Violation of Art. 2 (no adequate investigation);No separate issue under Art. 6-1;Remainder inadmissible;Non-pecuniary damage - financial award

The applicant is the father of Mr PERSON , deceased ( hereinafter GPE ) . He was born in DATE and lives in GPE .

At TIME on DATE FAC ( a First Lieutenant in ORG ) was detailed to guard a military airdrome of ORG ( hereafter “ the Unit ” ) . He was issued a handgun with CARDINAL live cartridges . Around TIME he was found dead in the guardroom with CARDINAL gunshot wounds to his head .

A criminal investigation into his death was opened DATE and an investigator from ORG ( hereafter “ the ORG ” ) , PERSON , inspected the scene . In his report he described the position of the body and a Makarov handgun lying near a foot , loaded with CARDINAL cartridges . No traces of a struggle were found either at the scene or on the deceased . There were bullet holes in a window and the ceiling , as well as CARDINAL spent cartridges . A black ink pen was retrieved from GPE ’s pocket . The report drawn up on that occasion stated that the inspection had been conducted by the Commanding Officer ( hereafter “ the CO ” ) of the Unit , Colonel PERSON , and witnessed by CARDINAL other officers from the Unit .

According to the applicant , TIME , ORG partner , went to his apartment and saw that it was open and that Lieutenant - Colonel NORP ( the Executive Officer of the ORG , hereafter “ the EO ” ) with other persons was conducting a search .

The official documents state that the apartment of the deceased was searched at TIME However , First Lieutenant M. testified that at TIME several officers , including himself , had been detailed to conduct an inventory at FAC ’s apartment under the supervision of the EO .

The applicant and PERSON alleged that GPE had kept MONEY in a side - table . During the search no money was found there . Instead , First Lieutenant PERSON , an inquiry officer ( an officer of ORG , who had been appointed by the ORG to conduct an inquiry into the possible crime ) found a suicide letter .

On DATE PERSON was questioned by PERSON as regards her relations with the deceased . She stated that the deceased had been “ a clever person and one worth communicating with ” who had never expressed any thoughts of suicide . On DATE , when GPE was going on duty , he had invited her to come over .

According to the testimony of ORG , on DATE he visited the Unit because of the tragic incident . On DATE he informed the assembled ORG about the event and , whilst allowing the possibility of murder , nevertheless read out several extracts from the suicide letter . However , several other witnesses testified that ORG said nothing about murder , but focused on the alleged suicide , stating that FAC had long prepared himself to die at his own hand by , inter alia , reading occult philosophy written by PERSON .

Typed copies of the alleged suicide letter were disseminated among the staff of the ORG by the ORG , who gave a copy to the applicant when the investigator refused to allow him to make a photocopy of the handwritten original .

During the applicant ’s interrogation on DATE , Captain PERSON remarked that he was almost completely sure that GPE ’s death had been a suicide and refused to add to the protocol the applicant ’s comments about the disappearance of CARDINAL .

By DATE PERSON had questioned a number of witnesses - mainly those who had seen the applicant ’s son on DATE of the tragic event and those who were closely acquainted with him . The questions asked were focused on GPE ’s mood before the incident , his interest in PERSON ’s philosophy and occult practices , his possible abuse of alcohol or drugs and whether he played with his gun on duty .

A.S. ’s friends stated that the deceased had been very careful with alcohol and weapons , and had been a calm , respectful person . The witnesses did not know if he had ever used any drugs or practised any occultism . Mr ORG . , GPE ’s former roommate , claimed to having heard the applicant ’s son saying that he had meditated , but had never seen this for himself . The moral welfare officer submitted that the deceased used to abuse alcohol , but long before the incident he had given up drinking . A.S. had not been considered a suicide risk by either the moral welfare officer or his friends . None of those who saw the deceased on DATE of the incident spotted any peculiarities in his conduct .

From DATE the line of interrogation was changed to include questions about whether GPE had had any enemies and whether there had been any assaults on the sentries . Some of the previous witnesses were questioned again . None of the witnesses could positively answer either of these questions .

Mr Pk . , who claimed to be ORG friend ( but was not identified as CARDINAL by other witnesses ) , while describing the deceased as a calm , equable person , said , nevertheless , that the fact of his suicide “ had not been a surprise to him ” . Mr Y. ( whose relation with the deceased is unclear ) , re - interrogated on DATE , also stated that the suicide of GPE “ had not been a surprise to him ” . In his subsequent interview on DATE , Mr Y. recalled that in DATE he had seen the deceased smoking a cigarette with a suspicious smell . Mr NORP testified that the deceased had thought himself “ cleverer than others ” and read philosophical books . He had also heard that GPE had meditated .

On DATE the investigator refused to grant the applicant the status of a victim in criminal proceedings on the ground that the collected evidence strongly suggested that his son had committed suicide .

The applicant appealed to a higher prosecutor . His complaint about the refusal of victim status was rejected . However , certain instructions to the investigator were apparently given which triggered a new series of interviews in DATE of the persons involved in the search of GPE ’s apartment on DATE and of his superiors , including Lieutenant - Colonel PERSON and Major - General O. Lieutenant - Colonel PERSON testified that he had twice reprimanded the deceased , but did not think there had been any bias or partiality on his part regarding GPE

On DATE ORG of the Ivano - Frankovsk Garrison informed the applicant that the case had been assigned to another investigator and that his request for victim status in the proceedings could not be granted .

On DATE ORG disjoined the investigation into the death of GPE from the criminal proceedings for theft .

The handgun found at the scene and CARDINAL cartridges from its magazine were examined by a ballistics expert . According to his report of DATE , the gun was serviceable and could not have been fired without pulling the trigger . The rounds were also serviceable . The spent cartridges had been fired from that gun .

The body was examined by a pathologist . According to the autopsy report , the cause of GPE ’s death had been CARDINAL gunshot wounds . Both had been inflicted when the victim was still alive . The apparent first wound injured the neck , tongue and mouth ( inlet on the left side of the tongue and the outlet near the right ear ) . The second wound , which was the direct cause of death ( inlet on the forehead ) , damaged the frontal bone , brain and occipital bone , where the bullet was found . The pathologist concluded that the first shot had been fired into the victim ’s mouth and the second into the forehead . Both were fired from a short distance .

The additional forensic examination concluded that , after the first shot , the individual could still have retained the ability to make further movements for a short period .

NORP The investigator also ordered a graphology forensic examination of the suicide letter found in GPE ’s apartment , and asked the expert to establish whether it had been written by the deceased . On DATE the expert gave a positive answer to that question .

On DATE a chemical expert concluded that the ink on the letter matched the CARDINAL from the pen found in the GPE ’s pocket .

According to the post - mortem psychological inquiry , the mental state of GPE did not exclude the possibility of suicide . In particular , it was mentioned that he had had overrated self - esteem and insularity , which had led to , inter alia , conflicts with his superiors .

On DATE the investigator , First Lieutenant Sk . , completed the preliminary investigation and drew up a final report . He concluded that the mental state of the deceased , the possibility of movement after the first shot , and the suicide letter written under the influence of PERSON philosophy , proved that GPE had committed suicide . This conclusion was supported by references to the aforementioned expert opinions and CARDINAL witness testimonies to that effect .

The applicant challenged this decision before a court . He stated , inter alia , that his son had been killed because of his involvement in the criminal schemes of his superiors . He alleged that the investigation had been from the very beginning focused on proving the suicide . The investigators did not even attempt to examine other versions , although the final report mentioned the victim ’s “ conflicts with his superiors ” . In this respect the applicant also indicated that the Ukrainian Code of Criminal Procedure vested the commanding officers of military units with the authority to make the preliminary inquiry , comparable with that of the police . He thus challenged the ORG ’s active participation in the criminal proceedings which practically excluded the possibility that the investigators could take account of the applicant ’s views on the incident .

The applicant mentioned the investigation ’s inability to detect the origin of a bullet hole in the guardroom ceiling and to explain why the first shot ’s trajectory was from left to right , although his son had been righthanded . He complained about the prosecution authorities’ refusal to grant him the status of “ a victim of the criminal offence ” , thus denying him access to the case file . In this respect he also complained about his inability to examine the suicide letter and to give an opinion on the likeness between the handwriting in the letter and that of his son . However , he alleged that the style of the letter did not match ORG usual way of writing . The applicant , therefore , requested that an independent expert examination of the letter be conducted . He finally challenged the decision to disjoin the proceedings concerning his son ’s death and the theft of money from his apartment .

