Violation of Art. 3 (in case of expulsion to Libya);No violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra

The applicant was born in DATE and lives in GPE .

The applicant entered the GPE on DATE and applied for asylum . In the course of interviews held with immigration officials on DATE and DATE , he stated that he feared persecution in GPE for his involvement since DATE in a clandestine , nameless opposition group and its activities which consisted in holding regular meetings , distributing pamphlets and informing people about the NORP regime by inter alia distributing publications by the NORP resistance abroad . This group had begun having problems with the NORP authorities as from DATE or DATE when a first group member was arrested . More arrests of group members followed and when virtually all his friends in this group had been arrested and detained , the applicant decided to flee GPE which he actually did by DATE without , however , having himself encountered any problems with the NORP authorities . He had left the country via an official NORP border crossing - point and holding his own , authentic passport . After his departure for GPE , the applicant 's younger brother and brotherin - law were arrested . After a brief illegal stay in GPE where he lost his passport , the applicant travelled on to GPE where he stayed for DATE , mostly in an aliens ' detention centre . Attempts by the NORP consul in GPE to have him expelled to GPE failed due to the applicant 's refusal to cooperate . In DATE , after having obtained a forged NORP passport and released from detention in GPE , the applicant travelled to GPE . After the NORP authorities had sent officials to GPE in order to trace NORP in GPE who were listed as opponents of the NORP regime and to seek the transfer of these persons to GPE , the applicant no longer felt safe in GPE and travelled to the GPE .

On DATE , the Deputy Minister of Justice ( ORG ) rejected the applicant 's asylum request . The Deputy Minister did not find it established that the applicant had attracted the negative attention of the NORP authorities . His alleged membership of a nameless opposition group had remained unsubstantiated and he had failed to give clear information about the group 's aims and manner in which it sought to realise these aims . Even assuming that the applicant was associated with this group , he had never held any function of significance within this group and had never encountered any personal problems with the NORP authorities . On this point , the Deputy Minister noted that CARDINAL persons belonging to that group had allegedly been arrested and detained in DATE whilst the applicant had stayed in GPE until DATE without having encountered any problem . Moreover , he had left GPE holding an authentic passport in his own name . The Deputy Minister therefore concluded that , even assuming that the applicant had been involved in this opposition group , this had not become known to the NORP authorities . The Deputy Minister further did not find it established that the applicant , if expelled to GPE , would be exposed to a real and personal risk of being subjected to treatment in breach of LAW . On DATE the applicant filed an objection ( bezwaar ) against that decision with the Deputy Minister .

As the applicant 's objection was denied suspensive effect as regards his expulsion from the GPE , he applied on DATE for a stay of expulsion by way of a provisional measure ( voorlopige voorziening ) with ORG ( rechtbank ) of GPE sitting in ' s - Hertogenbosch .

NORP In support of his objection , the applicant submitted CARDINAL statements issued by “ ORG for the ORG GPE ” ( “ NFSL ” ) dated DATE and DATE , respectively . According to these statements , the applicant was a sympathiser of this organisation and had disseminated NFSL materials in GPE .

On DATE the Deputy Minister dismissed the applicant 's objection . On DATE the applicant filed an appeal against this decision with ORG of The Hague .

On DATE the President of ORG of The GPE sitting in ' PERSON granted the applicant 's request for a provisional measure and ordered the stay of the applicant 's removal until DATE after the determination of the applicant 's objection .

On DATE , the applicant was informed that – having noted the ruling of CARDINAL DATE the Deputy Minister had withdrawn the decision of CARDINAL DATE and would take a fresh decision . Consequently , the applicant withdrew his appeal of CARDINAL DATE .

On DATE , ORG started an investigation into the NFSL and the reliability of documents issued by this organisation . The results of this investigation were set out in an official report ( ambtsbericht ) , issued by ORG on DATE .

In a fresh decision taken on DATE , the Deputy Minister of ORG again dismissed the applicant 's objection of CARDINAL DATE , finding that the NFSL statements could not serve in substantiation of the applicant 's account . The Deputy Minister did not find it established that the applicant had attracted the negative attention of the NORP authorities or that he had found himself in an acute flight situation . The Deputy Minister further found no reasons for accepting the applicant 's argument that his expulsion to GPE would be in violation of his rights under LAW .

On DATE , the applicant filed an appeal against this decision with ORG of The Hague as well as a request for a provisional measure .

By letter of DATE , the Minister of ORG ( Minister PERSON Integratie ; the successor to the Deputy Minister of ORG ) withdrew the decision of DATE . As the applicant was allowed DATE pursuant to the ruling of CARDINAL DATE to remain in the GPE pending the proceedings on his objection , he withdrew his appeal and request for a provisional measure filed on DATE .

On DATE , after the applicant had been heard on his objection before an official commission ( ambtelijke commissie ) , the Minister rejected the applicant 's objection of CARDINAL DATE . In this decision , the Minister further decided not to grant the applicant ex officio a residence title on account of the duration of the still pending proceedings on his asylum request ( tijdsverloop in de asielprocedure ) .

On DATE , the applicant filed an appeal with ORG of The GPE against the rejection of his objection of CARDINAL DATE as well as a request for a provisional measure .

On DATE , the applicant filed an objection with the Minister against the decision of CARDINAL DATE not to grant him a residence title on account of the length of the determination of his asylum request , as well as a request with ORG for a provisional measure .

On DATE , the Minister informed the applicant that he would not be expelled pending the decision on the provisional measure request he had filed in the context of his asylum application .

On DATE , the Minister withdrew the decision of DATE on the applicant 's asylum request . Consequently , the President of ORG of The GPE sitting in GPE declared inadmissible the applicant 's provisional measure request filed in the context of these asylum proceedings and , pursuant to the ruling of CARDINAL DATE , the applicant was allowed to remain in the GPE pending the proceedings on his objection of DATE .

On DATE , after the applicant had been heard on DATE before an official commission and had submitted a statement dated DATE from the GPE - based ORG ( “ LLHR ” ) , according to which the applicant was a member of this organisation and for that reason would be persecuted and imprisoned , possibly executed , if he were to be expelled to GPE , the Minister rejected the applicant 's objections of CARDINAL DATE and DATE .

On DATE ORG of The GPE sitting in GPE accepted the CARDINAL separate appeals filed by the applicant and remitted the case to the Minister for fresh decisions .

On DATE , the applicant was heard before an official commission on his objections of CARDINAL DATE and DATE . In the course of this hearing , the applicant was informed of the Minister 's intention ( voornemen ) to impose an exclusion order ( ongewenstverklaring ) on him , as he was considered to pose a threat to national security ( see below § § CARDINAL and CARDINAL ) . At his lawyer 's advice , the applicant did not wish to react to that intention during this hearing .

In a fresh decision given on DATE , the Minister again rejected the applicant 's objections of CARDINAL DATE and DATE . Referring to an individual official report on the applicant drawn up on DATE by ORG ( Algemene Inlichtingen- en ORG ; “ ORG ” ) , the Minister noted that the ORG considered the applicant to constitute a danger to national security ( see below § CARDINAL ) . Noting that , after having been granted access to the underlying materials of the ORG individual official report of CARDINAL DATE , ORG ( Immigratie- en Naturalisatiedienst ) of ORG had concluded on DATE that this report , both as regards its content and procedure , had been drawn up in a careful manner and that it provided insight in a logical , transparent manner , the Minister accepted the correctness of the individual official report of CARDINAL DATE . Consequently , in accordance with the case - law of ORG ( Afdeling Bestuursrechtspraak ) of ORG ( PERSON ) , the finding that the applicant represented a danger to national security was , in itself , a sufficient ground for rejecting his asylum request and to deny him a residence permit on account of the duration of the proceedings on his asylum request . Moreover , the Minister found no indications in the case that in GPE the applicant would have to fear persecution within the meaning of the DATE LAW . Following an extensive examination of the applicant 's account , the Minister did not find it established that the applicant had attracted the negative attention of the NORP authorities on grounds of his alleged involvement with the NFSL or his involvement with and marginal activities for the LLHR in the GPE . The Minister further did not find it established DATE on account of the criminal proceedings taken against the applicant in the GPE ( see below § § DATE ) or his very marginal opposition activities – the applicant would be exposed in GPE to a real risk of being subjected to treatment prohibited under LAW .

On DATE , the applicant filed CARDINAL separate appeals ( CARDINAL against the refusal to grant him asylum and the other one against the refusal to grant him a residence title on account of the duration of the still pending asylum proceedings ) and , having been informed that he was not allowed to await the outcome of those appeals in the GPE , also CARDINAL separate requests for a provisional measure with ORG of The Hague . In addition , as the Minister had decided on DATE to impose an exclusion order ( ongewenstverklaring ) on the applicant against which the applicant had filed an objection ( see below § CARDINAL ) , he also applied for a provisional measure allowing him to remain in the GPE pending the determination of this objection by the Minister .

In the proceedings on these appeals and requests for a provisional measure and with the parties ' consent , the provisional - measures judge ( voorzieningenrechter ) of ORG of The GPE sitting in GPE was granted access to the materials underlying the ORG individual official report of CARDINAL DATE without these materials being disclosed to the applicant .

On DATE , the provisional - measures judge of ORG of The GPE sitting in GPE rejected the applicant 's CARDINAL requests for a provisional measure as well as his CARDINAL appeals on the merits against the Deputy Minister 's decision of DATE . After having verified personally and accepted that the conclusions drawn in the ORG official report of CARDINAL DATE were sufficiently supported by the underlying materials , the provisional - measures judge accepted the Minister 's conclusion that the applicant posed a threat to the national security and could for that reason be denied a GPE residence title , either for asylum or on account of the duration of the proceedings on his asylum request .

