The applicant [ Mr PERSON NORP ] is an LOC national , born in DATE . When he lodged his application , he was in GPE . He was represented before the ORG by Mr PERSON , of ORG .

The applicant was the director of ORG ( ORG ) from its inception in DATE until DATE , apart from the period DATE . The ORG is a quasi - public organisation responsible for the administrative , financial and technical management of the LOC social security system . At DATE the ORG had accumulated old - age pension fund reserves of MONEY ( ESP ) . The governing body decided , at its meeting on DATE , to diversify the use of those reserves by earmarking a maximum of PERCENT for variable - rate investments .

In his capacity as director of the ORG , the applicant followed a policy of investing part of the retirement pension fund by buying company stock or variable - rate securities . In the course of those operations , the applicant became acquainted with a NORP national , J.M.R. , representative and shareholder of a NORP company called ORG , whose head office was in GPE . In DATE the applicant and J.M.R. decided that the ORG ’s investments in GPE would be effected through PERSON . In order to take up the shareholding in PERSON , the applicant used as intermediary the LOC company , IBERINSA , of which he was a shareholder . On DATE ORG of IBERINSA decided to subscribe to shares in PERSON and appointed the applicant to represent it in its dealings with the company .

From then on , according to the judgments delivered by the PERSON courts , the applicant , aided and abetted by J.M.R. , began channelling substantial pension funds into investment operations in GPE – on many occasions without the consent or approval of the ORG ’s governing body . The ORG incurred losses totalling more than ESP CARDINAL as a result of , inter alia , the depletion by the applicant and J.M.R. of the assets of various companies for the benefit of PERSON .

On DATE the episcopal batlle ( judge ) received a complaint from the chairman of the governing body of the ORG informing him that the applicant had received threats from J.M.R. and setting out the situation regarding the administration of the ORG ’s pension fund reserves . A preliminary investigation was opened following the complaint , but was discontinued DATE .

On DATE ORG , the legislative body of ORG to which the applicant regularly had to report on the management of the ORG in his capacity as director thereof , lodged a criminal complaint against the applicant with the NORP batlle , followed DATE by a further criminal complaint and application to join the proceedings as a civil party . That complaint gave rise to a criminal investigation , which is the subject of this application . The applicant lodged an application with the investigating judge in which he contested ORG locus standi to join the criminal proceedings . His application was dismissed . The applicant appealed to ORG , which set aside the decision on DATE and dismissed ORG complaint and application to join the proceedings as a civil party . There thus remained the public prosecutor as instigator of the criminal proceedings and the ORG as private prosecutor .

The applicant was kept in pre - trial detention from DATE until DATE , then from DATE until DATE , and , lastly , from DATE until his conviction on DATE . In the meantime , the investigating judge issued an arrest warrant against J.M.R. on DATE .

At the end of the investigation , the public prosecutor lodged his provisional indictment submissions in which he categorised the offence as misappropriating public assets or funds , damaging the economy and forging private and official documents .

At the beginning of his trial in ORG the applicant complained that the trial was being held in the absence of J.M.R. and requested a stay of proceedings . The court replied that J.M.R. was well aware of the commencement date of the trial since his lawyer had stated at the beginning of the hearing that he had spoken to his client on the telephone and , furthermore , had produced a medical certificate issued on a date very close to that of the trial certifying that he was ill and therefore could not attend court . The court added that as J.M.R. was a NORP national in GPE , the warrant for his arrest could not be enforced and that any move by the PERSON courts to secure his extradition would be doomed to failure . Accordingly , the court decided to continue with the trial in order , inter alia , to guarantee the applicant his right to have his case heard within a reasonable time in accordance with LAW . It also noted that the applicant had not at any time during the investigation requested to cross - examine J.M.R. or to be confronted with him .

In a judgment of DATE , delivered after public proceedings deemed to be inter partes , ORG found the applicant guilty of misappropriating public funds and forging official documents . It sentenced him to DATE imprisonment and payment to the ORG CARDINAL in damages . It acquitted him , however , of damaging the economy . The court based its decision on a whole range of evidence freely discussed at a public trial , particularly the applicant ’s written statements , the testimony of numerous witnesses , auditors’ reports and documentary evidence .

The applicant appealed to ORG , contending that his fundamental rights had been breached . In a judgment delivered after adversarial proceedings , ORG dismissed his appeal on DATE .

The applicant requested the public prosecutor to lodge an empara appeal against that judgment with ORG , which is a remedy for violations of the right to a fair trial guaranteed by LAW . On DATE the public prosecutor decided to lodge the empara appeal , while disagreeing with the applicant ’s allegations .

In a decision of DATE , ORG declared the empara appeal inadmissible . The public prosecutor lodged a súplica appeal with ORG , which dismissed it on DATE on the ground that it did not satisfy the conditions set out in LAW ( c ) of LAW .

Following the entry into force of the DATE Act amending LAW , and pursuant to its third transitional provision , the applicant appealed directly to ORG ( remedy of empara ) on DATE against ORG judgment of DATE complaining of a violation of his fundamental rights guaranteed by LAW . In his appeal the applicant alleged the following violations:-

Violation of the right to a predetermined impartial tribunal because the investigation of the case had been entrusted to the NORP batlle and not the episcopal batlle who had examined the first complaint lodged by the chairman of the ORG ’s governing body about the threats received by the applicant .

Violation of the right to a fair trial on account of the court ’s decision to continue with the trial against the defendants present and in the absence of a co - defendant , J.M.R. , whom he had been unable to cross - examine or confront .

Refusal by the trial and appeal courts to set aside all the investigative measures undertaken during the period in which ORG was a party to the proceedings as private prosecutor .

Violation of the principle of the presumption of innocence on account of the assessment of the evidence made by the trial and appeal courts .

Violation of the rule that offences and punishments shall be strictly defined by law on the ground that the offence with which the applicant had been charged did not constitute the offence of misappropriation of public funds defined by LAW .

In a judgment of DATE , ORG dismissed the empara appeal . With regard to the complaint of an infringement of the right to an impartial and predetermined tribunal , ORG concluded , after observing that the applicant had never claimed that the investigating judge had breached his duty of subjective or objective impartiality and examining the provisions of LAW governing conflicts of court jurisdiction , that there had been no violation of the right relied on because the NORP batlle had begun his investigation after the preliminary investigation opened by the episcopal batlle had been closed . In respect of the complaint that ORG had decided to continue with the trial notwithstanding the absence of a co - defendant , J.M.R. , ORG found that the trial court had duly justified its decision on the ground DATE could not attend trial for health reasons and its conviction that he had no intention of cooperating with the courts . The court held that , while DATE ’s absence might have affected some of the evidence the applicant wished to adduce , that had neither prevented him from exercising his defence rights nor , consequently , infringed the constitutional rights on which he had relied . With regard to ORG participation in the proceedings up until ORG decision of DATE which excluded it , ORG observed that , as ORG had pointed out , there was nothing to indicate that ORG presence had prevented any investigative measure requested by the applicant from being carried out . As regards the applicant ’s complaint that he was systematically excluded during the entire investigation , ORG found , inter alia , that the decision to convict had taken account of a whole range of evidence , that the applicant had had the opportunity of informing himself of the investigative measures and that all the evidence he had requested to adduce had been admitted .


Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial claim;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE , while driving his car in reverse gear , he knocked a pedestrian over and drove off .

On DATE ORG ( Bezirksgericht ) issued a provisional penal order ( Strafverfügung ) , following which the applicant was found guilty under LAW ) of having negligently caused bodily harm and under LAW of having abandoned the victim . The applicant was ordered to pay a fine of CARDINAL NORP schillings ( ORG ) ( MONEY ( ORG ) ) . The applicant objected and ORG opened ordinary criminal proceedings .

On DATE the court held a hearing in which it examined several witnesses , the applicant and an expert who submitted that the applicant had not necessarily noticed the accident . Subsequently , on CARDINAL DATE , the court convicted the applicant of having negligently caused bodily harm and acquitted him of having abandoned the victim . It sentenced him to a fine of ORG CARDINAL ( approximately EUR CARDINAL ) , suspended on probation . The applicant did not appeal .

