CASE OF KURIER ZEITUNGSVERLAG UND DRUCKEREI GMBH v. AUSTRIA

No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

NORP The applicant company , a limited liability company with its registered office in GPE , is the owner and publisher of the DATE newspaper PERSON .

NORP In DATE criminal investigations were launched in respect of A and B who were suspected of the repeated and serious ill - treatment and sexual abuse of CARDINAL-year - old C , which had caused severe injuries . A is C ’s father and B is her stepmother . C was taken to hospital and several media reported the case .

After C left the hospital in DATE she stayed with D , her biological mother . On DATE custody of C was transferred to ORG ( ORG ) for the period of DATE to CARDINAL DATE and from DATE it was transferred to NORP

The trial of B and A was held in DATE and media interest in the case grew again . At the same time C had a relapse and began suffering from severe psychological problems again , making it necessary for her to be re - admitted to hospital .

On DATE A and B were convicted of aggravated sexual abuse of minors ( schwerer sexueller PERSON ) , deliberate aggravated bodily harm ( absichtliche schwere GPE ) and ill - treatment of minors ( PERSON ) . They were sentenced to DATE imprisonment and ordered to pay compensation for non - pecuniary damage .

The applicant company published CARDINAL articles in PERSON on DATE and DATE , using the first name of C and the full names of A and B , and illustrating them with photographs of A and B

On DATE an article was published in the applicant company ’s newspaper , which read as follows :

“ Judge : ‘ C could easily have been dead’

When CARDINAL-year - old C was taken into hospital , PERCENT of her body was burnt . She had burn wounds on her upper body and around her genitals , multiple broken ribs , a fractured skull , bruises everywhere and a deep cut in her arm ‘ almost as though an attempt had been made to amputate it’ ( one of the trial participants ) . ‘ The child could just as easily have been dead’ Judge PERSON told the girl ’s father , one of the accused , in no uncertain terms in ORG on DATE . A [ age ] , and his second wife , B [ age ] , are accused of reducing C to this state .

AT HOME In her GPE flat in the GPE district of X , C was beaten , tortured , ill - treated and severely sexually abused DATE , when A fetched C from her GPE home in Y ‘ to give her a better life’ ( the accused ’s words ) and DATE , when he took his daughter to hospital with life - threatening injuries . That is beyond doubt . The couple both try to place ( the bulk of ) the blame on each other . C stated that it was her stepmother who had deprived her of her virginity using a cooking spoon and who had pressed down on her private parts with a soup spoon heated over a candle . She accused her stepmother and her father of kicking her , binding and gagging her , tying her to the bedpost and leaving her kneeling beside the bed like that for TIME . This was described as ‘ corporal punishment’ by defence lawyer PERSON , meted out because , according to A , ‘ my wife told me that C was constantly ORG . He claimed that he had felt ‘ out of his ORG as a father .

COOKING SPOON He claims not to have known that his wife sexually assaulted C with a cooking spoon , or that she had pressed a red - hot iron on the girl ’s breast . He had only noticed the wounds later . ‘ Why did n’t you take your daughter to the doctor?’ asked the judge . ‘ Because my wife said I shouldn’t’ came the reply . B puts most of the blame on her husband . She claims to have hit C only once , when the girl was being really bad . She regards herself ‘ as a victim too’ ( defence lawyer PERSON ) . The victim of a husband who was ‘ incredibly’ violent , who beat her and the children ; a husband who would not allow her to take her children to the doctor when he had beaten them . Because she was afraid of him she had looked away , or looked on , while C was tormented . The trial resumes on DATE . ”

NORP On DATE a further article was published in the applicant company ’s newspaper , which read as follows :

“ Maximum sentence for C ’s parents

Father and stepmother of ‘ torture victim’ sentenced to DATE imprisonment each at first instance

On DATE of the trial ORG stepmother was not ( yet ) afraid to look into the cameras : By DATE the trial on DATE B [ age ] was doing the same as her husband A [ age ] , sitting in the dock with her head bowed . On DATE it was the turn of the court experts and C to give evidence . However , the girl was spared the ordeal of appearing before ORG . Now aged twelve , she gave her evidence on film during the preliminary proceedings . ‘ How far away are they , those bad people?’ C had asked at the time , before describing her ordeal . The video footage shown to the jury lasted TIME . The public was prohibited from watching . C ’s lawyer , PERSON , had requested that they be excluded . ‘ The girl was so frightened of giving evidence . She made her statements on the understanding that they would be treated with discretion . Her sense of modesty , integrity and trust would be damaged again if her statements were to reach the media.’ The request was granted . According to forensic medical expert ORG , a plugged - in iron had been placed on the girl ’s upper body ‘ CARDINAL FAC , ‘ not just gliding over it , but held in one place’ . The CARDINAL-year - old had third - degree burns , including burn wounds around her genitals , when she was taken to hospital by her father in DATE . In addition she had a fractured skull , multiple broken ribs and a cut which went down almost to the bone . The abuse perpetrated against ‘ torture victim C’ ( the words of forensic child psychologist PERSON ) will have lasting psychosexual effects . ORG believes that the girl ’s experiences will resurface as soon as she begins to have contact with the opposite sex . But ‘ even now the child undoubtedly receives DATE reminders of what happened , for instance in the form of nightmares . C ’s lawyer requested the court to award the girl MONEY in compensation and CARDINAL for the cost of a transplant . ‘ No civil proceedings will be conducted in this case , in order to spare C further examination’ . The jury ’s verdict was swift : CARDINAL years’ imprisonment for each of the accused – the maximum sentence . C was awarded the MONEY . ‘ You destroyed this child . You deserve the maximum DATE said Judge PERSON father lodged an appeal immediately , while his wife asked for time to consider . ”

NORP In subsequent proceedings under section CARDINALa of LAW , C , represented by ORG , sought compensation from the applicant company for the damage caused by the publication of her name , the names and pictures of her parents and further details given in the CARDINAL articles of CARDINAL and DATE , which together made her identifiable to the wider public .

On DATE the X Regional Criminal Court ( PERSON für PERSON ) rejected C ’s request for compensation . It observed that already at an early stage of the criminal proceedings the case had attracted considerable media attention . The case and the identity of the offenders had therefore been known to the public .

As regards the articles at issue , ORG found that by mentioning the first name of the victim , her age , the first names and family names of the offenders , indicating their family relationship to the victim and publishing pictures of the father and the stepmother , the victim had become recognisable to a wide number of persons beyond the circle of those directly informed . Therefore , these articles constituted an intrusion into the victim ’s strictly private life and injured her legitimate interest in remaining anonymous and she was in principle entitled to compensation .

NORP However , the interest protected by LAW had to be weighed against the interest protected by LAW . If there existed an overriding public interest in the information about the particular circumstances which allowed for the identification of offender and victim , such interest outweighed the interest of the victim to remain anonymous .

Even though the publication of the identity of the persons involved in a criminal offence was normally unnecessary for understanding how the offence was committed , how the investigations progressed or whether the perpetrator had been convicted , there was a public interest in being informed of the identity of persons who had committed a criminal offence against a child , as such information might serve to prevent similar acts in the future . Despite the interest of the victim in not having her identity disclosed , the disclosure was justified because of the public interest in knowing the identity of the perpetrators and the subsequent wider public discussion on violence against children .

On DATE ORG , on an appeal by C , quashed the decision of ORG and granted C compensation in the amount of MONEY ( ORG ) for each of the CARDINAL articles published .

The Court of Appeal agreed with ORG that the articles at issue , which described in detail the severe ill - treatment and sexual abuses of which C was the victim constituted an intrusion into her strictly private life and injured her legitimate interest to remain anonymous . It also agreed with ORG that the identity of the offenders , A and B , was not protected under LAW and it was therefore , in principle , allowed to report on them while citing their names and also publishing pictures .

NORP However , the permissibility of disclosing the victim ’s identity had to be examined separately and with due diligence . The mere fact that she had become the victim of a crime which attracted considerable public attention was not sufficient to consider her a person connected with public life . Under section CARDINAL of LAW the predominant public interest which outweighs the victim ’s personal interest in not disclosing his or her identity must relate to the identity of the person , and that particular information should have a genuine news value . A mere general interest in appropriate press reporting on criminal cases was not sufficient to establish such a predominant public interest . In the present case such a genuine interest in the identity of the victim could not be established . There was no predominant public interest in revealing the identity of the offenders as the public could have been informed on the psychological dynamics of violent crimes and sexual abuse committed within the family without revealing the identity of the victim . The reporting also did not serve the purpose of warning and protecting the public ( Warn- und ORG ) because the accused had already been taken into detention and there was no indication that they had assaulted other minors .

Therefore , the publication of articles disclosing the identity of the offenders and indicating the family relationship between the offenders and the victim in such a way that the identity of the victim is revealed in cases which touch upon a victim ’s strictly private life was in breach of section ORG of LAW .

Section CARDINAL of LAW which has the title “ protection against divulging a person ’s identity in special cases ” ( “ FAC in besonderen NORP ” ) , reads as follows :

“ ( CARDINAL ) Where publication is made , through any medium , of a name , image or other particulars which are likely to lead to the disclosure to a larger not directly informed circle of people of the identity of a person who

NORP has been the victim of an offence punishable by the courts , or

NORP is suspected of having committed , or has been convicted of , a punishable offence ,

and where legitimate interests of that person are thereby injured and there is no predominant public interest in the publication of such details on account of the person ’s position in society , of some other connection with public life , or of other reasons , the victim shall have a claim against the owner of the medium ( publisher ) for damages for the injury suffered . The award of damages shall not exceed QUANTITY ; additionally , section CARDINAL ) , second sentence , shall apply .