The provisional - measures judge further accepted the reasons given by the Minister for concluding that it had not been established that the applicant , if expelled to GPE , would be exposed to a risk of being subjected to treatment in breach of LAW on account of his alleged involvement with the NFSL or his involvement with and activities for the LLHR in the GPE . Further noting that , when the applicant was presented at the NORP mission for the purposes of obtaining travel documents ( see below § CARDINAL ) , the GPE authorities had only provided this mission with extremely neutral information about him , the provisional - measures judge also did not find it established that the applicant would be exposed to such a risk in GPE for being an expelled unsuccessful asylum seeker .

As to the applicant 's further argument that , given the publicity attracted by the criminal proceedings taken against him before ORG ( see below § § DATE ) , the NORP authorities had become aware of the nature of the suspicions having arisen against him in the GPE and that he would also for that reason risk treatment contrary to LAW , the provisional - measures judge held , referring to the general principles under LAW as defined by ORG in its judgments in the cases of PERSON and Others v. GPE , ( judgment of DATE , Series A no . CARDINAL ) and ORG v. the GPE , ( no . CARDINAL , DATE ) , that also this had not been established . No information about the applicant 's trial had been given to the NORP mission when the applicant was presented . Even assuming that the NORP authorities would have become aware of these criminal proceedings in another manner , this was in itself not sufficient for accepting as plausible that the applicant would thus risk treatment contrary to LAW GPE . Also the applicant 's reliance in this context on documents of a general nature about the general attitude of the NORP authorities was insufficient for finding this risk established . The provisional - measures judge found that the applicant had not submitted , let alone demonstrated , facts or circumstances relating to him personally leading to the conclusion that he , if expelled to GPE , would risk such treatment , and that in this respect he had only made a mere reference to the suspicions arisen against him , the ensuing criminal proceedings and speculated about the possible consequences thereof upon his return to GPE . According to the provisional - measures judge is was , however , not for the Minister to demonstrate that the alleged risk actually did not exist .

As regards the applicant 's request for a provisional measure in connection with his objection against the decision to impose an exclusion order on him , the provisional - measures judge acknowledged that it was difficult for the applicant to furnish proof and for the Minister to offer relief in this respect . However , as the provisional - measures judge himself had been given access to the materials underlying the ORG individual official report on the applicant of CARDINAL DATE , there was an extra guarantee for the due care with which the conclusions made in this report were drawn and formulated . The provisional - measures judge accepted that these underlying materials could carry the conclusions drawn in the report of DATE and that therefore the Minister could impose an exclusion order on the applicant on the basis of that report . In so far as the applicant relied on LAW , the provisional - measures judge reiterated his finding that the applicant had not demonstrated that he , if expelled to GPE , would be exposed to a risk of treatment prohibited by LAW . Pursuant to article CARDINAL § CARDINAL of LAW DATE ( PERSON ) , no further appeal lay against this ruling of the provisional - measures judge .

On DATE , the applicant was placed in aliens ' detention for removal purposes . On DATE , following a hearing held on CARDINAL DATE , ORG of The Hague dismissed the applicant 's appeal against the decision to place him in aliens ' detention and his compensation claim . On DATE , ORG accepted the applicant 's subsequent appeal . Disagreeing with ORG of The Hague , it held that the applicant had lawfully stayed in the GPE until DATE when in the asylum proceedings the Minister had rejected the applicant 's objection of CARDINAL DATE ( see above LAW ) . Accordingly , it quashed the ruling of CARDINAL DATE , ordered the lifting of the detention measure , remitted the case to ORG for a determination of the applicant 's compensation claim and issued an order for costs against the ORG .

On DATE , after having been notified of the decision to impose an exclusion order on him ( see below § CARDINAL ) , the applicant was again placed in aliens ' detention for removal purposes . On DATE , the Brabant Zuid - Oost Aliens Police Department ( Vreemdelingenpolitie ) informed the NORP mission in the GPE of this placement in aliens ' detention and the applicant 's name . As he did not hold any travel or other identity documents , ORG wished to make an appointment for presenting the applicant at the NORP mission for the purposes of obtaining travel documents . On DATE , the applicant refused to cooperate in a presentation by telephone , as he was not allowed a prior consultation with his lawyer . Following a written protest by his lawyer , ORG ( PERSON ) informed the applicant 's lawyer by letter of CARDINAL DATE that no further contacts with the NORP mission would be made by the GPE immigration authorities or any other administration for which the Minister for ORG was responsible until the provisional - measures judge of ORG of The GPE sitting in GPE had given a ruling ( see above § § DATE ) .

On DATE , following a hearing held on DATE , ORG of The GPE sitting in PERSON rejected the applicant 's appeal against the decision to place him in aliens ' detention and his pertaining request for compensation .

On DATE , following a hearing held on DATE , ORG of The GPE sitting in PERSON accepted the applicant 's appeal against his continued placement in aliens ' detention . It found that the Minister had failed to demonstrate that , despite the interim measure issued by ORG DATE , there were reasonable prospects for the applicant 's expulsion within a reasonable delay . Accordingly , it ordered the applicant 's immediate release from aliens ' detention . The applicant was released DATE .

On DATE , ORG ( Binnenlandse Veiligheidsdienst – “ ORG ” ) sent an official report to the national public prosecutor responsible for combating terrorism ( landelijk officier van justitie terrorismebestrijding ) , part of which reads as follows :

“ In the framework of its statutory task , the ORG is investigating a network active in the GPE which is associated with NORP terrorist organisations . It concerns the Groupe Salafiste pour la Prédication et le Combat ( PERSON ) ; an organisation that works from the same ideological basis as the ORG network . The GPE is an NORP extremist NORP organisation of which it is generally known that it has prepared and carried out attacks in GPE and elsewhere .

The part of this network which is active in the GPE is in particular involved in providing material , financial and logistical support and in propagating , planning and actually using violence for the benefit of the international jihad . The members of this network understand jihad as the armed battle in all its forms against all enemies of ORG , including the ( for them ) unacceptable governments in LOC and GPE [ of GPE ] .

It appears from the investigation conducted by the ORG that the part of this network which is active in the GPE is implicated in closely interwoven activities which complement and reinforce each other and which serve the same goal , namely the waging of jihad . The most important activities are the following :

- The network is active in assisting in the entry [ into the GPE ] , housing and transit of persons having actively participated in jihad . The members of the network provide these persons with ( forged ) identity papers , money and shelter . These persons possibly include fighters coming from an area where an armed conflict is ongoing . It is not excluded that at the addresses cited below [ of the persons belonging to the part of the network active in the GPE ] persons as referred to above are also being sheltered ,

- The network is active in recruiting young men in the GPE for effectively conducting jihad . To this end , these young men are incited to prepare for martyrdom and they are enabled materially , financially and logistically to leave for a battle scene . As an example , one can think of LOC where DATE CARDINAL young NORP men of NORP origin were killed . In this context a battle scene must be interpreted broadly , including areas where there is an armed conflict between different parties , but also terrorism ,

- The part of this network which is active in the GPE finances its own activities with proceeds from trading in and exporting hard drugs . It must be emphasised that it has appeared to the ORG that the trade in and export of hard drugs as well as the forcing into submission of those involved in the trade and transport are religiously sanctioned . This means that the proceeds of the trade in and export of hard drugs are used for the commonly subscribed goal of jihad , and that disobedience is labelled as apostasy and severely punished . In this context , the ORG knows that a member of this network who has embezzled a quantity of drugs is regarded as an apostate and is currently searched for by members of this network active in the GPE . It appears from recorded telephone conversations that violence will be used against this person . It appears from the terminology used that there is a serious risk of liquidation ,

- Lastly it must be noted that these activities take place in an organisational setting . Facilitation , falsification , recruitment , financing and liquidation for the benefit of jihad always take place in mutual consultation and coordination between members of this network . The activities of the network have been continuing in any event from DATE to date . ... ”

On DATE , pursuant to the DATE Intelligence and Security Services Act ( FAC inlichtingen- en veiligheidsdiensten ) , the ORG was succeeded by ORG ( Algemene Inlichtingen- en Veiligheidsdienst – “ LAW ” ) .

On DATE , the Acting Head of the ORG sent a further official report to the national public prosecutor responsible for combating terrorism . This report reads in its relevant part :

“ I. The recruitment network

In the exercise of its statutory task , it has appeared to the ORG from reliable , vulnerable sources , that a network of extremist NORP is active in the GPE which is in particular involved in providing material , financial and logistical support and in propagating , planning and inciting to actually using violence for the benefit of the international jihad . The members of this network understand jihad as the armed battle in all its forms against enemies of ORG , including the ( for them ) unacceptable governments in LOC and GPE [ of GPE ] .

It has been established that the network , in a series of similar activities , is currently preparing and organising in any event CARDINAL , possibly even more , and for the time being unidentified , jihadists . These persons will travel to a , for the time being unknown , area where the battle is currently actually being held , with the aim of becoming a martyr . The departure of both unidentified jihadists would be imminent .

It can be said in general that currently there is a clear increased activity within the network , which appears to indicate an imminent departure or other covert activities of the network in a very near future .

Investigation has shown that the above network provides support to or forms a part of the ORG organisation of PERSON .

II . NORP The activities of the network

The most important activities of the network are :

The recruitment of young men for effectively conducting jihad . To this end , it is propagated that it is the duty is muslims to wage jihad and are young men incited to prepare for martyrdom .

The materially , financially and logistically enabling of jihadists to leave in the direction of a battle scene . The necessary funds are gathered inter alia by collecting money in FAC in various NORP countries , including the GPE .

Lastly it must be noted that these activities take place in an organisational setting . Recruitment , facilitating and financing for the benefit of jihad always take place in mutual consultation and following coordination between members of this network .

III . Important persons in the network

In the recruitment network the following persons play a prominent role : ...

