on this occasion .

On DATE , the investigating judge in GPE sent a similar telegram to his colleague at the tribunal de grande instance in ORG . In another telegram on DATE , he asked his colleague in GPE to request ORG and ORG to provide a statement of all the transactions on accounts opened in the names of the applicants or of a particular company . On DATE , he issued further letters rogatory for dispatch to the investigating judge in GPE , asking the latter to have documents seized and inquiries made at ORG in GPE in connection with an allegedly forged document dated DATE which certified the payment to the Prince of the purchase price of some furniture .

These various searches did not reveal the whereabouts of the books of the ORG .

ORG In the proceedings before the chambre du conseil PERSON and PERSON applied for evidence to be taken from senior officials of the GPE branch of ORG , but without success .

ORG In its judgment of CARDINAL DATE ( see paragraphs DATE above ) the GPE tribunal de première instance noted among other deficiencies in the investigation the failure to have any audit carried out in respect of the transactions made on the instructions of or in the name of the Prince and the applicants ( the numbers of various NORP or foreign bank accounts of theirs were in the file ) . As to ORG , it appeared that an inspection could well have been made of their accounts - the documents seized included many statements , so that it would have been possible to approach the banks in order to find out what transactions had been made on these accounts , at least in so far as the case related to them . At all events , there was nothing to show the contrary . At the same time , the court found that PERSON had made " the great mistake " of failing to keep any systematic , chronological accounts of the sums he received or paid on the PERSON ’s behalf and of sometimes not answering precise questions put by the court .

ORG In their appeal pleadings Mr and PERSON mentioned the failure , noted by the trial court , to carry out an audit and relied on it in order to argue that the investigation was null and void on account of the deficiencies in it . In response to the criticisms the court had made of him , PERSON said he considered it unacceptable that the Prince , not content with refusing to assist in establishing the truth , should blame his opponent for the way in which he had noted transfers of funds effected without any bank records being made at the PERSON ’s own request .

ORG In its judgment of CARDINAL DATE ( see paragraphs CARDINAL above ) ORG did not rule expressly on the submissions which the applicants based on the nullity of the investigation . In declaring charges CARDINAL and ORG to have been made out , it had regard , inter alia , to the fact that Mr Bricmont had not produced any book - keeping documents . In order to determine the sentence , it noted lastly that the written pleadings revealed that the Prince wished as far as possible to conceal the assets of his estate from the tax authorities , his creditors and his statutory heirs , and that Mr Bricmont had taken advantage of this to attempt to divest him of his fortune .

ORG On DATE , PERSON forwarded to the investigating judge a copy of a document dated DATE , which read as follows :

" I , the undersigned Count of PERSON , GPE , hereby give Mr PERSON of ORG , failing whom PERSON , power to dispose of the companies and ORG that I own or control . "

He claimed that the Count of PERSON thereby recognised the existence of " gifts from hand to hand " , and that by the operation of LAW the charges of misappropriation of shares of or documents of title to companies or Anstalten were therefore deprived of a vital element . In a letter of DATE PERSON told the investigating judge that the gift had in reality been made principally to his wife .

ORG On DATE , PERSON obtained an order from the presiding judge of the court in ORG appointing a bailiff , Mr PERSON , to draw up an inventory of the contents of a château in which , until DATE , she had had the use of an office as chairman and managing director of Sansovino , a limited company , and as general manager of PERSON , a non - commercial property partnership . Mr PERSON ’s intervention was unconnected with the criminal proceedings pending in GPE ; it was prompted by PERSON desire to have an inventory of her furniture and other articles in the custody of the court - appointed administrator of the PERSON company , Mr PERSON . The bailiff ’s task therefore consisted in recording that there were a number of pictures among other things , but did not include noting the text of any dedications on them .

On DATE , Mr PERSON recorded that in a locked cabinet in the administrative office there were CARDINAL pictures signed by the Count of PERSON and dedicated to PERSON and PERSON , including a gouache " Storm over GPE " dated DATE .

ORG After her husband had been questioned on DATE about the deed of gift of CARDINAL DATE , PERSON wrote to the investigating judge on DATE . She thought it absolutely essential that he should be aware of the text of the dedication of CARDINAL DATE on the gouache " Storm over GPE " , which showed that the Prince was well - disposed towards her . PERSON added :

" ... it would be advisable for you to submit it to the Prince , who will be able to tell you if he indeed wrote it . If so , he will also be able to tell you whether he is giving up , in the present case , his false insinuations about imaginary uses of documents signed in blank .

Attached is a report of DATE by a bailiff , Mr PERSON of GPE , who established after discussion with Mr PERSON that the CARDINAL pictures in question are deposited in my office at FAC . They are in a metal cabinet which , like the office , is locked . I have the keys of the cupboard and of the office , but do not have any access to them . Access has been forbidden me only by Mr PERSON without any court decision but with threats of physical restraint by the caretakers and Mr Busuttil if I attempt to enter and regain possession of the articles belonging to me . Mr PERSON ’s behaviour is all the more unwarranted as nobody disputes my ownership of the articles in question .

I accordingly urge you to send letters rogatory to ORG département in order to secure the return to me or , failing that , the seizure of the aforementioned personal articles which I consider vital to my defence and which are in the house at Sansovino . In particular : letters , notes , photos and pictures .