( CARDINAL ) ORG interests of the victim shall in any event be injured if the publication

NORP in the case of subsection ( CARDINAL)CARDINAL , is such as to give rise to an interference with the victim ’s strictly private life or to his or her exposure ,

NORP in the case of subsection ( CARDINAL , relates to a juvenile or merely to a lesser indictable offence ( PERSON ) or may disproportionately prejudice the advancement of the person concerned .

( CARDINAL ) No compensation claim under paragraph CARDINAL exists if

NORP the publication at issue is based on a truthful report on a public session of ORG or ORG , ORG , a regional diet or a committee of CARDINAL of these general representative bodies ;

NORP the publication of the information on the person has been decided officially , in particular for the purposes of criminal justice or public security ;

NORP the person concerned has agreed to the publication or if the publication is based on information given by that person to the media ;

it is a direct broadcast on radio or television ( live programme ) and the employees or contractors of the radio or television station have not neglected the principles of journalistic diligence ;

the information has been published on a retrievable website and the owner of the media or its employees or contractors have not neglected the principles of journalistic diligence . ”

Section CARDINAL(CARDINAL ) second sentence of LAW , to which reference has been made above , reads as follows :

“ The amount of compensation shall be fixed according to the extent of the publication , its impact and , in particular , the type of media and how broadly it is disseminated ; the compensation must not endanger the economic existence of the media owner . ”

DATE of ORG on ORG of DATE , PERSON No . CARDINAL , in so far as relevant reads as follows :

“ DATE General measures of protection

( CARDINAL ) Each party shall take the necessary legislative or other measures to protect the rights and interests of victims , including their special needs as witnesses , at all stages of investigations and criminal proceedings , in particular by :

( e ) protecting their privacy , their identity and their image and by taking measures in accordance with international law to prevent the public dissemination of any information that could lead to their identification ; ”

In the Explanatory Report to ORG , paragraph CARDINAL gives the following comment on LAW :

“ The article goes on to list a number of procedural rules designed to implement the general principles set out in LAW the possibility for victims of being heard , of supplying evidence , of having their privacy , particularly their identity and image protected , and of being protected against any risk of retaliation and repeat victimisation . The negotiators wished to stress that the protection of the victim ’s identity , image and privacy extends to the risk of “ public ” disclosure , and that these requirements should not prevent this information being revealed in the context of the actual proceedings , in order to respect the principles that both parties must be heard and the inherent rights of the defence during a criminal prosecution . ”

On DATE ORG adopted Recommendation Rec(CARDINAL)CARDINAL on the position of the victim in the framework of criminal law and procedure . In section F ( Protection of privacy ) point CARDINAL reads as follows :

“ Information and public relations policy in connection with the investigation and trial of offences should give due consideration to the need to protect the victim from any publicity which will unduly affect his private life and dignity . If the type of offence or the particular status or personal situation and safety of the victim make such a special protection necessary , either the trial before the judgment should be held in camera or disclosure or publication of personal information should be restricted to whatever extent is appropriate ; ”

On DATE ORG LAW on the protection of children against sexual exploitation . In LAW law , procedure and coercive measures in general ) point CARDINAL reads as follows :

“ Ensure throughout judicial , mediation or administrative proceedings the confidentiality of records and respect for the privacy of children who have been victims of sexual exploitation . ”

On DATE ORG Recommendation Rec(CARDINAL)CARDINAL on the provision of information through the media in relation to criminal proceedings . The Appendix to that Recommendation contains the following principles :

“ Principle CARDINAL - Information of the public via the media

The public must be able to receive information about the activities of judicial authorities and police services through the media . Therefore , journalists must be able to freely report and comment on the functioning of the criminal justice system , subject only to the limitations provided for under the following principles .

Principle CARDINAL - Protection of privacy in the context of ongoing criminal proceedings

The provision of information about suspects , accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with LAW . Particular protection should be given to parties who are minors or other vulnerable persons , as well as to victims , to witnesses and to the families of suspects , accused and convicted . In all cases , particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this LAW .

An even stronger protection is recommended to parties who are minors , to victims of criminal offences , to witnesses and to the families of suspects , the accused and convicted persons ... ”


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria

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

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

At the time of the events the applicant was an active junior military officer ( maistru militar ) working as an experienced technician with special electrical installations in aviation .

On DATE the applicant was participating in an exercise at the military air base where he was working . His task was to start the engines of military aircraft by using a special electric device which was transported by a military vehicle . DATE , the driver of the vehicle was GPE The applicant was also guiding the vehicle between the aircraft by making conventional hand signals . In accordance with the procedures , each plane was guarded by a person standing in front of it during start - up . GPE , who was CARDINAL of the guards that day , was fatally injured by the military vehicle while squatting by the plane , against regulations .

ORG ( “ the Military Prosecutor ” ) started an investigation into the accident . In a statement given on DATE to ORG , the applicant admitted that he had had an obligation to guide the vehicle while it was backing up from CARDINAL plane and then moving forward to the next plane . He reiterated his statements on DATE .

On DATE ORG committed the applicant for trial for involuntary manslaughter under LAW and non - compliance with safety regulations . It considered that , under LAW no . CARDINAL/CARDINAL on Safety at Work ( protecţia muncii ) and Order no . PERSON DATE approving LAW in internal transport ( “ Law no . CARDINAL ” and “ Order no . CARDINAL ” ) , the applicant had had an obligation to guide the military vehicle during the manoeuvre between planes .

NORP Before ORG , ORG , called as the party bearing civil responsibility for the acts committed by the applicant , argued that Order no . CARDINAL , relied upon by the prosecution , was not applicable , as special regulations took precedence . They submitted that the special regulations in place at that time did not impose an obligation on the applicant to guide the military vehicle .

The applicant reiterated that as an unwritten rule custom dictated that he guided the vehicle while it was backing away from CARDINAL plane and then moving forward to the next plane .

On DATE ORG acquitted the applicant . The relevant parts of the judgment read as follows :

“ The evidence in the file demonstrates beyond doubt that [ the applicant ] did not have any concrete duty to guide the [ military vehicle ] ...

It was only because of the practice that had developed at the time that the technician , in this case the accused person , guided the driver when he was backing up the vehicle ; the technical instructions and the specific rules applicable do not impose such an obligation ... Furthermore , the witness ORG , who has the same duties as the accused person at a similar military airbase , declared that there were no specific regulations in military aviation on guiding the military vehicles .

In addition , when the events occurred , the accused person did not do anything different from what he had done in other similar operations , some of which had been carried out in worse conditions that the CARDINAL under examination ; however , on the previous occasions ... the victim had complied with the regulations , unlike in the case at hand . ”

On DATE the NORP ORG rejected the appeal lodged by ORG and the victim ’s widow against the above judgment .

On DATE ORG examined the appeal in cassation ( recurs ) by ORG . It re - examined the facts and found , on the basis of the documents in the file , that the applicant had been de facto in charge of guiding the military vehicle . It also considered that PERSON no . CARDINAL/CARDINAL and the general rules on safety at work , including LAW no . CARDINAL , were applicable to the case . It found :

“ According to LAW on the organisation and the course of activities for safety at work in ORG , the activities connected to starting the airplanes were regulated by PERSON no . CARDINAL/CARDINAL on Safety at Work and by the general and specific Rules on Safety at Work ( including , thus , Order no . GPE ) . ...

In his statements the accused admitted that it had been his responsibility to guide the vehicle ... ”

ORG concluded that the applicant and the victim had each made a PERCENT contribution to the accident .

It therefore reversed the judgment , found the applicant guilty as charged and gave him a DATE suspended sentence . It ordered the applicant to pay , together with ORG , CARDINAL NORP lei ( ROL ) in damages to the civil party and ORG in costs .

ORG also decided that the firstinstance court should examine of its own motion the issue whether the applicant should be ordered to pay DATE contributions for the maintenance of the victim ’s CARDINAL minor children . It therefore referred that matter back to ORG , which dismissed it in a final decision on DATE .

Law no . CARDINAL on Safety at Work constitutes the general law on safety at work . According to its Articles CARDINAL and DATE , ORG had the obligation to organise , coordinate and control the implementation of specific work safety regulations . In its LAW it states that ignorance of the safety at work regulations , if it may result in an accident , constitutes a crime and is punishable by a prison sentence .

Order no . PERSON DATE sets out the rules for ORG in internal transport . In its LAW it provides that when necessary , in dangerous situations , the vehicles shall be guided or there shall be posts for overseeing and guiding the traffic .

Article CARDINAL § CARDINAL of the Criminal Code states that involuntary manslaughter as a consequence of ignorance of the safety at work regulations is punishable by a prison sentence .


Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-1-e - Persons of unsound mind);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6-3-c - Defence in person)

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

On DATE the applicant was involved in a traffic accident committed by a Mr P. The applicant , his wife and son were injured and the applicant ’s car was damaged . Criminal proceedings against PERSON were discontinued in accordance with an amnesty law .

PERSON and his mother complained to the police that they had been subjected to constant harassment by the applicant , who had repeatedly threatened them in a number of phone calls and had allegedly demanded money in compensation for pecuniary and non - pecuniary damage sustained as a result of the traffic accident .