Meanwhile , having interviewed the applicant in DATE , ORG ) issued a penal order on CARDINAL DATE whereby the applicant was found guilty under section CARDINAL ) in conjunction with section CARDINAL ) of LAW ( Straßenverkehrsordnung ) of having failed to inform the next police station about the accident . The applicant was ordered to pay a fine of ORG CARDINAL ( approximately ORG CARDINAL ) . He appealed on DATE .

On DATE ORG ( “ the ORG ” – PERSON ) , having held a public hearing on DATE in which it heard evidence from several witnesses in the presence of the applicant 's counsel , dismissed the applicant 's appeal . It found that the applicant should have looked behind him when he reversed his car and , therefore , was to be blamed for carelessly failing to notice the accident . It further dismissed the applicant 's argument that he had been tried twice in respect of the same offence in breach of LAW , as it found that the administrative offence in issue did not relate to the same conduct as the criminal offences .

On DATE the applicant lodged a complaint with ORG ) . On DATE he amended his complaint .

During the period in question ORG was in the process of reviewing the lawfulness of specific provisions of LAW . This review was concluded on DATE , when ORG declared part of these provisions unconstitutional .

Subsequently , on DATE , ORG quashed the ORG 's decision of DATE . This decision was served on the applicant 's counsel on DATE .

DATE , on DATE , the ORG allowed the applicant 's appeal of DATE in part and reduced the fine to ORG CARDINAL ( approximately EUR CARDINAL ) . It further ordered him to pay the costs of the proceedings . The ORG stressed that there was no breach of LAW no . QUANTITY to the Convention . In particular , the offence of abandoning a victim under LAW presupposed intent while the offence under LAW also included negligent behaviour . The offences for which the applicant had been tried in the proceedings before ORG had not exhausted the scope of unlawfulness ( PERSON ) of the applicant 's conduct . On DATE the applicant lodged a complaint with ORG . On DATE he filed further comments .

On DATE ORG , referring to its previous case - law , refused to deal with the applicant 's complaint .

On DATE the applicant filed a request for reopening of the proceedings before ORG and argued that ORG had meanwhile repealed another provision of LAW upon which the ORG had based its findings . On DATE ORG rejected this request but granted the request to transfer the case to ORG ( Verwaltungsgerichtshof ) .

On DATE the applicant amended the complaint transferred to ORG . The ORG submitted its observations in reply on DATE .

On DATE ORG refused , under section CARDINAL(a ) of LAW ( PERSON ) to deal with the applicant 's complaint since the fine did not exceed ORG CARDINAL and no important legal question was at stake . This decision was served on the applicant 's counsel on DATE .

Under LAW of LAW ) , it is an offence , punishable by DATE imprisonment or a fine of CARDINAL DATE - rates , to cause physical harm to another person . Under LAW of LAW , it is an offence , punishable by DATE imprisonment or a fine of up to CARDINAL DATE - rates , to cause physical harm by negligence .

Article CARDINAL § CARDINAL of LAW provides that “ anyone who fails to assist another person ( Imstichlassen eines Verletzten ) to whom he has caused bodily injury ( LAW ) , albeit unlawfully , shall be liable to up to one year 's imprisonment or up to CARDINAL DATE - rates . ”

Section CARDINAL of LAW ( Straßenverkehrsordnung ) provides :

“ ( CARDINAL ) All persons whose conduct at the scene of a traffic accident was causally related to the accident shall

( a ) if they are driving a vehicle , stop immediately ;

( CARDINAL ) NORP If anyone has been injured in a traffic accident , the persons referred to in subsection one above shall provide assistance ; if they are not capable of doing so , they shall arrange for assistance without delay . They shall further inform the nearest police station immediately ... ”

Under LAW , in the version at force at the material time , it was an administrative offence ( PERSON ) , punishable by a fine of not less than ORG CARDINAL and not exceeding ORG CARDINAL or , in default of payment , by DATE to DATE imprisonment , for any driver having caused a traffic accident occasioning bodily injury to act contrary to section CARDINAL(CARDINAL ) and ( CARDINAL ) .

Section CARDINAL(CARDINAL)(c ) of LAW provides that proceedings shall not be instituted in respect of an administrative offence that is based on facts that constitute an offence falling within the jurisdiction of the ordinary courts .

The procedure before ORG is governed by LAW ( PERSON ) . Pursuant to section CARDINAL(CARDINAL ) , ORG must in principle either dismiss a complaint as ill - founded or quash the impugned decision . It shall quash the impugned decision if it is unlawful by reason of its content ; or because the respondent authority lacked jurisdiction ; or on account of a breach of procedural rules . A breach of procedural rules is relevant insofar as the respondent authority has made findings of fact which are in an important respect contradicted by the case file , require further investigation on an important point , or when compliance with the relevant rules could have led to a different decision by the respondent authority ( section CARDINAL ( CARDINAL ) ) .

NORP Under section CARDINAL(a ) of LAW , ORG may decline to deal with a complaint against a decision of ORG in an administrative criminal case if a fine not exceeding EUR CARDINAL has been imposed and ORG decision would not involve the determination of a legal question of fundamental importance .


Violation of Art. 5-1;Remainder inadmissible;Just satisfaction dismissed (out of time)

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

The applicant was born in DATE and lives in FAC .

On DATE the police arrested the applicant . He was accused of planning a robbery and remanded in custody from that date .

Several decisions extending the applicant ’s detention were made . In particular , on DATE ORG extended his detention in the context of the preliminary proceedings until DATE .

On DATE the public prosecutor indicted the applicant and several other persons before ORG .

The applicant requested to be released , arguing that ORG had not extended his detention after the expiry of the period indicated in the ORG decision of DATE .

On DATE ORG ordered the applicant ’s release . Upon a complaint lodged by the public prosecutor ORG decided on DATE that the applicant should remain remanded in custody .

On DATE the applicant complained to ORG that his detention in the period after DATE and ORG refusal to release him were both unlawful .

On DATE the applicant was released .

On DATE ORG found that the applicant ’s right under LAW had been violated in that there had been no judicial decision extending his detention after DATE ( judgment ORG ) . There existed no justification for that situation . Reference was made to ORG judgments ORG CARDINAL/CARDINAL and I. ÚS CARDINAL/CARDINAL ( see paragraphs QUANTITY below ) .

ORG ordered ORG to reimburse the applicant ’s costs in the constitutional proceedings . It dismissed his claim for just satisfaction , holding that ( i ) its finding as such provided appropriate redress to the applicant and ( ii ) ORG decision of CARDINAL DATE was based on that court ’s practice , which , however , was not in accordance with practice under the ORG .

The following provisions of LAW ( Law no . CARDINAL/CARDINAL Coll . , in force until DATE ) are relevant in the present case .

Pursuant to LAW , a person ’s detention in the context of both pre - trial proceedings and during proceedings before a trial court can only last as long as necessary . Where detention in the context of pre - trial proceedings is to exceed DATE , it can be extended at a public prosecutor ’s request up to DATE by a judge or to a maximum of DATE by a court ’s chamber .

Article CARDINAL § CARDINAL provides that a person ’s detention in the context of both pre - trial proceedings and during a trial must not exceed DATE . In justified cases ORG may extend its duration to a maximum of DATE and , in cases of particularly serious offences , DATE . Under paragraph CARDINAL of Article CARDINAL , a proposal for extension of a person ’s detention is to be submitted by a public prosecutor in the pre - trial proceedings and by the president of the court ’s chamber during the trial .

Article CARDINAL § CARDINAL obliges investigators , prosecutors and judges to examine , at each stage of criminal proceedings , whether reasons for the accused person ’s detention persist . In pre - trial proceedings a judge is obliged to do so only when deciding on a public prosecutor ’s proposal to extend detention or to modify the reasons for it or when deciding on the accused person ’s application for release . Where a reason for an accused person ’s detention no longer exists , the accused must be released immediately .

Article CARDINAL § CARDINAL entitles the accused to apply for release at any time . When the public prosecutor dismisses such an application in the course of pre - trial proceedings , he or she must submit it immediately to the court . The decision on an application for release must be taken without delay . If an application is dismissed , the accused may only renew it DATE after the decision has become final , unless he or she gives other reasons justifying his or her release .

Pursuant to LAW , where the court carries out a preliminary examination of the indictment of a person who is detained , it shall also decide whether that person is to remain in custody .