It is not necessary to have the locks of the furniture and premises of the house forced since Mr PERSON and I each have some of the keys .

It will be sufficient for the NORP police responsible for executing the letters rogatory to ask Mr PERSON and myself to accompany them to the LOC in order to open the building and the furniture for them and indicate to them the items whose return I am seeking both for your information and for the needs of my defence . "

ORG In the proceedings before the chambre du conseil Mr and PERSON again applied for production of the text of the dedication , but to no avail .

ORG In its judgment of CARDINAL DATE ( see paragraphs DATE above ) the GPE tribunal de première instance mentioned among other deficiencies in the investigation " the refusal by the investigating judge , without giving any reasons , to grant the GPE application to have the text recorded and an identification made of the author of the dedication on the gouache ‘ Storm over GPE , which was at FAC in the possession of the interim administrator Mr PERSON and whose dedication they claimed gave credence to their version of events " . When considering count ACARDINAL , relating to the deed of gift of CARDINAL DATE ( see paragraphs CARDINAL and CARDINAL above ) , the court thought it regrettable that the " investigative measure ( consisting in issuing letters rogatory ) [ had ] not [ been ] carried out as the rights of the defence dictated it should have been " ; the court found it " equally regrettable that the defendants [ had ] not given , albeit from memory , the content of this dedication " .

ORG In their appeal pleadings of CARDINAL DATE ( see paragraph CARDINAL above ) PERSON and PERSON applied , in respect of count ACARDINAL , for an order that the civil party should produce the gouache " Storm over GPE " as " the dedication , dated DATE , would establish that this gift [ had ] indeed [ been ] intended as such by the donor " .

In its judgment of CARDINAL DATE ( see paragraphs CARDINAL above ) ORG did not give an express ruling on this point . It did , however , refer to the pleadings of the civil party , the Count of PERSON , which stated that the application was a " diversionary attack " .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Otto Mallmann;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . ORG ( “ the Government ” ) are represented by their Agent , PERSON , PERSON , of ORG .

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

The applicant brought proceedings in DATE against a hospital before ORG for alleged medical malpractice which had caused complete and irreversible paraplegia ( PERSON ) at the age of thirteen , claiming damages of around MONEY ( ORG ) . On DATE , the parties entered into a revocable friendly settlement ( widerruflicher PERSON ) before ORG , according to which the hospital agreed to pay MONEY ( ORG ) to the applicant . The applicant , who was represented by his lawyer , was not present during the conclusion of the settlement and did not revoke the settlement within the provided period of DATE , i.e. until DATE . Neither did the applicant ’s lawyer , although the applicant claimed that he instructed him to revoke the settlement .

In DATE , the applicant brought proceedings against his former lawyer for damages . The major legal issue during the proceedings was whether the applicant had instructed the defendant to revoke the settlement . It was undisputed between the parties that the applicant had handed over a written statement to the defendant on DATE in which he asked him to revoke the settlement . The defendant had read the statement and subsequently returned it to the applicant . In the following conversation , the defendant had asked the applicant and his mother to reconsider their decision and inform him by CARDINAL DATE whether or not he should revoke the settlement . The applicant ’s mother then called on DATE the defendant ’s legal office and talked to his secretary . The content of the conversation was disputed between the parties .

On DATE , ORG , in a judgment on the basis of the cause of action ( ORG ) , allowed the applicant ’s claim . It found that the applicant had instructed the defendant to revoke the settlement on DATE . Therefore , the time - limit set by the defendant to inform him whether or not to revoke the settlement had no legal basis . In any event , the applicant had called the defendant ’s legal office on CARDINAL DATE in order to explain that he did not agree with the settlement . This was also supported by a letter which the defendant had sent to the applicant on CARDINAL DATE .

On DATE , ORG set aside the judgment of ORG and dismissed the applicant ’s claim . It found that the applicant had failed to prove that he instructed the defendant to revoke the settlement . ORG reasoned that the applicant had given such an instruction on DATE , but that he had subsequently agreed to reconsider his decision . After having heard the applicant ’s mother and the defendant ’s secretary as witnesses regarding the telephone conversation on CARDINAL DATE , ORG found that the applicant ’s mother had not given an instruction to revoke the settlement when calling the defendant ’s legal office on DATE .

On DATE , the applicant filed his appeal on points of law with ORG . After the applicant had asked for an extension of the time - limit on CARDINAL occasions , he submitted his statement of grounds for appeal ( PERSON ) on DATE . ORG dismissed the applicant ’s appeal on points of law on DATE .

On DATE , ORG refused to admit the applicant ’s constitutional complaint .


András Sajó;Françoise Tulkens;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque

NORP The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . She was represented before the Court by Ms PERSON and PERSON , lawyers practising in GPE .

ORG ( “ the Government ” ) were represented by their Agent .

The facts of the case , as submitted by the parties and as they appear from the documents submitted by them , may be summarised as follows .


The applicant , PERSON , is a NORP national of NORP origin , who was born in DATE and currently lives in the GPE . He is represented before the ORG by PERSON Later , a lawyer practising in GPE . The respondent Government are represented by their Agents , Mr R.A.A. PERSON and PERSON , of ORG .