On DATE the ORG of Perm issued a decision , authorising the institution of criminal proceedings against the applicant on suspicion of aggravated defamation and insulting behaviour .

In DATE PERSON petitioned ORG to detain the applicant and to subject him to a psychiatric examination because the harassment had not stopped and had even escalated to death threats against both PERSON and his mother . DATE PERSON lawyer repeated the request .

On DATE another set of criminal proceedings was instituted against the applicant who , in these proceedings , was under suspicion of having made death threats .

On DATE the CARDINAL sets of criminal proceedings were joined and the applicant ’s placement in custody was authorised . He was placed in temporary detention facility no . PERSON in PERSON ( hereinafter “ facility no . CARDINAL ” ) .

The applicant lodged a complaint with ORG , alleging that his arrest was unlawful .

On DATE ORG dismissed the complaint , confirming the lawfulness of the arrest . That decision was upheld on appeal by ORG on DATE .

On DATE a prosecutor authorised an extension of the applicant ’s detention until DATE . On DATE ORG rejected the applicant ’s subsequent appeal against the extension , noting the gravity of the charges against him .

NORP Whereas the investigation in the criminal case continued , the applicant was released on DATE on a written undertaking not to leave the town .

On DATE ORG , having held hearings in the applicant ’s presence , found him guilty of aggravated defamation and extortion , acquitted him of the remaining charges and sentenced him to DATE imprisonment . On DATE the applicant was taken to facility no . CARDINAL .

Following the appeal hearing which the applicant attended , on DATE ORG quashed the judgment , acquitted him of aggravated defamation and ordered a fresh examination into the charge of extortion . The applicant was released on DATE under a written undertaking not to leave the town .

In accordance with the order of ORG , on DATE ORG authorised an additional investigation into the charge of extortion .

On DATE the ORG further ordered a psychiatric assessment of the applicant . That decision was upheld on appeal on DATE by ORG , which , in so far as relevant , held as follows :

“ As appears from the case file materials , [ the applicant ] is accused of having committed criminal offences which resulted from the fact that in DATE his family had been involved in a traffic accident caused by a driver , PERSON proceedings against PERSON were discontinued in accordance with an amnesty law . [ The applicant ] did not accept the outcome of the criminal case and began complaining to various institutions and authorities . Having received replies , he began making numerous written requests asking to have the authorities who had dealt with his complaints , including his lawyer who had represented his interests , held liable . In DATE the investigating authorities , having doubts that [ the applicant ] was mentally healthy , ordered a forensic psychiatric examination . Experts concluded that [ the applicant ] did not have a psychiatric illness , but [ that ] he was a psychopath . However , the stream of complaints and motions subsequently intensified ; the circle of people against whom he asked [ for a ] criminal investigation to be opened due to their alleged failure to carry out their duties broadened . Having regard to those facts , [ the District ] court found that it was necessary to perform an additional examination . ”

According to the Government , the examination was scheduled for DATE . However , the applicant refused to attend it and ORG ordered his being brought for examination against his will .

On DATE the applicant was apprehended in PERSON and taken to ORG in GPE ( hereinafter “ the Centre ” ) . DATE the ORG issued an expert report finding that the applicant suffered from schizophrenia . The expert conclusions were based , inter alia , on the following considerations :

“ [ The diagnosis ] is confirmed by the medical history , showing that since adolescence [ the applicant ] has acute premorbid personality traits such as hyperactivity , the urge to become a self - reliant person [ and ] an intense feeling of injustice , with subsequent slowly growing psychopathic changes ( extreme straightforwardness , intolerance , contentiousness , rudeness , unsociability , arrogance ) and a tendency to establish obsessive interests ( all - absorbing passion for technical equipment [ and ] jurisprudence ) which transformed into affective , obsessive [ and ] absurd ideas , relations , querulous paranoia , litigiousness over an extremely broad number of subjects and involving a large number of people , which led to his incorrect behaviour , litigious activities and malfunctioning social adaptation . ”

The applicant was released from the ORG on DATE .

Another psychiatric examination of the applicant was ordered by ORG on DATE .

On DATE ORG issued CARDINAL decisions authorising the applicant ’s arrest on the grounds that he had been charged with a particularly serious criminal offence and the forensic psychiatric examination had established that he “ suffered from schizophrenia [ and ] presented a danger to society ” . The decisions , CARDINAL handwritten and the other one typed , were identical in wording save for CARDINAL difference . By the first decision ORG ordered the applicant ’s placement in a psychiatric hospital . By the second decision it authorised his detention in detention facility no . CARDINAL in GPE . The applicant attended the hearing .

The applicant provided the ORG with copies of the CARDINAL decisions , both bearing the presiding judge ’s signature and the court ’s stamp . The Government explained that on DATE the presiding judge had issued a handwritten detention order authorising the applicant ’s admission to a psychiatric hospital . Subsequently , the court registry had prepared a typed version of the same decision . The ORG argued that the case file materials had not contained the second decision ordering the applicant ’s detention in facility no . CARDINAL . The applicant was taken into custody in the court house and taken to detention facility no . CARDINAL .

The applicant lodged an appeal against the decision of DATE . He complained that there had been no evidence that he was a danger to society and that , accordingly , there was no need to detain him . As follows from the stamp on the statement of appeal , ORG received it on DATE .

On DATE and DATE the applicant lodged additional statements of appeal , further challenging the grounds for his arrest . Stamps on the statements show that they reached ORG on DATE and DATE respectively .

The applicant ’s appeals against the decision of DATE never received a reply .

It appears that on CARDINAL and DATE ORG held trial hearings . While the applicant ’s lawyer and mother attended , the applicant was not brought to the courthouse . ORG did not issue any formal decision addressing his absence from the trial . However , as it follows from the case file , the matter was raised and discussed leading to the presiding judge ’s conclusion that the applicant ’s presence was unnecessary .

On DATE ORG held that the applicant had committed aggravated extortion but relieved him from criminal responsibility , finding that he was mentally incapacitated . ORG ordered the application of compulsory measures of a medical nature to the applicant and his placement in a psychiatric hospital for intensive care . The relevant part of the decision read as follows :

“ ... Having regard to the fact that [ the applicant ] suffers from a mental illness , he is inclined to reoffend , including by committing particularly serious [ criminal offences ] , he distinguishes himself by [ behaving ] aggressively , by [ being ] intolerant to other individuals , it is necessary to commit him to compulsory treatment in a special psychiatric hospital with intensive care ” .

On DATE , in response to ORG order of DATE , ORG issued an expert report , confirming the findings made by the experts of the FAC .

On DATE ORG held an appeal hearing . The applicant was not brought to it , despite his requests to that effect . Both his lawyer and his mother were present . ORG examined the applicant ’s complaint of failure to ensure his presence at the trial hearings and found that ORG had acted lawfully because the domestic law did not require his presence . It also pointed out that the applicant had been represented by his mother and a lawyer . Having been fully convinced by ORG findings , ORG upheld the decision of DATE .

In the meantime , ORG filed a motion with ORG seeking a declaration of the applicant ’s incapacity . The prosecutor argued that the applicant should be deprived of legal capacity for reason of insanity .

On DATE ORG found that the applicant suffered from a chronic mental illness , he was unable to appreciate his conduct and its danger to society or to control his actions , and he was in need of constant supervision . ORG declared the applicant legally incapacitated . The applicant did not appeal against that decision .

According to the ORG , the applicant was detained in facility no . CARDINAL in PERSON until DATE because his transfer to a specialised psychiatric hospital in GPE was delayed as the NORP authorities had failed to obtain a visa permitting the applicant ’s transit through GPE . Relying on a statement by a representative of ORG of GPE , the Government submitted that during the entire period of his detention in facility no . CARDINAL the applicant had been detained in a cell designated for mentally ill inmates .

On DATE the applicant ’s transfer to a psychiatric hospital in PERSON was authorised . The hospital , however , refused to admit him because he did not have a valid identity document . The applicant therefore continued being detained in detention facility no . CARDINAL until DATE . On that date he was sent to the psychiatric hospital in GPE . On DATE he was released from the hospital .

Until DATE criminal - law matters were governed by LAW of DATE ) . From DATE the old ORG was replaced by LAW ( Law no . CARDINAL of DATE , “ the CCrP ” ) .

“ Preventive measures ” or “ measures of restraint ” include an undertaking not to leave a town or region , a personal guarantee , bail and detention on remand ( LAW CCrP ) .

LAW of DATE provides that a judicial decision is required before a defendant can be detained or his or her detention extended ( Article CARDINAL ) .

The CCrP requires a judicial decision by a district or town court on a reasoned request by a prosecutor supported by appropriate evidence ( LAW CARDINAL , CARDINAL - CARDINAL ) .

When deciding whether to remand an accused in custody , the competent authority is required to consider whether there are “ sufficient grounds to believe ” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or reoffend ( Article CARDINAL ) . It must also take into account the gravity of the charge , information on the accused ’s character , his or her profession , age , state of health , family status and other circumstances ( Article CARDINAL ) .

The ORG sets a general rule permitting defendants to be detained on remand if the charge carries a sentence of DATE imprisonment . In exceptional cases , the Code permits detention of defendants on a charge carrying a sentence of DATE imprisonment , if they have previously defaulted , have no permanent residence in GPE or if their identity can not be ascertained . A defendant should not be detained on remand if a less severe preventive measure is available ( Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL ) .

