The applicant is a limited liability company whose main field of activity consisted of building and hiring holiday cottages as well as providing accommodation and travel services . It is owned by Mr PERSON and PERSON , who live in GPE .

On DATE the applicant requested ORG ( lääninhallitus , länsstyrelse ) to grant it an exemption permit ( poikkeuslupa , undantagstillstånd ) to erect CARDINAL cabins and CARDINAL sauna building on a piece of land called GPE , situated within ORG in the Repovesi wilderness area in the municipality of GPE . The intended cabins were to be located in an area which was not covered by a shore plan ( rantakaava , strandplan ) adopted in DATE upon Mr PERSON application .

ORG refused the application on DATE , noting , inter alia , that part of the Penttimäki property was located within an area included in the nationwide shore protection programme ( rantojensuojeluohjelma , strandskyddsprogrammet ) , adopted in DATE , and that the intended construction would hamper significantly the implementation of a shore plan and the overall settlement of the area .

The applicant ’s appeal was rejected by ORG ( ympäristöministeriö , miljöministeriet , “ Ministry ” ) on DATE .

Following the applicant ’s further appeal ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) conducted an inspection in situ and held an oral hearing . On DATE it quashed the decisions and remitted the matter to ORG ( FAC ympäristökeskus , PERSON miljöcentral ) , which had succeeded ORG as the competent first - instance body . ORG noted , inter alia , the small - scale nature of the project and found that the intended construction would not hamper significantly the implementation of planning regulations or the overall settlement of the area . The legal conditions for granting the exemption permit had therefore existed .

On DATE ORG nevertheless refused the applicant the exemption permit . It considered that it was not expedient to grant an exemption permit as a national park or a nature conservation area might be established in that area .

Upon the applicant ’s appeal , the ORG granted the exemption permit on DATE . It referred to ORG decision of DATE and observed that the application could not be rejected on the sole ground that no final decision had been made on the establishment of a nature conservation area . Subsequently , on DATE the GPE municipality granted the building permit . The last - mentioned decision acquired legal force on DATE .

On DATE , however , ORG , of its own motion and without hearing the applicant , prohibited any activity which could jeopardise the natural state or landscape of the area . The prohibition on activity ( toimenpidekielto , åtgärdsförbud ) was enforceable immediately and was to remain in force for DATE . ORG noted the building permit which had just been granted to the applicant but recalled the decision on the shore protection programme , according to which the authorities should attempt to preserve the areas designated in the programme - such as PERSON - in their natural and undeveloped state . The undeveloped Repovesi area was exceptionally large and its nature conservation value had been recognised in various national nature inventories .

The applicant did not appeal to ORG .

On DATE , i.e. before the prohibition on activity had expired , ORG initiated expropriation proceedings with a view to acquiring the PERSON area . The area , consisting of CARDINAL hectares belonging to the applicant , was expropriated by the ORG under a decision made by ORG on DATE . On DATE ORG rejected the applicant ’s appeal .

Subsequently , on DATE the compensation proceedings began . On DATE ORG ( lunastustoimikunta , inlösningskommissionen ) decided on the amount of compensation . The decision was upheld by ORG ( maaoikeus , jorddomstolen ) on DATE . It appears that the applicant did not lodge a further appeal . On DATE the compensation awarded was paid to the applicant .


Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Renate Jaeger;Snejana Botoucharova

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE .

The respondent Government were represented by their Agent , Mrs A. ORG , PERSON , of ORG .

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

Until his emigration to GPE in DATE the applicant lived and worked in GPE ( GPE ) . When applying for benefits in GPE the applicant made differing statements as to his employment or working record in GPE . In an application to ORG ( Bundesknappschaft – hereinafter called “ ORG ” ) the applicant submitted that he had been self - employed prior to leaving GPE . Yet in an application for unemployment benefits to ORG the applicant submitted that he had been employed at the material time . In GPE the applicant collected unemployment benefits and temporary allowances ( Übergangsgeld ) . On DATE and CARDINAL DATE he had a heart attack .

On DATE the applicant applied for an invalidity pension to ORG submitting that he had been self - employed in GPE until DATE and had made contributions to the NORP pension scheme during that time . On DATE ORG rejected his request finding that he had not contributed to the pension scheme for a sufficiently long period . On DATE the applicant lodged an objection with ORG . On DATE the Commission for Objections of ORG ( PERSON ) rejected his objection . On DATE the applicant offered to contribute retroactively ( nachentrichten ) to the pension scheme for DATE . In DATE ORG rejected the applicant ’s request .

On DATE the applicant brought an action against ORG in ORG arguing inter alia that he would be entitled to make contributions to the pension scheme retroactively for DATE .

In DATE the court obtained information from ORG relating to the applicant ’s contributions to the NORP pension scheme . According to ORG the applicant had been self - employed and had contributed to the public pension scheme until DATE .

On DATE , following a hearing , ORG rejected the applicant ’s action confirming the findings of ORG . The court noted in addition that the time - limit for contributing retroactively had elapsed .

On DATE the applicant lodged an appeal with ORG . On DATE the court ordered the translation of NORP documents submitted by the applicant . On DATE the court requested the applicant to submit the original NORP documents .

On DATE , CARDINAL DATE , DATE and DATE , CARDINAL DATE and DATE the court held hearings and questioned CARDINAL witnesses altogether .

Following a change of ORG . CARDINAL as of DATE the applicant requested the application of the new legal provisions to his case .

On DATE ORG rejected the applicant ’s appeal . The court acknowledged that he had been invalid since his heart attack on DATE , but confirmed that he had not contributed to the pension scheme for a sufficiently long period . It recalled that according to the provisions of ORG . CARDINAL an insured would have had to contribute to the pension scheme for DATE during DATE preceding the occurrence of invalidity . That period could be extended exceptionally by taking into account previous contributions or periods during which certain benefits had been collected . Although the court took into consideration previous contributions made to the NORP pension system and periods during which the applicant had received unemployment benefits the applicant still did not reach the required minimum number of DATE . A further exceptional extension was rendered impossible because the court found that the applicant had not made contributions in respect of DATE . The court pointed out that according to ORG the applicant had only made contributions until ORG CARDINAL DATE . As regards the applicant ’s own submissions the court found them to be inconsistent , since he had made different statements as to his employment or working record in the past .