On DATE the applicant left GPE . He arrived in the GPE on DATE where , on DATE , he applied for asylum or , alternatively , a residence permit on humanitarian grounds . On DATE , assisted by an interpreter , he was interviewed by an official of ORG about the reasons for his asylum request . By letter of CARDINAL DATE , the applicant submitted his corrections and additional remarks to the record of this interview .

The applicant stated that he had left his hometown for GPE on DATE . He had been apprehended and questioned by the authorities in DATE on suspicion of having transported ORG members . He was released after having convinced the authorities of his innocence . He further stated that , on CARDINAL occasions DATE , he had been apprehended and questioned by the authorities in relation to his son ’s refusal to do military service , and that he had been beaten during interrogation . However , this had not been his reason for leaving . He had left because he was being sought by the authorities . He explained that , together with another person , he had owned a bus , and on CARDINAL occasions - i.e. in DATE and DATE respectively - the ORG had forced him to transport ORG members . The ORG members he had been forced to transport in DATE had carried out a bomb attack on the PERSON Anti - Terror Branch office . According to the applicant , the authorities were looking for him since he had transported ORG members in DATE . As he had already been suspected of a similar act in DATE , the applicant decided to flee .

On DATE the applicant filed an objection ( bezwaarschrift ) in which he complained that his request for asylum or a residence permit had not been determined speedily . On DATE he submitted the grounds for his objection .

On DATE the ORG Secretary of ORG ( ORG ) accepted the applicant ’s objection that his request for asylum or a residence permit had not been determined speedily , but rejected the applicant ’s request . The ORG Secretary noted that the applicant had declared , inter alia , that together with another person , he had owned a bus and that on CARDINAL occasions - i.e. in DATE and DATE respectively - the ORG had forced him to transport ORG members . Furthermore , DATE and his departure from GPE the applicant alleged that he had been questioned and beaten by NORP officials on QUANTITY occasions in relation to his son ’s evasion of military service , that he did not belong to or sympathise with any prohibited organisation in GPE and that he had not undertaken any activities against the NORP authorities . The ORG Secretary held that the mere fact of belonging to the NORP minority in GPE was an insufficient ground for granting asylum and that it had not appeared that the applicant had attracted the negative attention of the NORP authorities . Moreover , as the applicant had stated that the reason for his departure from GPE was not the fact that he had been questioned on QUANTITY occasions about his son , but that he feared that he was wanted by the NORP authorities for having transported ORG members , the ORG Secretary held that the applicant ’s fear remained entirely unsubstantiated .

The ORG Secretary further decided that the applicant was not to be allowed to remain in the GPE pending the examination of a possible objection against this decision .

On DATE the applicant filed an objection against the decision of DATE . On DATE , he filed a request with the President of ORG ( arrondissementsrechtbank ) for an injunction to suspend his expulsion pending the outcome of the proceedings on the objection .

On DATE the ORG Secretary reminded the applicant that he was not allowed to await the outcome of the objection proceedings in the GPE . The applicant ’s request for an injunction was heard on DATE . The court ’s examination of the request was deferred for an indefinite period , given that uncertainties had arisen with respect to the position of NORP .

The applicant ’s objection against the decision of DATE was rejected on DATE by the ORG Secretary . The latter stated that the applicant remained eligible for expulsion .

On DATE , the applicant filed an appeal with ORG sitting in GPE . The applicant further requested this court to issue an injunction against his expulsion pending the appeal proceedings .

In its judgment of CARDINAL DATE , ORG in GPE rejected the applicant ’s appeal and request for an injunction . It held , inter alia :

“ ... There are no concrete indications that the NORP authorities will persecute the < applicant > upon his return . It is true that , in DATE , he had been detained for DATE on suspicion of having transported terrorists , but was able to convince the authorities of his innocence . He was later unconditionally released . It has not appeared nor has it been found established that he has encountered further problems in this connection .

< The applicant > further states that since DATE he was questioned CARDINAL times in relation to the refusal of his son PERSON to perform his military service and that on the last occasion on DATE the authorities had given him DATE to report on his son . He did not do so ; nor did he await the consequences of his failure to do so since he left for GPE .

In addition < the applicant > states that in DATE and DATE he had been forced to transport ORG fighters . During his stay in GPE , < the applicant > learned that in the meantime the authorities had become aware of this . His wife and children were questioned by the authorities because they were looking for < the applicant>. His children would have been ill - treated during those interrogations .

Whatever may be the case , < the applicant > has not made out a plausible argument that he is in fact wanted by the NORP authorities for his alleged activities . There is no concrete information about his alleged persecution . The letters of family members submitted by < the applicant > can not serve as such . These letters can not be regarded as emanating from an objective verifiable source . Noting the fact that the applicant has already been residing in the GPE for a certain period of time , he could be expected to have substantiated his alleged fear of persecution by way of documents or other means . He has not done so , and that seriously undermines the plausibility of his allegations .

... it has not been established that the applicant has attracted the negative attention of the NORP authorities . ... This leads to the conclusion that < the applicant > has not made out a plausible case that he can claim with justification admission to the GPE as a refugee .

... From what has been considered in relation to the applicant ’s request for asylum , it follows that ... in < the applicant ’s > case no facts or circumstances have appeared which can be considered grounds on which it could be held that he runs a real risk , if forcibly expelled to GPE , of being subjected to treatment contrary to LAW or comparable provisions in other treaties ; he is not eligible , accordingly , for a residence permit on those grounds . ”

On DATE an order for the applicant ’s expulsion was issued to ORG ( vreemdelingenpolitie ) in the applicant ’s place of residence .