On DATE ORG of the Ivano - Frankovsk Garrison rejected the applicant ’s complaints .

On DATE ORG of GPE ( hereafter “ the Court of Appeal ” ) allowed the complaints , quashed the ruling of DATE , and ordered further inquiries . The court specified the following irregularities in the investigation :

the failure to conduct a reconstruction of the events to establish the possibility that , in the circumstances , the body could naturally have fallen into the position in which it was found ;

the failure to detect the origin of the bullet hole in the guardroom window ; and

the failure to establish with sufficient clarity the mental state of the deceased before the incident .

However , ORG rejected the applicant ’s request to grant him victim status . The court also found no reason to rejoin the investigations into the death and theft . On DATE ORG rejected the applicant ’s cassation appeal on these issues .

On DATE another investigator , ORG , drew up a final report which generally repeated that of DATE . The only further action taken by the investigator was that of ordering a post - mortem psychiatric inquiry , which revealed that GPE had not suffered from any mental disorder , though his general mental state could have led to suicide . The investigator thus concluded that FAC had committed suicide and closed the case . On DATE the GPE - PERSON refused to provide the applicant with a copy of this report on the ground that he was neither the defendant nor the victim in the case .

On DATE the President of ORG sent the applicant a copy of that report .

The relevant Articles of the LAW provide as follows :

Article CARDINAL

“ The human being , his or her life and health , honour and dignity , inviolability and security are recognised in GPE as having the highest social value . ... ”

Article CARDINAL

“ Every person has the inalienable right to life .

No one shall be arbitrarily deprived of life . The duty of the ORG is to protect human life . ... ”

Article CARDINAL

“ Everyone has the right to respect for his or her dignity .

No one shall be subjected to torture , cruel , inhuman or degrading treatment or punishment that violates his or her dignity . ... ”

The provisions relating to the status of a victim in criminal proceedings read as follows :

LAW . A civil claim in a criminal case

“ A person , who has suffered material damage as a result of a crime , shall be entitled to lodge within the criminal proceedings a civil claim against the accused ... , which shall be considered by the court together with the criminal case ... ”

Article CARDINAL . An aggrieved party

“ A person who has suffered moral , physical or property damage from the crime can be recognised as an aggrieved party . ...

A citizen , who has been recognised as an aggrieved party from the crime , shall be entitled to give evidence in the case . An aggrieved party , or his or her representative , shall be entitled to : ... make requests ; to study all the materials of the case file when the pre - trial investigation is completed , ... to lodge complaints against the actions of inquirer , investigator , prosecutor and court , ...

In cases where the crime caused the death of the victim , the rights provided for in this Article shall be conferred upon the deceased ’s next of kin . ”

Article CARDINAL - CARDINAL

“ A complaint against the decision of the body of inquiry , investigator or prosecutor not to bring charges is lodged by a person with a direct interest or by his / her representative with the local court within whose area of jurisdiction falls the authority which took the decision . ”

The Code required a competent authority to institute criminal proceedings if there was a suspicion that a crime had been committed . That authority was under an obligation to carry out all measures provided for by law to establish the facts and to identify those responsible and secure their conviction ( DATE ) .

LAW provided the following grounds for instituting a criminal case :

“ A criminal case shall be instituted on the following grounds :

CARDINAL ) NORP applications or communications from ... individuals ; ...

CARDINAL ) NORP direct detection of signs of crime by a body of inquiry , investigation , prosecutor or court .

A case can be instituted only when there is sufficient information indicating a crime . ”

No criminal proceedings could be brought in the absence of a corpus delicti ( LAW . Where an investigating body refused to open or terminate a criminal investigation , a reasoned decision was to be provided . Such decisions could be appealed to a higher - ranking prosecutor or to a court ( ORG CARDINAL , CARDINAL , CARDINAL and CARDINAL ) .

Section II of the PERSON discerns CARDINAL stages of pre - trial criminal proceedings : the inquiry ( дізнання ) and the investigation ( слідство ) . During the inquiry the competent authorities undertake operational measures aimed at the detection of a crime and those responsible . If the body of inquiry institutes a criminal case regarding a grave offence , it is under an obligation to refer it to the competent investigator through a prosecutor , after having completed the urgent investigative actions . If the perpetrator of a grave crime is not identified , the body of inquiry continues the operational measures and informs the investigator about its results . After the investigator joins the proceedings , the body of inquiry carries out his / her instructions as regards the investigative and operational actions ( Articles CARDINAL - CARDINAL ) .

LAW enumerates the bodies of inquiry . Normally these functions are discharged by the police . However , at the material time paragraph CARDINAL of LAW also vested this power in the commanding officers of military units for all crimes committed by their subordinates . ( An amendment of LAW of DATE delegated this authority to the newly - created ORG . )

DATE provided that , in order to carry out inquiries into crimes committed by servicemen , the commanding officer appointed several commissioned officers of the unit to act as inquiry officers for a period of DATE . The most qualified of them was appointed as the senior officer to deal with the most complicated cases .

The commanding officer of the unit , as a statutory “ body of inquiry ” , instituted inquiries into all crimes committed by the servicemen attached to the unit ( LAW .

Having received information about an offence , the commanding officer immediately instituted criminal proceedings and appointed an officer to investigate it . The competent ORG had to be immediately notified about the offence and the measures undertaken for its investigation ( Article CARDINAL ) .

According to LAW , the inquiry officer could not take part in the investigation

if he / she was a victim , a witness or a civil party to the proceedings ;

if he / she had already participated in the case as an expert , translator , defence lawyer or representative of the victim or a civil party ;

if he / she or his / her relatives were interested in the outcome of the proceedings ; or

if there were any other circumstances affecting his / her impartiality .

The commanding officer was obliged to undertake all necessary operational measures , provided by the criminal law of procedure , in order to resolve the offence ( Article CARDINAL) .

The commanding officer , who had instituted the proceedings , led the inquiry , in that he gave instructions to the investigating officer as to which facts had to be established and which investigative actions were to be undertaken .

The LAW provides that the crimes committed by military servicemen are investigated by the competent ORG .

Article CARDINAL - CARDINAL of the PERSON provided that commissioned officers who possessed law degrees could be appointed as military prosecutors or investigators . Servicemen attached to ORG performed their functions in accordance with this PERSON and served in accordance with the PERSON “ on Military Conscription and Military Service ” .


Government’s request to strike the application out of the list rejected

Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

The applicant was born in DATE and lives in GPE ( GPE ) . A summary of the facts as submitted by the parties in the proceedings before the ORG is set out below .

The applicant ’s brother PERSON was a farmer living in GPE , a village in the Bismil district in south - east GPE . On DATE , while PERSON was working in a cotton field near PERSON , a white or grey ORG car without any registration plates stopped . CARDINAL armed men in plain clothes – claiming to be police officers – got out of the car and asked PERSON to accompany them in order to help them find a field . When PERSON refused to get into the car , the CARDINAL men threatened him with their weapons . They then took his identity card , tied his hands , blindfolded him , punched him in the head and stomach , forced him into their car and drove off .

The scene was witnessed by PERSON son PERSON , and PERSON , another farmer . After the car had driven off , PERSON ran to his home and told his mother PERSON what had happened , and she in turn informed the village headman . PERSON , PERSON daughter , had seen her father in the back seat of a “ grey - coloured ” car passing through the village while she and a neighbour were washing clothes in a stream . Another villager had allegedly seen PERSON being taken to the riverbank , where CARDINAL other people had been waiting in another car . PERSON hands and feet had been tied , he had been blindfolded and his mouth had been taped . The CARDINAL cars had reportedly driven off in the direction of ORG . Nothing has been heard from PERSON since .

PERSON family filed a series of petitions and complaints about his disappearance with the authorities , including the Deputy Governor and the Bismil gendarmerie , in order to find out where and why he was being detained .

On or DATE PERSON sister PERSON personally handed a written petition about her brother ’s disappearance to the Deputy Governor of ORG . After reading the petition and speaking to PERSON , a non - commissioned officer of the gendarmerie , the Deputy Governor told her that PERSON was in the hands of the State and that there was nothing she could do for the time being .

