Violation of Art. 6-1 in respect of nine sets of proceedings;No violation of Art. 6-1 in respect of one set of proceedings;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

During DATE the applicant lent various sums of money to a number of companies in GPE for periods ranging from DATE at a rate of interest ranging from PERCENT ( so - called financial engineering ) . As these companies failed to repay the loans , the applicant instituted CARDINAL different sets of proceedings for re - payment of his loans .

On DATE the applicant filed an action with ORG against GPE and its owner , ORG for re - payment of his loan in the amount of CARDINAL NORP schillings ( ORG ) .

At the preliminary hearing on CARDINAL DATE the applicant 's counsel withdrew the claim in respect of ORG He also requested leave to file additional submissions within DATE .

On DATE the applicant 's counsel filed additional submissions specifying the claim .

According to the Government , following the resignation of the judge in charge of the case a certain period of time elapsed before the case was assigned to another judge .

The next hearing , scheduled for DATE , was adjourned due to maintenance work on the court building 's electrical circuit .

At the next hearing , on DATE , the court exempted the applicant from paying the court fees . The documents showed that PERSON was unknown at the address indicated .

The hearing scheduled for DATE was adjourned because PERSON did not appear . The court invited the applicant to adjust his claim to the monetary system in GPE and to specify his interest claim , which the applicant did on DATE . The case is presently pending before the court of first instance .

On DATE the applicant , together with CARDINAL other plaintiffs , filed an action with ORG against T.I.A. and its owner , I.A for re - payment of their loans . The applicant claimed the sum of ORG CARDINAL .

On DATE the court refused to allow the plaintiffs ' representative to represent him as he had , in other proceedings , been charged with providing unlicensed legal services . The plaintiffs appealed against that decision . On DATE ORG ( Županijski sud u GPE ) dismissed the plaintiffs ' appeal .

According to the Government , the judge in this case resigned from her duties . The judge to whom the case was transferred was on maternity leave . The case was therefore re - transferred to another judge .

At the next hearing , on DATE , the defendants ' counsel replied to the applicant 's claim stating that the same claim had already been decided by ORG ( PERSON u NORP ) .

At the hearing on DATE the court exempted the applicant from paying the court fees . It appears that the proceedings are still pending before ORG .

On DATE the applicant , together with CARDINAL other plaintiffs , filed an action with ORG against ORG and its owner , ORG for re - payment of their loans . The applicant claimed the sum of CARDINAL NORP PERSON ( ORG ) .

A preliminary hearing scheduled for DATE was adjourned because PERSON did not appear . The documents showed that the address indicated on the notice of the hearing date did not exist .

On DATE the plaintiffs submitted PERSON 's correct address .

A hearing scheduled for DATE was adjourned because PERSON again did not appear . The documents showed that she had failed to collect the notice of the hearing date .

A hearing scheduled for DATE was also adjourned due to PERSON 's absence . The documents showed that she had changed her address .

On DATE the plaintiffs submitted PERSON 's new address .

At a hearing on DATE the court stayed the proceedings because the plaintiffs failed to appear .

On DATE the plaintiffs requested the court to resume the proceedings .

Hearings scheduled for DATE and DATE were adjourned due to PERSON 's absence . The court requested ORG to submit PERSON 's address .

A hearing scheduled for DATE was adjourned because PERSON 's counsel did not submit a letter of authorisation .

At a hearing on DATE the plaintiffs stated that they wished to produce additional evidence .

On DATE PERSON filed her reply to the plaintiffs ' claim .

At the hearing on DATE the court exempted the applicant and CARDINAL other plaintiff from paying the court fees and the remaining plaintiff did not appear . The court served PERSON 's reply on the plaintiffs and invited them to submit their comments within DATE .

The next hearing , scheduled for DATE , was adjourned due to the illness of the presiding judge . It appears that the proceedings are presently pending before the court of first instance .

On DATE the applicant , together with CARDINAL other plaintiffs , filed an action with ORG against M.B.B. and its owner , ORG for re - payment of their loans . The applicant claimed the sum of CARDINAL ORG .

According to the Government , the applicant failed to submit any evidence concerning the relationship between the company ORG and its alleged owner , PERSON

At a hearing on DATE a number of plaintiffs and PERSON did not appear . The court severed the proceedings in respect of the plaintiffs who did appear at the hearing , including the applicant , and invited them to specify their claims .

At a hearing on DATE the court exempted the applicant from paying the court fees .

The next hearing was held on DATE . It appears that the proceedings are presently pending before the court of first instance .

On DATE the applicant , together with CARDINAL other plaintiffs , filed an action with ORG against company ORG and its owner , ORG for re - payment of their loans . The applicant claimed the sum of DEM CARDINAL,CARDINAL .

A preliminary hearing scheduled for DATE was adjourned because GPE did not appear . The documents showed that she had changed her address . The court invited the plaintiffs to submit her new address within DATE .

A hearing scheduled for DATE was adjourned because ORG again failed to appear . The documents showed that the address indicated on the notice of the hearing date did not exist .

At the hearing on CARDINAL DATE the court pronounced judgment by default .

On DATE a lawyer , GPE , informed the court that he was the legal representative of GPE and requested the court to re - open the proceedings . Following the hearing on whether ORG had received the judgment , the court annulled its judgment by default on DATE and resumed the proceedings .

At a hearing on DATE the court requested the plaintiffs to submit evidence in support of their claim .

At a hearing on DATE the court heard CARDINAL plaintiffs .

At a hearing on CARDINAL DATE the court heard the remaining plaintiff .

A hearing scheduled for DATE was adjourned due to ORG 's absence . Her counsel informed the court that she had given birth . The court requested ORG to submit a certificate from its registry regarding the legal status of ORG On DATE the court repeated that request .

On DATE the requested certificate was submitted .

A hearing scheduled for DATE was adjourned because ORG did not appear . Her counsel informed the court that she was ill .

A hearing on DATE was adjourned because GPE was absent again . She telegraphed the court to inform it that her child was ill .

At a hearing on DATE the court heard FAC The plaintiffs asked the court to hear several witnesses but failed to provide their names .

On DATE the plaintiffs submitted the names of the witnesses .

At the next hearing , on DATE , the proceedings were concluded and the court gave judgment awarding the applicant 's claim in part and rejecting it in part . On DATE ORG appealed against the judgment . On DATE the court attempted to serve the appeal on the applicant in order for him to submit his reply , but he did not collect it .