Furthermore , the court had grave doubts as to whether the applicant had actually been unemployed in GPE while receiving unemployment benefits since the witnesses questioned had indicated that he had worked illicitly . In addition the applicant had carried a licence to run a bar . However , the court left that question open since the absence of contributions for DATE excluded an invalidity pension in any event . Lastly , the court held that also the application of the new legal provisions of ORG . CARDINAL would not entitle the applicant to invalidity pension . The court refused the applicant leave to appeal on points of law .

The applicant then lodged a complaint against the refusal of leave to appeal on points of law with ORG , inter alia contesting the application of ORG . CARDINAL . The complaint reached ORG on DATE . The applicant was granted an extension of DATE of the time - limit for substantiating his complaint upon his own motion . His submissions reached the court on DATE and on CARDINAL June DATE ORG rejected the applicant ’s complaint as inadmissible stating that he had not sufficiently substantiated his complaints .


The applicants , Mr PERSON and PERSON , are NORP nationals who live in GPE , GPE .

The applicants own a flower stall . On DATE ORG ( PERSON ) ordered them to remove the stall from a public road , where they had located it without the required authorisation . The applicant ’s did not obey and , on DATE , the stall was removed and put into storage .

The applicants have not attempted to recover it .

On DATE the applicants sued the GPE before ORG ( Sąd Rejonowy ) , seeking compensation for their stall , which had allegedly been damaged .

On DATE the court dismissed the claim . It found that the applicants had wrongly sued the Municipality , as the party to the proceedings should have been the ORG Governor ( ORG ) .

On DATE ORG ( PERSON ) upheld the first instance judgment .

Due to the value of the claim , a cassation appeal was not available in this case .

On DATE the ORG PERSON ) issued a building permit in favour of PERSON and GPE , the applicants’ neighbours . They were to build an outhouse .

On DATE the ORG Governor ( ORG ) , upon the applicants’ appeal , upheld the contested decision .

On DATE ORG ( PERSON ) remitted the case .

The Governor upheld his original decision on DATE .

On DATE ORG declared that decision null and void .

On DATE the Governor again upheld his original decision .

It was quashed by ORG on DATE .

On DATE ORG ordered that PERSON and GPE make temporary arrangements to ensure the safety of the neighbouring house .

On DATE the ORG Governor upheld that decision .

The applicants appealed on DATE .

On DATE ORG gave judgment .

On DATE the Mayor of ORG ( PERSON ) ordered that the outhouse be demolished .

On DATE the ORG Governor upheld the first instance decision .

On DATE ORG dismissed GPE ’s and GPE ’s further appeal .

On DATE the Minister of ORG ( Minister PERSON i GPE ) refused the applicants’ GPE application for the annulment of the decisions of DATE and DATE .

On DATE ORG dismissed their appeal .

On DATE the applicants complained to ORG ( ORG ) about the fact that the outhouse had not been demolished .

In reply , the ORG informed them that enforcement proceedings would be initiated .

On DATE the applicants complained about inactivity on the part of ORG to the Mayor of ORG . They maintained that the demolition order of CARDINAL DATE had not been executed .

On DATE the Mayor replied that the applicants’ neighbours had been fined for non - compliance with the order , but the relevant authorities had failed to execute that decision .

On DATE the applicants complained to PERSON ( FAC ) about the inactivity of ORG .

On DATE the ORG ( Powiatowy Inspektor Nadzoru Budowlanego w GPE ) informed the applicants that , since their neighbours had failed to demolish the outhouse , a so - called “ vicarious ” execution ( wykonanie zastępcze ) of the demolition order would be carried out .

On DATE ORG issued a decision ordering the vicarious execution .

On DATE PERSON ( Kujawsko - Pomorski Wojewódzki Inspektor PERSON ) upheld that decision .

On DATE ORG dismissed PERSON ’s and PERSON ’s further appeal .

It appears that the demolition has not been carried out to date .

At the material time section CARDINAL of the PERSON of DATE on ORG ( “ the DATE LAW ) provided that a creditor had a right to lodge a complaint about excessive length of enforcement proceedings with an authority superior to that carrying them out .

On DATE section CARDINAL of the DATE Act was amended . Under LAW CARDINAL of this provision a person whose legal or factual interest is infringed as a result of non - enforcement of the obligation has a right to lodge a complaint about the length of proceedings . Paragraph CARDINAL provides for an appeal if a complaint is dismissed .

On DATE , the Law of CARDINAL DATE on ORG ( “ the DATE LAW ) entered into force .

Under LAW Act ORG was competent to examine complaints against inactivity on the part of an authority obliged to issue an administrative decision or to carry out enforcement proceedings .

Section CARDINAL of the Act provided :

“ When a complaint alleging inactivity on the part of an administrative authority is well - founded , ORG shall oblige that authority to issue a decision , or to perform a specific act , or to confirm , declare , or recognise a right or obligation provided for by law . ”

Pursuant to LAW , the decision of ORG ordering an authority to put an end to its inactivity was legally binding on the authority concerned . If the authority did not comply with the decision , the court could , under section CARDINAL , impose a fine on it and might itself give a ruling on the right or obligation in question .

LAW was repealed and replaced by LAW DATE on ORG ( “ the DATE Act ” ) which entered into force on DATE . LAW of LAW contains provisions analogous to section CARDINAL of LAW . It provides that administrative courts examine complaints about inactivity on the part of authorities obliged to issue an administrative decision or to carry out enforcement proceedings . Under section CARDINAL , if a complaint is well - founded , an administrative court shall oblige the authority concerned to issue a decision , to perform a specific act , or to confirm , declare , or recognise a right or obligation provided for by law .


Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (United States of America)

David Thór Björgvinsson;George Nicolaou;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

NORP The applicant was born in DATE and is currently detained in ORG .

The applicant has been indicted in GPE as a co - conspirator in respect of a conspiracy to establish a jihad training camp in GPE , GPE .