An appeal may be lodged with a higher court within DATE against a judicial decision ordering or extending detention on remand . The appeal court must rule on the appeal within DATE of its receipt ( LAW ) . The right to appeal against a judicial decision belongs to a defendant , his representative and legal guardian , a prosecutor , a victim and his representative ( Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL ) .

At any time during the judicial proceedings the court may order , vary or revoke any preventive measure , including detention on remand ( LAW ) . Any such decision must be given in the deliberation room and signed by all the judges on the bench ( LAW ) .

An appeal against such a decision lies to a higher court . It must be examined within the same time - limit as an appeal against the judgment on the merits ( LAW ) .

LAW of GPE , in force since DATE , and LAW set out the grounds and procedure for the application of compulsory measures of a medical nature .

“ CARDINAL . Compulsory measures of a medical nature may be applied by a court to individuals :

( a ) who , in a state of insanity , committed an offence described in [ ... ] the ... present Code ;

( b ) who , after having committed a criminal offence , became mentally ill , making it impossible to sentence him and execute that sentence ;

( c ) who committed a criminal offence and who suffer from a mental illness , which does not [ reach the level of insanity ] ;

( d ) who committed a criminal offence and who were considered in need of treatment for alcoholism or drug abuse .

Compulsory measures of a medical nature shall only be applied to people [ falling within the situations ] listed in the first paragraph of the present Article in cases where the mental disorders are linked to the ability of those persons to cause substantial damage or to present a danger to themselves or other individuals . ”

“ CARDINAL . When it is established that a person to whom detention on remand has been applied as a measure of restraint suffers from a mental illness , a court , upon a prosecutor ’s motion and in accordance with the procedure laid down in LAW , shall take a decision authorising a transfer of that person to a psychiatric hospital .

Placement of a person who is not detained on remand in a psychiatric hospital may be authorised by a court in accordance with the procedure laid down in Article CARDINAL of the present Code . ”

“ CARDINAL . When a court finds it proven that a criminal offence was committed by that person in a state of insanity or that after having committed a criminal offence the person became mentally ill , making it impossible to sentence him and execute the sentence , the court shall take a decision in accordance with Articles CARDINAL and CARDINAL of LAW of GPE reliving that person from criminal responsibility or from serving the sentence and authorising the application of compulsory measures of a medical nature to him ... ”

“ A court decision may be appealed against by a representative , a victim and his representative , a legal guardian or close relative of a person in respect of whom a criminal case was examined , and by a prosecutor in accordance with LAW of the present Code . ”

“ CARDINAL . Presence of a defendant at a court hearing in a criminal case is mandatory , save in the circumstances which are listed in paragraph CARDINAL of the present Article .

NORP If a defendant fails to attend , the examination of a case should be adjourned .

A court hearing may be held in the defendant ’s absence if a defendant in a criminal case concerning a minor criminal offence or [ a criminal offence ] of average severity asks for the examination of that criminal case in his absence . ”

“ CARDINAL . When [ a judge ] receives a criminal case with a statement of appeal , [ he ] shall fix the date , time and place of a court hearing .

An appellate court shall inform the parties of the date , time and place of the examination of a criminal case DATE before the hearing . The court shall determine whether [ it is necessary ] to call a defendant who is in custody .

NORP If a defendant who is in custody informs [ the court ] of his willingness to take part in the examination of the appeal against the trial judgment , he has the right to take part in a hearing in person or can state his position by way of a video conference . The court shall determine the form of the applicant ’s participation in a hearing ... ”

Section CARDINAL of LAW lays down procedural norms for the examination of a criminal case against a person who is charged with having committed a criminal offence in a state of insanity or who became mentally ill after having committed a criminal offence when he can no longer bear criminal responsibility and serve a sentence . By virtue of LAW of the ORG , the courts shall examine a criminal case against such a person in an ordinary manner , save for specific rules laid down in that LAW does not set any specific rules concerning the presence of a mentally ill person at trial and appeal hearings .

Under LAW of GPE of DATE , any individual aged DATE or more has , as a rule , full legal capacity , which is defined as “ the ability to acquire and enjoy civil rights , create and fulfil civil obligations by his own acts ” . Under LAW legal capacity can be limited , but only on the grounds defined by law and within a procedure prescribed by law .

Under LAW , a person who can not understand or control his or her actions as a result of a mental illness may be declared legally incapacitated by the courts and placed in the care of a guardian . All legal transactions on behalf of the incapacitated person are concluded by his guardian . The incapacitated person can be declared to have regained full capacity if the grounds on which he or she was declared incapacitated cease to exist .

Article CARDINAL ( CARDINAL ) of LAW ( “ the ORG ” ) establishes that a civil claim lodged by a legally incapacitated person should be returned to him without examination .

Article CARDINAL of the ORG establishes the procedure for declaring a person incapacitated . A request for incapacitation of a mentally ill person can be brought before a first - instance court by a family member of the person concerned . On receipt of the request , the judge must commission a forensic psychiatric examination of the person concerned .

LAW ORG provides that the incapacitation request should be examined in the presence of the person concerned , the claimant , a prosecutor and a representative of the guardianship office . The person whose legal capacity is being examined by the court is to be summoned to the court hearing , unless his state of health prohibits him from attending it .

Article CARDINAL of the ORG provides that full legal capacity can be restored by the court at the request of the individual ’s guardian , a close relative , the guardianship office or a psychiatric hospital , but not of the person declared incapacitated himself .

LAW of DATE , as amended ( “ the LAW ” ) , provides that any recourse to psychiatric assistance should be voluntary . However , a person declared fully incapacitated may be subjected to psychiatric treatment at the request or with the consent of his official guardian ( section QUANTITY ) .

Section CARDINAL of the LAW establishes that individuals suffering from mental disorders have all human rights and freedoms guaranteed by LAW and federal laws . Limitations of their rights and freedoms are only allowed when specifically provided for by laws of GPE . Section CARDINAL ( CARDINAL ) of the LAW provides that the rights and freedoms of persons with mental illnesses can not be limited solely on the grounds of their diagnosis , or the fact that they have been subjected to treatment in a psychiatric hospital .

Under LAW , a patient in a psychiatric hospital can have a legal representative . However , pursuant to point CARDINAL of Section CARDINAL , the interests of a person declared fully incapacitated are represented by his official guardian .

Section CARDINAL regulates the procedure for involuntary placement of a mentally ill individual in a psychiatric hospital . A judge is to examine a request for involuntary admission to a psychiatrist hospital in the presence of an individual whose placement in the hospital is sought . Section CARDINAL provides that only a judicial order may serve as grounds for admission of an individual to a psychiatric hospital . Such an order may be appealed against within DATE by the individual whose detention in a psychiatric hospital was authorised , his representative , the head of the psychiatric hospital or a prosecutor ( LAW of the LAW ) .

Section CARDINAL ( CARDINAL ) of the LAW establishes the list of rights of a patient in a psychiatric hospital . In particular , the patient has the right to communicate with his lawyer without censorship . However , under LAW ( CARDINAL ) the patient ’s doctor may limit the patient ’s rights to correspond with other persons , have telephone conversations and meet visitors .

Section CARDINAL of the LAW provides that the LOC actions can be appealed against before the courts .

On DATE ORG of GPE issued Decree no . CARDINAL , having declared unconstitutional a number of provisions of LAW and LAW limiting rights of mentally ill persons to participate in incapacitation proceedings and to appeal against court decisions stripping them of legal capacity .

In Resolution no . CARDINAL of DATE ORG of GPE held that a person whose admission to a psychiatric hospital was authorised or whose detention in hospital was extended by a court has the right to appeal against that decision , along with his lawyer , legal guardian or other persons authorised to do it by LAW ( § CARDINAL) . ORG also stressed that , unless the accused ’s state of mental health precludes it , an individual against whom criminal proceedings are pending should have the opportunity to make use , personally , of every procedural right guaranteed by Articles CARDINAL and CARDINAL of LAW ( the right to be informed of the charges against him and to receive related procedural documents , the right to give explanations and make statements or to remain silent , the right to legal assistance , the right to submit evidence , the right to lodge requests , complaints , etc . and to participate in their examination by a court , the right to an interpreter , the right to appeal against actions / inaction on the part of the courts , prosecutors , investigators , etc . , the right to attend hearings before the trial and appeal courts , as well as hearings concerning detention matters , and so on ) . The courts should take into account expert reports , medical and other evidence , including that provided by the psychiatric hospital , to determine whether the individual ’s state of mental health permits him / her to fully benefit from his / her procedural rights ( § CARDINAL ) .

ORG insisted that it was the trial court ’s task to duly and timeously inform the person of the date , time and place of any court hearing so as to provide him / her with an opportunity to submit various procedural requests , including that for his / her attendance ( § CARDINAL ) .


Violation of Art. 6-1;Violation of P1-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant lives in PERSON ( GPE ) .

She is the owner of a flat in GPE , which she had let to B.F.R.

In a writ served on the tenant on CARDINAL DATE , the applicant informed the tenant of her intention to terminate the lease on expiry of the term on DATE and summoned her to appear before the Rome Magistrate .

By a decision of CARDINAL DATE , which was made enforceable on DATE , the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by DATE .

On DATE , DATE and DATE , the applicant served notice on the tenant requiring her to vacate the LOC .

On DATE , she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on DATE .

DATE and DATE , the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful , as the applicant was not entitled to police assistance in enforcing the order for possession .