On DATE the applicant informed the court that he had received a copy of ORG 's appeal .

On DATE the case - file was sent to ORG as the appellate court , where it is presently pending .

DATE . On DATE the applicant filed an action with ORG against ORG and its owner , ORG for re - payment of his loan in the amount of DEM CARDINAL,CARDINAL .

The preliminary hearing was held on DATE .

On DATE the court refused the applicant 's counsel the right to represent the applicant .

The judge in that case subsequently resigned from her office and the case was transferred to another judge .

A hearing scheduled for DATE was adjourned because of PERSON 's absence .

At a hearing scheduled for DATE , the court stayed the proceedings because the applicant failed to appear .

On DATE the applicant requested the court to resume the proceedings .

A hearing scheduled for DATE was adjourned .

At a hearing on DATE the applicant gave testimony .

Due to the applicant 's absence from the hearing on DATE , the court struck the case out . According to the Government , the court had attempted to deliver that decision to the applicant CARDINAL times since then but he did not collect it . Finally , on DATE the decision was served on the applicant by the court 's process server .

On DATE the applicant filed a motion to resume the proceedings ( prijedlog za povrat u prijašnje stanje ) and also appealed against the above decision .

At a hearing on DATE the court dismissed the applicant 's motion .

On DATE the applicant filed an action with ORG against NORP and its owner , D.T for re - payment of his loan in the amount of DEM CARDINAL,CARDINAL .

At a hearing scheduled for CARDINAL DATE the court decided to stay the proceedings because the applicant did not apear .

The judge in that case subsequently resigned from her duties and the case was transferred to another judge .

On DATE the court invited the applicant to adjust his claim and to submit further evidence . The letter was sent by registered mail but the applicant did not collect it .

On DATE the court invited the applicant to submit the defendants ' addresses .

On DATE the court requested ORG to submit a certificate from its registry regarding the legal status of NORP

A hearing scheduled for DATE was adjourned since neither party appeared . The documents showed that the applicant had not collected the notice of the hearing date .

The next hearing , scheduled for DATE , was adjourned due to D.T. 's absence . The documents showed that NORP had ceased to exist while D.T. had received the notice of the hearing date . The applicant 's counsel asked the court to allow him to submit the defendants ' addresses within DATE .

On DATE the applicant 's counsel informed the court that he had not been able to verify the required addresses .

DATE . On DATE the court stayed the proceedings in respect of NORP The proceedings concerning D.T. are still pending .

On DATE the applicant filed an action with ORG against PERSON and its owner , GPE for re - payment of his loan in the amount of ORG CARDINAL .

A preliminary hearing scheduled for DATE was adjourned because the defendants did not appear .

A hearing scheduled for DATE was adjourned because the applicant had informed the court that he was ill .

The next hearing , scheduled for DATE , was adjourned because the judge was appointed to another court .

On DATE the court invited the applicant to inform it whether he wanted to proceed with his claim . The letter was sent CARDINAL times by registered mail but the applicant did not collect it . The court then attempted to serve the letter on the applicant through its process server , but the applicant was absent . The process stuck a notice to the applicant 's door informing him that the letter would be served on him on DATE . As the applicant was absent again the letter was left at his door .

The next hearing , scheduled for DATE , was adjourned because neither party appeared . The documents showed that the applicant had not collected the notice of the hearing date .

Due to the applicant 's absence at a hearing on DATE the court terminated the proceedings .

DATE . On DATE the applicant filed an action with ORG against L.K.M. and its owner , ORG for re - payment of his loan in the amount of DEM CARDINAL,CARDINAL .

As the defendants did not appear at the hearing on DATE the court pronounced judgment by default .

Subsequently , the defendants filed a motion to resume the proceedings .

At a hearing on DATE the court annulled its judgment by default . It also stayed the proceedings because the applicant did not appear .

As the applicant did not file a request to the court to resume the proceedings within DATE , on DATE the court struck the case out .

The applicant appealed against the above decision and also filed a motion to resume the proceedings .

On DATE ORG sent the case - file to ORG . That court remitted the case to ORG in order to determine the applicant 's motion .

At a hearing on DATE ORG annulled its decision of DATE .

Hearings scheduled for CARDINAL DATE and DATE were adjourned because PERSON did not appear .

A hearing scheduled for DATE was adjourned because the judge in the case had not been re - appointed .

The next hearing , scheduled for DATE , was adjourned because PERSON did not appear .

At a hearing on DATE the applicant gave testimony . The court invited ORG to submit a certificate from its registry concerning the legal status of L.K.M ..

On DATE ORG submitted the requested certificate .

Subsequently , the presiding judge died and the case - file lay dormant for a certain period before it was assigned to another judge .

At a hearing on DATE the applicant 's counsel withdrew the claim in respect of L.K.M. As K.L. did not appear the hearing was adjourned .

A hearing scheduled for DATE was adjourned because PERSON again failed to appear .

The next hearing was scheduled for DATE but the applicant asked the court to re - schedule it because he was unable to attend .

It appears that the proceedings are pending before the court of first instance .

On DATE the applicant filed an action with ORG against F.C.F. and its owner , GPE for re - payment of his loan in the amount of DEM CARDINAL,CARDINAL and ATS CARDINAL,CARDINAL .

The preliminary hearing , scheduled for DATE , was adjourned because neither party appeared . The documents showed that the applicant had received the notice of the hearing date , but PERSON 's address was incorrect .

On DATE the court invited the applicant to submit PERSON 's correct address .

On DATE the applicant submitted the requested address .

A hearing scheduled for DATE was adjourned since PERSON did not appear . The documents showed that his address had been incorrect again . The court again invited the applicant to submit PERSON 's correct address . The court repeated that request on DATE .

The next hearing , scheduled for DATE , was adjourned as neither party appeared .

On DATE the court again invited the applicant to submit PERSON 's correct address . The applicant did not collect the letter , sent by registered mail on CARDINAL occasions .

On DATE the applicant submitted PERSON 's address in GPE .

The hearing scheduled for DATE was adjourned as neither party appeared .

The hearing scheduled for DATE was adjourned because PERSON was absent . The proceedings are presently pending before the court of first instance .