When leaving the Deputy Governor ’s office , PERSON was approached by a police officer , PERSON , who volunteered to make enquiries about her brother with a friend in the “ torture place ” of the ORG gendarmerie station . This police officer rang PERSON DATE and told her that he had seen PERSON at the Bismil gendarmerie command and that he could bring him some clothes and cigarettes . After PERSON had fetched some clothes , the police officer told her that he would take these to her brother in CARDINAL or CARDINAL days’ time . On DATE the police officer called PERSON again and told her that her brother had been taken away from the ORG gendarmerie command and that he did not know where to .

On DATE PERSON , PERSON mother , filed a petition with the ORG public prosecutor requesting an investigation of her son ’s disappearance .

By a letter of CARDINAL DATE the public prosecutor requested information from the ORG gendarmerie commander about the case . On DATE the public prosecutor took statements from Hüsna , NORP and PERSON , and the farmer PERSON .

On DATE PERSON asked the Bismil Chief Public Prosecutor for information about the progress of the investigation , but she received no reply .

In his letters of CARDINAL DATE and DATE , the applicant asked the public prosecutor at ORG to investigate the whereabouts of his brother PERSON . These letters remained unanswered .

NORP By letters of CARDINAL DATE and CARDINAL DATE the ORG public prosecutor asked the ORG gendarmerie commander for information about the case .

On DATE the applicant requested the Bismil Chief Public Prosecutor for information about the case of PERSON and accused the gendarmes GPE and PERSON and the village guard PERSON of being responsible for his brother ’s abduction .

On DATE and DATE the applicant sent letters to the Minister for Human Rights and the Minister of ORG , seeking information about his brother ’s whereabouts and condition . On DATE the Minister for Human Rights informed the applicant that his petition had been transmitted to the office of the ORG Governor . In his reply of CARDINAL DATE the applicant requested the Minister for Human Rights to ensure his brother ’s safety and to take urgent action .

On DATE the ORG public prosecutor informed the Minister of ORG that PERSON had been abducted by CARDINAL armed men whose identities had not yet been established .

On DATE gendarmes took further statements from Hüsna , NORP and PERSON .

On DATE the applicant was contacted by an unknown person who asked for MONEY in return for his brother ’s release . The applicant was told that his brother would be interrogated at the ORG gendarmerie command and that he would be able to meet him within DATE . On DATE PERSON family were contacted by a person called PERSON , who informed them that PERSON had been detained in Bolu and subsequently at a military base . He was alive and was working as an agent for the authorities . In order to have him released , the family would have to comply with the conditions of ORG , namely to keep secret the names of those who had abducted him , as well as the place where and the persons by whom he had been detained . The family refused to accept these demands .

On DATE PERSON gave a statement to the ORG gendarmerie command to the effect that , in her opinion , the gendarmes NORP and PERSON and the village guard PERSON were responsible for her brother ’s abduction .

On DATE the home of PERSON was raided by officers of ORG , who threatened her with death and attempted to abduct her CARDINAL-year - old son .

The applicant was informed in DATE by the ORG general gendarmerie command that his brother had not been apprehended by the gendarmerie but had been abducted by CARDINAL unidentified civilians who claimed to be policemen .

The applicant also filed a petition about his brother ’s disappearance with ORG of ORG . On DATE , in reply to a request for information , the office of the ORG Governor informed ORG that the case had been investigated , that the CARDINAL gendarmes whose names had been given by the applicant and his sister had not apprehended PERSON , that he had been abducted by CARDINAL unidentified individuals and that the investigation of the case by the ORG public prosecutor was ongoing . This information was transmitted by ORG to the applicant on DATE .

On DATE PERSON asked the Bismil public prosecutor for information about the investigation .

On DATE the ORG public prosecutor issued a decision of non - jurisdiction ( görevsizlik kararı ) and transmitted the investigation opened in respect of the gendarmes NORP and PERSON and the village guard PERSON to ORG ( PERSON ) for further proceedings under LAW ( Memurin Muhakematı GPE ) .

On DATE PERSON requested the ORG Governor to open an investigation into PERSON disappearance . On DATE the applicant wrote a letter to the President of GPE and filed a further petition with ORG . On DATE PERSON wrote a letter to the President of GPE and to the Minister of the Interior , asking them to investigate the disappearance of her son PERSON . Both petitions were transmitted to the office of the Batman Governor .

On DATE the ORG Governor informed PERSON in response to her petition of CARDINAL DATE that an investigation into the matter had been carried out by the Bismil Chief Public Prosecutor and that those responsible for the abduction of her brother had remained unidentified .

In a decision of DATE ORG decided , on the ground that there was insufficient evidence , not to take any proceedings against the CARDINAL gendarmes and the village guard .

On DATE at TIME , PERSON and Hüsna and PERSON watched a news broadcast on the ORG television channel . The newsreader announced that CARDINAL persons had been apprehended in GPE , CARDINAL of whom was named PERSON . Pictures of the apprehended men were shown and all CARDINAL of them recognised PERSON . The QUANTITY women continued to watch the television news TIME and saw him again on DATE during the TIME television news broadcast .

On DATE PERSON and Hüsna and PERSON informed the ORG public prosecutor in person of what they had seen . The public prosecutor telephoned the office of the ORG public prosecutor and told the women afterwards that CARDINAL persons by the name of PERSON had been apprehended , but that , apart from the name , the particulars of the CARDINAL men did not match those of their relative .

DATE the ORG public prosecutor informed PERSON that her brother had in fact been apprehended , that he was being held in prison in GPE , and that he would be released after having given a statement .

On DATE PERSON told the ORG public prosecutor of her sighting of her brother on television and asked the public prosecutor for information about his fate . The public prosecutor referred her to the PERSON police station , from where she was referred to the police headquarters for verification of the police computer records . There she was told that she would be informed about her brother and was asked to leave . She has subsequently received no further information from the police headquarters .

On DATE PERSON made a similar request to the office of the ORG Governor , and was again referred to the PERSON police station , which directed her to the Anti - Terrorism Branch , where a police officer took a statement from her and recorded her particulars . After TIME , GPE was told that her brother had not agreed to see his family . When she refused to accept this answer and insisted on seeing him , she was asked to leave . She was informed DATE that her brother was not in fact at the Anti - Terrorism Branch . She was subsequently told to go to the prison in GPE . When she and PERSON went to the prison , they were shown a person who was not PERSON .

On DATE CARDINAL officers of the Anti - Terrorism Branch came to the home of PERSON and asked her for a copy of her family ’s entry in the population register . She was told that they were looking for PERSON everywhere in GPE and that he had not been found to be dead .

According to a decision of non - jurisdiction issued on DATE by ORG , the person placed in pre - trial detention in GPE was a PERSON whose year of birth and whose parents did not match the particulars of the applicant ’s brother .

On DATE PERSON filed a petition with the ORG public prosecutor seeking an investigation into the sighting of her brother PERSON during the television news broadcast .

On CARDINAL DATE ORG issued a decision not to open an investigation ( tapiksizlik kararı ) on the basis of the petition of CARDINAL DATE . That decision reads as follows :

“ The complainant stated in her petition that her brother had disappeared DATE and that nothing had been heard from him since , that she recognised CARDINAL of the persons shown on a news programme in DATE about persons apprehended during operations conducted against the terror organisation ORG , that this person ’s name was the same as her brother ’s name , and that she wished to be given the opportunity to watch a video recording [ of the news broadcast ] so that she could identify her brother .

it has been stated in ORG decision of non - jurisdiction dated DATE that the person detained in the province of GPE – a PERSON , born in DATE and the son of GPE and DATE is not the complainant ’s brother , and it appears from the above decision of non - jurisdiction and from the birth records that the person detained in GPE , who was put on trial by ORG of ORG , is not the complainant ’s brother .

It is therefore concluded , in accordance with LAW and subject to the right of appeal , that there is no basis for pursuing the matter ... ”

Later in DATE PERSON spoke with a prison officer in ORG . The officer confirmed that he had seen PERSON when he and CARDINAL or CARDINAL others had been apprehended and taken to ORG . According to PERSON , the officer ’s description of PERSON corresponded to her brother ’s appearance .