DATE and DATE , the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful , as , the applicant was not entitled to police assistance in enforcing the order for possession .

On DATE , the applicant recovered possession of the flat .

The relevant domestic law is described in the ORG ’s judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINAL-V.


The applicant , Mr PERSON Massuero , is an NORP national who lives in GPE . He was represented before the ORG by Mr F. Spagnolo , a lawyer practising in GPE .

The respondent Government were represented by their successive Agents , respectively PERSON and Mr PERSON , and by their successive co - Agents , respectively Mr PERSON and Mr PERSON .

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

The applicant 's father was the owner of a flat in GPE , which he had let to ORG

In a registered letter of DATE , the applicant 's father informed the tenant that he intended to terminate the lease on expiry of the term on CARDINAL DATE .

In a writ served on the tenant on DATE , the applicant 's father reiterated his intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate . By a decision of CARDINAL DATE , ORG upheld the validity of the notice to quit and ordered that the premises be vacated by DATE .

On DATE , the applicant 's father served notice on the tenant requiring him to vacate the premises .

On an unspecified date the applicant 's father informed the tenant that the order for possession would be enforced by a bailiff on DATE .

DATE and DATE , the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful , as the applicant 's father was not entitled to police assistance in enforcing the order for possession .

In the meanwhile , on DATE , the applicant 's father died and the applicant inherited the flat .

On DATE , the applicant appointed a lawyer in order to be represented in the procedure with the aim of repossessing the flat .

On DATE , the applicant recovered possession of the flat outside the framework of the eviction proceedings in a meeting held between him , his lawyer and the tenant 's representative .


CASE OF ESMUKHAMBETOV AND OTHERS v. RUSSIA

Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 2 (procedural aspect);Violation of Art. 2 (substantive aspect);Violation of Art. 13+2;Violation of Art. 13+8;Violation of Art. 13+P1-1;Violation of Art. 8 and P1-1;No violation of Art. 3 (substantive aspect);Violation of Art. 3 (substantive aspect);Pecuniary damage and non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Peer Lorenzen

The applicants are residents of various villages in GPE .

At the material time the applicants were residents of the village of ORG in LOC of GPE . The village of GPE , also known as farm no . CARDINAL of the “ Shelkovskiy ” State farm or PERSON , is situated on the steppe close to the administrative border of GPE . The village is QUANTITY away from the village of GPE in ORG . Prior to the events described below PERSON was inhabited by people belonging to the ORG ethnic group and consisted of CARDINAL houses comprising QUANTITY to CARDINAL families . Its residents made their living from agriculture , mostly raising sheep and cows .

According to the applicants , PERSON was a peaceful village ; no rebel fighters ever lived there . In DATE it was regularly patrolled by federal servicemen from a checkpoint situated near GPE . In TIME CARDINAL DATE an armoured personnel carrier arrived from the checkpoint on the outskirts of GPE and fired a “ lightning bomb ” ( осветительная бомба ) into the air . According to the third applicant , there was a flare hanging from a parachute for TIME which lit the village very brightly . DATE the seventeenth applicant found duralumin casing which was QUANTITY long and QUANTITY in diameter near the electricity transformer . It was black inside . A white parachute was hanging on the wires above the transformer .

In TIME of CARDINAL DATE most of the adult villagers were working in the field and most of the children were at school . The weather was bright and sunny .

At TIME two military planes flying at a low altitude appeared from the direction of ORG . The planes flew away but TIME reappeared . They were narrow at the front , had wide wings and resembled NORP military SU-CARDINAL planes .

The planes circled over PERSON for TIME and then CARDINAL of them swooped down and opened fire with machine guns and bombed the western end of the village . The first bomb exploded in the courtyard of the first applicant ’s house . His CARDINAL sons – Elmurat , aged CARDINAL , and PERSON , aged DATE were playing there at that moment . The children were instantly killed .

The first applicant , his wife – PERSON Dormalayevna Esmukhambetova , born in DATE and the thirteenth applicant were inside the house when the bombing began . The first applicant and his wife rushed towards the boys , whilst the thirteenth applicant , who was wounded in her leg by shrapnel , ran to her house . In the courtyard the first applicant saw his sons lying near a bomb crater of QUANTITY in diameter . He grabbed the boys , clasped them to his chest and realised they were dead . At that moment the second bomb hit the first applicant ’s house . The first applicant shouted to his wife not to approach him and the children and to lie down . Instead , ORG ran screaming towards them . The first applicant noticed that she was wounded in the hip . The third bomb exploded near the GPE immediately after the second one . The first applicant ’s wife was fatally wounded with shrapnel in the abdomen and died in his arms . In the first applicant ’s submission , he is unable to recall the further sequence of events from that point until TIME . According to eyewitness statements , the first applicant was in a state of deep shock , screaming that all his family members had been killed and cursing the planes .

The second plane fired from large - calibre machine guns and bombed the northern end of the village . There was a large amount of smoke and dust in the air . Houses , sheds , other constructions , cattle , poultry and haystacks were destroyed and burnt down . The villagers , some barefoot and some CARDINAL - naked , ran in panic in the direction of ORG .

The planes indiscriminately fired shots and bombs at a distance from one another . They carried out CARDINAL sweeps and then left .

NORP Immediately after the attack DATE applicants started their tractors . The former drove off to ORG , together with a number of his neighbours , picking up other villagers along the way . The latter , along with the CARDINAL applicant , arrived at the first applicant ’s house to collect the corpses of the Esmukhambetov family members . At a distance of QUANTITY they also found the body of PERSON ( PERSON ) PERSON , born in DATE the second applicant ’s mother , the thirteenth applicant ’s sister and the CARDINAL applicant ’s daughter . The woman had been killed by shrapnel . According to numerous eyewitness statements , the corpses of the deceased were severely mutilated and heavily bleeding , and numerous pieces of shrapnel fell from the wounds when the bodies were moved . The bodies having been collected , the tractor drove to ORG , picking up survivors along the way .

Meanwhile , the third applicant was looking for his mother , PERSON , born in DATE , and his DATE son . They had gone for a walk DATE . Some of the villagers told him that , during the attack , they had seen her running with the boy in her arms in the direction of ORG . The third applicant went to ORG and was told that his family members had not been seen there . He then returned to ORG in the nineteenth applicant ’s tractor with several other villagers . After some searching , PERSON body was found in the field near the village . There was a shrapnel wound to the back of her head . The third applicant ’s son was crying nearby , unhurt .

The bodies of all the deceased were delivered to the village of ORG late on DATE , and were washed and buried DATE . According to the applicants , QUANTITY bombs were dropped on their village during the attack of CARDINAL DATE , resulting in the deaths of QUANTITY children and QUANTITY women and the destruction of , or severe damage to , CARDINAL houses .

On DATE the PERSON administration issued certificates in respect of each of the victims , stating that they had been killed during the bombing in GPE DATE . On DATE medical death certificates were issued in respect of the victims . The documents stated that the first applicant ’s wife , ORG , born in DATE , and his son , ORG , born in DATE , had died from multiple shrapnel wounds and that his son PERSON , born in DATE , had died from trauma to the head . They also stated that the second applicant ’s mother , PERSON , born in DATE , had died as a result of multiple shrapnel wounds and that the third applicant ’s mother , PERSON , born in DATE , had died from a shrapnel wound to the back of her head . The place and the date of the death of all the victims were recorded as the village of GPE , CARDINAL DATE . On DATE and DATE respectively the registry office of LOC of GPE certified the death of the third applicant ’s mother , the second applicant ’s mother and the first applicant ’s relatives .

According to the Government , in DATE a military body in command of counter - terrorist activities within the territory of GPE received information to the effect that a concentration of members of illegal armed groups and a base for training of terrorists had been detected in farm no . CARDINAL of the ORG farm near the village of PERSON , and that a number of large - scale terrorist attacks in GPE and in the territory of GPE adjacent to LOC of GPE , including hostage taking in PERSON , were being prepared . In the ORG ’s submission , in order to prevent terrorist attacks and suppress the criminal activities of illegal armed groups and in view of the impossibility of using ground troops in the area of the village of ORG , military officials in command of counter - terrorist activities took a decision to launch a pinpoint missile strike by air forces on the location of illegal armed groups near the village in question .

On DATE at TIME two military SU-CARDINAL planes performed a strike with light missiles using a precision guidance system on the base of illegal armed groups located at farm no . CARDINAL of the ORG farm . As a result of “ the preventive use of air forces ” in the village of PERSON , houses and outhouses belonging to the ORG farm were destroyed . Also , the bodies of PERSON , Elmurat Esmukhambetov , ORG , PERSON and GPE GPE were found on the site .

On DATE the seventeenth applicant arranged for the villagers to return to PERSON to collect their belongings . A column of CARDINAL tractors was accompanied by an infantry battle vehicle ( боевая машины пехоты ) from the federal checkpoint near GPE .

There were numerous federal servicemen in GPE armed with automatic rifles . They were collecting shrapnel and unexploded bombs . The soldiers warned the villagers that they should hurry up , since there might be a military strike to destroy the village to prevent rebel fighters from using it . The villagers were forced to leave the village before TIME that day .

On DATE some of the villagers , including the second and seventeenth applicants , again went to PERSON to take belongings which they had not managed to collect DATE . They saw the servicemen destroying CARDINAL of the houses in order to organise a checkpoint there . The soldiers were under the command of an officer in green camouflage uniform without shoulder straps who had a field cap with a peak . The seventeenth applicant told the officer that if it was necessary for the servicemen to destroy any building , they could destroy a village shop . The soldiers then proceeded to demolish the shop .