NORP In accordance with ORG practice , the time - limits mentioned in LAW exclusively concerned situations where a decision on a public prosecutor ’s proposal was to be made in the context of pre - trial proceedings . However , where an indictment had been filed within a shorter time than the DATE period mentioned in LAW , the law did not require that a request for continued detention of the accused persons be made or that a separate decision should be made on their continued detention , with the exception of cases where the indictment had been filed DATE before the expiry of the DATE maximum period of detention .

Pursuant to a DATE ORG ruling ( Rt CARDINAL/CARDINAL ) , LAW requires a court to decide on further detention of an accused where it has carried out a preliminary examination of the indictment . Accordingly , where the presiding judge concludes , on the basis of the file , that a preliminary examination of the indictment is not required and considers the detention of the accused to be lawful , there is no need for a separate decision of the court chamber on continued detention of the accused . However , where the accused applies for release , the application must be decided upon without delay in accordance with LAW .

In judgment ORG CARDINAL/CARDINAL ORG noted that LAW did not explicitly require that a decision on extension of an accused person ’s detention be given in cases where an indictment had been filed and where the detention , both at the pre - trial stage and during the trial , had not exceeded DATE .

It held , however , that the filing of an indictment alone did not as such justify a person ’s continued detention . The court dealing with the case was required to decide explicitly on further detention of the accused prior to the expiry of the period for which the detention had been extended in the context of pre - trial proceedings .

In its judgment ORG referred in particular to the guarantees laid down in LAW and the ORG ’s judgment in PERSON v. GPE ( no . CARDINAL/CARDINAL , DATE , § § CARDINAL ) .

In that case ORG found no breach of LAW as the ordinary court involved , both in the context of a preliminary examination of the indictment and in reaction to the accused person ’s request for release , decided that the reasons for the latter ’s detention persisted . That decision had the same effect as a decision to extend the accused person ’s detention .

In the above case , which concerned CARDINAL of the present applicant ’s co - accused , the detention in the context of pre - trial proceedings had been extended until DATE . Prior to its expiry , on DATE , the accused was indicted . In its judgment ORG found that ORG had breached the plaintiff ’s right under LAW , in that there had been no judicial decision extending his detention after DATE and there existed no justification for that situation . It was irrelevant that courts at CARDINAL levels had dismissed the accused person ’s application for release as those decisions related to detention in the context of pre - trial proceedings , that is prior to the filing of an indictment . In those circumstances , any relevant decision on further detention of the accused could have been taken only by the criminal court before which the accused had been indicted .

With reference to its judgment ORG CARDINAL/CARDINAL of DATE ORG held that for a detention to be lawful , it must always rely on a court decision .

In the above CARDINAL judgments given in the case of a different co - accused of the applicant , ORG found a breach of LAW , in that there had been no judicial decision extending the accused person ’s detention after the filing of the indictment . In the latter judgment it held , in particular :

“ In ORG view , the jurisdiction of the court involved at the pre - trial stage ended with the filing of the indictment on DATE . The indictment as such is not a ground for continued detention of a person as it does not explicitly follow from the law , and it is inadmissible to extend the possibilities of restricting a person ’s liberty by extensive interpretation of several provisions of LAW .

However , a court ’s decision on detention of a person at the pre - trial stage can constitute a ground for that person ’s detention during a short period following the indictment . Otherwise it would be practically impossible to ensure continued detention of a person after an indictment has been filed . In the circumstances , a ground for the plaintiff ’s detention existed until DATE . The detention should have been extended by a decision not later than on DATE if it was to last after that date . In the absence of any such decision , the restriction of the plaintiff ’s liberty after DATE was unlawful .

The unlawfulness of the plaintiff ’s deprivation of liberty after DATE can not be justified retrospectively , not even by a judicial decision . Subsequent judicial decisions could not have extended the plaintiff ’s detention , as it had ended on DATE . The only existing possibility was to remand the plaintiff in custody again . As this had not happened , his subsequent deprivation of liberty had no legal ground . ”

In judgment PERSON CARDINAL/CARDINAL the Constitutional Court confirmed that the filing of an indictment alone does not suffice for continued detention of the accused to be lawful . It is required that the court dealing with the criminal case following the indictment should take a decision on the accused person ’s detention prior to the expiry of the period for which the latter had been remanded in the context of pre - trial proceedings . ORG found a breach of the accused person ’s right under LAW and ordered his immediate release .

The new Code of Criminal Procedure ( Law no . PERSON . ) entered into force on DATE .

Article CARDINAL § CARDINAL provides , inter alia , that a court is obliged to decide on further detention of an accused within DATE of his or her indictment ( or submission for its approval of an agreement between the prosecution and the accused on guilt and punishment ) unless it has already decided on detention of the accused under provisions which govern the examination of indictments .

The explanatory report to the draft Code of Criminal Procedure of DATE indicates that the above provision accentuates the judicial control of a person ’s detention following his or her indictment and that the amendment is also in reaction to ORG judgment ORG CARDINAL/CARDINAL of DATE .


Violation of Article 6 - Right to a fair trial

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant was born in DATE and lives in PERSON .

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

The applicant worked as a journalist for the national public audio - visual institution , ORG company ( T. ) . According to the applicant , on DATE a spontaneous strike began amongst ORG ’s staff in response to alleged censorship and disrespect for democratic principles enforced within ORG by ORG . The applicant was among a group of staff who occupied a room and refused to vacate it until their demands were met . According to the Government , this was an unauthorised demonstration .

On DATE the applicant , who was present in court , was found guilty of breaching Article CARDINAL § CARDINAL of the Code of Administrative Offences by actively participating in an unauthorised demonstration . She was fined CARDINAL NORP lei ( MDL ) ( QUANTITY ( ORG ) at the time ) .

The applicant appealed , claiming that there was no evidence of her active participation in the meeting and that the meeting had been an unplanned strike which should be examined under the relevant labour legislation .

On DATE the applicant was dismissed from her position . She remains unemployed , having formally registered as such on DATE .

On DATE the ORG examined her case in her absence and rejected her appeal in cassation . The court noted that the applicant had been summoned . According to the applicant , she had not been summoned and found out about the decision of ORG only on DATE when she inquired about her case at the court ’s registry .

NORP The applicant paid her fine on DATE .

The relevant domestic law has been set out in PERSON v GPE no . CARDINAL/CARDINAL , § § DATE , DATE .

In the judgment of DATE in the civil case CARDINAL ORG dismissed the claim that the appellant had lodged his appeal outside the time - limit established by law ( DATE from DATE when he had been informed of the appealed judgment ) . The court found that although there was evidence that the court had sent a copy of the judgment to the appellant , there was no evidence in the case file to confirm the date of its delivery . Accordingly , the appeal was considered as having been lodged within the time - limit , despite the fact that it was lodged DATE after the court had sent the copy of the judgment to the appellant .


Violation of Art. 6-1+6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - claim dismissed;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

Mr PERSON married Miss PERSON in DATE . There were CARDINAL children of this marriage , born on DATE and CARDINAL DATE .

On a petition by the applicant ’s wife , the GPE tribunal de grande instance granted a divorce on DATE on the grounds of fault by her husband , awarded her custody of the children and allowed PERSON the right to have them visit him or stay with him .

On DATE ORG varied that decision . It pronounced divorce on the grounds of fault by both spouses and upheld the other provisions after studying a social inquiry report on the children ’s living conditions with their mother .

The applicant did not appeal on points of law against ORG judgment but lodged a complaint against his former wife alleging that she had committed forgery and uttering during the divorce proceedings . On DATE ORG sentenced PERSON to a fine of MONEY ( ORG ) for having produced CARDINAL false certificates supposedly from her employers .

In DATE , when exercising his right of access to the children , the applicant had left NORP territory and taken his CARDINAL children to GPE .

Mr Poitrimol applied to the matrimonial causes judge at the tribunal de grande instance in GPE , where the applicant ’s former wife now lived , for custody of the children . On DATE the judge awarded custody to both parents jointly and made an order that the father should return at least temporarily to GPE , within DATE at most , in order that the children should be interviewed . If , for reasons other than circumstances beyond his control , the applicant did not comply with the time - limit , the mother would continue to have sole custody .

On DATE PERSON lodged a complaint alleging failure to return children .

On DATE the investigating judge committed the applicant for trial at ORG .