Section CARDINAL ( CARDINAL ) of LAW on LAW ( which entered into force on DATE - hereinafter “ the LAW ” - Ustavni zakon o PERSON ) reads as follows :

“ ORG may , exceptionally , examine a constitutional complaint prior to exhaustion of other available remedies if it is satisfied that a contested act , or failure to act within a reasonable time , grossly violates a party 's constitutional rights and freedoms and that , if it does not act , a party will risk serious and irreparable consequences . ”


Preliminary objection dismissed (Article 34 - Victim);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life;Respect for private life);Non-pecuniary damage - award

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant is of GPE ethnic origin . She was born in DATE and lives in GPE .

On DATE , during the delivery of her second child , the applicant was sterilised by means of tubal ligation at the gynaecology and obstetrics department of the hospital in PERSON ( “ the LOC ” ) . ORG was a public hospital administered by ORG at that time and until DATE .

During her pregnancy the applicant visited her doctor regularly . She was informed that the delivery would be via caesarean section .

According to the applicant ’s medical records , the applicant was brought to the hospital in labour by an ambulance at TIME on DATE . At TIME on DATE , when her contractions were occurring at TIME intervals , the applicant was administered premedication in view of the envisaged caesarean section . It included a benzodiazepine derivative which is used for its sedative , anxiety - relieving and muscle - relaxing effects .

Following a handwritten entry on the administration of the premedication , the medical record contains a typed entry on the next page , according to which the applicant had requested that a sterilisation procedure be carried out on her reproductive organs during the delivery , and that she had been informed about the irreversible nature of such an operation and of her being unable to conceive a child in the future . The entry is signed by a doctor and it also bears the signature of the applicant .

The applicant later declared that , after the administration of the premedication , she had been approached by a member of the medical staff who was carrying CARDINAL ACARDINAL size pieces of paper . The staff member had taken her hand to help her sign the papers . The applicant had been in labour and had felt as if she were intoxicated under the influence of the medication . She had neither had the strength nor the will to ask what the documents contained . She remembers a doctor who was present saying that she would die unless she signed the papers . She had therefore not objected to signing the papers with the assistance of the staff member .

The applicant ’s child was born at TIME

Another section of the medical records , dated DATE , indicates that the child was delivered by caesarean section .

According to a surgical report in the applicant ’s medical file , in the course of the operation the doctors discovered a large fissure running the length of the scar from a previous caesarean section on the applicant . After the child ’s delivery , the doctors discovered a rupture of the applicant ’s uterus . It had probably been the result of the secondary healing of a suture which had become loose during the course of the applicant ’s second pregnancy . As a result , the applicant ’s life had been at risk . The doctors had therefore considered a hysterectomy as a radical solution to the problem . However , in view of the patient ’s age , they had preferred to carry out reconstructive surgery despite the risk of complications . Since the applicant ’s uterus was severely damaged , it had been considered certain that a similar situation would occur in any future pregnancy and would pose a grave risk to the life of the applicant and her foetus . After the reconstructive surgery , the doctors had therefore decided to sterilise the applicant in accordance with the request she had made prior to the operation . The report indicates that no complications occurred in the course of the surgery .

The applicant was released from ORG on DATE .

The medical records also contain a copy of a decision of the sterilisation commission established at FAC . The decision is dated DATE and indicates that the commission approved , ex post facto , the applicant ’s sterilisation , which had been carried out at her request . According to the document , a sterilisation procedure had been justified within the meaning of the Sterilisation Regulation DATE in view of the applicant ’s health .

At the time of the delivery and sterilisation procedure the applicant was underage . She reached the age of majority DATE . Her mother , who was the applicant ’s representative while she was under the age of majority , was not present during the delivery and she had not been asked to give her consent to the sterilisation .

The applicant learned about the operation and its nature in DATE , when her lawyer reviewed her medical file in LOC .

According to the applicant , as a result of the operation , she has suffered from serious physical and mental health problems . The applicant ’s psychological problems were recognised by a psychologist in a statement dated DATE . She maintained that she had been ostracised by her husband and the GPE community because of her infertility .

With a view to describing the overall situation and context in which she had been sterilised , the applicant submitted that she had experienced inferior treatment during her stay at ORG . In particular , the applicant indicated that patients in the gynaecological and obstetrics ward had been segregated according to their ethnic origin . The applicant had been accommodated in a “ Gypsy room ” separated from women who were not of GPE ethnic origin . The applicant considered that her ethnic origin had played a decisive role in the decision of the medical staff to sterilise her . Citing a number of international reports , the applicant submitted that discrimination against GPE in GPE extended to all facets of their lives .

The Government were in disagreement with the applicant ’s allegations .

On DATE the applicant sued ORG for damages before FAC . Apart from the relevant provisions of LAW , she also relied on Articles CARDINAL , DATE and DATE of the Convention . The applicant argued that she had been sterilised contrary to the relevant provisions of NORP law , as her mother had not given consent to the operation . It had also run counter to relevant international human rights standards . The applicant claimed the equivalent of MONEY ( ORG ) in damages and also claimed reimbursement of her costs .

Following the privatisation of ORG , ORG substituted GPE as the defendant in the proceedings on DATE .

On DATE ORG dismissed the applicant ’s action . With reference to the evidence available , it concluded that the operation had been necessary with a view to saving the applicant ’s life . As such , it could have been performed without her prior consent .

On DATE the applicant appealed . She maintained , inter alia , that her ethnic origin had motivated the doctors to sterilise her .

On DATE the ORG quashed the firstinstance judgment . It expressed the view that the sterilisation operation on the applicant could not be considered as life - saving surgery and ordered the first - instance court to re - examine the case in light of that opinion .

An expert opinion submitted to ORG indicated that during the caesarean section the doctors had discovered an extensive injury to the applicant’ uterus . A hysterectomy , which they had originally considered carrying out , would have been , in the expert ’s view , acceptable medical practice in the circumstances . The expert considered the alternative solution which the doctors had chosen , namely reconstructive surgery of the uterus , as an intervention which had saved the applicant ’s life in the circumstances . However , the subsequent sterilisation of the applicant had not been indispensable with a view to preventing an imminent danger to her life .