[ the applicant ] alias ... alias ...

IV . The activities of the important persons in the network

[ the applicant ]

To recruit and motivate jihad - fighters

[ the applicant ] is held in high esteem amongst NORP youngsters to be recruited , also by his past of mujahedin in GPE . [ The applicant ] also indicates that once he wished to die as martyr to the faith .

On DATE [ the applicant ] tells ... that he is prepared to participate , that he “ is ready for it ” ; but that has to stay very secret .

On DATE a meeting was held in PERSON , organised by opponents of the violent jihad . [ The applicant ] wants to attend this meeting together with ... with the aim of letting the attending youngsters hear an alternative sound ( in casu pro - jihad ) .

On or around CARDINAL DATE [ the applicant ] informs with unknown brothers in PERSON whether they are ready to leave . These brothers “ do not mind going ” .

To organise and facilitate jihad - journeys

[ The applicant ] tells on DATE that the departing jihadists are going to buy passports ( “ books ” ) and that the price of passports depends on the duration of validity ( in casu DATE or longer ) .

[ The applicant ] reports on DATE to a person having remained unidentified that fighters are needed and that there is a new , easier route , provided CARDINAL disposes of good documents .

Together with ... [ the applicant ] has collected money in the GPE , in particular in GPE , in any event by DATE . The proceeds of these collection activities was CARDINAL of [ GPE ] guilders and would , according to [ the applicant ] and ... be for the benefit of the ORG . ”

On DATE , the ORG drew up an individual official report on the applicant , according to which he was classified as a danger to national security . It had become known to the ORG that the applicant was playing a prominent role in a jihad recruitment network active in the GPE which , in the opinion of the ORG , constituted a threat to national security . The ORG had further learned that the applicant had been a mujahidin , and that he was active as motivator of jihad fighters , as facilitator of jihad journeys and as jihad recruiter .

On the basis of the ORG official report of DATE ( see above § CARDINAL ) and the ORG official report of DATE ( see above § CARDINAL ) as transmitted by the national public prosecutor responsible for combating terrorism to ORG ( Openbaar Ministerie ) , CARDINAL criminal investigations were opened . These QUANTITY investigations were later joined . In the course of this investigation various suspects were arrested and various premises searched where these suspect were living or staying . In the course of these searches a large quantity of books , documents and audio / audiovisual materials were found and seized .

The applicant was arrested on DATE and detained on remand on suspicion of belonging to a criminal organisation with the alleged aim of prejudicing GPE by providing assistance to the enemy conducting a holy war ( jihad ) against – amongst others – the GPE ; and which organisation was further involved in drug - trafficking , forgery of ( identity ) documents , using false ( identity ) documents , human trafficking and possession of illegal fire arms . These suspicions were based on the content of various intelligence reports drawn up by the ORG and its successor the ORG .

The applicant and CARDINAL co - suspects were subsequently formally charged and summoned to appear before ORG in order to stand trial . The “ GPE jihad trial ” proceedings attracted considerable media attention and a photograph of the applicant appeared in various printed media . In a number of publications , the applicant 's name and nationality were mentioned .

In its judgment of DATE , ORG acquitted the applicant and his co - accused of all charges , finding that these had not been legally and convincingly substantiated . ORG held that the ORG / AIVD official reports submitted by the prosecution could not be used in evidence , as the Head and Deputy Head of the AIVD – who had been examined by the investigation judge as well as before ORG – and the national public prosecutor responsible for combating terrorism had refused to give evidence about the origins of the information set out in these official reports , invoking their obligation to observe secrecy under the DATE Intelligence and Security Services Act whereas , in accordance with a decision of CARDINAL DATE , the Minister of the ORG and ORG ( Minister PERSON en GPE ) and the Minister of ORG ( Minister PERSON ) had not released them from that obligation in the event of their being called as witnesses in the criminal proceedings in issue . As a result , the defence had not been given the opportunity to verify in an effective manner the origins and correctness of the information set out in these official reports . ORG considered that there was no basis in law for taking another approach , to the effect that the strictness of evidentiary rules would depend on the seriousness of the offence of which a person was suspected . Consequently , although it acknowledged that the obligation of secrecy at issue was certainly justified in cases concerning national security and found that the public prosecutor had not unlawfully used the material supplied by the BVD / AIVD in the determination of the question whether there was a serious suspicion of an offence and in the decision to arrest the applicant , ORG concluded that these ORG / AIVD reports could not be used in evidence against the applicant . ORG did allow in evidence telephone conversations intercepted by the BVD / AIVD as the defence had been given the opportunity to verify their content .

The prosecution initially lodged an appeal against this judgment but withdrew it on DATE , before the trial proceedings on appeal had commenced . According to a press release issued on DATE by ORG , this decision was taken in view of new legislative developments , namely ORG ( PERSON Misdrijven ) – rendering inter alia recruitment for [ NORP ] armed struggle a criminal offence – having already entered into force on DATE but without retroactive effect , and the advanced stage of adoption by ORG of the PERSON on LAW ( Wetsvoorstel voor de Wet Afgeschermde Getuigen ) providing for the possibility of using official reports of the LAW in evidence .

On DATE and under article CARDINAL of the Intelligence and Security Services Act CARDINAL ( FAC inlichtingen- en veiligheidsdiensten DATE ) , the applicant requested access to the materials underlying the conclusions set out in the ORG individual official report of CARDINAL DATE ( see above § CARDINAL ) .

On DATE , the Minister of the Interior and ORG informed the applicant that his request would be taken into consideration as soon as he had provided the Minister with a legible copy of a valid identification document and that following receipt of this document , his request would be determined within DATE at the utmost . Failure to do so would entail that his request would not be taken into consideration . The applicant complied with this request on DATE by submitting a copy of his GPE aliens ' identity card ( “ W - document ” ) , the validity of which , however , had expired on DATE .

By letter of DATE , the Minister informed the applicant that his request for access would not be considered as he had failed to submit a valid identity document , as required pursuant to article QUANTITY of the Intelligence and LAW DATE and the pertaining Explanatory Memorandum .

On DATE , the applicant filed a fresh request with the Minister for access to the materials underlying the conclusions set out in the ORG individual official report of CARDINAL DATE and , on DATE , filed an objection against the Minister 's decision of DATE in which he argued that it could not be derived from the Explanatory Memorandum to the Intelligence and Security Services Act DATE that for a proper determination of the identity of a petitioner only a valid identity document could be used . The applicant attached a copy of his valid “ W - document ” for the purposes of a reconsideration of the decision in the objection phase .

On DATE , following a hearing held on DATE , the Minister accepted the objection now the applicant had submitted a copy of his valid “ W - document ” and decided to take his request for access into consideration . As to the applicant 's fresh request for access , the Minister referred to his decision on the merits of the applicant 's request .

In a new decision taken on the applicant 's access request on DATE , the Minister held that , pursuant to article QUANTITY , article CARDINAL § CARDINAL ( b ) in conjunction with article CARDINAL opening words under ( b ) , and LAW , no information could be provided about the ORG 's current level of knowledge , its sources and its working methods . Consequently , the Minister rejected the applicant 's request in so far as it concerned a request for access to current data . As the official report at issue concerned NORP terrorism which was a topical subject within the meaning of article CARDINAL § CARDINAL ( b ) of the Intelligence and LAW DATE , national security interests opposed providing further information . The Minister further stated that no outdated data on the applicant had been found in the archives of the ORG and its predecessor the ORG .

On DATE , the applicant filed an objection with the Minister against the decision of DATE . No further information about these proceedings has been submitted .

On DATE the Minister of ORG informed the applicant of the intention ( voornemen ) to impose an exclusion order on him , as he was considered to pose a threat to national security , which conclusion was based on an individual official report drawn up on the applicant by the ORG on DATE ( see above § DATE ) and which had been communicated to him on DATE .

On DATE and CARDINAL DATE , the applicant filed written comments on the intention with the Minister . He contested that he posed a threat to national security and argued inter alia that such an exclusion order would be in violation of his rights under LAW in that his expulsion to GPE would expose him to a real risk of treatment contrary to this Convention provision .

On DATE , after having been given access to the underlying materials of the ORG individual official report of CARDINAL DATE , ORG of ORG concluded that this report , both as regards its content and procedure , had been drawn up in a careful manner and that it provided insight in a logical , transparent manner .

On DATE , the Minister of ORG decided to impose an exclusion order on the applicant , rejecting the applicant 's arguments to the effect that this was contrary to his rights under LAW . This decision was notified to the applicant on DATE . On DATE , the applicant filed an objection against this decision with the Minister and , as he was not allowed to await the outcome of his objection in the GPE , also a request for a provisional measure with ORG of The Hague .

On DATE , following a hearing held on DATE , the provisional - measures judge of ORG of The GPE sitting in GPE rejected the applicant 's request for a provisional measure ( see above § § DATE ) .

NORP The Minister rejected the applicant 's objection against this decision on DATE . On DATE , the applicant filed an appeal against this decision as well as a fresh request for a provisional measure with ORG of The Hague .

On DATE , ORG of The GPE sitting in GPE rejected the applicant 's request for a provisional measure .

On DATE , following a hearing held on DATE , ORG of The GPE sitting in GPE rejected the applicant 's appeal against the decision of DATE . It noted the final judgment of CARDINAL DATE by the provisional - measures judge of ORG of The GPE sitting in GPE , and found that no facts or circumstances had appeared on the basis of which it should now reach another conclusion as regards the ORG individual official report of CARDINAL DATE or should reach a different decision in respect of the applicant 's claim under LAW . In this context , it further considered that this was not altered by the fact that on DATE ORG had issued an interim measure within the meaning of Rule CARDINAL of ORG as this did not imply that the ORG had reached the conclusion that the applicant 's expulsion to GPE would be contrary to LAW . It further considered , as it could only assess on an ex tunc basis the lawfulness of the decision to impose an exclusion order on the applicant , that it could not take into account the policy decision to install a moratorium on expulsions of NORP asylum seekers ( see below § CARDINAL ) or the facts and circumstances having led to that policy decision as it had been taken after the impugned decision .