Mr Poitrimol did not return to GPE but sought leave to avail himself of LAW ( see paragraph CARDINAL below ) . The court gave leave and he was represented at the trial on DATE by CARDINAL counsel , who filed pleadings in which they asked for their client and his children to be examined on commission and , in the alternative , for him to be acquitted . They submitted that the defendant had acted under irresistible mental duress owing to the risk of harm to the physical health and psychological balance of his children , having regard to the behaviour of their mother and her lovers .

In a judgment delivered after proceedings deemed to be inter partes the court sentenced him on DATE imprisonment and issued a warrant for his arrest .

On DATE counsel for PERSON lodged an appeal and the prosecution immediately did likewise .

Although he had been summoned to the hearing on DATE , the applicant did not appear in person . His lawyer , PERSON , said that his client wished to be tried in absentia and defended in court by his counsel ; he proceeded to make submissions similar to those he had filed at the trial . In an interlocutory judgment the ORG - en - ORG adjourned the case to CARDINAL DATE and , under the third paragraph of LAW , ordered that Mr Poitrimol should be summoned again as it considered his presence in court to be necessary .

The applicant did not attend the new hearing , but Mr PERSON did and made supplementary submissions asking the court to uphold his pleadings of DATE and authorise him to represent his client .

On DATE , pursuant to LAW ( see paragraph CARDINAL below ) , ORG , taking its decision after proceedings deemed to be inter partes , delivered a judgment in which it refused the latter request on the following grounds :

" While a defendant summoned for an offence punishable , as in the instant case , by a term of imprisonment of DATE may , by letter to the presiding judge , apply to be tried inter partes in his absence but represented by counsel , pursuant to the first and second paragraphs of LAW , it is a principle , and is apparent from the general scheme of LAW , that this is a right which does not apply where , as in Mr Poitrimol ’s case , a warrant has been issued for the defendant ’s arrest and the defendant has absconded and is accordingly not entitled to instruct counsel to represent and defend him ... ;

That being so , the ORG will try the case on the merits without the defendant , PERSON , being able to be represented by Mr PERSON . "

It also ruled that the pleadings of DATE were inadmissible and upheld the impugned judgment in its entirety .

Through a member of the ORG d’Etat and ORG the applicant appealed on points of law against ORG judgment . In substance he argued that LAW previously cited was incompatible with the Convention .

On DATE ORG declared the appeal inadmissible on the grounds that a convicted person who had not surrendered to a warrant issued for his arrest was not entitled to instruct counsel to represent him and lodge an appeal on points of law on his behalf against his conviction .

Mr Poitrimol submitted a petition for pardon , which was rejected by the NORP President on DATE .

The main provisions of LAW mentioned in the case are the following :

" An accused on whom a summons has been served personally in the proper manner must appear unless he provides an excuse that is accepted as valid by the court before which he has been summoned . An accused shall be under the same obligation where it is established that , even though the summons was not served on him personally , he was made aware by the means provided for in Articles CARDINAL , CARDINAL and CARDINAL that he had been properly summoned .

If these conditions are satisfied , an accused who fails to appear and has not been excused from doing so shall be tried as if he were present . "

ORG has held this provision to be compatible with LAW , DATE ) but sometimes quashes judgments in which no ruling has been made on whether there was a valid excuse as argued by the defendant ( PERSON , DATE ) or no finding made as to whether the defendant had been made personally aware of the date of the hearing ( ORG , DATE ) .

" An accused summoned in connection with an offence punishable by a fine or a term of imprisonment of DATE may , by letter to the presiding judge which shall be placed in the file on the proceedings , apply to be tried in absentia .

In that case his counsel shall be heard .

However , if the court considers it necessary for the accused to appear in person , he shall be summoned again , at the instance of the prosecution , to a hearing on a date which shall be fixed by the court .

An accused who fails to comply with this summons shall be tried as if he were present .

He shall likewise be tried as if he were present in the eventuality provided for in the first paragraph of this Article . "

According to the case - law of ORG , where an accused who fails to appear and has not been excused from doing so is tried as if he were present , his counsel can neither be heard nor file pleadings ( ORG , DATE , ORG . ) no . CARDINAL ; CARDINAL DATE , ORG . no . CARDINAL ) .

It is not possible to apply to a court to set aside a judgment it has given in the accused ’s absence and rehear the case ( opposition ) ( see Articles CARDINAL and CARDINAL below ) where the judgment was given after proceedings deemed to have been inter partes .

" An accused who appears may instruct counsel to assist him .

If he has not done so before the hearing and nevertheless asks to be assisted , the presiding judge shall assign counsel officially .

Counsel may be chosen or appointed only from among the members of a Bar ...

The assistance of counsel is compulsory where an accused suffers from an infirmity of a kind likely to jeopardise his defence . "

" A judgment in absentia shall be null and void in all its provisions if the accused applies to the court which gave it to set it aside and rehear the case .

" The rules laid down in respect of the Criminal Court shall apply in ORG ... "

" Notice of an appeal on points of law must be given to the registrar of the court which has delivered the decision being challenged .

It must be signed by the registrar and by the applicant himself or by an attorney ( avoué ) of the court that has given judgment or by a specially authorised agent : in the last - mentioned case , the authority to act shall be annexed to the document drawn up by the registrar ...

" If a person sentenced to a term of imprisonment of DATE has not surrendered to custody and has not obtained from the court which convicted him exemption , on or without payment of a surety , from the obligation to surrender to custody , his right to appeal on points of law shall be forfeit .

The memorandum of imprisonment or the judgment granting exemption shall be produced before ORG not later than the time when the case is called for hearing .

For his appeal to be admissible , it is sufficient for the applicant to establish that he has surrendered to custody at a prison , either in the place where ORG sits or in the place where sentence was passed ; the chief warder of that prison shall take him into custody there on the order of ORG at ORG or of the head of the public prosecutor ’s office at the court of trial or appeal . "

ORG has already decided on several occasions that it follows from the general principles underlying LAW that a convicted person who has not surrendered to a judicial warrant for his arrest and has evaded execution of it is not entitled to appeal on points of law against the decision whereby he was convicted ( ORG , CARDINAL DATE and DATE , Juris- Classeur périodique DATE , ORG , DATE ; DATE , ORG . no . CARDINAL ; DATE , PERSON - Sirey DATE , p. CARDINAL ) . It has pointed out , however , that the situation may be different where a convicted person can show that circumstances made it impossible for him to surrender to custody in good time ( ORG , CARDINAL DATE , ORG . no . CARDINAL ) .


Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano

NORP The present applicants are both nationals of GPE . The first applicant , PERSON , was born in DATE and lives in FAC . Her son , the second applicant , PERSON , was born in DATE and also lives in FAC . They are represented before the ORG by PERSON , lawyers practising 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 .

The first applicant entered GPE on DATE on a DATE visitor ’s visa valid until DATE .

On DATE , she claimed asylum on the basis of her NORP ethnicity , NORP Christianity , and the threats to and attacks upon her family by the mafia because of her NORP son - in - law who , it was assumed , must be sending money to the family in GPE . In particular , she claimed that , while in GPE , CARDINAL men had held a knife to her ribs demanding money in DATE and that her family home had been subjected to an attempted arson attack in DATE .

On DATE , her application was refused by the Secretary of ORG who considered her claim to be incredible because , inter alia , there were discrepancies in her account of when she had started to receive demands of money from the mafia ; she had failed to claim asylum on previous visits to GPE in DATE , and DATE ; there were inconsistencies in the date that she claimed to have been attacked with a knife ; it was implausible that the mafia would have known when her NORP family had sent her money in GPE ; and her son - in - law would not have returned to GPE after DATE if his life was genuinely in danger there . In addition , the Secretary of ORG considered that she had failed to demonstrate that there would be insufficient protection from the NORP authorities from the mafia or that she would be unable to relocate internally within GPE . Finally , the problems and discrimination that she claimed to have suffered due to her ethnicity and religion were not considered to amount to persecution .

Her appeal against this refusal was dismissed by the then ORG ( “ the ORG ” ) on DATE . The Adjudicator upheld the majority of the Secretary of ORG ’s findings and also found that the first applicant ’s credibility was undermined by her delay in claiming asylum until DATE . Furthermore , the Adjudicator found nothing in the objective evidence to suggest that the first applicant would be at risk in GPE by virtue of her status as a returning failed asylum seeker .