On DATE the applicant was arrested in GPE on the basis of an arrest warrant issued under LAW of LAW DATE following a request for his provisional arrest by GPE .

NORP The Senior District Judge gave his decision in the applicant ’s case on DATE . He concluded that none of the bars to extradition applied and sent the case to the Secretary of ORG for his decision as to whether the applicant should be extradited .

On DATE the Secretary of ORG ordered his extradition . The applicant appealed to ORG on the ground that his extradition would not be compatible with LAW because he could be detained in a maximum security facility such as ORG and subject to special administrative measures , including solitary confinement .

The applicant ’s appeal was heard together with that of PERSON PERSON PERSON . In its judgment of DATE ORG rejected the appeals . ORG found that , according to the case - law of this ORG , solitary confinement did not in itself constitute inhuman or degrading treatment . Applying that approach , the evidence before it – which included an affidavit from ORG official outlining the operation of special administrative measures – did not “ begin to establish a concrete case under LAW ” .

The applicant and Mr PERSON applied for permission to appeal to ORG . This was refused by ORG on DATE .

On DATE the applicant was transferred to ORG from ORG because he met the criteria for detention under GPE mental health legislation .

On DATE the First - Tier Tribunal ( Health , Education and ORG Mental Health considered the applicant ’s case and concluded , having considered the evidence from the applicant ’s clinical care team , that he was suffering from paranoid schizophrenia which made it appropriate for him to continue to be liable to detention in a medical hospital for his own health and safety .

NORP In his statement to the Tribunal , PERSON , a ORG , indicated that :

“ [ The applicant ’s ] insight into his illness is limited and if returned to prison he would be exposed to significant stress given the conditions of his detention , the uncertainty of his case and his potential extradition and lengthy incarceration in conditions of solitary confinement . His compliance with medication would be uncertain , particularly in the medium to long term . These factors would be likely to lead to a relapse with deterioration in his mental health and the risk of a consequent deterioration in his physical health due to poor fluid and food intake . I am therefore of the opinion that his mental disorder is of a nature that requires his detention in hospital for medical treatment and that such treatment is necessary for his own health and safety . I do not believe that there is sufficient evidence available to justify his detention on the grounds of his risk to others . ”

Dr PERSON , a Consultant Forensic Psychiatrist , indicated in a report dated DATE , that :

“ Mr PERSON suffers from an enduring mental disorder , namely paranoid schizophrenia , which has been characterised by auditory hallucinations , thought disorder , delusions of reference , grandeur and guarded and suspicious behaviour . Mr PERSON ’s condition is currently well controlled on amilsulpride ( anti - psychotic medication ) . However , he has only partial insight into his illness and he would be likely to relapse if he ceased taking his medication .

Mr PERSON has undertaken psychological work to enhance his understanding of his mental illness and he is able to recognise the need for professional support to manage this . In view of the lack of convictions for violent offences , PERSON has not undertaken any offence - related work whilst at ORG , as the decision of ORG was awaited . Mr PERSON engages in occupational and vocational activities within the hospital and these , along with his attendance at the Mosque , have helped to prevent any significant deterioration in his mood . ”

On DATE ORG indicated that upon his arrival in GPE , the applicant would have a full opportunity to argue that he lacked mental capacity to stand trial there . If he did so , the trial judge would have to assess his competency before the trial could proceed . In doing so , he would rely on the reports of medical professionals and on the applicant ’s full medical records , including DATE presumably DATE those relating to his transfer to ORG .

A competency evaluation could be appealed to ORG for ORG . ORG would need to affirm the district court ’s competency determination before the trial could proceed .

Prior to and pending trial the applicant would not be housed in ADX GPE as this institution did not house inmates who were unsentenced and pending trial .

If the applicant were to stand trial and be convicted of an offence , then following sentencing ORG would be responsible for deciding which institution he should be housed in . Medical , psychological and psychiatric concerns would be considered by the designation team before a determination of housing could be made . If a hearing was warranted , it would be open to the applicant to present evidence and make oral statements as to why he should not be designated to ORG in light of his mental health .

With regard to the system and standard of mental health care available within the institutions , ORG indicated that :

“ Mental health services range from inpatient psychiatric treatment , to residential treatment programs , to outpatient psychological and psychiatric services . As in the community , the vast majority of mental health care in the ORG is provided on an outpatient basis at the local institution level by ORG working in collaboration with either a full - time or consultant psychiatrist .

Mental health services in the ORG are delivered by psychiatrists and doctorallevel psychologists . This hiring standard ensures mental health providers in the ORG have a minimum of DATE of graduate level , supervised training in the treatment of mental illnesses .

ORG facilities are equipped to manage mentally ill inmates , including those with schizophrenia , as each institution employs doctoral - level psychologists and has access to psychiatric services . Many inmates with mental illnesses , including schizophrenia , are managed successfully in mainline institutions through the treatments of choice which include medication , clinical case management , and cognitive - behavioural interventions . While a diagnosis of schizophrenia would not preclude a designation to a maximum security facility , most inmates with this diagnosis are managed and treated in other facilities . Conditions of confinement are largely determined by security needs and would be modified based on mental illness only if the inmate ’s mental status warranted such a change ( e.g. , if his mental status deteriorated ) .

The ORG provides a structured living environment for inmates with significant staff oversight . This environment allows for prompt identification of mental health concerns , provides immediate access to mental health professionals , and facilitates compliance with mental health treatment . All inmates confined in the ORG are evaluated by Health Services’ staff within TIME of arrival . At that time , their medication regimens are reviewed and continued , as appropriate . Thus , any mental health medications the inmate may be taking would be noted and continued as appropriate , upon admission . Additionally , an inmate ’s mental health status is evaluated to determine whether there is any imminent risk of self - harm or suicide and whether he or she is stable and appropriate for placement in the designated setting . If Health Services’ staff has any concerns at the time of admission , a doctoral level psychologist will be called to consult .

In all cases , regardless of the outcome of the initial evaluation performed by Health DATE staff , all new designees are seen within DATE for evaluation by a doctoral level psychologist . This evaluation focuses on collecting a mental health history , as well as identifying any current symptoms and determining treatment needs . All inmates are classified based on their mental health treatment needs to ensure appropriate placement , treatment , and follow - up services to be provided .