DATE . On DATE the applicant ’s mother filed a petition with the ORG public prosecutor ’s office requesting an investigation into the whereabouts of her son PERSON , who had been kidnapped by CARDINAL men .

NORP The public prosecutor opened an investigation , in the course of which statements were taken from Hüsna and PERSON and from the QUANTITY eyewitnesses of the events , PERSON and PERSON .

PERSON statement of DATE to the public prosecutor , which was read out to him before he signed it , reads :

“ On DATE of the incident , my father and I were working in the field . When we went to sit under a tree to have lunch , PERSON , who was working in the field , joined us . There was a QUANTITY distance between my father and me . At this point , a grey - coloured taxi with no number plates came and stopped near my father . The persons in the car spoke with my father . I saw them take the identity cards of my father and of the person called LOC and then return ORG identity card , and I saw my father get into the taxi . This taxi immediately headed towards the village of PERSON . Later , I went home and informed my mother . As I was far away , I was unable to recognise these people , but I heard that they were speaking NORP . These people were wearing hats and glasses . That is all I know and what I have witnessed . ”

“ On DATE of the incident , while PERSON and I were having lunch in the field below the village of PERSON , a ORG model grey taxi without number plates approached us . The persons in the car asked us to hand over our identity cards . When we refused , they forced us by saying that they were the police and that we were therefore obliged to hand over our identity cards . The persons who asked for our cards had a western accent . Both of them were CARDINAL or DATE . CARDINAL of them was wearing glasses . They did not give back PERSON identity card . They said that ‘ PERSON will show us someone ’s field and then we will send him back’ . That is all I know and what I have witnessed in relation to the incident . ”

On DATE PERSON filed another petition with the Bismil public prosecutor .

On DATE the ORG public prosecutor requested the ORG gendarmerie command to investigate whether or not PERSON had been kidnapped .

On DATE gendarmes took statements from Hüsna , NORP and PERSON and from PERSON . On the basis of the applicant ’s allegation that PERSON had been taken away by CARDINAL officers of the ORG gendarmerie and a local village guard , PERSON was asked whether the persons whom he had seen worked at the ORG gendarmerie command . He replied :

“ Those persons were not persons working at the ORG gendarmerie command . As I have already stated above , I have not seen these persons before . Moreover , PERSON did not behave as if he knew them . ”

On DATE the ORG public prosecutor issued a decision of non - jurisdiction and referred the case to ORG . ORG appointed PERSON as inspector for the investigation of the applicant ’s allegations that his brother had been taken into detention by the gendarmerie captain PERSON and ORG under the guidance of the temporary village guard PERSON .

On DATE ORG issued a decision of non - prosecution , finding that there was insufficient evidence to take proceedings against PERSON , PERSON or PERSON .

PERSON has been included in the list of persons who are being searched for by the gendarmerie in the entire territory of GPE , and the search for him continues .

The person who was apprehended and shown during a television news broadcast in DATE was not the applicant ’s brother . Several persons being held in detention have the same name as the applicant ’s brother . However , their dates and places of birth and particulars are different from those of the applicant ’s brother .

By a letter of CARDINAL DATE the Deputy Permanent Representative of GPE to ORG informed the ORG as follows :

“ ... I have the pleasure to enclose herewith the text of a declaration which the Government would be willing to make unilaterally with a view to resolving the ... application .

The Government kindly requests the ORG to decide that it is no longer justified to continue the examination of the application and to strike the case out of the list under LAW . ”

The relevant parts of the appended declaration read as follows :

“ I declare that the Government of the Republic of GPE offer to pay ex gratia to the applicant , Mr PERSON , the amount of QUANTITY [ in respect of ] the application registered under no . CARDINAL .

This sum , which covers any pecuniary and non - pecuniary damage as well as costs , shall be paid in pounds sterling , free of any taxes that may be applicable and to an account named by the applicant . The sum shall be payable within DATE from the date of delivery of the judgment by the ORG ... This payment will constitute the final resolution of the case .

The Government regret the occurrence of the actions which have led to the bringing of the present application , in particular the disappearance of the applicant ’s brother PERSON PERSON and the anguish caused to his family .

It is accepted that unrecorded deprivations of liberty and insufficient investigations into allegations of disappearance constitute violations of ORG , DATE and CARDINAL of the Convention . The Government undertake to issue appropriate instructions and adopt all necessary measures with a view to ensuring that all deprivations of liberty are fully and accurately recorded by the authorities and that effective investigations into alleged disappearances are carried out in accordance with their obligations under the Convention .

The Government consider that the supervision by ORG judgments concerning GPE in this and similar cases is an appropriate mechanism for ensuring that improvements will be made in this context . To this end , necessary cooperation in this process will continue to take place . ... ”


Preliminary objections joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection joined to merits and dismissed (Article 34 - Victim);Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Libya);Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Eritrea) (Somalia);Violation of Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens-{general} (Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Expulsion);Violation of Article 13+P4-4 - Right to an effective remedy (Article 13 - Effective remedy) (Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens-{general};Prohibition of collective expulsion of aliens);Non-pecuniary damage - award

Andreas Zimmermann;Dean Spielmann;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Ireneu Cabral Barreto;Jean-Paul Costa;Josep Casadevall;Kristina Pardalos;Mirjana Lazarova Trajkovska;Nicolas Bratza;Nona Tsotsoria;Paulo Pinto De Albuquerque;Peer Lorenzen;Vincent A. De Gaetano

The applicants , CARDINAL NORP nationals and CARDINAL NORP nationals , were part of a group of CARDINAL individuals who left GPE aboard CARDINAL vessels with the aim of reaching the NORP coast .

On DATE , when the vessels were QUANTITY south of GPE ( PERSON ) , that is , within ORG of responsibility , they were intercepted by CARDINAL ships from the NORP Revenue Police ( ORG ) and the Coastguard .

The occupants of the intercepted vessels were transferred onto NORP military ships and returned to GPE . The applicants alleged that during that voyage the NORP authorities did not inform them of their real destination and took no steps to identify them .

All their personal effects , including documents confirming their identity , were confiscated by the military personnel .

NORP On arrival in the port of GPE , following a TIME voyage , the migrants were handed over to the NORP authorities . According to the applicants’ version of events , they objected to being handed over to the NORP authorities but were forced to leave the NORP ships .

At a press conference held on DATE , the NORP Minister of the ORG stated that the operation to intercept the vessels on the high seas and to push the migrants back to GPE was the consequence of the entry into force on DATE of bilateral agreements concluded with GPE , and represented an important turning point in the fight against clandestine immigration . In a speech to the ORG on CARDINAL DATE , the Minister stated that CARDINAL DATE more than GPE irregular migrants had been intercepted on the high seas and transferred to GPE in accordance with those bilateral agreements . After explaining that the operations had been carried out in application of the principle of cooperation between GPE , the Minister stated that the push - back policy was very effective in combating illegal immigration . According to the Minister of the ORG , that policy discouraged criminal gangs involved in people smuggling and trafficking , helped save lives at sea and substantially reduced landings of irregular migrants along the NORP coast , which had decreased fivefold in DATE as compared with DATE .

During the course of DATE , GPE conducted CARDINAL operations on the high seas to intercept irregular migrants , in conformity with the bilateral agreements concluded with GPE .

According to the information submitted to the ORG by the ORG representatives , CARDINAL of the applicants , Mr PERSON and Mr PERSON ( nos . CARDINAL and CARDINAL respectively on the list appended to this judgment ) , died in unknown circumstances after the events in question .

After the application was lodged , the lawyers were able to maintain contact with the other applicants , who could be contacted by telephone and e - mail .

CARDINAL of the applicants ( appearing on the list ) were granted refugee status by the office in GPE of ORG ) DATE .

Following the revolution which broke out in GPE in DATE , forcing a large number of people to flee the country , the quality of contact between the applicants and their representatives deteriorated . The lawyers are currently in contact with CARDINAL of the applicants :

( i ) Mr PERSON ( no . CARDINAL on the list ) managed to land , unlawfully , on the NORP coast . On CARDINAL DATE ORG granted him refugee status ;

( ii ) Mr PERSON ( no . CARDINAL on the list ) is currently at ORG detention camp in GPE . He plans to return to GPE ;

( iii ) Mr Kiflom Tesfazion Kidan ( no . CARDINAL on the list ) is resident in GPE ;

( iv ) Mr PERSON and Mr ORG ( CARDINAL . CARDINAL and CARDINAL on the list respectively ) are resident in GPE , where they are awaiting a response to their request for international protection ;

( v ) Mr Roberl PERSON ( no . DATE on the list ) is resident in GPE .