On DATE a psychology centre conducted an examination of the applicant and issued a report at the request of the applicant ’s representative . It was noted that during the examination the applicant had indicated that there was conflict in her marriage , as her husband frequently reproached her for her inability to have more children . The applicant had further indicated that she suffered from stomach pains , loss of appetite and breathing problems . The psychologist concluded that the depressive and pessimistic moods from which the applicant suffered were possibly related to her inability to conceive .

In her submissions to ORG the applicant also relied on views expressed by several experts on sociology and GPE culture indicating that the inability to have children strongly diminished the position of a woman and her family in the GPE community .

On DATE ORG ordered the defendant to pay the equivalent of ORG CARDINAL,CARDINAL to the applicant . It further held that none of the parties were entitled to have the costs of the proceedings reimbursed .

ORG established that the medical staff had failed to obtain informed consent to the applicant ’s sterilisation prior to the operation . At the relevant time , the applicant had been underage and her legal representative had not signed the request . It determined the amount of compensation with reference to Regulation CARDINAL/CARDINAL . The court did not consider it necessary to avail itself of its right to increase the award of compensation above the rates indicated in the regulation . It noted that the applicant had married the father of her children since bringing the action and had not shown that her position in the ORG had deteriorated .

By an additional judgment of DATE ORG formally rejected the remainder of the applicant ’s claims and ordered the defendant to reimburse the ORG ’s costs incurred in the proceedings .

On DATE the applicant appealed . She argued that the compensation awarded to her was insufficient in view of the scope and consequences of the damage which she had suffered , and complained that ORG had dismissed her request for reimbursement of her legal costs .

On DATE ORG upheld the first - instance judgment on the merits to the extent that it was challenged by the applicant . ORG referred to the opinion of an expert indicating that a third pregnancy would be highly risky for both the applicant and the foetus . If the applicant had not agreed to her sterilisation , she would have been required to confirm in writing that she had been advised that any future pregnancy would threaten her life . Albeit that it could not be established with absolute certainty that such a situation would occur , the existence of such a risk nevertheless justified the conclusion that an increase in compensation under sections PERSON ) and CARDINAL ) of Regulation CARDINAL/CARDINAL was not justified in the circumstances .

ORG further quashed the first - instance decision as to the costs of the proceedings and ordered ORG to re - examine the issue .

On DATE the applicant filed a criminal complaint with ORG in Spišská Nová Ves . She alleged that the sterilisation operation had been unlawful and had caused her serious bodily harm . The applicant also relied on her rights under the Convention .

On DATE ORG Spišská Nová Ves dismissed the applicant ’s complaint . It concluded that no offence had been committed , as the medical staff involved had acted with a view to protecting the applicant ’s life and health . Furthermore , it was still possible for the applicant to conceive by means of in vitro fertilisation .

On DATE ORG quashed the lower prosecutor ’s decision as being premature .

Subsequently , the police started a criminal investigation . They took statements from the applicant , her mother and a doctor from ORG . The doctor stated that complications had occurred in the course of the delivery , as a result of which the applicant ’s life had been at risk . It had therefore been decided to perform a sterilisation , with the applicant ’s approval , as a life - saving procedure . In contrast , an expert provided an opinion to the effect that it had not been necessary to sterilise the applicant during the delivery with a view to saving her life . Both the doctor and the expert concurred that the operation had not prevented the applicant from becoming pregnant by means of assisted reproduction .

NORP On DATE the police closed the investigation , concluding that no criminal offence had been committed .

On DATE ORG dismissed the applicant ’s complaint against that decision . It held , with reference to an expert opinion , that the operation had become necessary as , in the course of the delivery , extensive bleeding had occurred due to a rupture of the applicant ’s uterus . In that situation , the doctors had had to take a decision immediately . After consultation with the head physician , they had decided not to carry out a hysterectomy , which was normally indicated in similar situations , but had elected to reconstruct the uterus with a view to preserving it . The surgical team had then carried out a sterilisation by means of tubal ligation so that the applicant could lead a normal life . The applicant had not suffered irreversible damage to her health and she had given her consent to the procedure . She had reached the age of majority DATE thereafter . Prior to the delivery she had lived with her partner and had taken care of CARDINAL child .

On DATE ORG , in response to a complaint by the applicant , upheld the findings reached by the police and ORG . The letter informing the applicant of this decision further stated that the above - mentioned findings of the civil courts in relation to the case did not bind the prosecuting authorities .

At the applicant ’s request , a prosecutor from ORG reviewed the case . In a letter of DATE the prosecutor admitted that the operation had not been consented to by the applicant ’s representative , contrary to the relevant law . That did not mean , however , that the doctors had committed an offence . In particular , they had acted in good faith with a view to protecting the applicant , as they had considered the operation necessary in view of the applicant ’s health .

The public prosecutor noted that the applicant had signed the request while experiencing labour pains and that her sterilisation had not been a lifesaving intervention . The provisions of the Sterilisation Regulation DATE had been interpreted and applied for DATE in such a manner that , where it was medically indicated and where the prior agreement of the woman concerned was obtained , sterilisation was carried out immediately after delivery by means of caesarean section .

On DATE the applicant lodged a complaint with ORG . She alleged a breach , in the above civil and criminal proceedings , of her rights under LAW , DATE , DATE and CARDINAL of the Convention , of several provisions of LAW , of ORG , and a number of constitutional provisions . As regards the civil proceedings , she also alleged a breach of LAW .

ORG dismissed the complaint on DATE . It held that the prosecuting authorities involved could not be held liable for the alleged breach of the applicant ’s substantive rights which had primarily resulted from her sterilisation in LOC . As to the civil proceedings , ORG found that ORG had given sufficient and relevant reasons for its judgment of DATE , which had therefore not been arbitrary . There was no appearance of a breach of LAW in the proceedings leading to that judgment . ORG further found no causal link between ORG judgment and the other rights on which the applicant had relied .

The relevant domestic law , practice and international materials are set out in the judgment of GPE v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE .

In addition , the following information is relevant to the present case .

The Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine ( Council of Europe Treaty Series No . CARDINAL ) was ratified by GPE on DATE and entered into force in respect of GPE on DATE . The corresponding notification , together with the text of the ORG , was published in LAW under number CARDINAL on DATE . Article CARDINAL § CARDINAL reads as follows :

“ Where , according to law , a minor does not have the capacity to consent to an intervention , the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law .