Psychologists are a visible presence in the institution – in the cafeteria , on the compound , and in the housing units . In addition , a psychologist is on - call TIME a day , DATE a week , with a prompt response to the institution in the event of a mental health crisis . All inmates have direct access to psychological services from doctoral level psychologists . Ordinarily , these services include : crisis intervention , ongoing clinical case management of mental illnesses , brief counselling focused on a specific issue or problem , individual psychotherapy , and psycho - educational and/or therapeutic groups . Inmates may access these services through self - referral or may be referred by institution staff . In addition , all inmates who need psychotropic medication are seen regularly by a psychiatrist .

On occasion , despite best efforts to work with mentally ill inmates at the local institution level , more intensive mental health services are required . In these cases , an acutely mentally ill inmate is typically referred to one of ORG for acute psychiatric care . Under ORG policy , acute psychiatric care is defined as care , including but not limited to , crisis intervention for inmates who are persistently suicidal , homicidal , or unable to function in the institution without creating a dangerous situation due to their mental illness . These inpatient services are generally brief , with the goal of returning the inmate to a level of functioning that would allow him or her to return to the designated institution .

Alternatively , seriously , but not acutely , mentally ill inmates may be placed in CARDINAL of the ORG ’s residential mental health treatment programs , which provide longterm , intensive mental health care . The ORG is committed to providing highquality , evidence - based residential treatment programs to all inmates in need of these services . The BOP ’s Psychology Treatment Programs ( PTPs ) are designed using the most recent research- and evidence - based practices . These practices lead to a reduction in inmate misconduct , mental illness and behavioural disorders ; substance abuse , relapse , and recidivism ; and criminal activity . These practices also lead to an increase in the level of the inmate ’s stake in societal norms and in standardized community transition treatment programs . Transition treatment increases the likelihood of treatment success and increases the public ’s health and safety . Inmates are referred to these programs based on need and appropriateness of the program to the inmate ’s security level .

Decisions concerning the appropriateness of transfer to a ORG are based on the best judgment of the treating clinicians ( i.e. , psychologist , staff psychiatrist , or consulting psychiatrist ) and are typically dependent upon such factors as the severity of the mental illness , the specific characteristics and resources of the institution , and relevant patient variables . Inmates who are disruptive to the orderly running of the institution , but who are not mentally ill , are not generally appropriate referrals to a ORG .

In the case of schizophrenia , the treatment of choice is medication , clinical case management , and cognitive behavioural interventions , with inpatient admissions only as necessary to manage brief psychiatric emergencies , should they arise . The ORG attempts to manage and treat the mental illnesses of all offenders in the least restrictive environment appropriate to their mental health and security needs . Therefore , an inmate ’s security level would only be adjusted due to schizophrenia should behavioural issues or a psychiatric emergency warrant such an adjustment . The ORG currently incarcerates many inmates diagnosed with schizophrenia , the majority of whom is managed and treated successfully in general population settings . ”

The Department of ORG further indicated that if the applicant were to be detained in ORG , his detention would be subject to CARDINAL types of review : classification , program review , and a progress report . ORG described these reviews as follows :

“ ORG refer to the procedure whereby an inmate ’s case is formally reviewed by ORG . These meetings are generally referred to as " team " and the inmate is present . Team meetings are intended to give staff and inmates the opportunity to discuss issues in an open format . This is the inmate ’s opportunity for individual attention and he or she should be encouraged to ask questions and discuss concerns .

Classification is the initial team meeting whereby a careful review of the case and inmate ’s history are discussed and relevant programs are recommended . The purpose of the meeting is to define clearly for the inmate : ( CARDINAL ) sentence information , including financial obligations ; ( CARDINAL ) educational programs ; ( CARDINAL ) security / custody levels ; ( CARDINAL ) release plans ; and ( CARDINAL ) work assignments . These programs reflect the needs of the inmate and are stated in measurable terms . Generally , initial classification occurs within DATE of an inmate ’s arrival at his designated institution .

Subsequent team meetings are referred to as Program Reviews . These meetings are held at least once DATE ( DATE for inmates with DATE remaining to serve ) and are conducted to monitor and evaluate the inmate ’s progress in all program areas . Program participation is discussed in relation to the schedule developed at initial classification . New and/or revised goals are developed as necessary . A progress report is the principal document used by ORG to evaluate the behaviour and activities of inmates . The progress report is a detailed , comprehensive account of an inmate ’s case history , prepared by the Case Manager at prescribed intervals during the inmate ’s confinement . Generally , the Case Manager composes the progress report with input from other unit staff , work detail supervisors , and education instructors . The progress report reflects the inmate ’s past status , assesses his current status , and offers an indication of anticipated accomplishments . This could include the inmate ’s continued participation in a program ; and what he plans to do at the completion of the program , or if he plans to use what he has learned upon his release . Information is also provided on the inmate ’s relationship with others ( both staff and inmates ) , particularly with respect to attitude , punctuality , etc . A progress report is required , at a minimum , once DATE . At the ORG , the inmates are provided with a copy of the most current progress report . Upon request , an inmate may read and receive a copy of any progress report retained in the inmate ’s central file .

An ORG inmate ’s status is also reviewed under ORG FLM CARDINAL.CARDINAL(CARDINAL ) , General Population and Step - ORG . In addition , Mr. PERSON would have access to ORG , which is set forth in Program Statement CARDINAL , Administrative Remedy Program , and , as with any inmate of the ORG , he would be able to seek review of any issue relating to their confinement before GPE . All of these procedures have been described in detail before and are not repeated here . ”

The ORG further indicated that if designated to ORG ORG the applicant ’s mental condition would be subject to regular review . Inmates designated to ORG underwent a psychological intake evaluation upon arrival and could , at that time , be referred to the mental health chronic care clinic , which is an outpatient clinic with services provided by a psychiatrist . Such an inmate would be seen at least DATE by the psychiatrist , but could request to be seen more frequently . In addition , he or she could receive psychological services DATE , DATE or DATE ( inpatient ) based upon their classification , and more frequently should a crisis situation arise .