On DATE , the then ORG ( “ the ORG ” ) dismissed an application for reconsideration of that determination .

On DATE , ORG granted an application for reconsideration of that determination for unknown reasons .

In a decision promulgated on DATE , the ORG dismissed her appeal upon reconsideration , finding that the ORG ’s decision had to stand as her representatives had conceded that it did not disclose any arguable error of law .

The second applicant also entered GPE on DATE on a DATE visitor ’s visa valid until DATE .

He also made an application for asylum on DATE , on the basis of his NORP ethnicity , NORP Christianity , the multiple attacks upon him by the mafia because of his NORP brother - in - law ( which had led to the second applicant ’s hospitalisation for DATE ) , and an attempted arson attack upon the family home in DATE .

NORP On DATE , his application was also refused by the Secretary of ORG who considered his claim to be incredible because , inter alia , he had not been physically attacked until DATE after his brother - in - law had left GPE ; there were discrepancies in his account of when he had been attacked ; it was implausible that the mafia would have been aware of when his brother - in - law had sent the family money ; and he had failed to claim asylum on previous visits to GPE in DATE . The Secretary of ORG also considered that the second applicant had not established that the police had failed to assist him or that he would be unable to relocate within GPE . It was noted that the second applicant claimed not to practise his religion and therefore it was not accepted that he would be at risk of persecution on that account . The problems that he claimed to have suffered due to his ethnicity and religion were not considered to amount to persecution .

His appeal against this refusal was dismissed by the ORG on DATE . The Adjudicator upheld the findings of the Secretary of ORG and found that the second applicant ’s account of past events was not credible . Furthermore , the Adjudicator did not accept that NORP or ethnic NORP were persecuted in GPE . Whilst the Adjudicator was satisfied that the second applicant had an existing private and family life in GPE , it was found to be proportionate to remove him to GPE in the lawful and legitimate interests of immigration control .

On DATE , the second applicant was granted permission to appeal to the then ORG ( “ the ORG ” ) . On DATE , further to reforms of the ORG ( see paragraphs CARDINAL–CARDINAL below ) , the appeal was dismissed by the ORG . It found that the second applicant had not submitted any objective evidence with regards to the situation of ethnic NORP or NORP in GPE and therefore could not make out his contention that the Adjudicator had failed to take into account any such evidence .

On DATE , the second applicant submitted further representations in relation to the increased risk upon return of ethnic NORP to GPE , which were rejected by the Secretary of ORG on CARDINAL DATE as not amounting to a fresh claim . It was accepted that NORP may face discrimination in GPE , but not that such treatment would amount to persecution . It was considered that the documents that the second applicant had submitted were generic and did not specifically relate to his own experience .

On DATE and DATE , further representations were submitted to ORG on both the first and second applicants’ behalf , which were rejected on DATE as not amounting to a fresh claim . Given the previous findings upon appeal , ORG did not accept that there was any objective evidence to suggest that they would be at real risk on account of their ethnicity or religion on return to GPE . It was accepted that discrimination against ethnic NORP might be perpetrated by random individuals , but considered that the applicants could seek protection from the authorities or move to another part of the country to avoid the same . It was also considered that the applicants could decide to join their extended family that had already moved to GPE from GPE . In relation to their claims under LAW , it was accepted that the first applicant had both family life with her NORP daughter , son - in - law and grandson and private life in GPE after having integrated into the community over DATE . Similarly , it was accepted that the second applicant had both family life with his NORP sister , brother - in - law , and nephew and private life in GPE . Nevertheless , it was not considered that their removal would be disproportionate under LAW as they had remained in GPE unlawfully and would be removed together .

On DATE , the applicants submitted further representations through their legal representatives , in which they relied upon compassionate and discretionary grounds which focussed on their family life in GPE . Those representations also clarified that they were not pursuing their asylum claims and stated :

“ ... it is not contended that there is any continuing asylum , or ORG claim . Although anti - NORP and Government harassment are running at high levels in GPE , there is insufficient evidence to counter the judicial ( and [ ORG ] ) conclusion , in each of these cases , that those threats do not amount to ‘ ORG or any risk of ‘ serious harm’ upon return . For both mother and son , their claims are compassionate , derived from their family situation in FAC . ”

On DATE , those representations were rejected by ORG as not amounting to a fresh human rights claim as it was considered that the ORG claim to have established family life in GPE had already been fully considered both on appeal and in responses to earlier representations . It was not accepted that the relationship between the first applicant and her adult daughter , or the second applicant and his adult sister constituted family life for the purposes of LAW as they had not submitted any evidence of dependency . Furthermore , it was considered that the applicants could maintain contact with family members in GPE by the usual methods of communication from overseas . It was considered that the applicants’ removal was necessary and proportionate to the wider interests of maintaining an effective immigration control .

On DATE , the applicants submitted further representations which they claimed raised new and serious concerns about the likelihood of torture of failed asylum seekers forcibly returned to GPE . Those representations were supported by a letter dated DATE from Mr PERSON , the former NORP Ambassador to GPE from DATE to DATE , which set out concerns about the fate of anybody deported to GPE whose exit visa had expired . Mr PERSON stated that :

“ The notoriously cruel NORP security service – the SNB – have a permanent presence behind the immigration officers at GPE airport and at all points of entry . They would pick up anybody with an expired exit visa and subject them to ferocious questioning .

In DATE , ORG on torture , Prof PERSON , published a report that said that torture in GPE was a ‘ routine investigative technique’ . I can absolutely confirm that from experience of CARDINAL of cases . Any hint that [ the applicants ] had claimed political asylum in the GPE DATE and ORG are a massive , very efficient and well - equipped intelligence service – and [ the applicants ] will almost to a certainty be subjected to treatment that well exceed the bar for torture . ”

DATE , ORG refused those representations concluding that they did not amount to a fresh claim . It was noted that PERSON had been reprimanded by ORG on several occasions in DATE and DATE , and subsequently dismissed from his post in DATE at which point he had been charged with gross misconduct and an investigation had been commenced . Given Mr PERSON ’s outspoken public views on the human rights situation in GPE , it was not considered that he could be accepted as an independent source of evidence which would add weight to their claims .

Simultaneously , the applicants lodged applications with the ORG and requested interim measures under LAW to stop their removal to GPE DATE .

On DATE , the Acting President of the Section to which the application was allocated decided to apply Rule CARDINAL of ORG and indicate to the Government of GPE that the applicants should not be expelled until further notice .

Section CARDINAL(CARDINAL ) of the Nationality , Immigration and Asylum Act DATE ( “ the NIA Act CARDINAL ” ) , provides a right of appeal against an immigration decision made by the Secretary of ORG for ORG .

Until DATE , appeals in asylum , immigration and nationality matters were heard by the ORG . LAW CARDINAL provided that , with the permission of the ORG , a party to an appeal could apply to the ORG against an ORG determination on a point of law . LAW CARDINAL provided that where the ORG had determined an appeal under LAW , a party to the appeal could bring a further appeal on a point of law to ORG . It also provided that , in the event that ORG upheld any error of law in the determination , it had the power to make any decision which the ORG could have made or to remit the case to the ORG .

From DATE , the then ORG replaced the former system of ORG and the ORG . This in turn has been replaced by ORG .

Section CARDINAL of LAW DATE provides that , in determining any question that arises in connection with a Convention right , courts and tribunals must take into account any case - law from this ORG so far as , in the opinion of the court or tribunal , it is relevant to the proceedings in which that question has arisen . Section CARDINAL ) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right .