DATE more villagers , including several of the applicants , went to GPE on CARDINAL occasions . They saw the servicemen , some of them from the checkpoint near GPE , demolishing houses and other buildings in the village and loading building materials into their vehicles . The servicemen were also collecting shrapnel and unexploded bombs .

Having picked up their belongings , most of the applicants left ORG and never came back . They spent DATE in a refugee camp in GPE .

In DATE the DATE applicant and her family members returned to the village and rebuilt her house . The CARDINAL applicant collected fragments of bombs . According to her , in DATE police officers also took away another unexploded bomb .

The applicants submitted numerous witness statements confirming their account of events and photographs depicting the devastated village and fragments of bombs , as well as a number of newspaper articles reporting on the incident of CARDINAL DATE .

On DATE the head of the administration of LOC issued each of the applicants with a certificate confirming that his or her family had owned a house and annexes , title to which had been transferred to them by the LOC farm at DATE , and that those houses and annexes , as well as the applicants’ belongings inside them , had been destroyed and burnt during an aerial attack on GPE ( PERSON ) in DATE .

According to the applicants , following the attack of CARDINAL DATE they repeatedly applied to various ORG bodies , including prosecutors at different levels , the district and regional departments of the interior , several federal ministries , ORG and others . In their letters to the authorities the applicants described in detail the events of DATE and asked for assistance and details of the investigation . These enquiries remained largely unanswered , or only formal responses were given , stating that the ORG requests had been forwarded to various ORG offices .

Shortly after the bombing of ORG the second applicant addressed a letter to a military prosecutor ’s office in GPE , in GPE , seeking the punishment of those responsible and compensation . DATE an investigator from the military prosecutor ’s office , PERSON , visited the second applicant and questioned her about the events of CARDINAL DATE . On the same date the second applicant , her cousin , sister and PERSON went to PERSON , where they spent TIME . The investigator inspected and photographed the ruins and the places where the victims had been killed during the attack . The second applicant gave PERSON of shrapnel , including some which had numbers on them . She requested him to draw up an official note on the matter , but the investigator replied that it was unnecessary . Then the second applicant signed a transcript of her interview ( протокол допроса ) and PERSON left .

During DATE investigator A. on CARDINAL occasions visited a village in ORG in which the former inhabitants of GPE were living and questioned them .

Some time later the second and thirteenth applicants found out that the case had been taken from PERSON and transferred to another investigator . At some point the thirteenth applicant was informed that the case file had been sent to the federal military base in GPE in GPE for investigation .

In a letter of DATE ORG of the ORG forwarded the second applicant ’s complaint to ORG of the ORG . The latter sent the second applicant ’s complaint on to the prosecutor ’s office of GPE ( “ the NORP prosecutor ’s office ” ) on DATE .

On DATE ORG transmitted the second applicant ’s complaint to the NORP prosecutor ’s office for examination .

On DATE the NORP prosecutor ’s office forwarded the second applicant ’s complaint concerning “ her mother ’s death in a bombing attack of CARDINAL DATE ” to the military prosecutor ’s office of military unit no . DATE and notified the second applicant of that step in a letter of DATE .

On DATE the military prosecutor ’s office of military unit no . CARDINAL transmitted the second applicant ’s complaint concerning “ her mother ’s death ” to the military prosecutor ’s office of military unit no . DATE for investigation . The latter sent the complaint on to the military prosecutor of ORG ( военный прокурор махачкалинского гарнизона – “ the garrison prosecutor ” ) on DATE .

In a letter of CARDINAL DATE , with a copy for the second applicant , the garrison prosecutor informed the military prosecutor of military unit no . DATE that in DATE the investigator PERSON had carried out an inquiry ( проверка ) into the attack of CARDINAL DATE and had sent the materials from that inquiry to the relevant military ORG offices , including that of military unit no . DATE , and that the garrison prosecutor ’s office had never received those materials back .

On DATE the Chief Military Prosecutor ’s Office ( Главная военная прокуратура ) forwarded the applicants’ request concerning compensation for damage inflicted on their property to ORG .

In letters of DATE the Chief Military Prosecutor ’s Office transmitted the applicants’ complaints concerning the death of their relatives and destruction of their property as a result of an aerial attack to the military prosecutor ’s office of ORG ( военная прокуратура Северо-Кавказского военного округа ) . The latter transmitted the complaints to the military prosecutor ’s office of military unit no . DATE for examination on DATE .

On DATE ORG and ORG по делам федерации , национальной и миграционной политики ORG ) informed the thirteenth applicant that her request for compensation for destroyed property had been examined and that the Ministry was working on the adoption of legal provisions aiming to support the residents of GPE who had incurred losses in DATE and DATE .

On DATE ORG stated in a letter to the thirteenth applicant that it was not competent to pay compensation for damage inflicted on property during the operation in GPE .

On DATE ORG of the Interior notified the thirteenth applicant that her letter had been forwarded to ORG in ORG .

In a letter of CARDINAL DATE ORG stated in reply to the thirteenth applicant ’s request that it had no funds allocated for compensation for damage caused by military actions in GPE , and that the thirteenth applicant should apply to ORG .

On DATE the military prosecutor ’s office of military unit no . DATE forwarded the ORG complaint to the prosecutor ’s office of LOC ( “ the district prosecutor ’s office ” ) , stating that the military prosecutor ’s office was only competent to investigate offences committed by servicemen or those committed within the territory of their military unit , whereas in the present case no specific servicemen had been identified and the identification numbers and the type of plane were not known . The letter further stated that the circumstances of the deaths of the residents of GPE and the destruction of their property required examination and that it had been explained to the applicants that they could seek compensation in court .

On DATE the NORP prosecutor ’s office transmitted the ORG complaint regarding the attack of CARDINAL DATE to the district prosecutor ’s office for investigation .

In a letter of DATE the district prosecutor ’s office informed the NORP prosecutor ’s office and the military prosecutor ’s office of military unit no . DATE that there was no village named PERSON in LOC and that the district prosecutor ’s office was currently investigating the circumstances of an aerial attack on the village of GPE .

According to the second applicant , in DATE she was summoned to ORG of the ORG . An investigator , PERSON , informed her that a criminal investigation would be opened into the events of CARDINAL DATE in accordance with the instructions of the superior military prosecutors . The investigator interviewed the second applicant and then assured her that he would contact the former investigator PERSON and obtain the fragments of shells that she had given to him . In the second applicant ’s submission , DATE there was still no progress in the investigation .

On DATE the Chief Military Prosecutor ’s Office sent the applicants’ complaints to the military prosecutor of ORG ( военный прокурор NORP группировки войск ) .

On DATE ORG informed the applicants in reply to their request for compensation that they should apply to ORG .

On DATE the garrison prosecutor ’s office transmitted the ORG complaint concerning the attack on their village on DATE to the military prosecutor ’s office of military unit no . DATE for investigation .

On DATE the Chief Military Prosecutor ’s Office forwarded the ORG complaint to the military prosecutor of ORG .

In a letter of DATE the military prosecutor ’s office of ORG informed the applicants that their complaint about the killing of CARDINAL residents of GPE and the destruction of property had been transmitted to the military prosecutor of ORG and invited them to address their further queries to that prosecutor .

On DATE the district prosecutor ’s office notified the applicants that a criminal investigation into the attack of CARDINAL DATE on the village of PERSON had been commenced on DATE , and that the case file had been assigned no . DATE . The letter further stated that the district prosecutor ’s office had requested the military prosecutor ’s office of military unit no . CARDINAL to submit the materials from the inquiry that had previously been conducted , but so far they had not been received by the district prosecutor ’s office . According to the letter , the investigation was under way and measures aimed at identifying the planes which had attacked ORG on DATE were being taken .

On CARDINAL DATE the military prosecutor ’s office of ORG informed the applicants that on DATE a criminal case under LAW ( aggravated deliberate destruction of property ) of LAW had been opened , and that on DATE the military prosecutor ’s office of ORG had requested the NORP prosecutor ’s office to transmit the case file to them for examination . The letter assured the applicants that they would be kept updated .

On DATE the military prosecutor ’s office of military unit no . DATE forwarded the ORG complaint to the district prosecutor ’s office .

In a letter of CARDINAL DATE ORG invited the applicants to address their request for compensation for their destroyed property to the administration of LOC .

On DATE the military prosecutor ’s office of ORG notified the applicants that their complaints had been studied and transmitted to the military prosecutor ’s office of military unit no . DATE for “ examination on the merits ” .

On DATE the district prosecutor ’s office forwarded the ORG complaint to the military prosecutor ’s office of military unit no . DATE .

In a letter of DATE the military prosecutor ’s office of ORG stated in reply to the applicants’ query that the decision of DATE to discontinue criminal proceedings in case no . CARDINAL opened in connection with the aerial attack on the village of PERSON on DATE had been set aside and that on DATE the military prosecutor ’s office of ORG had taken up the case . The letter assured the applicants that all their allegations would be verified and that they would be informed of the eventual results .