NORP In PERSON v. the GPE the ORG found that if convicted the applicant would face a maximum penalty of DATE imprisonment . None of the counts imposed a mandatory minimum sentence .

For a general summary of the relevant domestic and international law and practice regarding extradition , detention at ORG , solitary confinement and sentences , see the ORG ’s judgment in PERSON and Others v. the GPE , nos . CARDINAL , CARDINAL , ORG , CARDINAL and CARDINAL , § § DATE , DATE .

In PERSON the Court began by re - affirming its statement in PERSON v. GPE , DATE , § CARDINAL , Reports of Judgments and Decisions DATE that there was no room under LAW for any balancing of the risk of ill - treatment on return against the danger that an applicant posed in ORG . Moreover , it found that this conclusion applied equally to extradition and to all other types of removal from the territory of a ORG and should apply without distinction between the various forms of ill - treatment prescribed by LAW DATE ) . However , the ORG underlined that the absolute nature of Article CARDINAL did not mean that any form of ill - treatment would act as a bar to removal from a ORG ; on the contrary , treatment which might violate LAW act or omission of a ORG might not attain the minimum level of severity required for there to be a violation of LAW in an expulsion or extradition case ( § MONEY ) .

With regard to the facts of the case , the ORG accepted that there was a real risk that the first , third , fifth and sixth applicants would be detained at ORG if convicted and the ORG proceeded on that basis . It found that the physical conditions there – that is , the size of the cells , the availability of lighting and appropriate sanitary facilities and so on DATE met the requirements of LAW ) . Moreover , the ORG did not accept that the applicants would be detained at ORG simply on account of their conviction for terrorism offences . Instead , it was clear to ORG that ORG would apply accessible and rational criteria , and placement was accompanied by a high degree of involvement of senior officials within the ORG who were external to the inmate ’s current institution . Both this fact and the requirement that a hearing be held prior to transfer provided an appropriate measure of procedural protection . Even if the transfer process were unsatisfactory , there would be recourse to the GPE ’s administrative remedy programme and the federal courts to cure any defects in the process ( LAW ) .

NORP Moreover , the ORG further held that if the applicants were convicted the United States’ authorities would be justified in considering them to pose a significant security risk and strictly limiting their ability to communicate with the outside world . In any case , the ORG found that while the regime in ORG and ORG at ORG were highly restrictive and aimed to prevent all physical contact between an inmate and others , that did not mean that inmates were kept in complete sensory isolation or total social isolation . Although confined to their cells for much of the time , a great deal of in - cell stimulation was provided through television and radio , newspapers , books , crafts and educational programming . Inmates were also permitted regular telephone calls and social visits and even those under special administrative measures were permitted to correspond with their families . Furthermore , the ORG found that applicants could talk to each other through the ventilation system and during recreation periods they could communicate without impediment . In any case , the ORG observed that the figures showed that there would be a real possibility for the applicants to gain entry to step down or special security unit programs . Consequently , the ORG concluded that the isolation experienced by ORG inmates was partial and relative ( § § DATE ) .

With regard to sentencing the ORG held that an extradition would only violate LAW if the applicant faced a grossly disproportionate sentence in the receiving ORG . However , it would only be in very exceptional circumstances that the applicant would be able to demonstrate that a sentence faced in a non - ORG would be grossly disproportionate ( § CARDINAL ) . In this regard , the ORG noted that an LAW issue would only arise in respect of a mandatory life sentence without parole and a discretionary life sentence when it could be shown that the applicant ’s imprisonment could no longer be justified on any legitimate penological grounds and that the sentence was irreducible de facto and de jure ( § CARDINAL ) .

Finally , the ORG considered the position of persons with mental health problems . It noted that insofar as the ORG complaints concerned the conditions of pre - trial detention , those complaints were manifestly ill - founded because it had not been suggested that prior to extradition GPE authorities would not inform their ORG counterparts of the applicants’ mental health conditions or that , upon extradition , the United States’ authorities would fail to provide appropriate psychiatric care to them . The ORG also noted that it had not been argued that psychiatric care in the United States’ federal prisons was substantially different to that available at ORG . Moreover , there was no reason to believe that the United States’ authorities would ignore any changes in the applicants’ conditions or refuse to alter the conditions of their detention to alleviate any risk to them . ORG further found that no separate issue arose with regard to post - trial detention ( § CARDINAL ) .


Elisabeth Steiner;Guido Raimondi;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

NORP The applicant , Mr PERSON , stateless , was born in DATE and resides at present in GPE . He is represented by PERSON , a lawyer practising in GPE .

ORG were represented by their Agent , Ambassador PERSON , Head of ORG at ORG . ORG were represented by their Agent , Ms. PERSON , and their co - agent , Ms. PERSON .

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

The applicant entered GPE on DATE , where his fingerprints were taken firstly at the PERSON in GPE . It was noted that the applicant was born in GPE in DATE and that he had entered ORG illegally . He was then transferred to the “ PERSON ” ORG Isola di PERSON , where his fingerprints were taken again on CARDINAL DATE and where he was registered as an asylum seeker .

On DATE ORG for ORG decided that the applicant was not entitled to the status of a recognised refugee , but that he met the requirements to obtain protection on humanitarian grounds . Thereupon , the applicant was granted leave to remain on humanitarian grounds and a travel document , both valid until DATE . According to the records of the authorities , the applicant left the reception centre of his own volition after he had collected his papers .

It seems that the applicant then left for GPE . On DATE GPE was requested by GPE to take the applicant back under LAW § CARDINAL c of ORG ( ORG ) No CARDINAL/CARDINAL ( “ FAC ” , hereinafter “ LAW ” ) . GPE accepted jurisdiction , and on DATE the applicant was transferred to GPE .

From CARDINAL DATE until DATE , the applicant was an inmate in a facility of the “ ORG per Richiedenti NORP e Rifugiati ” ( Protection System for Asylum Seekers and Refugees , hereinafter “ ORG ” ) , which he left voluntarily . According to the files , the applicant was staying on DATE at a residence belonging to ORG in GPE .