DATE of LAW of DATE , as amended in DATE , provides as follows :

“ NORP vessels on the high seas and aircraft in airspace not subject to the sovereignty of a ORG are considered to be NORP territory . ”

On DATE GPE and GPE signed a bilateral cooperation agreement in GPE to combat clandestine immigration . On DATE the CARDINAL countries signed an Additional Protocol setting out the operational and technical arrangements for implementing the said Agreement . Under LAW :

“ GPE and the ‘ Great Socialist People ’s NORP Jamahiriya’ undertake to organise maritime patrols using CARDINAL ships made available on a temporary basis by GPE . Mixed crews shall be present on ships , made up of NORP personnel and NORP police officers , who shall provide training , guidance and technical assistance on the use and handling of the ships . Surveillance , search and rescue operations shall be conducted in the departure and transit areas of vessels used to transport clandestine immigrants , both in NORP territorial waters and in international waters , in compliance with the international conventions in force and in accordance with the operational arrangements to be decided by the CARDINAL countries . ” ( non - official translation )

Furthermore , GPE undertook to cede to GPE , for DATE , CARDINAL unmarked ships ( LAW ) and to encourage the bodies of ORG to conclude a framework agreement between ORG and GPE ( LAW ) .

Finally , under LAW GPE undertook to “ coordinate its actions with those of the countries of origin in order to reduce clandestine immigration and ensure the repatriation of immigrants ” .

On DATE GPE and GPE signed an LAW in GPE , intended to strengthen bilateral cooperation in the fight against clandestine immigration . That LAW partially amended LAW DATE , in particular through the inclusion of a new LAW , which stated :

“ The CARDINAL countries undertake to organise maritime patrols with joint crews , made up of equal numbers of NORP and NORP personnel having equivalent experience and skills . The patrols shall be conducted in NORP and international waters under the supervision of NORP personnel and with participation by NORP crew members , and in NORP and international waters under the supervision of NORP personnel and with participation by the NORP crew members .

Ownership of the ships offered by GPE , within the meaning of LAW of DATE , shall be definitively ceded to GPE .

The CARDINAL countries undertake to repatriate clandestine immigrants and to conclude agreements with the countries of origin in order to limit clandestine immigration . ” ( non - official translation )

On DATE in GPE , GPE and GPE signed LAW CARDINAL of which makes provision for efforts to prevent clandestine immigration in the countries of origin of migratory flows . Under Article CARDINAL of that LAW , GPE and GPE undertook to act in accordance with the principles of LAW and LAW .

According to a statement by the NORP Minister of Defence , the agreements between GPE and GPE were suspended following the events of DATE .

GPE has ratified LAW , which defines the situations in which a ORG must grant refugee status to persons who apply for it , and the rights and responsibilities of those persons . Articles CARDINAL and CARDINAL § CARDINAL of LAW provide :

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

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

In its Note on International Protection of DATE ( A / AC.CARDINAL/CARDINAL , § CARDINAL ) , ORG , which has the task of monitoring the manner in which the GPE Parties apply LAW , indicated that the principle of non - refoulement laid down in DATE , was :

“ ... a cardinal protection principle enshrined in the ORG , to which no reservations are permitted . In many ways , the principle is the logical complement to the right to seek asylum recognized in LAW . It has come to be considered a rule of customary international law binding on all GPE . In addition , international human rights law has established non - refoulement as a fundamental component of the absolute prohibition of torture and cruel , inhuman or degrading treatment or punishment . The duty not to refoule is also recognized as applying to refugees irrespective of their formal recognition , thus obviously including asylum - seekers whose status has not yet been determined . It encompasses any measure attributable to a ORG which could have the effect of returning an asylum - seeker or refugee to the frontiers of territories where his or her life or freedom would be threatened , or where he or she would risk persecution . This includes rejection at the frontier , interception and indirect refoulement , whether of an individual seeking asylum or in situations of mass influx . ”

NORP The relevant Articles of FAC provide :

“ CARDINAL . Ships shall sail under the flag of CARDINAL ORG only and , save in exceptional cases expressly provided for in ... this Convention , shall be subject to its exclusive jurisdiction on the high seas ... ”

“ CARDINAL . Every State shall effectively exercise its jurisdiction and control in administrative , technical and social matters over ships flying its flag . ”

“ CARDINAL . Every State shall require the master of a ship flying its flag , in so far as he can do so without serious danger to the ship , the crew or the passengers :

( a ) to render assistance to any person found at sea in danger of being lost ;

( b ) to proceed with all possible speed to the rescue of persons in distress , if informed of their need of assistance , in so far as such action may reasonably be expected of him ;

Sub - paragraph CARDINAL of the FAC to ORG provides :

“ Parties shall co - ordinate and co - operate to ensure that masters of ships providing assistance by embarking persons in distress at sea are released from their obligations with minimum further deviation from the ORG [ sic ] intended voyage , provided that releasing the master of the ship from these obligations does not further endanger the safety of life at sea . The PERSON guidelines developed by ORG ] . In these cases , the relevant Parties shall arrange for such disembarkation to be effected as soon as reasonably practicable . ”

Article CARDINAL § CARDINAL of ORG provides :

“ Nothing in this LAW shall affect the other rights , obligations and responsibilities of GPE and individuals under international law , including international humanitarian law and international human rights law and , in particular , where applicable , LAW and LAW relating to ORG and the principle of non - refoulement as contained therein . ”

On DATE ORG of ORG adopted the ORG on the interception and rescue at sea of asylum - seekers , refugees and irregular migrants , which provides as follows :

“ CARDINAL . The surveillance of LOC ’s southern borders has become a regional priority . The NORP continent is having to cope with the relatively large - scale arrival of migratory flows by sea from LOC , reaching LOC mainly through GPE , GPE , GPE , GPE and GPE .

Migrants , refugees , asylum - seekers and others risk their lives to reach LOC ’s southern borders , mostly in unseaworthy vessels . These journeys , always undertaken illicitly , mostly on board flagless vessels , putting them at risk of falling into the hands of migrant smuggling and trafficking rings , reflect the desperation of the passengers , who have no legal means and , above all , no safer means of reaching LOC .

Although the number of arrivals by sea has fallen drastically in DATE , resulting in a shift of migratory routes ( particularly towards the land border between GPE and GPE ) , ORG , recalling , inter alia , its Resolution CARDINAL DATE ) on LOC ’s boat people : mixed migration flows by sea into southern LOC , once again expresses its deep concern over the measures taken to deal with the arrival by sea of these mixed migratory flows . Many people in distress at sea have been rescued and many attempting to reach LOC have been pushed back , but the list of fatal incidents DATE as predictable as they are tragic – is a long one and it is currently getting longer on an almost DATE basis .

Furthermore , recent arrivals in GPE and GPE following the turmoil in GPE confirm that LOC must always be ready to face the possible large - scale arrival of irregular migrants , asylum - seekers and refugees on its southern shores .

The ORG notes that measures to manage these maritime arrivals raise numerous problems , of which CARDINAL are particularly worrying :

despite several relevant international instruments which are applicable in this area and which satisfactorily set out the rights and obligations of GPE and individuals applicable in this area , interpretations of their content appear to differ . Some GPE do not agree on the nature and extent of their responsibilities in specific situations and some States also call into question the application of the principle of non - refoulement on the high seas ;

ORG while the absolute priority in the event of interception at sea is the swift disembarkation of those rescued to a ‘ place of GPE , the notion of ‘ place of ORG does not appear to be interpreted in the same way by all member GPE . Yet it is clear that the notion of ‘ place of ORG should not be restricted solely to the physical protection of people , but necessarily also entails respect for their fundamental rights ;

NORP divergences of this kind directly endanger the lives of the people to be rescued , in particular by delaying or preventing rescue measures , and they are likely to dissuade seafarers from rescuing people in distress at sea . Furthermore , they could result in a violation of the principle of non - refoulement in respect of a number of persons , including some in need of international protection ;

although ORG for ORG at FAC of the member GPE of ORG ( PERSON ) plays an ever increasing role in interception at sea , there are inadequate guarantees of respect for human rights and obligations arising under international and ORG law , in the context of the joint operations it coordinates ;

finally , these sea arrivals place a disproportionate burden on the GPE located on the southern borders of ORG . The goal of responsibilities being shared more fairly and greater solidarity in the migration sphere between GPE is far from being attained .