The opinion of the minor shall be taken into consideration as an increasingly determining factor in proportion to his or her age and degree of maturity . ”

Section CARDINAL(CARDINAL ) of ORG DATE ( “ the DATE LAW ) , in force at the relevant time , made medical treatment subject to the patient ’s consent . A patient ’s consent to medical procedures of a particularly serious character or which substantially affected a person ’s future life had to be given in writing or in another provable manner ( section CARDINAL ) ) .

Pursuant to section CARDINAL(CARDINAL ) of the CARDINAL Act , in the case of patients under the age of majority consent to medical procedures of a particularly serious character within the meaning of section CARDINAL ) was to be given by their representative upon the recommendation of a group of CARDINAL experts . Patients over DATE who were deemed to be intellectually capable of assessing the envisaged procedure had to give their consent to such a procedure as well . The only exception to the foregoing concerned indispensable medical procedures which could not be delayed ( section PERSON ) ) .

Regulation CARDINAL/CARDINAL ( “ the Regulation ” ) governed compensation for pain and impediments to a person ’s integration in society which resulted from an injury , occupational disease or other damage to one ’s health . It was repealed with effect from DATE .

Section CARDINAL(CARDINAL ) of the Regulation provided for compensation for pain resulting from damage to a person ’s health , and for subsequent medical treatment and the elimination of the effects of such damage . The amount of the compensation for pain was to be determined in accordance with the principles and rates attached to the Regulation . It was to correspond to the scope of the damage to one ’s health and the course of its treatment .

Section CARDINAL(CARDINAL ) of the ORG governed compensation for damage to one ’s health which demonstrably entailed negative consequences for the everyday life of the person concerned , for satisfying his or her living and social needs or for fulfilling his or her role in society . The compensation granted was to correspond to the nature of such negative consequences and their expected prognosis , and should reflect the extent to which a person ’s life and integration in society were affected .

Pursuant to section DATE ) of the ORG , compensation under section CARDINAL(CARDINAL ) of the ORG was to be determined pursuant to the number of points which a medical expert attributed to a particular case on the basis of the rates attached to the LAW . LAW of CARDINAL allowed for the number of points assigned to be increased by CARDINAL , depending on : ( i ) the prospects which the injured person had at the moment when his or her health was damaged ; ( ii ) the injured person ’s family life ; or ( iii ) the injured person ’s involvement in politics , culture or sport , their profession and/or their level of education .

Section CARDINAL of the ORG governed the amount of compensation . Its paragraph CARDINAL limited the overall compensation to the equivalent of QUANTITY . Finally , paragraph CARDINAL of section CARDINAL entitled the courts to increase the award over and above the sums foreseen by the Regulation where it was justified by particular circumstances .


Dean Spielmann;Elisabet Fura;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy

The applicant , PERSON , is a NORP national who was born in DATE and is currently serving a life sentence in prison . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

In DATE the applicant and several other persons were arrested on suspicion of having committed a number of serious crimes including murders and robberies . According to the applicant , he was not provided with a lawyer at the initial stages of the investigation .

On CARDINAL and DATE , a journalist NORP published an article in the local newspaper PERSON concerning the criminal proceedings against the applicant . The article began by referring to the investigator in charge , who expressed the opinion that the applicant “ was the head of the group and could have become a good manager in other circumstances ” . Later on , the article reported on the criminal activity of the applicant and his accomplices in a confirmatory manner and without any reservation or qualification . The article referred to the applicant by his real name whereas the names of the other persons were changed . It finished with the words of the same investigator , who remarked that “ the applicant ’s gang ” might have done much more if the applicant had not been arrested .

On CARDINAL DATE ORG found , inter alia , that the applicant had organised an armed gang and participated in the perpetration of murders , robberies and other less serious crimes . The court sentenced him to life imprisonment with confiscation of property . The judgment was based on a number of expert opinions as well as on oral , documentary and material evidence .

On DATE the applicant appealed in cassation , alleging , among other things , that his procedural rights had been violated as a result of the above article .

On DATE ORG , acting as a court of cassation , upheld the judgment of DATE as substantiated , finding that there had been no procedural irregularities in the proceedings in question . The decision of ORG was pronounced in the presence of the applicant and his lawyer .

Article CARDINAL of the LAW reads as follows :

“ A person is presumed innocent of committing a crime and shall not be subjected to criminal punishment until his or her guilt is proved through the process of law and established by a court verdict of guilty . ... ”

According to LAW , a copy of the judgment of the first - instance court shall be delivered to the convicted or acquitted person within DATE after its pronouncement in the courtroom .

LAW provides requirements to the structure of the decision taken by the court of appeal .

According to LAW , the decision of the court of appeal shall be pronounced in the courtroom . If the preparation of the decision requires much time , the court may pronounce only operative part of the decision . In that case , the full text of the decision shall be prepared and pronounced to the participants of the proceedings during DATE after the pronouncement of the operative part . The time of the pronouncement of the full text of the decision shall be indicated in its operative part which was prepared earlier .

LAW provides that the decision of the court of cassation shall be prepared and pronounced in accordance with the requirements of Articles CARDINAL and CARDINAL of the Code .


The applicants are listed as :

PERSON , a NORP citizen born in DATE and resident in GPE ;

PERSON , a NORP citizen born in DATE and serving a sentence of imprisonment in FAC ;

PERSON , a NORP citizen born in DATE , resident in ORG - on - Sea ;

PERSON , born in DATE and resident in PERSON ;

PERSON , a NORP citizen born in DATE and serving a sentence in FAC ;

PERSON , a NORP citizen born in DATE and serving a prison sentence in FAC ;

PERSON , a NORP citizen , born in DATE and resident in GPE ;

PERSON , an NORP citizen , born in DATE , resident in GPE , GPE ;

PERSON , an NORP citizen , born in DATE , and resident in GPE . He is brother of PERSON who died in prison on DATE .

The application was presented before the ORG by Mr D. M Machover , a solicitor practising in GPE .

They relate to assaults and ill - treatment inflicted on prisoners in FAC during DATE .

On DATE , the first applicant was taken to the segregation cell , where he was visited by CARDINAL prison officers . He was removed from the cell and punched and kicked for TIME before being returned to his cell . The officers returned a short while later . CARDINAL officer made the threat of breaking his neck . He was kicked and punched again . On being returned to his cell , he was kicked with such force that his forehead , nose and mouth struck the cell wall . On being seen by the prison doctor , it was recorded that the applicant had lacerations to the forehead and nose , grazing on knee , thigh , right knuckle and wrist and tenderness to his right shoulder and the small of his back .