According to the Government , on DATE the district prosecutor ’s office instituted criminal proceedings under LAW of LAW ( aggravated deliberate destruction of or damage to property ) upon the second applicant ’s complaint of CARDINAL DATE sent to ORG NORP President and received by the district prosecutor ’s office on DATE . The case file was assigned no . DATE and then transferred to a military prosecutor ’s office , where it was assigned no . CARDINAL/CARDINAL/CARDINAL - CARDINAL . In the absence at that time of information concerning the deaths of the CARDINAL residents of GPE ( PERSON ) , no proceedings had been brought in that connection .

The Government further submitted that the investigation had subsequently established that CARDINAL residents of GPE ( PERSON ) had been killed as a result of a strike by the federal air forces on DATE . According to them , it had been impossible to carry out a medical forensic examination of the corpses as the relatives had refused to allow exhumation on account of national traditions , which had obstructed the investigation and had had a negative impact on its effectiveness .

A number of documents appear to have been drawn up , including transcripts of witness interviews , expert reports and reports on examinations . The Government did not elaborate any further on the procedural documents they mentioned .

According to the Government , on DATE the criminal proceedings were discontinued owing to the absence of constituent elements of a crime punishable under LAW ( inflicting death by negligence ) in the servicemen ’s actions . The relevant decision stated that the pilots of SU-CARDINAL planes had bombed the village pursuant to their ORG binding order , and that therefore their actions had not constituted a crime . The actions of military officials who had ordered the pilots to perform the missile strike had been justified by the absolute necessity to prevent large - scale terrorist attacks that had been planned by members of illegal armed formations , who were showing active armed resistance to the federal forces , and to eliminate the danger to the public interest , the interests of the ORG and the lives of servicemen and local residents . That danger could not have been eliminated by any other means and the actions of the military officials in command of that operation had been appropriate in view of the resistance shown by the illegal fighters . In the ORG ’s submission , the investigating authorities thus concluded that the actions of the representatives of the federal forces had been no more than absolutely necessary , and therefore had not constituted a crime .

According to the Government , the “ interested parties ” , including the first , second , third , DATE , thirteenth , fourteenth , DATE , nineteenth and CARDINAL applicants , were apprised of the decision of DATE and their rights to challenge it before a higher prosecutor or in court were explained to them . The ORG also stated that copies of the relevant decision had been sent to those declared victims in the case .

At some point the first CARDINAL applicants filed a court claim against ORG and ORG , seeking compensation in connection with the deaths of their relatives .

DATE . By a default judgment of DATE LOC ( “ the ORG ” ) granted the first CARDINAL ORG claims in full and awarded the first applicant MONEY ( RUB ; CARDINAL ORG ) and the second and third applicants RUB CARDINAL ( approximately EUR CARDINAL ) each . The judgment was not appealed against and became final some time later .

On DATE the Presidium of ORG quashed the above - mentioned judgment in supervisory review proceedings and remitted the case to ORG for a fresh examination .

In a default judgment of CARDINAL DATE ORG again granted the applicants’ claims and awarded them the same amounts as those awarded in the judgment of DATE . The court noted that by virtue of Presidential Decree no . CARDINAL of CARDINAL DATE , relatives of those who had died as a result of the hostilities in GPE were entitled to a lump sum of RUB CARDINAL in compensation , and that the payment of that compensation did not depend on the establishment of a causal link between the damage caused and the actions of the ORG .

On DATE ORG upheld the judgment of DATE on appeal . The amounts awarded were paid to the first CARDINAL applicants in full .

It does not appear that any of the applicants applied to the domestic courts with a view to obtaining compensation for their destroyed or damaged property .

In DATE , when the application was communicated to them , the Government were invited to produce a copy of the investigation file in the criminal case opened in connection with the aerial attack of DATE on the village of GPE ( PERSON ) . In reply , the ORG refused to produce any documents from the file , stating it would be inappropriate to do so , given that LAW , disclosure of the documents was contrary to the interests of the investigation and could entail a breach of the rights of the participants in the criminal proceedings . Besides , in the ORG ’s submission the file on the criminal investigation in the present case was classified as it contained information which could not be disclosed to the public .

The Government also submitted that they had taken into account the possibility of requesting confidentiality under LAW of ORG , but noted that the ORG provided no guarantees that once in receipt of the investigation file the applicants or their representatives , some of whom were not NORP nationals and resided outside GPE ’s territory , would not disclose the material in question to the public . According to the Government , in the absence of any possible sanctions for the applicants in the event of their disclosure of confidential information and materials , there were no guarantees as to their compliance with the Convention and the Rules of Court . At the same time , the Government suggested that a ORG delegation could be given access to the file in GPE , with the exception of those documents containing military and ORG secrets , and without the right to make copies of the case file .

NORP In DATE the ORG reiterated its request . In reply , the ORG again refused to produce any documents from the file for the aforementioned reasons .

DATE . Protocol Additional to LAW of DATE , and Relating to ORG adopted on DATE provides in its part LAW relating to civilian population as follows :

“ CARDINAL . The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations . To give effect to this protection , the following rules shall be observed in all circumstances .

The civilian population as such , as well as individual civilians , shall not be the object of attack . Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited .

NORP shall enjoy the protection afforded by this Part , unless and for such time as they take a direct part in hostilities . ”

“ Starvation of civilians as a method of combat is prohibited . It is therefore prohibited to attack , destroy , remove or render useless , for that purpose , objects indispensable to the survival of the civilian population , such as foodstuffs , agricultural areas for the production of foodstuffs , crops , livestock , drinking water installations and supplies and irrigation works .

“ CARDINAL . The displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand . Should such displacements have to be carried out , all possible measures shall be taken in order that the civilian population may be received under satisfactory conditions of shelter , hygiene , health , safety and nutrition .

NORP shall not be compelled to leave their own territory for reasons connected with the conflict . ”

Until DATE criminal - law matters were governed by DATE Code of Criminal Procedure of the RSFSR . On DATE the old Code was replaced by LAW ( “ the ORG ” ) .

Article CARDINAL of the ORG states that a prosecutor can examine a complaint concerning actions or omissions of various officials in charge of a criminal investigation . Once a complaint is examined , the complainant should be informed of its outcome and of possible avenues of appeal against the prosecutor ’s decision .

Article CARDINAL of the ORG provides that the decision of an investigator or prosecutor to dispense with or terminate criminal proceedings , and other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede ORG access to justice , may be appealed against to a district court , which is empowered to examine the lawfulness and grounds of the impugned decisions .

Article CARDINAL of the ORG enshrines the rule that information from the preliminary investigation may not be disclosed . Paragraph CARDINAL of the same LAW provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation . It is prohibited to divulge information about the private lives of participants in criminal proceedings without their permission .

Article CARDINAL of the ORG provides that a preliminary investigation in a criminal case must be completed within DATE . This term may be extended DATE by the head of the relevant investigative body . In a criminal case where the preliminary investigation is particularly complex , the term may be extended DATE . Any further extension of the term may be made only in exceptional cases .

By virtue of LAW , if certain actions impairing an individual ’s personal non - property rights or encroaching on other incorporeal assets have caused him or her non - pecuniary damage ( physical or mental suffering ) , the court may require the perpetrator to pay pecuniary compensation for that damage .

Article DATE provides that damage inflicted in a situation of absolute necessity , notably for the elimination of a danger threatening the tortfeasor or third parties if the danger , in the circumstances , could not be eliminated by any other means , is to be compensated for by the tortfeasor . Having regard to the circumstances in which the damage was caused , a court may impose an obligation to compensate for such damage on a third party in whose interests the tortfeasor acted , or may release from such an obligation , partly or in full , both the third party and the tortfeasor .

Article CARDINAL provides that a ORG agency or a ORG official will be liable towards a citizen for damage caused by their unlawful actions or failure to act . Compensation for such damage will be awarded at the expense of the federal or regional treasury .

The Federal Law on Suppression of Terrorism of DATE ( Федеральный закон от CARDINAL июля DATE г. № DATE « О борьбе с терроризмом DATE “ the Suppression of Terrorism Act ” ) , as in force at the relevant time , provided as follows :

“ For the purposes of the present ORG the following basic concepts shall be applied :

... ‘ suppression of ORG shall refer to activities aimed at the prevention , detection , suppression and minimisation of consequences of terrorist activities ;

‘ counter - terrorist operation’ shall refer to special activities aimed at the prevention of terrorist acts , ensuring the security of individuals , neutralising terrorists and minimising the consequences of terrorist acts ;

‘ zone of a counter - terrorist operation’ shall refer to an individual terrain or water surface , means of transport , building , structure or LOC with adjacent territory where a counter - terrorist operation is conducted ; ... ”

“ On the basis of the legislation and within the limits established by it , damage may be caused to the life , health and property of terrorists , as well as to other legally protected interests , in the course of a counter - terrorist operation . However , servicemen , experts and other persons engaged in the suppression of terrorism shall be exempted from liability for such damage , in accordance with the legislation of GPE . ”

Presidential Decree no . CARDINAL of CARDINAL DATE provided , inter alia , for a lump - sum payment of MONEY ( RUB ) to the families of individuals who had died as a result of the hostilities in GPE . The Decree also stated that individuals who had incurred pecuniary losses , including those who had lost their home , should be paid compensation , and entrusted ORG with the task of making the relevant payments to those concerned .

In Decree no . CARDINAL of DATE ORG established that residents of GPE who had lost their housing and/or other possessions during the hostilities in the republic and who , no later than before DATE , had left permanently for another region were entitled to compensation .

Governmental Decree no . CARDINAL of DATE established the right of all permanent residents of GPE who had lost their housing and any possessions in it after DATE to receive compensation in the amount of RUB CARDINAL for the housing and RUB CARDINAL for the other possessions .