The situation is rendered more complex by the fact that these migratory flows are of a mixed nature and therefore call for specialised and tailored protection - sensitive responses in keeping with the status of those rescued . To respond to sea arrivals adequately and in line with the relevant international standards , the GPE must take account of this aspect in their migration management policies and activities .

The ORG reminds member GPE of their obligations under international law , including ORG . CARDINAL ) , LAW on the Law of LOC the DATE LAW relating to ORG , and particularly reminds them of the principle of non - refoulement and the right to seek asylum . The ORG also reiterates the obligations of the GPE Parties to the DATE International Convention for the Safety of Life at Sea and the DATE International Convention on Maritime Search and Rescue .

Finally and above all , the ORG reminds member GPE that they have both a moral and legal obligation to save persons in distress at sea without the slightest delay , and unequivocally reiterates the interpretation given by ORG High Commissioner for Refugees ( ORG ) , which states that the principle of non - refoulement is equally applicable on the high seas . The high seas are not an area where GPE are exempt from their legal obligations , including those emerging from international human rights law and international refugee law .

Accordingly , the ORG calls on member ORG , when conducting maritime border surveillance operations , whether in the context of preventing smuggling and trafficking in human beings or in connection with border management , be it in the exercise of de jure or de facto jurisdiction , to :

NORP fulfil without exception and without delay their obligation to save people in distress at sea ;

NORP ensure that their border management policies and activities , including interception measures , recognise the mixed make - up of flows of individuals attempting to cross maritime borders ;

NORP guarantee for all intercepted persons humane treatment and systematic respect for their human rights , including the principle of non - refoulement , regardless of whether interception measures are implemented within their own territorial waters , those of another State on the basis of an ad hoc bilateral agreement , or on the high seas ;

refrain from any practices that might be tantamount to direct or indirect refoulement , including on the high seas , in keeping with the ORG ’s interpretation of the extraterritorial application of that principle and with the relevant judgments of ORG ;

carry out as a priority action the swift disembarkation of rescued persons to a ‘ place of ORG and interpret a ‘ place of ORG as meaning a place which can meet the immediate needs of those disembarked and in no way jeopardises their fundamental rights , since the notion of ‘ ORG extends beyond mere protection from physical danger and must also take into account the fundamental rights dimension of the proposed place of disembarkation ;

NORP guarantee access to a fair and effective asylum procedure for those intercepted who are in need of international protection ;

CARDINAL.CARDINAL . NORP guarantee access to protection and assistance , including to asylum procedures , for those intercepted who are victims of human trafficking or at risk of being trafficked ;

NORP ensure that the placement in a detention facility of those intercepted – always excluding minors and vulnerable categories – regardless of their status , is authorised by the judicial authorities and occurs only where necessary and on grounds prescribed by law , that there is no other suitable alternative and that such placement conforms to the minimum standards and principles set forth in FAC DATE ( DATE ) on the detention of asylum - seekers and irregular migrants in LOC ;

suspend any bilateral agreements they may have concluded with third GPE if the human rights of those intercepted are not appropriately guaranteed therein , particularly the right of access to an asylum procedure , and wherever these might be tantamount to a violation of the principle of non - refoulement , and conclude new bilateral agreements specifically containing such human rights guarantees and measures for their regular and effective monitoring ;

sign and ratify , if they have not already done so , the aforementioned relevant international instruments and take account of ORG ( ORG ) Guidelines on the Treatment of Persons Rescued at Sea ;

sign and ratify , if they have not already done so , ORG ( ORG No . CARDINAL ) and the so - called ‘ GPE Protocols’ to ORG DATE ) ;

NORP ensure that maritime border surveillance operations and border control measures do not affect the specific protection afforded under international law to vulnerable categories such as refugees , stateless persons , women and unaccompanied children , migrants , victims of trafficking or at risk of being trafficked , or victims of torture and trauma .

The ORG is concerned about the lack of clarity regarding the respective responsibilities of ORG and PERSON and the absence of adequate guarantees for the respect of fundamental rights and international standards in the framework of joint operations coordinated by that agency . While the ORG welcomes the proposals presented by ORG to amend the rules governing that agency , with a view to strengthening guarantees of full respect for fundamental rights , it considers them inadequate and would like ORG to be entrusted with the democratic supervision of the agency ’s activities , particularly where respect for fundamental rights is concerned .

The ORG also considers it essential that efforts be made to remedy the prime causes prompting desperate individuals to risk their lives by boarding boats bound for LOC . The ORG calls on all member ORG to step up their efforts to promote peace , the rule of law and prosperity in the countries of origin of potential immigrants and asylum - seekers .

Finally , in view of the serious challenges posed to coastal GPE by the irregular arrival by sea of mixed flows of individuals , the ORG calls on the international community , particularly the ORG , the ORG , ORG ) , ORG and ORG ( including PERSON and ORG ) to :

provide any assistance required to those ORG in a spirit of solidarity and sharing of responsibilities ;

ORG under the auspices of the ORG , make concerted efforts to ensure a consistent and harmonised approach to international maritime law through , inter alia , agreement on the definition and content of the key terms and norms ;

establish an inter - agency group with the aim of studying and resolving the main problems in the area of maritime interception , including the CARDINAL problems identified in the present resolution , setting clear policy priorities , providing guidance to GPE and other relevant actors , and monitoring and evaluating the use of maritime interception measures . The group should be made up of members of the ORG , the ORG , the ORG , ORG , PERSON and ORG . ”

Article CARDINAL of the LAW provides :

“ CARDINAL . Collective expulsions are prohibited .

No one may be removed , expelled or extradited to a ORG where there is a serious risk that he or she would be subjected to the death penalty , torture or other inhuman or degrading treatment or punishment . ”

DATE of the LAW provides :

“ In regard to the movement of persons , the Parties shall endeavour to abolish the controls at the common frontiers and transfer them to their external frontiers . To that end , they shall endeavour to harmonise in advance , where necessary , the laws and administrative provisions concerning the prohibitions and restrictions which form the basis for the controls and to take complementary measures to safeguard security and combat illegal immigration by nationals of GPE that are not members of ORG . ”

Regulation ( ORG ) No . CARDINAL contains the following provisions :

“ ( CARDINAL ) Community policy in the field of the ORG external borders aims at an integrated management ensuring a uniform and high level of control and surveillance , which is a necessary corollary to the free movement of persons within ORG and a fundamental component of an area of freedom , security and justice . To this end , the establishment of common rules on standards and procedures for the control of external borders is foreseen .

( CARDINAL ) The efficient implementation of the common rules calls for increased coordination of the operational cooperation between the Member GPE .

( CARDINAL ) Taking into account the experiences of ORG , acting within ORG , a specialised expert body tasked with improving the coordination of operational cooperation between Member GPE in the field of external border management should therefore be established in the shape of a NORP Agency for ORG at FAC of the Member States of ORG ( hereinafter referred to as the ORG ) .

( CARDINAL ) The responsibility for the control and surveillance of external borders lies with GPE . The ORG should facilitate the application of existing and future Community measures relating to the management of external borders by ensuring the coordination of Member PERSON actions in the implementation of those measures .

( CARDINAL ) Effective control and surveillance of external borders is a matter of the utmost importance to Member GPE regardless of their geographical position . Accordingly , there is a need for promoting solidarity between Member LAW in the field of external border management . The establishment of the ORG , assisting Member GPE with implementing the operational aspects of external border management , including return of third - country nationals illegally present in GPE , constitutes an important step in this direction . ”

Article CARDINAL of Regulation ( ORG ) No . DATE provides :

“ This Regulation shall apply to any person crossing the internal or external borders of Member GPE , without prejudice to :

( a ) the rights of persons enjoying the Community right of free movement ;

( b ) the rights of refugees and persons requesting international protection , in particular as regards non - refoulement . ”

The ORG to ORG of DATE states :

“ Rules for sea border operations coordinated by the ORG [ Frontex ]

Measures taken for the purpose of the surveillance operation shall be conducted in accordance with fundamental rights and in a way that does not put at risk the safety of the persons intercepted or rescued as well as of the participating units .