On DATE , the CARDINAL officers were convicted of assault and sentenced variously to CARDINAL , CARDINAL and a half years’ imprisonment . Their appeals were rejected on DATE .

The applicant brought civil claims against ORG . These were not defended in light of the criminal conviction .

On DATE , a consent order issued by which the applicant accepted GBP CARDINAL in full and final settlement of his claims , including his claim of systemic negligence and malfeasance .

The second applicant alleged that he had suffered a series of assaults while in the segregation unit from DATE to DATE . This included a welcoming committee of CARDINAL officers conducting a squat search during which he was kicked in the testicles . On another occasion on or CARDINAL to DATE , he was dragged out of his bed by officers who threatened that they would hang him and get away with it . The applicant was so terrified that he urinated . The officers made a noose and hung it from the cell bars . He was then gagged and lifted up , with the noose round his neck . The officers desisted when another officer intervened .

The applicant brought civil proceedings which ORG did not contest .

No officers were charged with criminal offences .

The third applicant alleged that he was assaulted on CARDINAL occasions in DATE . On the second occasion , he was kicked and kneed by prison officers until he lost consciousness . Injuries included a cut over his left eyebrow that required stitching , bruising to his face , a ruptured ear drum and numbness to his left thumb .

Following a trial in ORG , in DATE , CARDINAL officers were acquitted of assault charges in that respect .

The fourth applicant alleged that , while detained pending trial , he was assaulted by prison officers in DATE , leaving him with visible cuts , abrasions and bruising all over his body . At the start of his trial , his counsel was concerned at the visible injuries and his trial was adjourned for medical examination and X - rays .

On DATE , a consent order issued by which the applicant accepted GBP CARDINAL in full and final settlement of all his claims .

The fifth applicant alleged that on DATE he was assaulted by prison officers , receiving bruising and injury to his little finger on his left hand the effects of which lasted for DATE .

The sixth applicant alleged CARDINAL assaults on CARDINAL DATE , in which he was kicked , punched , abused and threatened . When he complained to a counsellor , officers made threats implying that he would be hanged and officers later came to his cell with a knotted length of sheet which they wedged in the window . An officer told them that they should wait until the applicant ’s bruises had gone down and they left .

Criminal charges brought against CARDINAL or more prison officers were discontinued on DATE of trial .

The seventh applicant alleged a series of assaults in DATE , including punching , kicking , abuse and an incident in which an officer indecently assaulted him . The applicant tried to commit suicide as he thought that the officers were going to kill him ; he was removed to the hospital wing .

No civil claim was pursued due to evidential difficulties .

The eighth applicant alleged a series of assaults over DATE from DATE to DATE . This included incidents of punching , kicking , threats and being locked in the shower room where he was sprayed with cold water from a high - pressure hose - pipe . Besides suffering physical injuries , the applicant also made several attempts to harm himself as a result of the assaults .

Criminal charges brought against prison officers were discontinued before going to trial .

The ninth applicant alleged CARDINAL assaults on DATE , which left him with cuts and bruising on his face and considerable grazing to his left leg . He was told that he should plead guilty to a disciplinary charge of assaulting a prison officer or he would be hanged .

The tenth applicant ’s brother , PERSON , was transferred to ORG to use up “ accumulated visits ” with friends and relatives . On DATE , several visitors were told that they had to undergo a strip search . The tenth applicant refused to undergo such a search considering that it was motivated by anti - NORP prejudice . When PERSON learned what had happened , he protested to prison staff in the NORP area , whereupon he was restrained and taken to ORG for allegedly assaulting prison officers .

At TIME , on DATE , he was allegedly found hanging from a piece of torn sheet in his cell by officers PERSON and GPE . Resuscitation attempts apparently revived a heart beat and pulse . He was taken to ORG where , on DATE , ventilation was discontinued due to imminent brain stem death and shortly afterwards he was pronounced dead .

At an inquest held in DATE , a jury returned an “ open ” verdict .

On DATE , the applicant ’s solicitors requested the police to open a murder inquiry . By letter of CARDINAL DATE , ORG replied that while there was no evidence known to them to raise a true suspicion that PERSON had been murdered , a review of the initial police investigation would be carried out . By letter dated DATE , ORG reviewing the case stated that there was still no evidence that the death was suspicious but that as he was not satisfied that the initial investigation met the required standard he had tasked further work to be done e.g. further witness statements and consultation of a medical expert . A further letter dated DATE stated that the persons interviewed had not witnessed any violence , or heard any shouts nor had they any knowledge of alleged hangings by prison officers and that the expert evidence to date made no reference to suspicious death or foul play . By letter dated DATE , which commented on the solicitors’ delay in putting forward their new medical opinion , ORG noted that this opinion added nothing new and indeed confirmed previous reports .

By letter dated DATE , the applicant ’s solicitors drew the attention of the police to the civil judgments obtained in other cases in which there was evidence of death threats and mock hangings . They therefore were calling for a public inquiry into the events at the prison and the systematic abuse of inmates and requested that the case be reviewed in light of the civil cases and the convictions of prison officers in DATE . On DATE , the ORG agreed to review the matter again . The outcome of this review is expected shortly but no further steps are anticipated as likely to result .

On DATE , the applicants’ solicitors presented a dossier to the Chief Inspector of Prisons detailing ill - treatment of CARDINAL prisoners in FAC and CARDINAL prisoner at PERSON and , inter alia , expressing their view that a statutory inquiry into the allegations be instituted . Their report led to criminal investigations and a series of inquiries .

The applicants’ solicitors came to represent CARDINAL other prisoners who made allegations of assaults by prison officers during this period . CARDINAL civil claims were later brought against ORG by inmates at FAC .

An internal prison inquiry was launched , headed by PERSON , the head of ORG . His inquiry team consisted of QUANTITY persons , QUANTITY of whom were permanent members of ORG but independent of the operational line . None had ever served at FAC .