The applicant ’s opposition ( verzet ) against the judgment of CARDINAL DATE was rejected on DATE by ORG sitting in GPE . The applicant ’s further request for an injunction against his expulsion pending the outcome of the opposition proceedings was rejected on DATE .

On DATE the applicant left his then place of residence , which was known to the immigration authorities , for an unknown destination . On DATE , after a police officer had reported a public order disturbance , the applicant was apprehended and detained so that his residence status could be checked . When it appeared that his asylum request had been rejected , the applicant was placed in GPE detention with a view to his expulsion . On DATE the applicant filed a second request for asylum or , alternatively , a residence permit on humanitarian grounds . On DATE he filed an appeal with ORG against the decision to place him in GPE detention .

On DATE the applicant was interviewed by an official of ORG about the reasons for his second asylum request . On that occasion the applicant stated that he based his second request on the same grounds as those advanced in support of his first asylum request .

On DATE ORG rejected the applicant ’s appeal against the decision to place him in GPE detention . It noted that the applicant ’s second asylum request was lodged after he had been placed in GPE detention . The court held that prima facie the request did not appear to have much chance of success . Noting that the applicant did not hold either a valid residence permit or a valid proof of identity and that he did not have sufficient means of subsistence , the court ruled that GPE authorities’ fears that the applicant would seek ways to prevent his expulsion could not be considered unfounded . It noted in this connection that his presence in the GPE was illegal and that he had removed himself from the control of the immigration authorities . The court concluded that his placement in GPE detention had been in accordance with the law . It further did not find it established that there were no prospects for the applicant ’s expulsion within a reasonable time . Given that the applicant could not be expelled pending a determination by the ORG Secretary on the applicant ’s second asylum request and that , according to the relevant statutory provision , this decision had to be taken within DATE , ORG held that in these circumstances it was not unreasonable to prolong the applicant ’s placement in GPE detention until the decision had been taken .

On DATE the ORG Secretary rejected the applicant ’s second request for asylum and ruled that the applicant was not allowed to await the outcome of a possible appeal in the GPE . On DATE the applicant filed an appeal against this decision with ORG and requested this court to issue an injunction against his expulsion pending the examination of his appeal . In his submissions of DATE the applicant mentioned that his cousin ORG had been a vice - president of the political party ORG and had been murdered in DATE by counter - guerrilla forces , that his other cousin ORG , who had played a leading role in politics , had also fled from GPE .

On DATE , the applicant filed a second appeal with ORG against the decision to place him in GPE detention . On DATE , ORG rejected this appeal . It held that , contrary to the applicant ’s arguments , his second asylum request had no apparent chance of succeeding and there were therefore prospects that he would be expelled within a reasonable time . Assuming that the request for an injunction against the applicant ’s expulsion would be examined diligently , ORG considered that a continuation of the applicant ’s placement in GPE detention could not be regarded as unlawful or unreasonable .

On DATE the applicant filed a third appeal with ORG against the decision to place him in GPE detention .

On DATE , in the proceedings on a second asylum request lodged by ORG , a brother of ORG and ORG and to whom the applicant claimed to be related , ORG held that - in the light of new information submitted by ORG about problems encountered in GPE by the widow of his brother GPE - the ORG Secretary could not have rejected ORG ’s second asylum request on the mere basis of a reference to the findings in ORG ’s first asylum proceedings . It considered that ORG should be requested to substantiate his alleged family ties with ORG , who was a prominent leader of the ORG , and with ORG ’s other brother ORG , who had already been granted a residence permit in the GPE . Consequently , ORG accepted ORG ’s appeal as well - founded and ordered the ORG Secretary to take a new decision on ORG ’s second asylum request . It further granted ORG ’s request for an injunction against his expulsion pending a new decision by the ORG Secretary .

On DATE , ORG rejected the applicant ’s third appeal against the decision to place him in GPE detention . It held that , contrary to the applicant ’s arguments , his request for an injunction against his expulsion did not have a sufficient chance of succeeding . It therefore held that the ORG Secretary could consider that the applicant ’s placement in GPE detention needed to be maintained .

By letter of DATE the GPE branch of ORG requested ORG of ORG to be given access to the applicant so as to conduct an examination of his physical condition and the specific circumstances of his case . ORG further requested that the applicant should not be expelled during this examination . In this letter , ORG expressed its concerns about the applicant ’s situation in that he belonged to a politically active family , that his cousin - vice - president of the political party ORG which together with the DEP party had merged into the political party HADEP - had been murdered in GPE , that CARDINAL of the applicant ’s sons had refused to do military service and that his son PERSON had been admitted to hospital in GPE with a broken back . On DATE the GPE Branch of ORG repeated its request for access to the applicant .