No person shall be disembarked in , or otherwise handed over to the authorities of , a country in contravention of the principle of non - refoulement , or from which there is a risk of expulsion or return to another country in contravention of that principle . Without prejudice to paragraph CARDINAL , the persons intercepted or rescued shall be informed in an appropriate way so that they can express any reasons for believing that disembarkation in the proposed place would be in breach of the principle of non - refoulement .

NORP The special needs of children , victims of trafficking , persons in need of urgent medical assistance , persons in need of international protection and other persons in a particularly vulnerable situation shall be considered throughout all the operation .

Member GPE shall ensure that border guards participating in the surveillance operation are trained with regard to relevant provisions of human rights and refugee law , and are familiar with the international regime on search and rescue . ”

On DATE ORG published the following press release :

“ ORG expressed deep concern DATE over the fate of CARDINAL people who were rescued DATE by NORP patrol boats in ORG ) of responsibility and sent back to GPE without proper assessment of their possible protection needs . The rescue took place QUANTITY south - east of the NORP island of GPE , but within the NORP SAR zone .

The diversion to GPE followed a day of heated discussions between NORP and NORP authorities about who was responsible for the rescue and disembarkation of the people on the CARDINAL boats , which were in distress . Although closer to GPE , the vessels were in the NORP search and rescue area of responsibility .

While no information is available on the nationalities of those aboard the vessels , it is likely that among them are people in need of international protection . In DATE , PERCENT of sea arrivals in GPE applied for asylum and PERCENT of them were granted some form of protection .

‘ I appeal to the NORP and NORP authorities to continue to ensure that people rescued at sea and in need of international protection receive full access to territory and asylum procedures,’ ORG High Commissioner for ORG said .

The incident marks a significant shift in policies by the NORP government and is a source of very serious concern . ORG deeply regrets the lack of transparency which surrounded the event .

‘ We have been working closely with the NORP authorities in GPE and elsewhere to ensure that people fleeing war and persecution are protected in line with the DATE GPE PERSON said PERSON , ORG ’s GPE - based representative . ‘ It is of fundamental importance that the international principle of non - refoulement continues to be fully respected.’

In addition , GPE has not signed the DATE FAC , and does not have a functioning national asylum system . ORG urges NORP authorities to reconsider their decision and to avoid repeating such measures . ”

On DATE Mr PERSON wrote to the President of ORG , ORG and ORG in response to a request for a legal opinion on the “ return to GPE by sea of various groups of migrants by the NORP authorities ” . In that letter , the Vice - President of ORG expressed himself as follows :

“ According to information available to the ORG , the migrants concerned were intercepted on the high seas .

CARDINAL sets of ORG rules must be examined concerning the situation of nationals of third countries or stateless persons attempting to enter , unlawfully , the territory of member GPE , some of whom might be in need of international protection .

Firstly , the Community acquis in the field of asylum is intended to safeguard the right of asylum , as set forth in LAW , and in accordance with the DATE LAW relating to ORG and with other relevant treaties . However , that acquis , including the DATE ORG , applies only to asylum applications made on the territory of Member LAW , which includes the borders , transit areas and , in the context of maritime borders , territorial waters of Member GPE . Consequently , it is clear from a legal standpoint that the ORG acquis in the field of asylum does not apply to situations on the high seas .

Secondly , FAC ( ORG ) requires that Member GPE conduct border surveillance to prevent , inter alia , unauthorised border crossings ( LAW ORG No . DATE ( ORG ) ) . However , that Community obligation must be fulfilled in compliance with the principle of non - refoulement and without prejudice to the rights of refugees and other people requesting international protection .

The ORG is of the opinion that border surveillance activities conducted at sea , whether in territorial waters , the contiguous zone , the exclusive economic zone or on the high seas , fall within the scope of application of the ORG . In that connection , our preliminary legal analysis would suggest that the activities of the NORP border guards correspond to the notion of ‘ border surveillance’ as set forth in LAW , because they prevented the unauthorised crossing of an external sea border by the persons concerned and resulted in them being returned to the third country of departure . According to the case - law of ORG , Community obligations must be applied in strict compliance with the fundamental rights forming part of the general principles of Community law . The ORG has also clarified that the scope of application of those rights in the ORG legal system must be determined taking account of the case - law of ORG ) .

The principle of non - refoulement , as interpreted by the ORG , essentially means that GPE must refrain from returning a person ( directly or indirectly ) to a place where he or she could face a real risk of being subjected to torture or to inhuman or degrading treatment . Furthermore , States may not send refugees back to territories where their life or freedom would be threatened for reasons of race , religion , nationality , membership of a particular social group or political opinion . That obligation must be fulfilled when carrying out any border control in accordance with the ORG , including border surveillance activities on the high seas . The case - law of the ORG provides that acts carried out on the high seas by a ORG vessel constitute cases of extraterritorial jurisdiction and may engage the responsibility of the ORG concerned .

Having regard to the foregoing concerning the scope of Community jurisdiction , the ORG has invited the NORP authorities to provide it with additional information concerning the actual circumstances of the return of the persons concerned to GPE and the provisions put in place to ensure compliance with the principle of non - refoulement when implementing the bilateral agreement between the CARDINAL countries . ”

DATE a delegation from the ORG visited GPE . During that visit the delegation looked into various issues arising from the new governmental policy of intercepting at sea , and returning to GPE , migrants approaching GPE ’s southern maritime border . In particular , the delegation focused on the system of safeguards in place to ensure that no one was sent to a country where there were substantial grounds for believing that he or she would run a real risk of being subjected to torture or ill - treatment .

In its report , made public on DATE , the ORG expressed the opinion that GPE ’s policy of intercepting migrants at sea and obliging them to return to GPE or other non - NORP countries violated the principle of non - refoulement . The ORG emphasised that GPE was bound by the principle of non - refoulement wherever it exercised its jurisdiction , which included via its personnel and vessels engaged in border protection or rescue at sea , even when operating outside its territory . Moreover , all persons coming within GPE ’s jurisdiction should be afforded an appropriate opportunity and facilities to seek international protection . The information available to the ORG indicated that no such opportunity or facilities were afforded to the migrants intercepted at sea by the NORP authorities during the period examined . On the contrary , the persons who were pushed back to GPE in the operations carried out from DATE were denied the right to obtain an individual assessment of their case and effective access to the refugee - protection system . In that connection , the ORG observed that persons surviving a sea voyage were particularly vulnerable and often not in a condition in which they should be expected to declare immediately their wish to apply for asylum .

According to the ORG report , GPE could not be considered a safe country in terms of human rights and refugee law ; the situation of persons arrested and detained in GPE , including that of migrants – who were also exposed to being deported to other countries – indicated that the persons pushed back to GPE were at risk of ill - treatment .

In a lengthy report published on DATE and entitled “ Pushed Back , Pushed Around : GPE ’s Forced Return of Boat Migrants and Asylum Seekers , GPE ’s Mistreatment of Migrants and Asylum Seekers ” , ORG condemned the NORP practice of intercepting boats full of migrants on the high seas and pushing them back to GPE without the required screening . That report was also based on the results of research published in a DATE report entitled “ GPE : Stemming the Flow : Abuses Against Migrants , Asylum Seekers and Refugees ” .

According to ORG , NORP patrol boats towed migrant boats from international waters without determining whether some might contain refugees , sick or injured persons , pregnant women , unaccompanied children , or victims of trafficking or other forms of violence . The NORP authorities forced the boat migrants onto NORP vessels or took the migrants directly back to GPE , where the authorities immediately detained them . Some of the operations were coordinated by PERSON .

The report was based on interviews with CARDINAL migrants , asylum - seekers , and refugees in GPE and GPE , conducted mostly in DATE , and CARDINAL telephone interview with a migrant detainee in GPE . ORG visited GPE in DATE and met with government officials , but the NORP authorities would not permit the organisation to interview migrants privately . Moreover , the authorities did not allow ORG to visit any of the many migrant detention centres in GPE , despite repeated requests .