On DATE ORG of GPE delivered a judgment in civil proceedings brought by a Mr Dunayev , who claimed that the block of flats in which he had lived had collapsed during heavy shelling of ORG by the federal armed forces in DATE and sought compensation for pecuniary and non - pecuniary damage in that connection . While acknowledging the fact that Mr PERSON ’s property , including his apartment in the block of flats , had been destroyed as a result of an attack in DATE , the court noted , inter alia , that under Articles CARDINAL and QUANTITY of LAW Civil Code , the ORG was only liable for damages for its agents’ actions that were unlawful . It further held that the military operation in GPE had been launched by virtue of relevant presidential and governmental decrees which had been found to be constitutional by ORG and were still in force . Accordingly , the court concluded that the actions of the federal armed forces in GPE had been lawful and dismissed PERSON ORG ’s claim for compensation ( see ORG v. GPE , no . GPE , § DATE , CARDINAL DATE ) .

On DATE the ORG of GPE dismissed a claim against ORG brought by PERSON , who stated that his house and other property had been destroyed during massive air strikes and artillery shelling of ORG by the federal armed forces in DATE and DATE and sought compensation for pecuniary and non - pecuniary damage in that connection . The court acknowledged the fact that Mr GPE ’s private house and other belongings had been destroyed as a result of the hostilities in DATE . It held , however , that under LAW , the ORG was only liable for damages for its agents’ actions which were unlawful . It noted that the military operation in GPE had been launched by virtue of relevant presidential and governmental decrees which had been found to be constitutional by ORG , except for CARDINAL provisions of the relevant governmental decree . In that connection the court noted that the CARDINAL provisions had never been applied to Mr GPE , and therefore no unlawful actions on the part of ORG bodies had ever taken place to warrant compensation for damage inflicted on his property . On DATE ORG upheld that judgment on appeal ( see GPE v. GPE ( dec . ) , no . CARDINAL , DATE ) .

By a default judgment of DATE ORG dismissed a claim brought by PERSON against a number of federal ministries in so far as she alleged that the block of flats in which she had lived had been destroyed by a missile during an attack by the federal armed forces on ORG in DATE and sought compensation for the destroyed flat and belongings that had been in it . She also sought compensation for non - pecuniary damage . The court noted , inter alia , that under LAW , the ORG was liable only for damage caused by its agents’ actions which were unlawful . It further found that the actions of the NORP federal troops in GPE had been lawful , as the military operation in GPE had been launched under relevant presidential and governmental decrees which had been found to be constitutional by ORG . The court concluded that there were no grounds to grant PERSON claim for pecuniary damage and that her claim for compensation for non - pecuniary damage could not be granted either , in the absence of any fault or unlawful actions on the part of the defendants . The judgment was upheld on appeal by ORG on DATE ( NORP v. GPE , no . CARDINAL , § DATE , DATE ) .


The applicant is a NORP citizen , born in DATE and residing in GPE , the GPE . Before the ORG he is represented by PERSON , a lawyer practising in GPE .

A.

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

The applicant first came to GPE in DATE . He requested asylum or , alternatively , a residence for compelling reasons of a humanitarian nature . He submitted that he had been a corporal in the NORP army and that when assisting his uncle , a lieutenant colonel , in the preparations of a coup ORG he was arrested and subsequently sentenced to death . He claimed to have been the only one of the conspirators to escape , and that the others were all put to death .

The applicant ’s requests were rejected by the Deputy Minister of Justice ( Staatssecretaris voor Justitie ) , as was his request for revision ( herziening ) . The applicant then filed an appeal with ORG ( Afdeling PERSON ) but his request for an interim measure was rejected on DATE by the President of ORG ( Arrondissementsrechtbank ) of GPE sitting in ‘ s - Hertogenbosch . This meant that he was not allowed to await the outcome of the proceedings before ORG on GPE territory . From TIME he was therefore required to leave the GPE forthwith .

In DATE or CARDINAL – the exact date has not been given – the applicant met a woman of GPE nationality with whom he subsequently entered into a relationship . On DATE he requested a residence permit enabling him to reside in the GPE with his partner . This request was rejected in CARDINAL instances by the Deputy Minister for ORG and in a final decision of CARDINAL DATE by the President of ORG of The GPE sitting in GPE . ORG considered that the applicant had failed to prove his identity and had failed to prove that he was not married already . In so holding it had regard to , among other things , the way in which the applicant had obtained his NORP passport : by post , instead of through official channels , which meant that e.g. the passport holder had not signed the passport in the presence of an authorised official . Other documents , including the applicant ’s birth certificate , contradicted each other and had not been verified .

The applicant ’s partner became pregnant . On DATE the applicant again requested a residence permit enabling him to reside in the GPE with his partner and their soon to be born child .

In a final decision of DATE ORG rejected the applicant ’s asylum claims as unsubstantiated in view of what it considered to be inconsistencies in the applicant ’s statement and supporting documentation . The credibility of the applicant ’s assessment was not accepted . ORG also found that there were no compelling reasons of a humanitarian nature to grant him a residence permit . The factor of the applicant ’s relationship with his partner did not play a role in this decision .

On DATE the Deputy Minister rejected the applicant ’s request of DATE for a residence permit . She held that , as had been the case at the time of ORG decision of DATE , the applicant was still not in possession of certified documents and as he had also not yet submitted a passport , his identity had not been properly established . The fact that the applicant had argued that he was attempting to obtain the required documents was not considered relevant since he had known for DATE that he needed to produce them . The Deputy Minister further held that the refusal of a residence permit did not constitute an interference with the applicant ’s right to respect for family life since he had never held a residence permit enabling him legally to develop family life with his partner in the GPE . As his child had not yet been born , no family life existed between the applicant and the child .

The applicant filed an objection ( bezwaarschrift ) against this decision . On DATE a daughter was born to the applicant and his partner . The daughter has GPE nationality .

The Deputy Minister rejected the applicant ’s objection on DATE , holding that despite the birth of the applicant ’s child a refusal of a residence permit did still not constitute an interference with the applicant ’s right to respect for family life since he had never held a residence permit enabling him legally to develop family life with his partner and his child in the GPE . Moreover , the Deputy Minister considered that there existed no objective obstacles for the applicant , his partner and their child preventing them from developing their family life in GPE , the more so as the applicant ’s asylum claims had been rejected , from which it followed that the applicant was not considered to be in any real danger if returned to GPE .

The applicant filed an appeal with ORG of GPE and also requested the President of that ORG to grant him an interim measure so that he would not be expelled pending his appeal .

On DATE ORG rejected the appeal . It found that in the examination of the question whether LAW imposed a positive obligation on the GPE to grant residence to the applicant , no decisive importance could be given to his daughter ’s right under LAW No . CARDINAL not to be expelled . However , given the girl ’s GPE nationality she was entitled to be raised and educated in the GPE and therefore her interests should be taken into account as well . Nevertheless , ORG considered that the interest of protection of the national economic welfare outweighed those of the applicant and his daughter . In this respect ORG took into account that the daughter had only been DATE when the Deputy Minister had rejected the applicant ’s objection and that the Deputy Minister ’s decision did not prevent the applicant from developing his family life in GPE . It had not appeared that his daughter would not be admitted to GPE and her residence there would not affect her right to enter the GPE . Moreover , the applicant ’s request for asylum did not constitute an objective obstacle to family life being developed in GPE as this request had been rejected .

ORG accepted that if the applicant was to take his daughter with him to GPE this would constitute an interference with his partner ’s right to respect for family life with her child . However , the interest of protection of the national economic welfare also outweighed the interests of the partner . In this respect ORG took into account that the partner had entered into the relationship with the applicant at a time when he was not allowed to reside in the GPE . There were , moreover , no objective obstacles preventing the partner from developing family life in GPE .

Also on DATE the acting President of ORG rejected the applicant ’s request for an interim measure .

B. Relevant domestic law and practice

Given the situation obtaining in the GPE with regard to population size and employment , Government policy was , and remains , aimed at restricting the number of aliens admitted to the GPE . In general , aliens are only granted admission for residence purposes if : ( a ) the GPE are obliged under international law to do so , as in the case of citizens of ORG or GPE member GPE and refugees covered by LAW relating to LAW ; ( b ) this serves “ essential interests of the GPE ” ( wezenlijk Nederlands belang ) , e.g. economic or cultural interests ; ( c ) there are “ cogent reasons of a humanitarian nature ” ( klemmende PERSON aard ) . Relevant policy is defined in FAC ( Vreemdelingencirculaire ) of DATE .

In Chapter CARDINAL , under CARDINAL , of the Aliens Circular it is laid down that the partner of a GPE national may be allowed to reside in the GPE within an existing non - marital relationship or , if both partners are DATE , in a newly - formed relationship provided that both partners prove by means of legalised official documents that they are both unmarried and that they are not closely related . The requirement that both partners be unmarried is waived if the fact of being , or remaining , married to a third party can not be imputed to the person concerned .

Chapter CCARDINAL of the Aliens Circular lists cases in which the requirement of legalisation can be waived , for instance if the person concerned is a genuine asylum seeker and therefore can not be expected to contact the authorities of his country of origin . However , certain “ problematic countries ” are listed from which documents are not accepted , save in exceptional cases , without verification by competent GPE diplomatic or consular officials . GPE is CARDINAL of these .