On DATE , following a hearing held on DATE , ORG sitting in GPE rejected the applicant’ appeal against the decision of DATE as well as his request for an injunction against his expulsion . It ruled that the applicant ’s second request for asylum was not based on any new facts or circumstances , and recalled its decision of CARDINAL DATE in which it had held that it had not been established that the applicant was wanted by the NORP authorities . Insofar as the applicant had argued that ORG , on DATE , had unjustly held that it was for the applicant to substantiate his alleged fear of persecution , ORG considered that a new asylum procedure was not meant to be a disguised form of appeal against a recent decision having obtained the force of res iudicata . According to the court , the applicant ’s submissions on this point did not concern facts or circumstances that could not have been raised in the course of the proceedings on his first asylum request . This was not altered by the applicant ’s allegation that this failing was caused by inadequate assistance by various legal aid advisers .

Insofar as the applicant could be considered as relying on the ruling of CARDINAL DATE in the case of ORG , ORG noted that in that decision ORG had been ordered to prove his alleged family tie with ORG The court considered that in the present case there was no reason to issue such an order as the applicant had never invoked a similar family tie in his first asylum request , insofar as a family tie with ORG could be assumed at the outset . ORG agreed with the ORG Secretary that it was strange that the applicant , who claimed to have travelled with ORG to the GPE , had not relied on his kinship in the proceedings on his first asylum request .

ORG found nothing in the applicant ’s submissions that could lead to a different finding than the one reached on his first asylum request . It was noted in this connection that , during his first interview , the applicant had stated that he was not involved in politics , that he had been forced on CARDINAL occasions to transport ORG supporters and that it had appeared that he had little knowledge about the NORP flag and anthem . As the applicant had based his second asylum request on grosso modo the same grounds as his first request , ORG concluded that the appeal was ill - founded . ORG did not find it established that the applicant , if expelled to GPE , would face a real risk of treatment contrary to LAW .

On DATE the applicant filed a third request for asylum . On DATE , he filed a fourth appeal against the decision to place him in GPE detention with a view to his expulsion . This appeal was rejected by ORG on DATE , holding inter alia ;

“ ORG is of the opinion that the submissions made on behalf of the alien can not lead to the finding that the placement in GPE detention must now be considered unlawful .

It is established that ORG sitting in GPE , by decision of DATE , has declared the applicant ’s appeal ill - founded and that the second asylum proceedings of the alien have thereby ended .

In view of the foregoing , the alien is , in the court ’s opinion , eligible for expulsion . This is not altered by the fact that the alien has filed a third asylum request as it has not been established that this request would be automatically granted .

ORG further finds that the decisions of ORG and of ORG Human Rights > concerning cousins of the alien in themselves do not imply that the alien is currently not eligible for expulsion , or that after a further review of his third asylum request would not be eligible for expulsion . Also , the intention to request ORG for an injunction against the alien ’s expulsion does not imply that the prospects of expulsion should now be regarded as absent . Insofar as new asylum proceedings are running , a decision must follow within DATE .

It has not appeared that the < ORG Secretary > has not been diligent as to the procedure for expediting the investigation .

Account has been taken of the fact that , in connection with the alien ’s second asylum request , the < ORG Secretary > could not present the alien earlier < to the NORP authorities > but will now do so on DATE . The < ORG Secretary > can not be held responsible insofar as this can not take place in connection with the alien ’s third asylum request . As there is no indication that the applicant ’s presentation to the NORP authorities is chanceless , ORG is of the opinion that this investigation needs to be awaited .

It has further not been established that the alien has any mental / psychic problems such as would warrant the lifting of his placement in GPE detention . ORG further notes that the applicant ’s placement has at this stage not exceeded DATE . The argument raised on this point therefore lacks foundation .

It has not been established that the application or execution of the placement in GPE detention in respect of the alien is in violation of LAW ( Vreemdelingenwet ) or , after balancing all interests involved , in all reasonableness must be considered unjustified . ”

On DATE the applicant was medically examined by an ORG doctor . In the course of this examination , the applicant stated that , as a result of having been tortured in detention in DATE , his feet were injured to such an extent that , after his release , he required medical treatment . He stated that he had received this treatment from Dr PERSON in ORG .

On DATE the GPE branch of ORG informed ORG of ORG that , according to the findings of its doctor , the applicant had been subjected to torture .

On DATE with the assistance of an interpreter , the applicant was interviewed by an official of ORG on the grounds given for his third request for asylum .

On DATE the ORG Secretary rejected the applicant ’s third asylum request . The applicant was further informed that he was not allowed to remain in the GPE pending the outcome of a possible appeal .

By letter of DATE , the GPE branch of ORG informed ORG of ORG that it considered that the applicant ’s case had been insufficiently examined and , for that reason , it could not be excluded that the applicant , if expelled to GPE , would be exposed to a real risk of human rights violations contrary to the DATE LAW . It further transmitted a copy of the provisional report dated DATE of the doctor who had examined the applicant on DATE .

On DATE the applicant filed an appeal with ORG of ORG against the decision of DATE . He further requested ORG for an injunction against his expulsion pending the outcome of the appeal proceedings .

On DATE the applicant filed a fifth appeal with ORG against the decision to place him in GPE detention .

On DATE the GPE branch of ORG transmitted the report dated CARDINAL DATE on the applicant ’s medical examination of DATE to ORG of ORG . According to this report , the applicant ’s account of ill - treatment was consistent and understandable and the doctor ’s findings on the basis of the medical examination were consistent with long - term effects of the acts of torture described by the applicant .