Section CARDINAL(CARDINAL ) and CARDINAL ) of the Immigration Act DATE provide for the making of Immigration Rules by the Secretary of ORG . Paragraph CARDINAL of ORG provides as follows :

“ When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph CARDINAL of these Rules and any appeal relating to that claim is no longer pending , the decision maker will consider any further submissions and , if rejected , will then determine whether they amount to a fresh claim . The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered . The submissions will only be significantly different if the content :

( i ) had not already been considered ; and

( ii ) taken together with the previously considered material , created a realistic prospect of success , notwithstanding its rejection . ”

As regards the scrutiny of fresh asylum claims and the power of the courts to review such scrutiny , ORG in PERSON ( ORG ) v. Secretary of ORG for ORG [ DATE ] EWCA Civ CARDINAL ( paragraphs CARDINAL ) has held :

“ Accordingly , a court when reviewing a decision of the Secretary of ORG as to whether a fresh claim exists must address the following matters . First , has the Secretary of ORG asked himself the correct question ? The question is not whether the Secretary of ORG himself thinks that the new claim is a good one or should succeed , but whether there is a realistic prospect of an adjudicator , applying the rule of anxious scrutiny , thinking that the applicant will be exposed to a real risk of persecution on return ... The Secretary of ORG of course can , and no doubt logically should , treat his own view of the merits as a starting - point for that enquiry ; but it is only a starting point in the consideration of a question that is distinctly different from the exercise of the Secretary of ORG making up his own mind . Second , in addressing that question , both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts , has the Secretary of ORG satisfied the requirement of anxious scrutiny ? If the court can not be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of ORG ’s decision . ”

Thus , an applicant making fresh representations must establish that they have a realistic prospect of success to establish a “ fresh claim ” which , even if then refused by ORG , will nonetheless generate a fresh right of appeal to be considered on the merits .

Country guidance determinations of both the former ORG and ORG are to be treated as an authoritative finding on the country guidance issue identified in the determination , based upon the evidence before the members of the ORG that determined the appeal . Unless expressly superseded or replaced by a later country guidance determination , country guidance determinations are authoritative in any subsequent appeals so far as that appeal relates to the country guidance issue in question and depends upon the same or similar evidence .

In the country guidance determination of ORG ( Returning citizens – minorities – religion ) GPE CG [ DATE ] UKAIT CARDINAL , the ORG considered a large amount of objective evidence in relation to the general human rights situation in GPE and heard evidence from Mr PERSON ( see paragraph CARDINAL above ) .

In relation to Mr PERSON ’s evidence , the ORG commented as follows :

“ We have some concern about Mr PERSON ’s evidence . He is in an unusual position and it has given us cause to reflect on the weight which we should give to his opinion . We say that for this reason . Mr PERSON has produced a short statement which is entirely unsourced . He has given evidence during the course of which he gave an indication in general terms as to some of the sources which he relies upon . In CARDINAL aspect , the return of the NORP failed asylum seekers , there was express source , namely the NORP Ambassador . Having said that his report was unsourced , we acknowledge that he is not an expert of an academic nature who relies upon the reports of others for their information . Rather , he had been GPE Ambassador in GPE for DATE or so and is therefore a person who has had an exceptional opportunity to observe and obtain information . We also acknowledge that , ORG having ejected much of the foreign press , and many NGOs , there is limited opportunity for obtaining information about what is going on there .

We are left with the impression that although Mr PERSON is in a unique position to assist us about GPE , he also has interests of his own which may effect , consciously or otherwise , the interpretation which he puts on facts and events . We have therefore decided that although the factual incidents of which he speaks are likely to be reliable , we should treat with some circumspection his interpretation of them . That is not to say that we reject his interpretation out of hand . We are fortunate in this case that there is also a great deal of background evidence from other sources . ”

In light of the above and other considerations , the ORG then held as follows :

“ We are not satisfied that it is not possible to obtain a passport renewal outside GPE . We say that because the appellant ’s husband has recently returned there and he will in all probability have had to obtain some form of travel document . He arrived with the appellant in DATE . We have not been told of any difficulty on his part .

The fact that he has returned undermines Mr PERSON ’s assertion that it is not possible to get documentation . We accept he may not have been issued with an actual passport but that does not matter . It is the fact he was in possession of an official document that enabled him to return , apparently without difficulty , which is important . His return also detracts very considerably from Mr PERSON ’s evidence , and the appellant ’s mother - in - law ’s assertion , that there is severe punishment for those who do return , having stayed away beyond the end of their exit visa . The appellant is still in communication with her mother - in - law and we have no doubt that if her former husband had been charged , or even imprisoned , as a result of returning after a long absence , she would have heard about it and we would have been told . We find there is no satisfactory evidence that it is not possible to obtain a travel document ( whether it be a renewed passport or some other form of documentation ) . Nor is there any satisfactory evidence to show that a returnee is likely to be punished for having been out of the country longer than permitted . ”

The ORG further held that there was no satisfactory evidence that non - NORP faced discrimination of such a nature as to amount to persecution , or serious harm , or a breach of their LAW . Furthermore , it held that , whilst followers of all religions , save for NORP who attend registered mosques , were subject to a degree of harassment , it did not in general amount to persecution , serious harm or a breach of a worshippers’ human rights . Finally , it held that ministers of religion , those who practise religion in unregistered LOC , particularly active members of evangelical NORP congregations , and proselytising or fundamentalist denominations of any religion could be at risk depending on the facts in every case .

In his report of CARDINAL DATE , the Special Rapporteur concluded that torture or ill - treatment was “ systematic ” in GPE . He also stated that “ the pervasive and persistent nature of torture ” throughout the criminal investigative process in GPE could not be denied . GPE has not extended a further invitation to the Special Rapporteur on Torture to visit the country , despite repeated requests .

In its Concluding Observations upon GPE of DATE , ORG set out its concerns about , inter alia , “ numerous , ongoing and consistent ” allegations concerning the routine use of torture and other cruel , inhuman or degrading treatment or punishment committed by law enforcement and investigative officials or with their instigation or consent , often to extract confessions or information to be used in criminal proceedings .

Furthermore , after setting out information about the numerous allegations of excessive use of force and ill - treatment by NORP military and security forces during the DATE events at Andijan ( when CARDINAL protesters were killed by the NORP authorities ) , ORG reported that it had received credible reports that some persons who had sought refuge abroad and had been returned to the country had been kept in detention in unknown places and possibly subjected to breaches of the Convention .

In its Concluding Observations upon GPE of DATE , ORG set out various concerns , including , inter alia :

“ the continued reported occurrence of torture and ill - treatment , the limited number of convictions of those responsible , and the low sanctions generally imposed , including simple disciplinary measures , as well as indications that individuals responsible for such acts were amnestied and , in general , the inadequate or insufficient nature of investigations on torture / ill - treatment allegations . ”

The ORG also concluded that it remained “ concerned about the need for individuals to receive an exit visa in order to be able to travel abroad ” .

Reports of non - governmental organisations

NORP In its submissions to ORG dated DATE and DATE , ORG remained seriously concerned about persistent allegations of widespread torture and other ill - treatment of detainees and prisoners by law enforcement personnel and prison guards , reports of which stemmed from all layers of civil society . Allegations had also been made that individuals returned to GPE from other countries pursuant to extradition requests were held in incommunicado detention , thereby increasing their risk of being tortured or otherwise ill - treated . The submission also set out that illegal exit abroad or illegal entry into GPE , including overstaying the permission to travel abroad or failure to renew it , are punishable under LAW with imprisonment from DATE or in aggravated circumstances by up to CARDINAL years’ imprisonment . Returned asylum seekers were considered to be particularly vulnerable to being charged under LAW , as many would not have renewed their permission to travel abroad .

In its submissions to ORG of DATE and DATE , ORG set out its concerns about the “ atrocious ” human rights record of GPE . It noted that the Government of GPE continued to refuse access to the country to CARDINAL ORG special procedures ( the human rights mechanisms established by ORG to address either specific country situations or thematic issues ) despite their repeated requests for invitations to visit GPE . It also reported that torture and ill - treatment remained endemic to the criminal justice system in GPE , and stated that another distinct concern relating to torture and ill - treatment is that of NORP refugees and asylum seekers forcibly returned by neighbouring countries , despite the risk of torture and ill - treatment that they face upon return .


Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Paul Lemmens

The first applicant , PERSON , is an NORP national who was born in DATE . The second applicant , Mr PERSON , is an NORP national who was born in DATE . They are both currently in GPE . They are represented by PERSON from Virserum .

CARDINAL

The first applicant applied for asylum and a residence permit in GPE on DATE . Before ORG ( Migrationsverket ) she stated the following . She had lived in an orphanage until she was CARDINAL , after which a couple had taken care of her . Her stepmother had passed away when she was DATE . Her stepfather had been very cruel and harsh ; he had beaten and battered her . Furthermore , he had begun to abuse her sexually when she was DATE . A NORP man used to visit them when she was DATE . She had had the impression that he wanted to marry her . Subsequently , she and her stepfather had travelled with the NORP man to GPE . TIME after their arrival there her stepfather had disappeared . Following this , the NORP man had abused her sexually and had left her at a hotel where she had been forced into prostitution . This had continued for DATE until she had been able to flee to GPE . She had no male relatives who could protect her in GPE . She did not want to have any contact with her stepfather .