The applicant 's subsequent appeal to ORG of ORG was dismissed on DATE . It upheld the ruling of CARDINAL DATE of ORG . It found that the applicant 's appeal did not provide grounds for quashing the impugned ruling ( kan niet tot vernietiging PERSON aangevallen uitspraak leiden ) and that , having regard to article CARDINAL § CARDINAL of LAW , no further reasoning was called for as the arguments submitted did not raise questions requiring determination in the interest of legal unity , legal development or legal protection in the general sense . No further appeal lay against this decision .

In its letter of DATE , sent in reply to questions put by the applicant 's lawyer , ORG ( PERSON GPE ) stated inter alia that it appeared from various sources that the NORP authorities monitor opposition activities abroad , and that members of the many security and intelligence services of ORG often have a good insight in the activities and contacts of NORP abroad . It further stated , referring to information from ORG dated DATE , that in the eyes of the NORP authorities applying for asylum abroad is an act of opposition and that each opponent of the regime runs the risk of arbitrary detention and torture .

On DATE , ORG in the GPE issued a statement , in which it declared that the applicant is a political opponent of the NORP regime , that he is being searched for by the NORP authorities for his political activities and that he , if he were to return to GPE , would risk imprisonment .

On DATE , the non - governmental organisation “ ORG ” , based in GPE , released a statement , calling upon the GPE ' authorities to grant the applicant asylum . It stated that it knew the applicant as a NORP activist , that he had been involved in opposition activities inside GPE and abroad and DATE in its opinion – his association with ORG was in itself enough to lead to his arrest and torture should he return to GPE . It further expressed its concern that failed asylum seekers who are returned to GPE will become easy targets for the various NORP security agencies in their efforts to act with an iron fist against enemies of the state . In this connection , it referred to the fate of PERSON , a failed asylum seeker who was expelled from GPE to GPE in DATE and who was tortured to death by the NORP security services .

On DATE , ORG of ORG issued a declaration in which it was concluded DATE on the basis of various reports concerning other returnees – that there are substantial grounds for believing that the applicant , if expelled to GPE , would face a real risk of serious violations of his human rights including LAW , because of his membership of ORG , because ORG an opposition group in exile – identified the applicant as a sympathiser , and because of the allegations of involvement in terrorism - related activities levelled against him by the NORP authorities . Such violations would include torture or other ill - treatment , prolonged incommunicado detention and unfair trial before ORG . ORG further stated that its concern in the applicant 's case was based on its monitoring of the treatment of a number of NORP nationals suspected of involvement in terrorism - related activities who had returned DATE either forcibly or voluntarily – to GPE from abroad in DATE . Also in this declaration , reference was made to the death in NORP custody of PERSON after his deportation from GPE to GPE in DATE . According to ORG , the NORP authorities claimed that he had committed suicide whereas an investigation by ORG concluded in DATE that it was impossible to establish the cause of death .

Until DATE , the admission , residence and expulsion of aliens were regulated by LAW DATE ( Vreemdelingenwet DATE ) . Further rules were laid down in LAW ( Vreemdelingenbesluit ) , the Regulation on Aliens ( Voorschrift Vreemdelingen ) and LAW ( Vreemdelingencirculaire ) . LAW ( PERSON ) applied to proceedings under LAW DATE , unless indicated otherwise in this Act .

DATE . Under LAW of LAW DATE , a residence permit may be issued to an alien :

( a ) who is a refugee within the meaning of the LAW relating to LAW DATE ;

( b ) who makes a plausible case that he or she has well - founded reasons for believing that , if expelled , he or she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment .

On DATE , LAW DATE was replaced by LAW . On DATE , LAW , the Regulation on Aliens and LAW were replaced by new versions based on LAW . Unless indicated otherwise in LAW , LAW continued to apply to proceedings on requests by aliens for admission and residence .

According to the transitional rules , set out in LAW of LAW , an application for a residence permit or for admission as a refugee which was being processed at the time this LAW entered into force would be considered as an application under the provisions of LAW . Because no transitional rules were set for the substantive provisions of the aliens ' law , the substantive provisions under LAW took effect immediately . However , pursuant to article LAW of LAW , the procedural rules under LAW DATE continued to apply to the processing of applications for a residence title submitted before DATE when LAW entered into force .

Both under LAW DATE and LAW , judicial review by ORG and ORG in administrative law appeal proceedings only addresses whether the administrative authority concerned has exercised its administrative powers in a reasonable manner and in the light of the interests at stake could reasonably have taken the impugned decision ( marginale toetsing ) .

Under LAW of LAW , an alien is eligible for a residence permit for the purposes of asylum if , inter alia ,

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

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

Pursuant to article CARDINAL of LAW , a decision rejecting an alien 's request for admission to the GPE for the purposes of , for instance , asylum automatically has the following legal consequences :

the alien is no longer lawfully residing in the GPE ;

he / she is required to leave the GPE within DATE ;

he / she is no longer entitled to housing / subsistence benefits , medical care and other ORG - funded facilities for asylum seekers ; and

officials entrusted with the supervision of aliens are authorised DATE if the alien has not voluntarily left the GPE within the delay fixed for this purpose DATE to proceed with his / her effective removal from the GPE .

Under the former Aliens Act DATE , a separate decision was given in respect of each of these legal consequences which could each be challenged in distinct proceedings . This is no longer possible under LAW DATE and a negative decision on an admission request is therefore known as a so called “ multi - purpose decision ” ( meeromvattende beschikking ) .

Article CARDINAL of LAW DATE provides that a foreign national may be declared an undesirable alien , entailing the imposition of an exclusion order , on the ground , inter alia , that he or she poses a danger to national security . An exclusion order entails a ban on residing in or visiting the GPE .

DATE . An exclusion order can be challenged in administrative law appeal proceedings under the terms of LAW . Such appeal proceedings do not have an automatic suspensive effect .

Article CARDINAL of LAW ( GPE ) provides that an alien who stays in the GPE while he or she knows that an exclusion order has been imposed on him or her commits a criminal offence punishable by DATE imprisonment or a fine of QUANTITY .

An exclusion order may be revoked , upon request , if the alien concerned has been residing outside the GPE for a period of DATE ( article CARDINAL of LAW ) . Such revocation entitles the alien to seek readmission to GPE territory subject to the conditions that are applicable to every alien .

In the case of an alien who has been denied a residence permit , who has not left the GPE voluntarily within the time - limit fixed for this purpose and who holds no travel documents , the GPE aliens police submit an application for a laissez - passer for the alien concerned to ORG facilitering terugkeer – “ ORG ” ) of ORG of ORG .

The ORG prepares the presentation of the alien concerned , either in person or in writing , to the authorities of the country to which the alien will be removed . A presentation in person consists of an interview with a staff member of the receiving country 's representation , the aim being to establish the alien 's identity and nationality . After this meeting , the authorities of the receiving country indicate whether they will examine the application for a laissez - passer . A presentation in person may be replaced by a presentation in writing . In such a case , the authorities of the receiving country are sent a letter – containing all information on the alien 's identity known to the GPE authorities , such as his / her full name , date and place of birth , and any available information on parents and other relatives DATE asking these authorities to provide a laissez - passer .

Once the authorities of the receiving country have agreed to examine an application for a laissez - passer , the ORG sends regular reminders to these authorities , requesting the results of the investigation . Some reminders may concern an individual case while others may be couched in more general terms , requesting the results of all outstanding applications .

Article CARDINAL § CARDINAL of this LAW reads :

“ Parties who have been summoned to appear ... before the court ... are obliged to appear and to provide the information requested . The parties ' attention is drawn to this [ obligation ] as well as to section CARDINAL:CARDINAL . ”

Article CARDINAL:CARDINAL of the LAW provides :

“ CARDINAL . Parties who are obliged to submit information or documents may , when there are substantial reasons for so doing , refuse to provide information or submit documents , or inform the court that it alone may take cognisance of the information or documents .

Substantial reasons shall in any event not apply to a public administration body in so far as the obligation exists , pursuant to ORG , to grant requests for information contained in documents .

The court shall decide whether the refusal or limitation on taking cognisance as referred to in the first paragraph is justified .

Should the court decide that such refusal is justified , the obligation shall not apply .

Where the court decides that the restriction on taking cognisance is justified , it may , with the permission of the other party , give a ruling on the basis of , among other elements , the information or documents concerned . If permission [ by the other party ] is withheld , the case shall be referred to another bench . ”

Article CARDINAL:CARDINAL of the LAW reads :

“ If a party fails to comply with the obligation to appear , to provide information , to submit documents or to cooperate in an investigation [ commissioned by the court from an expert appointed by the court ] within the meaning of section CARDINAL:CARDINAL § CARDINAL , the court may draw therefrom the inferences which it sees fit . ”

Article TIME of the LAW , in so far as relevant , reads :

“ CARDINAL . The court may request the parties and others , within a period fixed by the court , to provide written information and to submit documents held by them .

Administrative public bodies shall be obliged , also when they are not a party to the proceedings , to comply with a request within the meaning of the first paragraph . Article CARDINAL:CARDINAL shall apply by analogy . ... ”

An overview of the relevant domestic law and practice as regards the GPE intelligence and security services is set out in the ORG 's decision on admissibility in the case of ORG v. the GPE ( no . ORG , DATE ) .

Pursuant to article CARDINAL of the Intelligence and Security Services Act CARDINAL , the Heads of the intelligence and security agencies are to ensure the secrecy of data eligible for classification as confidential , the secrecy of sources eligible for classification as confidential from which data have been obtained , and the safety of persons with whose cooperation data are collected .