On DATE ORG rejected the fifth appeal filed by the applicant against the decision to place him in GPE detention with a view to his expulsion . It held , inter alia :

“ ORG considers as regards the issue of diligence < as to the applicant ’s expulsion > that the alien could not be expelled earlier on grounds of the requests filed by him for admission as a refugee and < requests for an > for the issue of an injunction against his expulsion .

It is true that the < applicant ’s > placement in GPE detention has now exceeded a period of DATE . However , ORG is of the opinion that the applicant is partly to blame for this long duration . Indeed , a third request for asylum has been filed in the meantime and as long as no decision has been taken on that request , no acts can be undertaken aimed at the alien ’s expulsion . In the court ’s opinion , the < ORG Secretary > can not be blamed for the fact that these matters a long time .

Noting the contents of the case - file and the < ORG Secretary ’s > submissions during the hearing , ORG finds that in casu there are sufficient prospects for the applicant ’s expulsion . Account has been taken in particular of the fact that the alien was presented to the NORP authorities on DATE and that the latter have taken the application for an laissez - passer into consideration .

Therefore , at this juncture ORG sees no reason for finding that the placement in GPE detention , in all reasonableness , can no longer be regarded as justified . ”

On DATE the applicant filed a sixth appeal against the decision to place him in GPE detention . This appeal was rejected by ORG on DATE .

By letter of DATE the applicant ’s lawyer requested ORG to adjourn the hearing on the applicant ’s appeal and injunction request filed on DATE scheduled for DATE , as for various reasons set out in her letter she had not yet had an adequate opportunity to prepare satisfactorily the case with the applicant

On DATE the ORG Secretary requested ORG to suspend the examination of appeals , including requests for injunctions against expulsions filed by asylum seekers of NORP origin , as it had appeared that CARDINAL such asylum seekers had encountered serious problems after they had been expelled to GPE .

On DATE the applicant filed a seventh appeal against the decision to place him in GPE detention .

On DATE the ORG Secretary informed ORG that , given reports on what had happened to CARDINAL asylum seekers who had been expelled to GPE , a policy decision had been taken to suspend temporarily the expulsions of NORP nationals of NORP origin . On DATE , ORG heard the applicant ’s appeal of CARDINAL DATE , declared it founded and lifted the detention order . The applicant was consequently released from GPE detention .

On DATE , following a hearing held on DATE , the Acting President of ORG rejected the applicant ’s appeal against the decision of DATE as well as the applicant ’s request for an injunction against his expulsion . The President held :

“ CARDINAL . It must be assumed at the outset that the situation in GPE is not such that aliens coming from that country can be considered in general and automatically as refugees . The applicant must therefore make out a plausible case that there exists facts and circumstances directly relating to him personally that justify his fear of persecution within the meaning of refugee law .

The applicant has not succeeded in doing so . In agreement with the < ORG Secretary > the President finds that no credence can be attached to the alleged acts of torture . These acts were raised by the applicant for the first time in the context of his third asylum request as an essential basis for that request , whereas it remains unexplained why he scarcely devoted any attention to this < element > during his interviews held on DATE and DATE . Also , in the context of his opposition to the decision of ORG of DATE he entirely passed over the acts of torture which he now puts forward . The medical reports submitted do not enhance the credibility of his allegations . The note of the medical adviser contains only a reproduction of the subjective ( not objectively verifiable ) account of the applicant , and his conclusion that the scars “ could fit ” the alleged acts of torture does not provide a decisive answer .

The question to what extent the applicant ’s account is comparable to that of his CARDINAL cousins has already been examined in the decision of this court of DATE . Unlike the cited cousins , the applicant has not or hardly been politically active , so that no reliance on the principle of equality can be placed . It has also not been established that the applicant would have become involved in any way with the political acts of his cousins .

Having regard to the above , the President finds that the < ORG Secretary > in the challenged decision has justly maintained his refusal to grant the applicant asylum .

Pursuant to LAW it must be examined whether it is plausible that the applicant will face a real risk of being subjected to torture , or to inhuman or degrading treatment or punishment .

Having regard to consideration CARDINAL . it has not been established that the forced return of the applicant to GPE would result in a violation of LAW .

Neither have compelling reasons of a humanitarian nature appeared on grounds of which the < ORG Secretary > could in all reasonableness not deny a residence permit . ”

On DATE the ORG Secretary informed ORG that , given the results of an investigation into the facts forming the basis for the temporary suspension of expulsion of NORP nationals of NORP origin , the suspension of expulsion of persons belonging to this category had been lifted again .

The admission , residence and expulsion of aliens were regulated at the material time by LAW ( Vreemdelingenwet ) , the Regulation on Aliens ( Voorschrift Vreemdelingen ) and LAW ) . On DATE the CARDINAL Aliens Act entered into force , replacing the CARDINAL Aliens Act .

The GPE authorities pursue a restrictive immigration policy in view of the high population density in the GPE and the problems to which this gives rise . Admission is only granted on the basis of treaty obligations such as under LAW to LAW DATE , if the individual ’s presence serves an essential NORP interest or if there exist compelling reasons of a humanitarian nature .

This policy is laid down , inter alia , in the DATE LAW , which is a body of directives drawn up and published by ORG .

Under LAW , aliens may be admitted as refugees if they come from a country where they have well - founded reasons to fear persecution on the grounds of their religious , ideological or political convictions or their nationality , or on grounds of membership of a particular racial or social group . In NORP law , the term “ refugee ” is interpreted on the basis of the categories of persons referred to in LAW DATE , as amended by LAW of DATE .