On DATE the PERSON in GPE granted the applicant leave to remain on the basis of subsidiary protection , which was valid until DATE .

NORP In DATE the applicant came to GPE and was taken into detention with a view to expulsion . On DATE he lodged an asylum claim in GPE . The applicant stated that he did not want to return to GPE , and that he would have been forced to sleep in the streets there and would not have had any access to financial subsistence , housing or food . He had had leave to remain in GPE on humanitarian grounds , but had returned his ORG card to the authorities because he wanted full asylum status . He explained that he was suffering from diabetes , asthma and a dust mite allergy , and had psychological problems .

On DATE ORG ( Bundesasylamt ) rejected the applicant ’s asylum request and declared that GPE had jurisdiction regarding the asylum proceedings pursuant to LAW of LAW . It also ordered that the applicant be transferred to GPE . ORG dismissed the applicant ’s claims that he had severe medical and psychological problems . Referring to country reports on GPE it concluded that the applicant would have access to financial subsistence in GPE and that being sent there would not breach LAW .

The applicant lodged an appeal against that decision . On DATE ORG ( Asylgerichtshof ) awarded suspensive effect to the applicant ’s appeal .

On CARDINAL DATE ORG quashed the decision of ORG and ordered it to complement the country information on GPE in fresh proceedings , to make enquiries about what the applicant ’s residential status in GPE would be if he were returned there , and to establish further facts about the applicant ’s health .

Thereupon , on DATE , ORG contacted ORG in GPE and asked for information on what the applicant ’s residence status would be in GPE and if he would have access to the medication PERSON in GPE . It repeated and detailed its requests for information on DATE , on DATE and on CARDINAL DATE . ORG responded to the NORP authorities that asylum seekers and persons with subsidiary protection had access to subsistence and health support .

On DATE ORG again rejected the applicant ’s asylum request pursuant to ORG and ordered the applicant ’s removal to GPE . Referring to country reports on GPE from DATE , DATE and DATE , it found that the “ ORG ” offered lodgings and other support for CARDINAL asylum seekers for the duration of DATE . There were also CARDINAL places in centres in which asylum seekers were supposed to stay for a maximum of DATE , although there were exceptions for vulnerable persons . Outside those structures , private initiatives and municipalities organised sleeping places and accommodation for asylum seekers . The reports also stated that asylum seekers had access to subsistence and medical support , at least at the preliminary examination stage . However , only after registration of an asylum request would an asylum seeker have a right to accommodation and subsistence . A “ GPE returner ” was requested to present himself before the PERSON for his or her legal status to be identified . Asylum seekers had to initially register with a health unit , after which they had access to medical treatment in public hospitals . However , asylum seekers without an address had difficulty in registering for medical treatment and subsistence . ORG also referred to the fact that the applicant had undergone a psychiatric examination in DATE that showed an “ adjustment disorder ” ( Anpassungsstörung ) . Therapeutic consultations had been recommended . However , the applicant had not taken up the psychiatric treatment offered . It could not be shown that the applicant ’s mental health would worsen . In any event , the applicant would have access to subsistence if returned .

The applicant appealed against that decision . On DATE ORG again awarded suspensive effect to the applicant ’s appeal .

On DATE ORG sent an email to the association ORG informing them of the rejection of the applicant ’s asylum request in the first instance and of the pending guardianship proceedings ( see below , paragraphs CARDINAL ) in view of a possible removal of the applicant to GPE , in which case the association might wish to put in place “ appropriate safeguards ” . It also informed ORG of the pending guardianship proceedings .

On DATE ORG dismissed the applicant ’s appeal as unfounded . It referred to ORG on minimum standards for the qualification and status of third - country nationals or stateless persons as refugees or as persons who otherwise need international protection , and of the content of the protection granted , to the Council Directive CARDINAL of DATE on minimum standards on procedures in Member GPE for granting and withdrawing refugee status , and to the Council Directive CARDINAL/CARDINAL/EC of DATE laying down minimum standards for the reception of asylum seekers , which were all also applicable in respect of GPE , and concluded that GPE had an unobjectionable asylum practice and offered access to accommodation , subsistence and medical treatment for asylum seekers .

With regard to the applicant ’s representative ’s argument , claiming that the deadline for GPE to resume jurisdiction for the applicant ’s asylum proceedings had expired , it found that with the decision of suspensive effect taken on DATE the deadline had not expired , and that GPE had jurisdiction regarding the applicant ’s asylum claim .

ORG further stated that , in contrast to the situation in GPE , there was no recommendation from the ORG High Commissioner for Refugees ( “ the ORG ” ) to refrain from removals to GPE , and that the overall reports did not show a comparable situation for asylum seekers with the one in GPE . With regard to the applicant ’s physical illnesses , it stated that he had access to the NORP health system . It stated that it had ordered ORG to contact the NORP authorities in the event of a transfer , to ensure that the applicant was welcomed in GPE and would receive the necessary medical help .

With regard to the critical report of the association ORG [ a NORP NGO ] from DATE about the situation of refugees in GPE , it alleged that the authors of that report worked in the field of counselling of refugees and had an agenda which favoured a critical approach to GPE as a host state . Furthermore , the situation of boat refugees in the south of GPE was not comparable to that of GPE - returners . With regard to the applicant ’s mental health , ORG stated again that he had access to treatment in GPE , referred to the ORG ’s case - law in that matter , and concluded that removal would not be in breach of LAW .

The Constitutional Court ( Verfassungsgerichtshof ) dismissed the applicant ’s request for legal aid on DATE , and refused to deal with his complaint due to lack of prospects of success .

On DATE the applicant ’s representative applied to ORG ( GPE ) for guardianship proceedings to be initiated in respect of the applicant . He claimed that he had become aware of a severe aggravation of the applicant ’s mental health status during legal counselling , and that there was a risk that the applicant would not be able to pursue his asylum proceedings in his own best interests .

On DATE , and after an initial hearing on CARDINAL DATE , ORG appointed a provisional guardian for the applicant for the course of the guardianship proceedings and for representation in proceedings before authorities and courts , with particular regard to asylum proceedings . On DATE , FAC commissioned a psychiatric report on the applicant , to be submitted to the court within DATE .