Article CARDINAL § CARDINAL the Intelligence and Security Services Act CARDINAL reads :

“ Our Minister concerned ensures a proper determination of the identity of the petitioner . ”

Article CARDINAL § CARDINAL of this LAW provides as follows :

“ A request within the meaning of LAW will in any case be rejected if :

a. if in the framework of any investigation data relating to the petitioner have been processed , unless :

CARDINAL the data concerned have been processed DATE

CARDINAL since then no new data relating to the petitioner have been processed in connection with the investigation in the framework of which the data concerned were processed , and

CARDINAL the data concerned are not relevant for any current ongoing investigation ;

b. no data relating to the petitioner have been processed .

NORP If a petition is rejected under the first paragraph , the reasons given for the refusal shall only indicate in general terms all grounds for refusal mentioned in that provision . ”

Article CARDINAL § CARDINAL ( b ) of the LAW states :

“ A request within the meaning of article CARDINAL [ request for access to data other than personal data ] will be rejected in so far as providing the data to which the request relates : ...

b. could harm the national security ; ”

Article CARDINAL of the Intelligence and Security Services Act CARDINAL reads :

“ CARDINAL . If in administrative law proceedings concerning the application of this LAW ... Our Minister concerned ... is obliged by the court under LAW , TIME of LAW to provide information or to submit documents , article LAW CARDINAL of that Act does not apply . If Our Minister ... informs the court that only the court may take cognisance of , respectively , information or documents [ requested by the court ] , the court may only with permission of the other party give judgment based also on such information or documents . If Our Minister concerned refuses to provide information or to submit documents , article CARDINAL:CARDINAL of LAW shall remain applicable .

If Our Minister is required to submit documents to the court , consultation of the documents concerned shall be sufficient . In no circumstances may a copy be made of the documents concerned . ”

The most recent official country assessment report on GPE has been drawn up by ORG on DATE . The relevant parts of this report , which focuses on the situation in GPE of returned unsuccessful asylum seekers , read :

“ Under its “ Leader of the Great Revolution of CARDINAL September ” , Colonel PERSON , the Great Libyan - Arab Socialist People 's Jamahiriya ( in short : GPE ) is a severely controlled state that does not allow any political divergences and acts consequently against opponents of the regime . ...

The actual power in GPE lies with PERSON and some trustworthy persons from the revolution . PERSON is the leader of the revolution and also commander in chief of the armed forces . PERSON has reinforced his position in the course of DATE , inter alia by forming revolutionary committees who in his name control daily life .

The NORP legislation prohibits opposition to the current regime . Also party - political activities are not allowed . The NORP authorities are alert as regards opposition against the regime and in particular in respect of NORP fundamentalism .

ORG acts hard against ( alleged ) opposition groups . The opposition both in GPE and abroad seems too divided to be able to form a front against the authorities . ... In the past opponents of the regime were executed , inter alia , by public hanging . There is no recent information about the execution of capital punishments . The last officially announced execution took place in DATE . Since the NORP government have exterminated some anti - regime groups in DATE , no verifiable information about internal opposition has been obtained . After DATE , the NORP government tend to accuse all opponents of the regime of membership or ties with the ORG organisation . ...

Respect for human rights leaves a serious lot to be desired . The elementary conditions for a ORG based on the rule of law are missing ; there is no freedom of expression , no freedom of association and assembly and there are no elections . There are no political parties . There are reports about ill - treatment and torture during detention . ...

Persons who are leaving GPE are in practice subjected to very strict controls . This seems to apply to all travellers , but to NORP in particular . Strict controls are also carried out on persons who enter GPE . Border control officials reportedly consult lists of names . Apart from the border police and customs , also representatives of the security services of ORG are present at the borders .

Until DATE all NORP having stayed DATE abroad were , upon return to GPE , questioned about their activities and contacts abroad . Since then the NORP authorities in principle no longer use this DATE term , but all persons having stayed for a lengthy period abroad will , upon return , be questioned by the NORP security services . This does not only concern unsuccessful asylum seekers but all returnees . There is no legal basis in NORP law for this procedure , but this treatment forms part of the standard practice of the NORP authorities . The civil servants in GPE entrusted with border control determine on the basis of stamps in the travel documents of returning NORP who must be questioned . The duration of the stay abroad is an important cause to submit returning NORP to questioning by the NORP security services . The interest of the NORP security services is particularly targeted at possible opposition activities , critics of the NORP political system and/or contacts with opponents of the NORP regime abroad . In so far as appears , an asylum application abroad is in itself no ground for a particular interest by the NORP authorities . The NORP government have many security and intelligence services ( also abroad ) . The members of these services often have a good insight in the activities and contacts of NORP abroad .

Unsuccessful asylum seekers , who mostly will have stayed for a longer period outside of GPE , will in all likelihood be detained for DATE for the purpose of questioning . It can be assumed with certainty that unsuccessful asylum seekers who are being expelled in an accompanied manner will be temporarily detained and questioned . It would , however , also occur that unsuccessful asylum seekers are only briefly questioned upon their return to GPE . In so far as known , the manner of acting of the NORP authorities does not necessarily have repercussions for further stay in GPE . Examples are known of removed unsuccessful asylum seekers who , after their forced return , have been able to resume their existence in GPE in an unhindered manner . ...

There is an essential difference between the treatment of persons suspected of oppositional activities in or outside of GPE and persons not so suspected . Suspicion of oppositional activities is sufficient for longer detention and will often lead to conviction . Association with an opponent of the regime is already sufficient cause to detain and question a person for a longer period . In case an unsuccessful asylum seeker , after having returned to GPE , is detained , ill - treatment or torture during detention can not be excluded . ... ”

With the exception of the period DATE and DATE when this was done by the Minister for ORG , the respondent ORG 's policy on asylum seekers is devised by the Deputy Minister of ORG ( ORG ) on the basis of inter alia official country assessment reports published by the Minister of ORG . As regards GPE , the last such report was released on DATE ( see above § DATE ) .

On DATE , the Minister of ORG adopted a moratorium until DATE on expulsions and determination of asylum requests ( vertrek- en besluitmoratorium ) lodged by NORP asylum seekers . This policy decision , as set out in the ORG ( PERSON DATE ) CARDINAL of DATE , was based on a statement set out in the official report on GPE of DATE according to which it could not be excluded , in case an unsuccessful asylum seeker was detained after his or her return to GPE , that ill - treatment or torture would occur in detention . A temporary stay of removals to GPE would allow awaiting further developments and a possible clarification of the situation . NORP posing a threat to public order or national security were excluded from the moratorium .

In her letter to ORG of ORG ( ORG ) of DATE , informing it of this moratorium , the Minister stated that more recent reports of international organisations and the policy of other ORG gave the impression that rejected asylum seekers who were not an opponent of the regime did not run a risk of being illtreated or tortured . The Minister further stated that , due to a lack of investigation possibilities , the Minister of ORG could not confirm or deny this , and that , after DATE , the Minister of ORG would review again whether new possibilities of investigation had arisen .

On DATE , the Minister decided to prolong the moratorium until DATE , i.e. its maximum period of validity pursuant to article CARDINAL of LAW . By letter of DATE , the Minister explained to ORG of ORG that the non - recurring prolongation had been decided because for the time being ORG did not have any possibilities to examine the situation of returned , rejected asylum seekers in GPE and that it had indicated that an investigation would not be accomplished by DATE .

On DATE , in case no . CARDINAL/CARDINAL , ORG rejected an appeal filed by a NORP national on whom an exclusion order had been imposed as he was considered to pose a threat to national security . This decision was based on the contents of an official report drawn up by the ORG according to which this person publically praised jihad and martyrdom , was associated with a NORP terrorist movement striving to establish in GPE a NORP - based orthodox - NORP regime , and was maintaining contacts with persons belonging to international terrorist networks . In his appeal , the appellant raised a number of grievances under Articles CARDINAL and CARDINAL of the Convention . ORG rejected these complaints . It accepted the findings of the judges of ORG of The Hague DATE who like ORG itself had had access to the materials underlying the ORG official report without these materials being disclosed to the parties – that the ORG report had been drawn up with due care , that its contents had a sufficient factual basis in the underlying materials and that there were no reasons for doubting its correctness or completeness . It further accepted ORG refusal to give detailed reasons for rejecting the alleged incorrectness and incompleteness of the ORG report as this would be incompatible with the confidential nature of the underlying materials . ORG further accepted the finding of ORG that it had not been established that the applicant was known to the NORP authorities as a political opponent or otherwise would have attracted the negative attention of the NORP authorities on the basis of which it should be accepted that he would be exposed to a risk of being subjected to treatment proscribed by LAW in case he would return to GPE .

In a letter of CARDINAL DATE , the Minister of ORG informed ORG of ORG on the current asylum policy in respect of GPE . This letter reads in its relevant part :

“ The moratorium on expulsions and determination of asylum requests ... has already expired a considerable time ago thereby ceasing its effect ex iure . Since then there exist no policy obstacles for determining asylum requests [ filed by NORP nationals ] and , where this arises , to reject such requests and to undertake expulsion . In taking this course of action , I find support in the case - law of ORG of ORG ( case no . CARDINAL/CARDINAL ) and the fact that in any event GPE has recently expelled rejected asylum seekers to GPE .

Obviously , great care is exercised in the assessment of the accounts of NORP asylum seekers . As in all cases , the principle will also apply in relation to NORP asylum seekers that where the account is credible , but the information sources available do not confirm the account and whereas a new investigation appears impossible , this will not weigh in the alien 's disadvantage in the determination of the asylum request . ”

The policy position set out in this letter of CARDINAL DATE has been included in the most recent , relevant amendment of LAW ( WBV CARDINAL/CARDINAL of DATE ) .