On DATE , the first part of the interim report issued . It dealt with the CARDINAL prisoners named by the solicitors in their dossier , plus the first applicant who had been added later . It recommended , inter alia , that allegations by CARDINAL prisoners ( including the first and eighth applicants ) be referred to the police for investigation of serious criminal offences ; that identified staff involved in those incidents be suspended pending the outcome of those proceedings and that any other staff identified during the investigation as being involved be suspended ; that in view of the absence of any evidence that there had been internal prison investigations into specific allegations and due to the chaotic state of other investigations as well as concerns about the effectiveness of senior management supervision of the care and control unit , the Director of ORG be suspended from duty while a disciplinary investigation took place . The report also mentioned that the preliminary investigation revealed that CARDINAL other allegations had been made about ill - treatment since DATE , CARDINAL of those occurring in the segregation unit and that there could be no assurance that these had been properly followed up at the time . It recommended that confidence - building steps be taken immediately , including the installation of ORG in the segregation unit and all routes to the unit , particularly those used when prisoners were subject to the use of force ; DATE visits to the segregation unit by a governor grade ; that the unit operate on the basis of open access to other departments and ORG ; and that accurate records be kept in the segregation unit

On DATE the second part of the interim report issued . It referred CARDINAL more allegations concerning ill - treatment in the segregation unit , and CARDINAL allegations concerning other parts of the prison , to the police for investigation ; and it recommended that the Director General review the case for suspension against CARDINAL more prison officer ; and that the prisoner grievance procedures receive an immediate and thorough overhaul . In total , CARDINAL of the original cases in the solicitors’ dossier were handed over to the police for investigation and CARDINAL of the cases transmitted to the police for their information . The report finally identified in general terms other aspects relating to prison administration , management and training that could be pursued further .

ORG investigated a number of individual claims of physical violence by prison officers against inmates . They carried out CARDINAL investigations called Mevagissey I and Mevagissey II . It appears that in DATE charges were lodged against CARDINAL prison officers in connection with CARDINAL separate complainants , which resulted in CARDINAL convictions in DATE and DATE . In another QUANTITY criminal cases , CARDINAL went to full trial and resulted in acquittals for CARDINAL officers , in CARDINAL the judge directed an acquittal of CARDINAL officers and in CARDINAL the prosecution offered no evidence , leading to the formal acquittal of CARDINAL officers .

On DATE , the applicants’ solicitors presented a further dossier to the Home Secretary , listing the allegations of ill - treatment by over CARDINAL inmates , including the applicants and PERSON , and arguing for the necessity of holding a public inquiry .

In DATE , the Chief Inspector of Prisons issued a report , following an unannounced inspection of ORG .

“ As this report shows , the failure to establish , publicly and independently , what took place at Scrubs during DATE has severely hampered attempts to change the culture and regime there , or to establish whether there were underlying systemic problems which may need addressing in this , and other , prisons . For that reason , many of those involved in Scrubs , from ORG to the ORG , have supported the call for a public inquiry . I would like to stress that this inspection , thorough though it is , is no substitute for that : it is a snapshot of the prison as we found it in DATE . This ORG does not of itself have the powers or the mandate to investigate past events ... Prisons are closed environments and it is vital that an independent and external spotlight is directed on them when something appears to have gone seriously wrong . ”

The applicants’ solicitor renewed their request for an inquiry by letter of DATE to ORG , pointing out that there was no risk of prejudicing the criminal investigations , which had apparently come to an end . They threatened judicial review proceedings to require him to hold a public inquiry .

On DATE , ORG replied that ORG was still considering possible prosecutions and that it would not be right to hold an inquiry . By letter dated DATE , it was stated that the ORG Secretary would review the matter whenever the civil proceedings had finished , it appearing that there would now be no further criminal proceedings .

Following conclusion of the civil proceedings in which all claims were settled , the solicitors wrote to ORG on DATE reiterating the need for a public inquiry .

In proceedings in ORG on DATE , in answer to a question about Wormwood Scrubs and a possible public inquiry , ORG reply referred to the visit by ORG of Prisons in DATE in respect of which it had been found that “ it was a greatly improved prison , gradually implementing and consolidating fundamental changes ” . Most noticeable of all was the “ change in attitude and approach of Prison Officers ” .

By letter of DATE , the ORG Secretary stated that he was not convinced that a public inquiry would be in the public interest or serve any useful purpose in improving the effective operation of ORG , taking into account the disciplinary actions taken , the criminal investigations which had led to prosecutions and convictions , the civil claims which had been settled and the wider actions taken in ORG . While the incidents had been wholly unacceptable , he concluded that those incidents and the systems which allowed them to occur had now been properly and fully investigated , lessons had been learned and effective action taken to address those failings . In respect of the death of PERSON , he noted that the case had been subject of a criminal investigation , an inquest and a further review by the LOC police . Taking into account also the lapse of time , he considered that it would not be in the public interest to hold a public inquiry into that case .

On DATE , the ORG Solicitor provided the applicants’ solicitors with a copy of the full ORG , noting that a redacted version had been available during the civil proceedings . He declined to make available any copies of other reports . The applicants state that CARDINAL other internal inquiries ( referred to as the Hind , PERSON and PERSON inquiries ) had been conducted .


The first applicant , Mr PERSON , was born in DATE and the second applicant , PERSON , was born in DATE . They are NORP citizens , currently residing in GPE . Before the ORG they were granted legal aid and were represented by Mr PERSON and PERSON PERSON , lawyers practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG .

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

The applicants married in DATE . The first applicant is ethnic NORP . The second applicant ’s father was NORP and her mother was NORP . In a passport issued in DATE her ethnicity was stated as “ NORP ” .

In DATE the second applicant and her son , born in DATE , entered GPE via GPE and requested asylum . Their request was rejected with reference to LAW and the NORP authorities returned them to GPE , where they had obtained a visa . From there , in DATE , having renounced their application for asylum , they returned to GPE .

On DATE , the applicants entered GPE , together with the second applicant ’s son and applied for asylum . At the relevant time the second applicant had a black eye , which the first applicant explained was due to her being assaulted by a man at the train station in GPE on account of her ethnicity .

ORG ( Migrationsverket ) held an initial short interview with the applicants on DATE and a more extensive CARDINAL on DATE .