On DATE the applicant ’s representative supplied a power of attorney in which the applicant ’s guardian entrusted him to represent the applicant in the proceedings before ORG .

On DATE the ORG appointed a guardian for the applicant ’s representation before authorities and courts . It based its decision on an expert opinion that diagnosed the applicant with a severe psychological impairment whose clinical status display was comparable to florid paranoid schizophrenia . The applicant suffered from a bizarre delusion that absorbed his feeling and thinking . He was very irritable and completely occupied by a delusion that he was being pursued by NORP suffering from Aids . At least in the past the applicant had linked his psychotic status with hallucinations of being tortured and manipulated by spirits . The applicant was further the victim of hallucinations of a lioness as Satan .

On DATE ORG , at the applicant ’s request , ordered ORG to reopen the applicant ’s proceedings . It referred at length to the psychiatric expert opinion obtained in the guardianship proceedings , which had further established that the applicant ’s psychotic symptoms had started in DATE or DATE and that the applicant claimed to have been suffering from psychological problems since DATE . The expert had also stated that as regards the applicant ’s fitness to be questioned his answers would be coloured by his psychotic status and that thus , he was not fit to be questioned , especially in the context of guardianship proceedings , asylum proceedings and his personal situation . Overall , the guardianship proceedings had shown that the applicant was not able to take care of his own affairs without the risk of suffering a disadvantage .

ORG concluded that in the former proceedings it had wrongly acted on the assumption that the applicant was legally capable ( prozeßfähig ) to follow the proceedings adequately . ORG , again in the former proceedings , would have needed to either appoint a guardian for the applicant or to stay the proceedings until the guardianship proceedings before ORG had been concluded . It was not doubted that the applicant ’s psychological disorder was already manifest at the time of ORG decision of CARDINAL DATE , which was why the proceedings had had to be reopened . It stated further that because of the necessary further investigations and further interviews , ORG itself could not rule on the asylum request , possible subsidiary protection and a possible expulsion order . Therefore , the proceedings had to be continued by ORG .

The reopened asylum proceedings in GPE are still pending .

On DATE the ORG applied the interim measure under Rule CARDINAL and requested ORG to stay the applicant ’s expulsion to GPE until further notice .

The relevant NORP and NORP law , instruments , principles and practice have only recently been exhaustively summarised , in PERSON v. the GPE and GPE ( dec . ) , no . CARDINAL , § § CARDINAL and CARDINAL , DATE . In the following , only information that is particularly relevant for the present case will be repeated .

Under the ORG , the member GPE must determine , on the basis of a hierarchy of objective criteria ( Articles CARDINAL to CARDINAL ) , which member ORG bears responsibility for examining an asylum application lodged on their territory . The aim is to avoid multiple applications and to guarantee that each asylum seeker ’s case is dealt with by a single member ORG .

Where it is established that an asylum seeker has irregularly crossed the border into a member ORG , having come from a third country , the member ORG thus entered is responsible for examining the application for asylum ( Article CARDINAL § CARDINAL ) . This responsibility ceases DATE after the date on which the irregular border crossing took place .

Where the criteria in the regulation indicate that another member ORG is responsible , that ORG is requested to take charge of the asylum seeker and examine the application for asylum ( LAW ) .

By way of derogation from the general rule , each member ORG may examine an application for asylum lodged with it by a third - country national , even if such an examination is not its responsibility under the criteria laid down in the Regulation ( Article CARDINAL § CARDINAL ) . This is called the “ sovereignty ” clause . In such cases the ORG concerned becomes the member ORG responsible and assumes the obligations associated with that responsibility .

Section CARDINAL of LAW DATE ( Asylgesetz ) provides that an asylum application shall be rejected as inadmissible if , under treaty provisions or pursuant to LAW , another ORG has jurisdiction to examine the application for asylum . When rendering a decision rejecting an application , the authority shall specify which ORG has jurisdiction in the matter .

Section CARDINAL establishes de facto protection against deportation ( faktischer PERSON ) for aliens who have lodged an application for asylum . However , section CARDINALa provides that a person whose asylum application has been rejected pursuant to lack of jurisdiction under LAW ( section CARDINAL of LAW ) is not entitled to such de - facto protection against deportation in the event that he or she lodges a second asylum application .

Again , reference is taken to the extensive description of the NORP asylum procedure and domestic law in PERSON , cited above , § § CARDINAL - CARDINAL .

In particular it is noted ( see ibid . , § DATE ) that ORG for ORG can :

- grant asylum by recognising the petitioner as a refugee within the meaning of the DATE LAW relating to ORG ;

- not recognise the petitioner as a refugee but grant subsidiary protection under the terms of LAW DATE , on minimum standards for the qualification and status of third - country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted ( “ the LAW ” ) as implemented by LAW ( decreto legislativo ) no . CARDINAL/CARDINAL ;

- not grant asylum or subsidiary protection but grant leave to remain for compelling humanitarian reasons under the terms of LAW ( decreto legge ) nos . CARDINAL/CARDINAL and GPE ; or

- not grant the petitioner any form of protection .

A person granted subsidiary protection will be given leave to remain with a validity of DATE , which can be renewed by ORG that granted it . This leave can further be converted into a residence permit for the purposes of work in GPE , provided this is requested before the expiry of the validity of the leave to remain , and provided the person concerned holds an identity document . Leave to remain granted for subsidiary protection entitles the person concerned , inter alia , to an NORP travel document , to work , to family reunion and to benefit from the general schemes for social assistance , health care , social housing and education under NORP domestic law .

A person granted leave to remain for compelling humanitarian reasons will be provided with a residence permit with a validity of DATE which can be converted into a residence permit for the purposes of work in GPE , provided the person concerned holds a passport . Leave to remain granted on humanitarian grounds entitles the person concerned to work , to health care and , if he or she has no passport , to an NORP travel document ( see ibid . , § § DATE ) .

The reception scheme and the reception conditions in GPE are summarised again in PERSON , cited above , § § DATE .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE .

The applicant is a practising lawyer and a member of the political party called the NORP ( ORG der DATE hereafter referred to as ORG ) . As the party is generally considered to be populist and right - wing , it has been under scrutiny by the offices for the protection of LAW ( PERSON ) in various GPE ( Länder ) . In the general elections in DATE PERSON won PERCENT of the votes . The party has not been declared unconstitutional by ORG pursuant to LAW .

The applicant held the position of lieutenant on the reserve list ( ORG ) and was called up for service in the NORP army ( GPE ) in a tank battalion ( ORG ) on DATE . By order of ORG , ORG ( ORG ) revoked the applicant ’s call - up order ( Einberufung ) on DATE . An objection by the applicant was dismissed on DATE by ORG ( Wehrbereichsverwaltung ) . It reasoned that the revocation of the call - up order released the applicant from an obligation and therefore constituted an administrative act which resulted in a benefit ( begünstigender PERSON ) . Moreover , the revocation did not mean that the applicant was generally excluded from all future military exercises , but that he would no longer be considered for regular reserve trainings . The applicant would however keep his rank as a reserve officer . Because of incidents that had occurred against an extremist background , which had remained few but were taken seriously , the NORP army currently used its discretion regarding call - ups ( Einberufungsermessen ) in such way that it would only choose command personnel ( PERSON ) for army reserve trainings ( ORG ) who were not only free from any suspicion of supporting anti - constitutional movements , but were also expected to take immediate action against such movements . Even though it could not be presumed that every member of PERSON opposed the free democratic order , the DATE report of ORG ( PERSON ) had concluded that certain groups and wings within the party did so .

On DATE ORG dismissed an action brought by the applicant , finding that the revocation was permissible under LAW ) . It considered the revocation to be an administrative act which resulted in a disadvantage ( belastender PERSON ) as the applicant considered the revocation discriminatory . ORG further held that ORG had not overstepped its discretion when asserting that the NORP army , as an institution which relied heavily on security , expected its personnel not only to step in to protect the free democratic order but also to take immediate action against anti - democratic activities . ORG conclusion that the applicant did not fulfil those requirements was not subject to legal challenge . Even though the applicant had never given cause for complaint while serving in the NORP army , the authorities had acted reasonably in basing their decisions on the fact that , since offences attributable to right - wing elements had been committed in the NORP army attracting publicity and severely harming the army ’s reputation , reserve officers who had a right - wing background would no longer be chosen for army reserve training in order to prevent further offences .

On DATE ORG dismissed an appeal by the applicant on points of law . It found that the revocation had been lawfully based on LAW in conjunction with section CARDINAL of LAW which provided that a soldier must recognise the free democratic order within the meaning of LAW and act at all times in such a way as to uphold it . The NORP army was not prevented from taking into account the applicant ’s membership of ORG when deciding upon his status as a reserve officer despite the fact that ORG had not itself declared the party unconstitutional pursuant to LAW . ORG referred to ORG settled case - law in that connection . Until ORG declared a political party unconstitutional pursuant to LAW , a party and its members and functionaries could not be hampered in their political activities . While that provision would therefore protect a reserve officer ’s political activities for his party independently of his military status , it could not prevent the NORP army from drawing consequences from his membership of that party for his status in the army . Moreover , the above decisions had not violated the applicant ’s fundamental rights . The NORP army was conceived as an army in a democratic ORG . It could only serve its purpose if its integrity as a part of the democratic order was beyond doubt . Consequently , it could not allow this order to be undermined by its soldiers or tolerate any criminal offences with an extremist background . LAW provided that every soldier had to defend the free democratic order . It was therefore compatible with LAW for a reserve officer to have his call - up order revoked on grounds of his party membership provided that there were sufficient reasons to believe that the party ’s loyalty to LAW was in doubt . The Federal Administrative Court stated that such reasons were made out if a party was under scrutiny by the offices for the protection of LAW . However , both the authorities and the administrative courts had to satisfy themselves that such reasons really existed . As the respective decisions in the present case had referred to the DATE report of ORG , this had been the case . As the NORP army enjoyed a certain margin of appreciation with regard to decisions concerning its human resources , it was sufficient to establish an initial suspicion ( GPE ) that the party was disloyal to LAW .

On DATE ORG declined to consider a constitutional complaint lodged by the applicant . It reasoned that the assertion that the applicant ’s membership of ORG precluded him from being called up for service in the GPE army could not be challenged from a constitutional point of view . ORG took note of the fact that ORG had had regard to the DATE report of ORG which had stated concerns about some of the party ORG loyalty to the LAW . At the same time several criminal offences with a right - wing extremist background which had been committed by members of the NORP army had attracted widespread publicity and had considerably damaged the NORP army ’s reputation . ORG found these considerations reasonable and not extraneous . It had therefore not been necessary to determine whether or not the applicant himself was attracted to right - wing ideas or had participated in anti - constitutional activities .

The relevant provision of LAW is worded as follows:-

“ CARDINAL . Parties which , through their aims or the conduct of their members , seek to damage or to overthrow the free democratic constitutional system or to endanger the existence of GPE shall be held to be anti - constitutional . The ORG shall determine the question of anti - constitutionality . ”

The relevant provisions of LAW ( Verwaltungsverfahrensgesetz ) read as follows:-

“ CARDINAL . A lawful , non - beneficial administrative act may , even after it has become non - appealable , be revoked wholly or in part with effect for the future , except when an administrative act of like content would have to be issued or when revocation is not permissible for other reasons .

A lawful , beneficial administrative act may , even when it has become non - appealable , be revoked wholly or in part with effect for the future only when : ...

the authority would be entitled , as a result of a subsequent change in circumstances , not to issue the administrative act and if failure to revoke it would be contrary to the public interest . ... ”

The relevant provisions of LAW ( Soldatengesetz ) read as GPE

“ Soldiers shall be appointed and employed on the basis of their suitability , qualification and capabilities regardless of sex , origin , race , religious or political beliefs or relationships . ”

“ A soldier must recognise the free democratic order within the meaning of LAW and must act at all times in such a way as to uphold it . ”