To date , no update has been issued to the official country assessment reports on GPE of DATE .

The GPE are a party to the DATE United Nations Convention on the Status of Refugees . Articles CARDINAL , CARDINAL and CARDINAL of this Convention read as follows :

“ Article CARDINAL

For the purposes of the present Convention , the term ' refugee ' shall apply to any person who ... owing to well - founded fear of being persecuted for reasons of race , religion , nationality , membership of a particular social group or political opinion , is outside the country of his nationality and is unable , or owing to such fear , is unwilling to avail himself of the protection of that country ; or who , not having a nationality and being outside the country of his former habitual residence as a result of such events , is unable or , owing to such fear , is unwilling to return to it .

Article CARDINAL

The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order .

The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law ...

Article CARDINAL

No Contracting State shall expel or return ( refouler ) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race , religion , nationality , membership of a particular social group or political opinion .

NORP The benefit of the present provision may not , however , be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is , or who , having been convicted by a final judgment of a particularly serious crime , constitutes a danger to the community of that country . ”

ORG has produced CARDINAL international treaties relating to the fight against terrorism , namely :

- LAW of DATE ( ETS CARDINAL ) , which entered into force on CARDINAL DATE and which is designed to facilitate the extradition of persons having committed acts of terrorism , and LAW DATE amending this Convention ( ORG CARDINAL ) which has not yet entered into force ;

- LAW of CARDINAL DATE ( ETS CARDINAL ) , which has not yet entered into force and which seeks to increase the effectiveness of existing international texts on the fight against terrorism and to strengthen member states ' efforts to prevent terrorism ; and

- LAW on laundering , search , seizure and confiscation of the proceeds of crime and on the financing of terrorism of DATE ( ETS CARDINAL ) , which has entered into force on DATE and which is designed as an update and extension of ORG on laundering , search , seizure and confiscation of the proceeds from crime of DATE ( ETS CARDINAL ) by taking into account the fact that not only can terrorism be financed through money laundering from criminal activity , but also through legitimate activities .

Article CARDINAL § CARDINAL of the LAW amending LAW on the Suppression of Terrorism states :

“ The text of LAW shall be supplemented by the following paragraphs :

' CARDINAL Nothing in this Convention shall be interpreted as imposing on the requested ORG an obligation to extradite if the person subject of the extradition request risks being exposed to torture ; ... ' ”

Article CARDINAL § CARDINAL of LAW provides :

“ Nothing in this Convention shall be interpreted as imposing an obligation to extradite if the person who is the subject of the extradition request risks being exposed to torture or to inhuman or degrading treatment or punishment . ”

Furthermore , following its meeting on DATE to discuss “ Democracies facing terrorism ” ( ORG Rec CARDINAL ) , ORG adopted on DATE “ Guidelines on human rights and the fight against terrorism ” . These guidelines consist of CARDINAL principles – derived from various international legal and political texts and the ORG 's case - law – specifying the limitations which GPE are to respect in their efforts to combat terrorism .

These guidelines provided , inter alia :

“ I. States ' obligation to protect everyone against terrorism

States are under the obligation to take the measures needed to protect the fundamental rights of everyone within their jurisdiction against terrorist acts , especially the right to life . This positive obligation fully justifies GPE ' fight against terrorism in accordance with the present guidelines .

II . Prohibition of arbitrariness

All measures taken by GPE to fight terrorism must respect human rights and the principle of the rule of law , while excluding any form of arbitrariness , as well as any discriminatory or racist treatment , and must be subject to appropriate supervision . ...

IV . Absolute prohibition of torture

The use of torture or of inhuman or degrading treatment or punishment is absolutely prohibited , in all circumstances , and in particular during the arrest , questioning and detention of a person suspected of or convicted of terrorist activities , irrespective of the nature of the acts that the person is suspected of or for which he / she was convicted . ...

ORG . Asylum , return ( ' refoulement ' ) and expulsion

All requests for asylum must be dealt with on an individual basis . An effective remedy must lie against the decision taken . However , when the ORG has serious grounds to believe that the person who seeks to be granted asylum has participated in terrorist activities , refugee status must be refused to that person .

It is the duty of a ORG that has received a request for asylum to ensure that the possible return ( ' refoulement ' ) of the applicant to his / her country of origin or to another country will not expose him / her to the death penalty , to torture or to inhuman or degrading treatment or punishment . The same applies to expulsion . ... ”

NORP In its report to ORG on its visit to GPE from DATE ( ORG ( CARDINAL of DATE ) and in the context of the so - called “ push - back ” operations , ORG for ORG Treatment or Punishment ( ORG ) stated in respect of the risk of torture or other forms of ill - treatment of persons returned to GPE :

“ DATE . The ORG has not itself been in a position to verify , through an on - site visit , conditions of detention and the treatment afforded to persons detained in GPE . However , according to consistent accounts from a variety of sources , overcrowding , absence of beds , poor hygiene , inadequacy of food , lack of health care and sanitation , and rampant skin infections would appear to be commonplace in NORP detention centres . ...

Incommunicado detention is another cause for concern . In its Communication of CARDINAL DATE [ document CAT / C / ORG / Q/CARDINAL ] , ORG ( ORG ) stated that the practice of prolonged incommunicado detention is allegedly widespread , putting detainees at risk of torture and ill - treatment . ...

In the light of the above , there would appear to be a real risk , in the ORG 's view , that persons detained in GPE , including migrants , may be subjected to severe ill - treatment ... ”

ORG ( GPE ) published on DATE , under the heading “ Human Rights ” read as follows :

“ ' While GPE has taken positive steps , such as releasing some political prisoners , it remains a country where the citizens have few civil rights or political liberties ' . ( ORG in the World CARDINAL ) ' GPE 's international reintegration accelerated in DATE despite the government 's ongoing human rights violations . In DATE the government released CARDINAL foreign medical workers who had been tortured , unfairly tried , and imprisoned for DATE for allegedly infecting children with HIV . In DATE Libya won a seat on ORG . Driven by business interests and GPE 's cooperation on counterterrorism , GPE and some NORP governments strengthened ties with GPE throughout DATE . Yet the NORP government continues to imprison individuals for criticizing the country 's political system or its leader , PERSON , and maintains near - total restrictions on freedom of expression and assembly . It forbids opposition political parties and independent organizations . Torture remains a concern ' . ( ORG DATE ) .

' GPE continues to detain scores of individuals for engaging in peaceful political activity . According to the GPE - based group ORG , GPE has forcibly disappeared CARDINAL political prisoners , some for DATE . Many were imprisoned for violating LAW , which bans any group activity opposed to the principles of the DATE revolution that brought PERSON to power . Violators of PERSON CARDINAL can be put to ORG DATE )

' PERSON enforcement officials resorted to excessive use of force , killing CARDINAL demonstrators while breaking up a protest and CARDINAL detainee during a prison disturbance . CARDINAL political detainees , including prisoners of conscience , were released following pardons . Freedom of expression and association remained severely restricted . Several NORP suspected of political activism abroad were arrested or otherwise intimidated when they returned to the country ... There were continuing concerns about the treatment of migrants , asylum - seekers and refugees . No progress was made towards establishing the fate or whereabouts of victims of enforced disappearances in DATE . ( ORG DATE )

' The government 's human rights record remained poor [ in DATE ] . ORG did not have the right to change their government . Reported torture , arbitrary arrest , and incommunicado detention remained problems . The government restricted civil liberties and freedoms of speech , press , assembly , and association . The government did not fully protect the rights of migrants , asylum seekers , and refugees . Other problems included poor prison conditions ; impunity for government officials ; lengthy political detention ; denial of fair public trial ; infringement of privacy rights ; restrictions of freedom of religion ; corruption and lack of transparency ; societal discrimination against women , ethnic minorities , and foreign workers ; trafficking in persons ; and restriction of labour rights . ' ( ORG Human Rights Practices DATE )

' In DATE the government continued to review proposals for a new penal code and code of criminal procedure , a process that began DATE . In DATE the secretary of justice stated that , under the new penal code , the death penalty would remain only for the “ most dangerous crimes ” and for “ terrorism . ” However , a DATE draft of the new code suggests the government might accept a very broad definition of terrorism , which could be used to criminalize people expressing peaceful political views . The government has yet to present either draft code to ORG . ( ORG DATE ) . ' A large but unknown number of persons were detained and imprisoned during DATE either for engaging in peaceful political activity or for belonging to an illegal political organization . The law bans any group activity based on any political ideology inconsistent with the principles of the DATE revolution ' . ( ORG on Human Rights Practices DATE ) ”

According to the “ ORG DATE GPE ” of CARDINAL DATE , ORG ( “ GDF ” ; headed by PERSON , a son of PERSON ) announced that CARDINAL members of ORG had been released from prison following negotiations led by the ORG with the group 's leaders . The ORG stated that this represented a third of the group 's membership . The report further states that the NORP authorities did not disclose any information CARDINAL NORP nationals who were detained when they were returned from GPE custody in LOC in DATE and DATE , respectively , and that this lack of information raised fears for their safety and that of other NORP who might be returned under similar circumstances .

The “ DATE Report on International Religious Freedom – GPE ” , as released on DATE by ORG reads inter alia :

“ The country does not have a constitution , and there is no explicit legal provision for religious freedom . However , a basis for some degree of religious freedom is provided in LAW ORG , and the Government generally respects the right to observe one 's religion freely in practice . The Government tolerates most minority religions but strongly opposes militant forms of ORG , which it views as a security threat ... ”

In its “ World Report CARDINAL – GPE ” of DATE , ORG asserted that GPE continued to share intelligence on militant NORP with NORP governments , and that GPE and GPE continued to consider GPE a strategic partner in counterterrorism efforts . According to ORG , a number of those GPE had returned or rendered to GPE over DATE remained in detention after unfair trials , and NORP authorities continued to detain CARDINAL NORP citizens whom the GPE government returned in DATE and DATE from detention in LOC . In this report , ORG further stated that in DATE it was able to confirm the detention of CARDINAL former ORG secret detainees in PERSON prison .