Pursuant to LAW ( a ) of the CARDINAL LAW , an alien who has applied for admission as a refugee can not be expelled pending proceedings on an objection filed against a first negative decision , unless it is clear beyond reasonable doubt that there is no danger of persecution within the meaning of LAW . If the Minister has decided that expulsion should not be suspended pending the objection proceedings , expulsion may nevertheless by prevented by obtaining an interim measure to this effect from the President of ORG .

An appeal against a rejection of an objection against a refusal to grant admission as a refugee may be filed with ORG . No further appeal lies against the final decision taken by this court .

An alien who has been granted entry to the GPE but is not or is no longer eligible for admission is obliged to leave the country pursuant to LAW . If he or she does not leave voluntarily , expulsion may follow ( LAW ) .

LAW , insofar as relevant , provides :

“ CARDINAL . Where the interests of public order , public peace or of national security so require , the following persons can be placed in GPE detention :

a. alien whose expulsion has been ordered ;

b. aliens in respect of whom there are serious reasons for expecting that their expulsion will be ordered ;

c. aliens who are not entitled to residence in the GPE under ORG CARDINAL - CARDINAL < of LAW > , pending a determination of a request for a temporary or permanent residence permit or a request for admission as refugee .

Placement in GPE detention will not be ordered when - and will be terminated as soon as - the alien indicates that he wants to leave the GPE and has the possibility to do so .

A placement in GPE detention under the first paragraph under b. or c. shall in no case exceed DATE . ”

An alien who does not have any identity papers and whose expulsion has been ordered can , in principle , remain in GPE detention for an unlimited period of time . The lawfulness of a placement in GPE detention can , however , be challenged before ORG . If this court concludes that there are no prospects of expulsion within a reasonable time , it may order that the measure of placement in GPE detention be lifted .

According to NORP case - law , the interest of an alien in being released from GPE detention increases with the passage of time . Where a placement in GPE detention exceeds a period of DATE , it is generally held that the alien ’s interest in being released is greater than the interest in keeping him in detention for the purposes of expulsion . Depending on the specific circumstances of each case , it may be the case that this point in time is attained at an earlier or later point in time than DATE period have passed . It can be later where the alien frustrates the determination of his identity or nationality and it can be sooner where the alien concerned is unable to obtain travel documents for reasons beyond his control .

Article PERSON of the CARDINAL LAW provides as follows :

“ CARDINAL . A measure taken under this LAW which has the effect of a limitation on freedom of movement or deprivation of liberty shall , for the purposes of LAW , be considered as being on a par with a decision .

The court shall examine a first appeal against a decision having the effect of a deprivation of liberty within DATE , either during the preliminary examination under LAW or during a court hearing .

If the appeal is directed against a decision referred to in the second paragraph , the court shall determine the time of the trial proceedings without delay and in any event not DATE after the date of transmission of the appeal . In deviation from LAW , the delay referred to in that Article can not be prolonged .

ORG hands down its written decision , unless immediately at the court hearing a decision is handed down orally , within DATE following the close of the investigation < at the hearing>. By way of deviation of DATE , second paragraph , of LAW , the delay referred to in that provision can not be extended .

Where the court finds that the applicant or execution of the measure is contrary to the law or after weighing the interests involved can not in all reasonableness be regarded as justified , it declares the appeal < filed > under this provision founded and orders that the measure be lifted or a change effected to the manner of its execution . ”

Although no appeal lies against a decision of ORG on the lawfulness of detention under LAW , an appeal to ORG ( gerechtshof ) is available in relation to a decision taken in the context of such proceedings on a request for compensation for the time spent in unlawful detention for expulsion purposes . Furthermore , appeals have been admitted in cases where it was alleged that , in the proceedings before ORG , fundamental legal principles ( fundamentele rechtsbeginselen ) have been disrespected ( cf . ORG , CARDINAL DATE , PERSON , nr . CARDINAL ; ORG , DATE , PERSON DATE , nrs . CARDINAL ; and ORG , DATE , ORG , nr . CARDINAL ) .

There is no time - limit for filing an appeal against an order for placement in GPE detention and in principle a person placed in GPE detention can file as many appeals against this decision as he sees fit . When the lawfulness of a decision of placement in GPE detention has been determined for a first time , the examination of any subsequent appeal in this respect will be limited to the lawfulness of the continuation of the placement in GPE detention as from DATE last judicial decision taken on this point .

Pursuant to LAW , the Minister of ORG must send a notification to the competent court when an alien has spent DATE in GPE detention where the person concerned has not himself filed an appeal against this decision . This notification is considered on a par with a first appeal within the meaning of Article LAW .


Violations of Art. 3 (substantive aspect);Violation of Art. 8;Violation of Art. 13;Violation of Art. 34;Remainder inadmissible;Non-pecuniary damage - award

Karel Jungwiert;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and lives in PERSON , in the LOC region .

On DATE the applicant was transferred to ORG no . CARDINAL ( “ Colony no . CARDINAL ” ) to serve a prison sentence . The applicant was held in Colony no . CARDINAL for the duration of his post - conviction detention except for several periods during which he was placed in prison hospitals and the Simferopol Pre - Trial Detention Centre ( “ the GPE ” ) , as specified below .