On DATE ORG rejected the request . It first stated that , although the first applicant had not submitted any documents to substantiate her identity or asylum story , she had made it credible that she was an NORP national . ORG then observed that , according to country information , it had become easier for women in GPE to participate in society and to work over DATE . Moreover , the ORG found it possible for the first applicant to reside in GPE without having any contact with her stepfather . Furthermore , the ORG noted that she had not sought protection from the domestic authorities in GPE as regards the violence and abuse by her stepfather . She had not substantiated that the domestic authorities would not be able or willing to protect her upon return . In conclusion , the ORG found that the first applicant had not shown that she was in need of protection in GPE .

The first applicant appealed to ORG ( Migrationsdomstolen ) , maintaining her claims and adding the following . She feared that , if returned to GPE , she would again be a victim of trafficking and be forced into prostitution . Those who had forced her into prostitution were still looking for her . Due to the fact that she had no contacts in GPE , no education and no assets , it would be impossible for her to manage on her own there .

On CARDINAL DATE ORG rejected the appeal . It first observed that , according to country information , trafficking and prostitution were big problems in GPE . However , the court considered that the general situation for young women in the country was not a ground for protection per se . Moreover , the court noted that the stepfather had abused the first applicant when she was a child and that it had not emerged that she had been forced into prostitution in GPE . Underlining that she was now an adult woman , the court found that there was nothing to suggest that she would risk abuse by her stepfather upon return . As regards her claim that those who had forced her into prostitution in GPE were still looking for her , the court noted that this had been stated for the first time in the appeal to the court and that she had not presented any concrete information or explanation as to how she had found out about this .

It appears that the first applicant did not appeal to ORG ( Migrationsöverdomstolen ) .

The second applicant applied for asylum and a residence permit in GPE on DATE . Before ORG he stated the following . He was NORP and came from the province of LOC , GPE . His family had recently moved to GPE . The ORG had visited his family ’s house in GPE and had told him and his father to cooperate or be killed . They had replied that they would think about it . Subsequently , the ORG had come looking for him on CARDINAL occasions . Because of this , his father had wanted him to flee and , in DATE , he had travelled to GPE . In DATE his father had been killed . The second applicant thought that this was an act by the ORG , since his father did not have any other enemies . He could not return to GPE because there were ORG everywhere in the country . Furthermore , it would be difficult for him to find an occupation in another part of the country .

On DATE ORG rejected the request . It first noted that the second applicant had submitted a tazkira but considered that it did not make his identity credible . However , ORG found it credible that he came from the province of Ghazni . Turning to his individual claims , ORG considered that the asylum story was brief and that it concerned alleged events which had occurred in the relatively distant past . ORG found it unlikely that those who had wanted to recruit him DATE would still be interested in him upon return . As regards the general situation in ORG noted that , according to country information , there was an internal armed conflict in the province . In the light of this , the ORG found it unreasonable for him to return there . However , it considered that it was possible and reasonable for him to return to GPE , finding , inter alia , that the security situation was better there and that the second applicant was a young , healthy man capable of working .

The second applicant appealed to ORG , maintaining his claims and adding that the ORG who had killed his father would find him even if he moved to GPE . The second applicant submitted , inter alia , a document which was allegedly a warrant for his arrest , issued by the ORG .

On CARDINAL DATE ORG rejected the appeal . The court found that the second applicant ’s story did not raise any questions as to his home province and thus decided to examine the appeal on the basis , in the first place , of a return to Ghazni . Turning to the general situation in the province , the court agreed with ORG that there was an internal armed conflict and that the second applicant therefore could not return to Ghazni . However , it considered that , although the security situation in GPE was volatile , the second applicant was a healthy young man who should be able to settle there despite the generally serious situation . As to the second applicant ’s asylum story , the court considered that it related to events in GPE which had occurred in the relatively distant past . In the court ’s view , the fact that there were ORG in GPE did not automatically entail a personal threat against the applicant there . Furthermore , the court had doubts about the alleged arrest warrant submitted , noting that the document contained stamps in LANGUAGE , which the court found difficult to associate with official ORG documents . As there were no other grounds to grant the second applicant leave to remain in GPE , it rejected the appeal .

On DATE ORG refused leave to appeal .

NORP In DATE the applicants requested ORG to reconsider its previous decisions due to new circumstances . They stated that they had met and established a relationship and that the first applicant was pregnant . It was imperative , for the sake of their child , that they be allowed to stay in GPE . The first applicant would not be able to go to GPE because of the security situation there . Moreover , she had no network in GPE to support her or her child . The second applicant suffered from depression and claimed that if he were separated from his partner and their future child , there was a risk that his health would deteriorate seriously . Furthermore , he alleged that he had converted to NORP in GPE and that it would be very dangerous for him to return to GPE . He could not go to GPE for several reasons : he would not be able to find work there and the state did not accept or provide any assistance to refugees . The applicants submitted , inter alia , the second applicant ’s baptism certificate dated DATE , which stated that he had confessed faith in the PERSON and its teachings .

On DATE ORG found that no such new circumstances had been presented which could justify granting residence permits to the applicants . It first noted that the applicants had been in GPE for a relatively short period of time and considered that they did not have a strong connection to GPE . ORG also noted that the applicants had not submitted any medical certificates substantiating that the second applicant had a serious health condition . Furthermore , the ORG observed that the applicants’ family situation had emerged after the decisions to send them back to their native countries , when they had both been well aware that the future of their family life in GPE was highly uncertain . In its view , the difficulties of maintaining family life under such circumstances did not constitute a reason to grant them residence permits . As regards the second applicant ’s conversion , the ORG considered that the fact that he had converted after the ORG ’s decision to return him to GPE suggested that his conversion was not authentic and genuine . The baptism certificate submitted did not change the ORG ’s view in this regard . ORG further noted that the second applicant had submitted no information about why he had converted or regarding other circumstances concerning the conversion .

The applicants appealed to ORG , maintaining their claims and adding the following . The second applicant had now been a practising NORP for DATE and he had been baptised DATE . His faith was genuine . ORG had not properly investigated his conversion and the case should therefore be remitted to ORG . If returned to GPE , he would risk serious punishment . The applicants had been living together since DATE and were expecting their first child in DATE . In the light of this , they should be granted residence permits in GPE since there was no other country in which they could live together .

On DATE ORG rejected the appeal as concerned the second applicant ’s conversion and dismissed the remainder of the appeal as ORG decision in that part was final . As concerned the conversion , the court found that the second applicant ’s story was general in nature and that it did not describe the considerations and thoughts which had led to his conversion .

The applicants appealed to ORG which , on DATE , refused leave to appeal .

Subsequently , the applicants submitted a copy of a medical record concerning both of them . ORG considered this as a request for reconsideration of their case .

On DATE ORG once again found that no such new circumstances had been presented that could lead to the granting of residence permits . It noted that , according to the medical record , the second applicant had claimed that he was suffering from psychological problems and difficulties sleeping . However , ORG found that no medical certificate had been submitted showing any need for medical care and that these problems did not constitute grounds to stay the expulsion orders .

On DATE the applicants lodged their application with the ORG and requested it to apply Rule CARDINAL of the Rules of the ORG in order to stop the enforcement of their expulsion . They stated the following . The second applicant risked being punished or killed due to the fact that he had converted to NORP . He had been wanted by the ORG before he fled from GPE . Furthermore , the applicants wanted to live together as a family and the second applicant wanted to raise his future son as a NORP . A removal to their native countries would mean the end of their lives .

NORP In support of their claims the applicants submitted , inter alia , the following :

A copy of a certificate regarding the second applicant , dated DATE , in which a pastor stated that the second applicant was a member of his congregation .

A copy of a medical certificate dated DATE , in which a chief physician at a psychiatric clinic stated that the applicants were being treated at the clinic . As regards the first applicant , she was suffering from a severe form of ORG ( PTSD ) called ORG ( disorder of extreme stress , not otherwise specified ) . Everyday situations reminded her of traumatic experiences in the past . She was anxiety - ridden but not deeply depressed . As regards the second applicant , he was anxious about their difficult situation .