The relevant parts of the “ DATE Country Reports on Human Rights Practices – GPE ” issued on DATE by ORG , read :

“ The Great Socialist People 's Libyan Arab Jamahiriya is an authoritarian regime with a population of CARDINAL , ruled by Colonel PERSON since DATE . The country 's governing principles are derived predominantly from PERSON ORG ideology . In theory citizens rule the country through a pyramid of popular congresses , communes , and committees , as laid out in the DATE LAW and LAW . ... In practice PERSON and his inner circle monopolized political power . These authorities generally maintained effective control of the security forces .

The government 's human rights record remained poor . ORG did not have the right to change their government . Continuing problems included reported disappearances ; torture ; arbitrary arrest ; lengthy pretrial and sometimes incommunicado detention ; official impunity ; and poor prison conditions . Denial of fair public trial by an independent judiciary , political prisoners and detainees , and the lack of judicial recourse for alleged human rights violations were also problems . ...

The law prohibits [ torture and other cruel , inhuman , or degrading treatment or punishment ] , but security personnel reportedly routinely tortured and abused detainees and prisoners during interrogations or as punishment . Detainees often were held incommunicado . Foreign observers noted that incidents of torture – used as a punishment in ORG prisons DATE seemed to have decreased over DATE .

There were reports of torture and abuse during DATE . On DATE , ORG ( QDF ) released a report on human rights practices in the country . In a statement accompanying the release , the ORG said during DATE it had received a " large number of complaints " of torture during imprisonment and called for the government to waive immunities from prosecution for officials accused of torture . ...

In DATE PERSON , son of Colonel PERSON , conceded that acts of torture and excessive violence had taken place in prisons . PERSON denied government culpability , arguing that the individuals responsible for the torture had acted on their own initiative and were being tried within the legal system . At DATE there was no information released on the progress of trials . ...

On DATE , authorities released CARDINAL prisoners held for membership in ORG ( ORG ) and other jihadist groups . On DATE , the PERSON had stated that its DATE announced merger with ORG in ORG was " invalid " and in DATE renounced violent jihad . ...

The government reportedly held political detainees , including CARDINAL associated with banned NORP groups , in prisons throughout the country , but mainly in PERSON , GPE , and PERSON Prisons in GPE . ...

Although there is no explicit law guaranteeing religious freedom , the government generally respected in practice the right to observe one 's religion . ORG is the equivalent of a state religion and is thoroughly integrated into everyday political and social life . The government regulated mosques , religious schools , and clerics to ensure that all views were in line with the state - approved form of ORG . The government strongly opposed militant forms of ORG , which it viewed as a threat to the regime . ...

The government continued to encourage dissidents abroad to return and publicly promised their safety , but there were numerous reports that the government detained dissidents who returned from exile . The government reportedly interrogated students returning from study abroad and at times discouraged students from studying abroad . ”

On DATE , ORG issued a press release stating :

“ The release on DATE of CARDINAL prisoners , including DATE who had been acquitted but continued to be held , was a positive step , but GPE should release all prisoners who continue to be detained despite judicial orders for their release ....

In a GPE news conference DATE , PERSON , the son of the NORP leader , PERSON , announced the release of the CARDINAL prisoners , including the CARDINAL acquitted of the offenses with which they had been charged . He said another CARDINAL were members of ORG , a group which had sought to overthrow PERSON 's rule , and CARDINAL others were ' individuals with a direct relationship to the groups operating in GPE . ' Later that day however , independent NORP news website GPE PERSON reported that PERSON prison authorities had refused to release CARDINAL prisoners who were on the list and had told the waiting families that they would be released in DATE

PERSON said this brought the total number of prisoners released as a result of efforts by the quasi - governmental ORG , which he leads , to CARDINAL . He said that CARDINAL prisoners remained in PERSON prison , of whom CARDINAL ' would soon be released ' when ' we are sure that those individuals will no longer pose a threat to society and that they are ready to reintegrate . '

CARDINAL of those who remain in PERSON prison despite having been acquitted by a court is PERSON , a dual NORP citizen who lived in the GPE and returned to GPE on DATE . On DATE , internal security forces arrested and imprisoned him in PERSON . The state security prosecutor then charged him with membership in an illegal organization , in this case ORG , under LAW and ORG , DATE and DATE of Law CARDINAL . ... His case eventually came before ORG , which ruled in his favor on DATE , and ordered his release . This order for release has been ignored by ORG , which controls PERSON prison . ... ”


The applicant , PERSON , is a NORP national , who was born in DATE and lives in Xanthi . The Government are represented by PERSON and PERSON of ORG , Acting Agents .

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

The applicant , who considers himself a member of the NORP minority of Thrace , is a graduate of ORG . He used to work as a teacher in the minority schools of CARDINAL . His conditions of employment were not different from those of other civil servants .

On DATE ORG GPE called all the NORP teachers of the minority schools of GPE to attend an educational meeting on DATE . The aim of the meeting was to present new books for the teaching of the NORP language , which would be delivered to the directors of the schools between QUANTITY and DATE .

A similar order was issued on DATE by ORG .

On DATE the Co - ordination ORG of the NORP Minority of Western Thrace issued a statement to the effect that the content of these books “ was in breach of the autonomy of the NORP Minority of Western Thrace ” and failed to respect certain international agreements . The NORP teachers were called upon not to collect these books and the NORP pupils not to attend school DATE , in order to voice the protest of the NORP Minority of Western Thrace .

On DATE ORG issued a statement to the effect that the NORP schools of LOC would be closed DATE , because the NORP teachers of LOC were against the NORP language books which ORG intended to distribute to the pupils of the minority schools . The statement also said that all the NORP teachers of LOC would participate in the strike . Reference was made to the members of ORG who were graduated of ORG . The statement specified that all those who felt they were NORP and who wanted to learn or teach the NORP language would take part in the boycott .

On an unspecified date , a NORP religious leader , the mufti of Xanthi , called on the NORP teachers who felt they were NORP not to go to the presentation of the books on DATE .

On DATE CARDINAL teachers of the minority schools of Xanthi , including the applicant , signed a statement to the effect that they would not attend the educational meeting in ORG in order to protest about certain unfair decisions against them concerning posting , transfer and secondment and their exclusion from training seminars in GPE and GPE . They specified that they would not carry out their duties DATE .

On DATE ORG of ORG of the NORP Minority of Western Thrace issued a statement congratulating the pupils and teachers who took part in the mobilisation which showed the length to which the minority was prepared to go in order to vindicate its rights .

On DATE ORG decided to institute disciplinary proceedings under LAW against CARDINAL minority school teachers , including the applicant , for having failed to attend the educational meeting of DATE .

On DATE ORG ordered an inquiry and decided provisionally to suspend the applicant from his duties for DATE pending the outcome of the disciplinary proceedings against him .

On DATE ORG confirmed the decision of ORG regarding the provisional suspension of the applicant from his duties .

On DATE ORG issued a decision in which it considered the following :

– First , the applicant had been asked by his superiors to attend the educational meeting of DATE but had failed to do so , arguing that attending the meeting would have disrupted his relationship with his pupils and his parents and put his personal integrity in danger . However , ORG considered that this excuse was not valid , because the meeting would have taken place in the city of Xanthi far from the applicant ’s school area . Moreover , the applicant took part in a strike between CARDINAL and CARDINAL DATE complying with the order and appeal of the irregular ORG of the NORP Minority of Western Thrace and the appeal of the illegally self - proclaimed mufti of Xanthi calling on the NORP teachers who felt they were NORP not to attend the meeting of QUANTITY DATE . He had accused ORG persecuting him . His illegal acts had contributed to creating tension and commotion in the minority community . The applicant had allied himself with certain subversive elements in the minority community who falsely contended that there was no equality before the law in LOC . Thus , he had become agent of foreign anti - NORP powers . These facts constituted the following disciplinary offences : not having faith in and dedication to his country ( Article CARDINAL § CARDINAL–CARDINAL of ORG ) , refusing to discharge his duties or employing obstructive tactics ( Article CARDINAL § CARDINAL–CARDINAL of the Code ) , taking part in a strike in breach of LAW § CARDINAL of the LAW and the relevant legislation ( LAW CARDINAL of the Code ) and intentionally engaging in an act or omission which could damage or endanger the interests of the ORG ( Article CARDINAL § CARDINAL–CARDINAL of the Code ) .

– Secondly , the applicant had publicly criticised ORG on the ground that the new books were distributed in breach of international agreements concluded by GPE . As a result , he had committed the disciplinary offence of criticising the actions of his superiors in public using phraseology which showed lack of respect or intentionally using unfounded arguments ( LAW of the above - mentioned Code ) .

– Thirdly , the applicant had become an organ of irregular committees acting against the interests of the nation . His actions had stirred up trouble in the minority community and had led to the involvement of NORP newspapers , to tension between the CARDINAL countries and to criminal proceedings being instituted against parents who had disrupted the functioning of the schools . As a result , the applicant had committed the disciplinary offence of failing to respect a duty imposed by criminal law ( LAW ) .

ORG was fully satisfied that the applicant “ acting in full conscience and with intent and malice , behaving in a manner incompatible with [ his ] status as civil servant , acting against the nation and obeying the commands of anti - NORP power structures , aimed at destabilising the region where the situation was until then normal and creating social unrest ” . In the light of all the above , the ORG decided to dismiss the applicant .

On DATE ORG ordered the applicant ’s dismissal by virtue of LAW no . CARDINAL . Under that decree , pertaining to the appointment and career of NORP teachers in the minority schools of NORP , the ORG is the competent authority to pronounce the termination of service of NORP teachers .