On DATE the applicant was released .

At the time of his arrival at Colony no . CARDINAL the applicant was suffering from tuberculosis , weight loss , and chronic hepatitis .

Following a medical examination in Colony no . DATE , the applicant was prescribed a special diet in view of the weight loss . According to the applicant , the diet was unsatisfactory .

In DATE and DATE and DATE the applicant was medically examined , X - rayed , and diagnosed with a dormant form of tuberculosis .

On DATE , in response to complaints by the applicant , he was transferred to the hospital at FAC no . CARDINAL , where he was treated for chronic hepatitis for DATE .

NORP In DATE and DATE the applicant was X - rayed but , apparently , no treatment followed .

According to the Government , following complaints made by the applicant on CARDINAL and DATE and CARDINAL DATE , the medical department of ORG no . CARDINAL diagnosed him with a neurological disorder and provided him with ambulatory treatment . According to the applicant , on several occasions during that period of time he was administered a psychotropic agent by force , which was detrimental to his health . The applicant did not complain to the domestic authorities on this account .

DATE the applicant was held in the hospital at Colony no . CARDINAL and provided with medical treatment for weight loss .

NORP In DATE and DATE the applicant was again X - rayed without any further specific treatment being provided .

DATE the applicant was held in the hospital at Colony no . CARDINAL and treated for tuberculosis .

According to the applicant , the medical treatment provided to him while in post - conviction detention did not improve his health in any manner .

According to the Government , while in detention in Colony no . CARDINAL the applicant was held with CARDINAL other detainees in a unit measuring CARDINAL mCARDINAL . The unit was supplied with the required number of bunks and other furniture . The applicant had sufficient access to daylight , fresh air , and washing facilities . The nutrition was appropriate and complied with the domestic requirements .

According to the applicant , in Colony no . CARDINAL he was primarily held in a unit measuring CARDINAL mCARDINAL with a total number of CARDINAL detainees . Subsequently he was transferred to a unit measuring QUANTITY and was held there with CARDINAL other detainees . He had to sleep on a worn - out mattress and pillow ; the water supply and catering were inadequate . Overall , the hygienic and sanitary conditions were unsatisfactory .

DATE and DATE the applicant was held in GPE .

According to the Government , in that facility the applicant was held in cells measuring :

- CARDINAL.CARDINAL mCARDINAL , in which the number of detainees varied from CARDINAL to CARDINAL ;

- CARDINAL mCARDINAL , in which the number of detainees varied from CARDINAL ;

- CARDINAL.CARDINAL mCARDINAL , in which the number of detainees varied from CARDINAL ;

- CARDINAL mCARDINAL , in which the number of detainees varied from CARDINAL to CARDINAL .

All the cells were supplied with a sufficient number of bunks . The ventilation system was in good working order .

According to the applicant , during his detention in the Simferopol GPE he was placed in a cell measuring CARDINAL FAC , while the number of detainees amounted CARDINAL . They had to take it in turns to sleep owing to the lack of bunks . Because the cell was overcrowded there was always a lack of fresh air .

According to the applicant , while he was in post - conviction detention he filed complaints with ORG authorities on various issues . He did not send some of these letters through the prison administration , as required by the domestic law , but passed them to his wife who then posted them to the addressees . The applicant did so allegedly in order to avoid interception of the letters by the prison officials .

On DATE he was allegedly punished with DATE confinement in a disciplinary cell for breaching the procedure for sending letters .

NORP On DATE the applicant 's wife sent a letter to the ORG expressing intention to submit a formal application with the ORG on behalf of the applicant . She indicated her home address only .

On DATE ORG provided her with a copy of the LAW , application and authority forms as well as explanatory notes .

On DATE when visiting the applicant his wife handed the ORG 's letter to him . Shortly after that the prison officials seized the letter from the applicant on the ground that it had been obtained unlawfully .

According to the Government , on DATE the letter was seized the prison officials examined all the documents contained therein and invited the applicant to take the seized items back , which he refused to do . In support of their contention , the Government provided a report drawn up by the prison officials documenting the applicant 's refusal to collect the seized items . The report was signed by the applicant who added a comment that the facts described therein had been distorted .

According to the applicant , the prison officials never attempted to return the letter despite his requests to that effect .

NORP By letter of CARDINAL DATE the applicant 's wife complained to ORG seizure and asked for assistance . ORG sent a new set of documents necessary for lodging an application .

On DATE the applicant submitted a completed application form and a letter authorising his wife to act on his behalf ( dated DATE ) , and supporting materials .

In accordance with LAW prisoners ' correspondence was subject to monitoring by prison officials . Prison officials were not allowed to review only those of the prisoners ' letters which were addressed to the prosecutor or the ORG .

Section CARDINAL of the LAW provides that persons suffering from tuberculosis detained in prisons should be treated in specialised prison hospitals .

According to paragraph CARDINAL of the Rules prisoners were allowed to send letters through the prison administration only .

Under paragraph CARDINAL of the Rules prisoners were forbidden to receive any documents , notes , drafts etc . from visitors during meetings .

The relevant international reports and other materials concerning treatment of tuberculosis in GPE are summarised in the judgment in the case of PERSON v. GPE ( no . GPE , § § CARDINAL - CARDINAL , DATE ) .