ORG now has access to ORG , at which clandestine migrants are generally held , and NORP organisations provide humanitarian services there . However , there is no formal agreement , and thus no guaranteed access . Furthermore , GPE has no asylum law . The authorities make no distinction between refugees , asylum - seekers and other clandestine migrants .

Human Rights Watch urged the NORP government to improve the deplorable conditions of detention in GPE and to establish asylum procedures that conformed to international refugee standards . It also called on the NORP government , ORG and PERSON to ensure access to asylum , including for those intercepted on the high seas , and to refrain from returning non - NORP to GPE until the latter ’s treatment of migrants , asylum - seekers and refugees fully met international standards .

NORP A team from ORG carried out a fact - finding visit to GPE from DATE , the first such visit to the country by the organisation that the NORP authorities had permitted since DATE .

During that visit , ORG visited FAC , QUANTITY from GPE , in which CARDINAL irregular migrants from other NORP countries were held in severely overcrowded conditions , and briefly interviewed several of those held there . Many had been detained since they were intercepted while seeking to make their way to GPE or other countries in southern LOC which look to GPE and other north NORP countries to staunch the flow of irregular migrants from sub - GPE to LOC .

Amnesty International considered it possible that detainees at GPE might include refugees fleeing persecution and stressed that , as GPE had no asylum procedure and was not a party to LAW or its DATE LAW , foreigners , including those in need of international protection , might find themselves outside the protection of the law . There was also virtually no opportunity for detainees to lodge complaints of torture and other ill - treatment with the competent judicial authorities .

In its meetings with NORP government officials , ORG expressed concern about the detention and alleged ill - treatment of CARDINAL , possibly CARDINAL , of foreign nationals whom the authorities assumed to be irregular migrants and urged them to put in place proper procedures to identify asylum - seekers and refugees and afford them appropriate protection . ORG also urged the NORP authorities to cease forcible returns of foreign nationals to countries in which they were at risk of serious human rights violations and to find a better alternative to detention for those foreigners whom they were not able to return to their countries of origin for this reason . Some of the NORP nationals who comprised a sizeable proportion of the foreign nationals detained at GPE told ORG that they had been held there for DATE .

In addition to those cited above , numerous reports have been published by national and international organisations and by non - governmental organisations , condemning the conditions of detention and the living conditions of irregular migrants in GPE .

The principal reports are :

( i ) Human Rights Watch , “ Stemming the Flow : Abuses Against Migrants , Asylum Seekers and Refugees ” , DATE ;

( ii ) United Nations Human Rights Committee , “ Concluding Observations . NORP GPE ” , DATE ;

( iii ) Amnesty International , “ GPE – ORG DATE ” , CARDINAL DATE ;

( iv ) ORG , “ GPE : Rights at Risk ” , DATE ;

( v ) ORG of State , “ DATE ORG : GPE ” , DATE .

The main international documents concerning the situation in GPE were submitted in NORP and ORG v. GPE ( nos . CARDINAL/CARDINAL and CARDINAL , § § CARDINAL , DATE ) .

Various reports condemn human rights violations perpetrated in GPE . They detail serious human rights violations by the NORP government , namely arbitrary arrests , torture , inhuman conditions of detention , forced labour and serious restrictions on the freedom of movement , expression and religion . Those documents also analyse the difficult situation of NORP who manage to escape to other countries such as GPE , GPE , GPE and GPE and are subsequently forcibly repatriated .

The principal reports are :

( i ) UNHCR , “ Eligibility Guidelines for Assessing the International Protection Needs of Asylum - Seekers from GPE ” , DATE ;

( ii ) Amnesty International , “ GPE – ORG DATE ” , CARDINAL DATE ;

( iii ) Human Rights Watch , “ Service for Life – State Repression and Indefinite Conscription in GPE ” , DATE ;

( iv ) ORG , “ GPE : Do n’t Send NORP Back to Risk of Torture ” , DATE ;

( v ) Human Rights Watch , “ World Report DATE : GPE ” , DATE .


András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

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

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

On DATE the applicant brought a case before ORG .

On DATE ORG dismissed the applicant 's case .

On DATE ORG upheld the judgment of the administrative court and on DATE it rejected the applicant 's rectification request . That decision was served on the applicant on DATE .


Mrs PERSON , an assistant psychologist at the coordination bureau of ORG in PERSON , lives in LOC di Carrara .

On DATE she applied to ORG ( “ the ORG ” ) for judicial review of CARDINAL decisions in which the ORG had refused to appoint her to a post in a higher category than the one she held , although she had been in second or third place on the reserve lists published each time such posts had fallen vacant .

In a judgment of CARDINAL DATE , the text of which was deposited with the registry on CARDINAL DATE , the ORG allowed her application .

On DATE the ORG appealed to the PERSON . In an interlocutory judgment of CARDINAL DATE the PERSON ordered the ORG to file certain documents . On DATE the applicant filed at the registry of the Consiglio di Stato an application for the case to be set down for an urgent hearing . In a judgment of DATE , the text of which was deposited with the registry on CARDINAL DATE , the PERSON dismissed the appeal as being ill - founded .

On DATE the ORG assigned the applicant to assistant coordinator grade with effect from DATE .


CASE OF GEORGIEVA AND MUKAREVA v. BULGARIA

Georgieva;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Pavlina Panova;Peer Lorenzen;Rait Maruste;Renate Jaeger

The applicants were born in DATE and DATE respectively and live in GPE . They are mother and daughter .

In DATE the first applicant and her husband bought from the FAC municipality an apartment of QUANTITY , situated in the centre of the city , which had become State property by virtue of the nationalisations carried out by the communist regime in GPE after DATE .

On an unspecified date after that the first applicant 's husband died and his property was inherited by the CARDINAL applicants .

In DATE LAW entered into force .

On DATE CARDINAL of the heirs of the former pre - nationalisation owner of the flat brought proceedings against the applicants under section CARDINAL of LAW . In a final judgment of ORG the action was allowed partially , the domestic courts finding that the plaintiff could only claim CARDINAL of the property .

The courts found that the applicants ' title CARDINAL of the property was null and void on CARDINAL grounds : CARDINAL ) their apartment had been part of a bigger apartment , which had , prior to DATE and in breach of the relevant construction requirements , been divided by the ORG into CARDINAL ; and CARDINAL ) the area where the apartment was located had been earmarked for the construction of buildings of CARDINAL storeys and the applicants ' building was of CARDINAL storeys ; the relevant legislation at the time prohibited the sale of apartments in such buildings .

On DATE the applicants requested to be compensated with compensation bonds for CARDINAL of the property . The request was granted and in DATE the applicants received bonds for MONEY ( ORG ) , the equivalent of MONEY ( ORG ) , in accordance with an expert valuation of a CARDINAL of their apartment drew up in DATE or DATE . On DATE the applicants sold their bonds for PERCENT of their face value and received ORG CARDINAL , the equivalent of ORG CARDINAL .

In the meantime , on DATE , following a legislative amendment whereby the time - limit to bring an action under section CARDINAL of LAW was renewed , the remaining heirs of the former pre - nationalisation owner brought such an action against the applicants regarding DATE of the apartment .

The action was granted in a final judgment of ORG of DATE . Putting forward arguments identical to the ones concerning DATE of the apartment ( see paragraph CARDINAL above ) , the courts found that the applicants ' title to DATE of the property was likewise null and void .

The applicants did not apply for compensation bonds for that CARDINAL of the apartment , as they were entitled to .

On several occasions after DATE the first applicant requested to be provided with municipal housing but was informed that no such housing was available . By DATE the CARDINAL applicants and the second applicant 's family were still living in the disputed flat . In DATE they vacated it and rented another apartment . In DATE the second applicant bought another flat and her family and the first applicant moved in there .

The relevant background facts and domestic law and practice have been summarised in the ORG 's judgments in the cases of ORG and Others v. GPE ( nos . CARDINAL , ORG , CARDINAL , CARDINAL , CARDINAL , GPE , CARDINAL/CARDINAL , ORG , and CARDINAL , DATE ) and ORG v. GPE ( no . CARDINAL , § § DATE , DATE ) .