An undated copy of a letter , allegedly written by the second applicant , in which he described NORP as a religion of peace and love and ORG as a religion of the opposite .

On DATE the Acting President of the Section decided to grant priority to the above application and to ask ORG for factual information regarding , inter alia , the possibility to send the second applicant to GPE and the presence of organisations in GPE which provide shelters for women seeking protection .

In their response , dated DATE , the Government submitted that , according to LAW , section CARDINAL , paragraph CARDINAL , of LAW ( Utlänningslagen , GPE ) , an alien who is to be refused entry or expelled may always be sent to a country where the alien shows that he or she can be received . This rule is complementary to the provisions that otherwise apply and can only serve as a basis for expulsion to a country to which the alien wants to go ( travaux préparatoires , CARDINAL , GPE ) . In the light of this , the Government considered that it was possible to send the second applicant to GPE together with the first applicant , if he agreed to this and showed that he could be received there . Moreover , if he was to leave GPE voluntarily , as he was supposed to , he could travel to any country of his choosing .

As regards the formalities and requirements which must be observed and complied with in order to send the second applicant to GPE , the Government stated the following . ORG had clarified that in order for the migration authorities to send an alien to a country other than specified in the expulsion order , the alien was normally required to have a residence permit for the country to which he or she wished to travel . Moreover , it should not be substantially more expensive or result in delay to expel the alien to another country than the CARDINAL specified in the decision . The Government had consulted the relevant and accessible NORP legislation and drawn the conclusion that it was possible for a relative or a spouse of an NORP citizen to be granted a residence permit in GPE . GPE had an embassy in GPE where the applicants should be able to obtain further information and submit an application . It should also be possible for the second applicant to acquire an NORP visa . It appeared that he could then travel to GPE and apply for a residence permit there . This could be an option , as long as the applicants made the travel arrangements themselves .

Furthermore , the Government noted that in order to apply for an NORP visa or residence permit , the second applicant had to have a passport . If the second applicant did not have a passport , he should be able to acquire CARDINAL at an NORP embassy , for example at the embassy in GPE . According to information from the NORP migration authorities , the NORP embassy in GPE normally granted passports to applicants who had a tazkira . As regards the first applicant , she should be able to apply for a passport or other identity documents at the NORP embassy in GPE .

As regards the presence of various organisations in GPE , and in GPE in particular , which provide shelters for women seeking protection , the Government had consulted a number of reports relating to the situation for women in GPE . The reports mentioned , inter alia , a few government - operated centres for victims of trafficking and QUANTITY shelters for women in the LOC area that were run by non - governmental organisations .

In their response , dated DATE , the applicants submitted that it was not a good option , from a humanitarian point of view , to send them to GPE . The first applicant had had a tragic childhood there . Furthermore , both applicants suffered from psychiatric problems and both had been hospitalised in GPE for a considerable time . Their child would be born very soon .

NORP The applicants’ son was born on DATE .

The basic provisions mainly applicable in the present case , concerning the right of aliens to enter and to remain in GPE , are laid down in LAW , as amended on DATE .

Chapter CARDINAL , section CARDINAL , of LAW stipulates than an alien who is considered to be a refugee or otherwise in need of protection is , with certain exceptions , entitled to a residence permit in GPE . According to LAW , section CARDINAL , of LAW , the term “ refugee ” refers to an alien who is outside the country of his or her nationality owing to a well - founded fear of being persecuted on grounds of race , nationality , religious or political beliefs , or on grounds of gender , sexual orientation or other membership of a particular social group and who is unable or , owing to such fear , is unwilling to avail himself or herself of the protection of that country . This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities can not be expected to offer protection against persecution by private individuals . By “ an alien otherwise in need of protection ” is meant , inter alia , a person who has left the country of his or her nationality because of a well - founded fear of being sentenced to death or receiving corporal punishment , or of being subjected to torture or other inhuman or degrading treatment or punishment LAW , section CARDINAL , of LAW ) .

Moreover , if a residence permit can not be granted on the above grounds , such a permit may be issued to an alien if , after an overall assessment of his or her situation , there are such particularly distressing circumstances ( synnerligen ömmande omständigheter ) to allow him or her to remain in GPE ( LAW , section CARDINAL , of LAW ) .

As regards the enforcement of a deportation or expulsion order , account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment . According to a special provision on impediments to enforcement , an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW , of LAW ) . In addition , an alien must not , in principle , be sent to a country where he or she risks persecution ( LAW , section CARDINAL , of LAW ) .

Under certain conditions , an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force . This applies , under LAW , section DATE , of LAW , where new circumstances have emerged that mean there are reasonable grounds for believing , inter alia , that enforcement would put the alien in danger of being subjected to capital or corporal punishment , torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced .

If a residence permit can not be granted under LAW , section DATE , of LAW , ORG may instead decide to re - examine the matter . Such a re - examination shall be carried out where it may be assumed , on the basis of new circumstances invoked by the alien , that there are lasting impediments to enforcement of the nature referred to in LAW , sections CARDINAL and CARDINAL , of LAW , and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so . Should the applicable conditions not have been met , ORG shall decide not to grant a reexamination ( LAW , section DATE , of LAW ) .

Under LAW , matters concerning the right of aliens to enter and remain in GPE are dealt with by CARDINAL instances : ORG , ORG and ORG ( LAW , section CARDINAL , and LAW , section CARDINAL , of LAW ) . However , no appeal lies against a decision by ORG not to grant a residence permit under LAW , section DATE , of LAW ( LAW of LAW , a contrario ) .


Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

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

Mr Larke ( application no . CARDINAL/CARDINAL ) , was born in DATE and lives in GPE . Having spent DATE working in GPE and paying ORG contributions , he is in receipt of a GPE retirement pension . This pension is not up - rated in line with GPE inflation ( see PERSON and Others v. GPE [ ORG ] , no . CARDINAL , DATE ) .

PERSON ( application no . CARDINAL/CARDINAL ) , was born in DATE and lives in GPE . He has received a GPE retirement pension since DATE . It is fixed at GBP CARDINAL per week and is not up - rated in line with GPE inflation .

PERSON wrote to the then ORG in DATE , asking them to index - link his DATE Retirement Pension in line with inflation . This was refused on DATE by the Secretary of ORG , on the grounds that before DATE , or since that date , the applicant was not ordinarily resident in GPE . His subsequent appeal was dismissed on DATE .

In a further Appeal Tribunal hearing , the applicant 's appeal was again dismissed and the original decision of the Secretary of ORG confirmed on DATE . The decision of the ORG records that the applicant 's counsel chose expressly not to pursue any point under LAW DATE .

On DATE , the Chairman of ORG refused permission to appeal against the ORG 's decision but recommended that the applicant apply directly to the ORG Commissioner 's office to continue with his application , if he so wished .

On DATE the Commissioner refused permission to appeal . He noted that the Secretary of ORG would have preferred the case to have been adjourned pending the decision of ORG in GPE , but that the applicant had protested strongly against further deferment . In his decision the Commissioner noted that , since the applicant had specifically chosen not to put forward arguments based on LAW before the ORG , he was precluded from raising them in his appeal . However , the Commissioner went on to hold that , even if this were not so , the judgment of PERSON ( CARDINAL DATE ) should be followed . There appear to have been no further proceedings until the applicant bought this current application before the ORG .

PERSON ( application no . CARDINAL/CARDINAL ) , was born in DATE and lives in GPE . He and his wife ( born in DATE ) receive a basic ORG retirement pension which is not up - rated . The applicant states that in DATE he wrote to ORG asking for the pension to be index - linked , but received no reply .

Application no . CARDINAL/CARDINAL was lodged by CARDINAL named members of ORG ) , CARDINAL named members of ORG ( LOC ) , CARDINAL named members of ORG in GPE ( BPiA ) and CARDINAL named members of ORG ) . The applicants are former GPE residents now living in GPE , GPE and GPE . Each receives a basic ORG retirement pension ; some also receive a pension under ORG Earnings - Related Pension Scheme ( SERPS ) . The applicants ' pensions are not up - rated because the applicants are not ordinarily resident in GPE and GPE , GPE and GPE are not countries with which GPE has a bilateral agreement providing for up - rating .

The relevant domestic law and practice are set out in Carson and Others , cited above .