On DATE the applicant challenged the decision of ORG and the ORG ’s decision before ORG . He claimed that he did not lack faith in and dedication to his country , that he had not acted against social order , that he had the right to engage in objective and reasonable criticism of the actions of his superiors or the Government , that he had not refused to discharge his duties but had instead participated in a lawful strike , that he had not engaged in any acts which could have caused damage to the ORG or in any criminal offences , that he had been forced not to collect the books in person because his life had been threatened by other NORP , that the ORG had attributed wrong motives to his actions which were not anti - NORP and that his punishment aimed at his destruction . He further submitted that the hearing before ORG had not been preceded by a proper inquiry , that he had been punished for offences which were not mentioned in the decision instituting proceedings against him and that ORG had not heard a number of witnesses he had proposed . Finally , the applicant argued that the decision of ORG was not duly reasoned in that it failed to specify how his actions amounted to the particular disciplinary offences which should be punished with the particular penalty .

On DATE ORG rejected the applicant ’s appeal against the decision of ORG of DATE . The ORG considered that the inquiry ordered on DATE satisfied the requirements of the law and that ORG had not failed to examine any witnesses proposed by the applicant . The ORG also considered that the applicant could not be punished for facts other than those which were mentioned in the decision of CARDINAL DATE by which the disciplinary proceedings had been instituted . The applicant could only be punished for having failed to attend the educational meeting of DATE . However , ORG and ORG remained free to examine these facts under different legal provisions from those mentioned in the decision instituting disciplinary proceedings . The ORG considered that the applicant ’s failure to attend the meeting of DATE in order to participate in a strike CARDINAL DATE amounted to the disciplinary offence of serious disobedience under LAW of LAW . The ORG found that the punishment imposed was appropriate given the circumstances in which the offence had taken place . The ORG referred in this connection to the statement of CARDINAL DATE of the Co - ordination ORG of the NORP Minority of Western Thrace , the statement of QUANTITY DATE of ORG and the statement of the mufti of Xanthi which called on all the NORP teachers who considered themselves NORP not to attend the educational meeting of DATE . The ORG considered that the applicant had obviously associated his failure to comply with the order to attend the educational meeting with the above - mentioned statements of organisations which purported to represent the self - proclaimed NORP minority of LOC . Seen in the light of the above , the applicant ’s actions had had as a result the disruption of the functioning of the minority schools in LOC in which the ORG was particularly interested . They had also resulted in social unrest among the NORP minority of this sensitive region . This in turn could have resulted in dangerous albeit unwarranted disruption of the friendly relations between GPE and neighbouring countries and in the disruption of the harmonious coexistence between the NORP citizens , NORP and NORP , who lived in LOC .

Finally , the ORG considered that the decision of the ORG was duly reasoned . All the elements of the disciplinary offence of serious disobedience were set out in the decision which specified that the applicant had not attended the meeting of DATE , although he had been asked to do so by his superiors . The decision also specified that the applicant had complied with the order and appeal of the irregular ORG of ORG of the NORP Minority of Western Thrace and the appeal of the illegally self - proclaimed mufti of Xanthi calling on the NORP teachers who felt they were NORP not to attend the meeting of QUANTITY DATE ( decision no . DATE ) .

On DATE the Prefect of Xanthi revoked his decision of CARDINAL DATE and , in compliance with decision no . CARDINAL of ORG , ordered the applicant ’s dismissal as from the same date .

On DATE ORG struck out the proceedings instituted against the ORG ’s decision of CARDINAL DATE , on the ground that the decision complained of had already been revoked by the ORG .

By decision of CARDINAL DecemberCARDINAL , notified to the applicant on DATE , the ORG ordered for the third time the applicant ’s dismissal .

In the meantime , the applicant had instituted several proceedings in order to recover several sums ( arrears of salaries , compensation for his dismissal , etc . ) . The applicant claims that a set of proceedings instituted on DATE before ORG of Rodopi is still pending . He further claims that on DATE ORG notified to him a decision of ORG that his pecuniary claims had been statute - barred .

On DATE the applicant appealed against the ORG ’s decision of DATE to ORG of PERSON . He claimed that all other civil servants were dismissed by ministerial decision and complained that his dismissal by prefectural decision was contrary to religious freedom . He further complained that he was not previously heard by the Prefect . The applicant further invoked Articles CARDINAL and CARDINAL of the Convention and CARDINAL of Protocol No . CARDINAL .

On DATE ORG rejected the appeal ( decision no . CARDINAL ) . The court held that , by definition , the ORG has a better knowledge of the local situation than the Minister ; therefore , it could not be sustained that the delegation to the ORG to pronounce the termination of service of NORP teachers violated the religious freedom . Moreover , the court held that the ORG ’s decision aimed at complying with the relevant decisions of ORG ; therefore , the previous hearing of the applicant was not required . The applicant did not appeal against this decision to ORG .

The applicant claims that he has instituted civil and administrative proceedings in order to recover several sums ( arrears of salaries , compensation for his dismissal , etc . ) . The applicant alleges that a set of proceedings instituted on DATE before ORG of Rodopi is still pending . He further alleges that on DATE ORG notified to him a decision of ORG that his pecuniary claims had been statute - barred .

On DATE ORG of PERSON awarded the applicant ORG CARDINAL,CARDINAL for pecuniary damage ( decision no . DATE ) . The applicant did not appeal against this decision within DATE time - limit provided for by LAW .


Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Remainder inadmissible;Violation of Art. 6-1+6-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in Stronie Śląskie .

On DATE the Law of DATE on disclosing work for or service in the ORG ’s security services or collaboration with them DATE by persons exercising public functions ( ustawa o ujawnieniu pracy lub służby w organach bezpieczeństwa państwa lub współpracy z nimi w latach CARDINAL - CARDINAL osób pełniących funkcje publiczne ) ( the “ DATE LAW ” ) entered into force .

On DATE the applicant , a candidate for ORG , declared that he had not collaborated with the communist - era secret services . He was subsequently elected as a Member of ORG .

On DATE ORG ( Sąd Apelacyjny ) decided to institute lustration proceedings against the applicant following a request made by the Commissioner of ORG ( PERSON ) on the grounds that the applicant had lied in his lustration declaration by denying that he had cooperated with the secret services .

On DATE ORG , acting as the firstinstance lustration court , found that the applicant had submitted an untrue lustration declaration since he had been an intentional and secret collaborator with the ORG ’s secret services . The court established that the applicant had met on probably CARDINAL occasions in DATE with agents of the secret services and had agreed to help them as a consultant .

The applicant appealed against the decision . He submitted that he had never collaborated with the secret services and the meeting in question had been in connection with the preparation of an article . The applicant also referred to his subsequent activity in the “ NORP ” movement for which he had been persecuted and detained by the communist authorities . Subsequently , he was allowed to leave GPE and DATE he was a deputy of the Polish Section of Radio Free Europe in GPE .

On DATE ORG , acting as the secondinstance lustration court , upheld the impugned judgment .

On DATE ORG ( ORG ) dismissed the applicant ’s cassation appeal . That decision was notified to the applicant on DATE .

A detailed rendition of the provisions of the relevant domestic law is set out in the ORG ’s judgment in the case of ORG v. GPE , no . CARDINAL/CARDINAL , ORG DATE ...


The applicant [ Mr PERSON ] is a GPE national who was born in DATE and lives in PERSON , in the GPE of GPE , in GPE .

On DATE the applicant made an application to be entered in the electoral register ( Stimmregister ) for the municipality of ORG in GPE in order to vote in the referendum ( PERSON ) scheduled for DATE on whether GPE should join ORG .

In a letter of CARDINAL DATE ORG ( Gemeinde - vorstehung ) informed the applicant that it could not grant his application , because he had been residing in PERSON , in GPE , for DATE and therefore did not satisfy the statutory requirement as to place of residence . By the terms of section CARDINAL(CARDINAL ) of the CARDINAL DATE version of the Rights of LAW ( Volksrechtegesetz ) ( Official Gazette DATE , no . CARDINAL ) , persons are entitled to vote only if they are GPE nationals who have reached DATE and have a place of ordinary abode ( ordentlicher ORG ) in GPE DATE before the date of the elections or the referendum .

On DATE the applicant appealed to the GPE government on the ground that the result of the referendum would be decisive for him and for all GPE nationals living abroad and that place of residence could not be accepted as the only criterion for participation in elections or a referendum .

In a decision of DATE the government dismissed the appeal , likewise referring to section CARDINAL(CARDINAL ) of the Rights of LAW .

On DATE the applicant lodged an appeal against this decision with ORG ( Verwaltungs - beschwerdeinstanz ) . He argued that by denying them the right to vote , the legislature deprived GPE nationals living abroad of the fundamental right to participate in their country ’s democratic life .

In a decision of DATE ORG refused to refer the question of the constitutionality of the impugned statutory requirement to ORG ) . It held that the principle of depriving GPE nationals living abroad of the right to vote was not unconstitutional and referred to a judgment of ORG on that issue . As to the applicant ’s application for inclusion in the electoral register for the municipality of ORG , the court upheld the government ’s decision .

From DATE there was a debate nationally and in ORG on the question of introducing a postal vote ( ORG ) in GPE .

In CARDINAL letters dated DATE and CARDINAL DATE the applicant drew ORG ’s attention to the need to include also GPE nationals living abroad .

In observations of DATE sent to ORG the government expressed its opposition to giving GPE nationals living abroad the right to vote , having regard , in particular , to their large number in proportion to the number of residents . In DATE CARDINAL GPE nationals lived abroad as opposed to CARDINAL who lived in GPE .

On DATE ORG confirmed that GPE nationals living abroad did not have the right to vote .