In support of their request for asylum , the first applicant submitted inter alia that over DATE of time , primarily due to the second applicant ’s NORP ethnicity , but also because she was a member of ORG , whose ideas he sympathised with , they had been subjected to physical and psychological harassment , mostly by PERSON who had fled GPE . Among other things he was told to kill his wife , called a traitor because of the conflict in GPE - Karabakh , forced to close his shop , and beaten up . He had also been beaten up in connection with a political demonstration in DATE . His wife had been forced to live in hiding since DATE and consequently for DATE of time they had only had sporadic contact . Despite being in hiding , his wife had been subjected to assaults , most recently outside a shop in GPE in DATE . The harassment was supported by the ORG and the police ignored his reports of the incidents . His son and stepson also encountered problems due to his wife ’s ethnicity . Their son was not able to finish his studies at the university because the professors and fellow students refused to accept people with NORP ethnicity . His stepson had been beaten up and his flat occupied by NORP refugees from GPE who claimed to be entitled to live there .

The second applicant submitted before the ORG inter alia that due to her NORP ethnicity she had been subjected to physical and psychological harassment for DATE . Since DATE she had been forced to live in hiding . She had become a member of GPE ’s Witnesses DATE . The meetings of GPE ’s Witnesses were always held secretly because otherwise the police would turn up and ill - treat the participants . In connection with a meeting in DATE in CARDINAL member ’s home , the second applicant had been arrested and taken to a police station and raped by a policeman . Moreover , in DATE , outside a shop in GPE , she had been severely beaten up by QUANTITY persons who had referred to her ethnicity . As a result of the assault she had cracked a dental plate and had a swelling or tumour on her back . She had never reported the assaults to the police because people of NORP ethnicity were considered secondrate citizens in GPE and it would thus have been to no avail . The second applicant originally declared that she had not travelled abroad before or applied for asylum in any other country .

On DATE ORG refused to grant the applicants asylum . In its decision , ORG first referred to the general situation in GPE and the information contained in a report by ORG , ORG , DATE . As to the latter , ORG noted in particular that while discrimination against ethnic NORP was not proclaimed official policy in GPE , clearly there was a certain amount of discrimination in everyday life against them , which was tolerated by the authorities . However , the said discrimination was not such as to amount to persecution per se , although in individual cases it was possible that the cumulative effects amounted to it . Moreover , as to FAC , only high profile people within the religious community had a well - founded fear of persecution .

ORG furthermore noted that the assaults to which the first applicant had been subjected had been committed by private individuals in violation of NORP legislation . Moreover , adding that the fact that the police had not arrested any perpetrators did not necessarily mean that the police were unwilling to help him , the ORG found unsubstantiated the first applicant ’s allegation that the harassment was supported by the ORG . In conclusion , as to the first applicant , the ORG found that the described incidents failed to amount to persecution constituting a ground for asylum within the meaning of LAW .

With regard to the second applicant , ORG observed anew that the assaults had been committed by private individuals and a policeman in violation of NORP legislation and without support from ORG . Moreover , the second applicant did not have a high position within GPE ’s Witnesses . Finally , having obtained information from foreign immigration authorities , ORG found that the fact that the second applicant , in DATE , had renounced her application for asylum in GPE and chosen to return to GPE , reflected that she had not felt a particular need for protection . In conclusion , the ORG found that the second applicant did not fulfil the legislation requirements for enjoying refugee status .

The applicants appealed to ORG ( Utlänningsnämnden ) and submitted , among other things , that it was impossible for NORP to report ethnic persecution to the police and that both the second applicant and her children had been maltreated by the police several times . They repeated that the second applicant had been living in hiding since DATE , mostly in DATE houses in the countryside . She had been forced to move because she was hunted for and her life was in danger . Her life was at risk , should she be forced to return to GPE . At the very least they would be arrested at the airport and imprisoned . Moreover , the applicants submitted a letter of QUANTITY DATE from ORG in GPE , signed by its head , PERSON , to the NORP Ambassador to GPE , stating that hatred against the NORP population of GPE had not been decreasing over time , that the anti - NORP propaganda was organised and proliferated on a ORG level , that since DATE not CARDINAL single NORP had been able to return to GPE , and finally that upon return to GPE there was a serious risk that the applicants would become victims of persecution on ethnic grounds .

On DATE ORG upheld the decision to refuse to grant the applicants asylum , subscribing to the reasons given by ORG .

On DATE , ORG , examining the applicants’ cases on its own initiative , in accordance with a temporary provision of LAW , found that the applicants could not be granted residence permits under the temporary wording of LAW , section CARDINAL b of LAW .

The applicants lodged their application on DATE and following an indication given by the ORG on DATE under Rule CARDINAL of ORG , the applicants’ deportation was stayed until further notice .

Subsequently , before the ORG the applicants submitted that their problems started in DATE when the persecution of ethnic NORP commenced . The second applicant tried to hide her ethnicity by keeping her NORP surname , but through state archives it became known , nevertheless , that she was NORP . It came to the applicants’ knowledge that the police had lists of people of NORP ethnicity and that they went to these people ’s homes to ill - treat them . Therefore , fearing for her life , the second applicant and her son left GPE and went to live in DATE houses in the countryside . Sooner or later their ethnicity was discovered , so they always had to keep moving in order to escape persecution . During short periods she hid in the first applicant ’s flat in GPE , but the neighbours always found out and persecuted her in the street or in the house . During DATE that the second applicant had to hide , the police came to the first applicant ’s flat DATE , looking for her because they wanted to detain her and use her in an exchange of prisoners with GPE . The police often ordered the first applicant to divorce the second applicant or get rid of her . Otherwise the police said they would deal with her themselves . The harassment got worse in DATE , with assaults by the police and neighbours , which the first applicant reported in vain to the police . In DATE the applicants decided that the second applicant and her son had to flee . They were returned from GPE to GPE under LAW . In GPE the second applicant was told that there was no possibility whatsoever for them to stay there . The only possibility was to return to GPE . When they arrived at the airport in GPE they were immediately arrested by the border police . Their passports were taken and never returned and they were interrogated . The police told them that they would be sent to prison as spies . However , after the first applicant negotiated with the police and paid a large sum of money , the second applicant and the son were released . They stayed in the first applicant ’s flat for DATE and then resumed moving around from CARDINAL place to another . The whole time the first applicant was in contact with the authorities or the police to ask for help , but this was constantly refused . Some police reports were written , which the police would let him sign , but then tore to pieces . However , as to the rape to which his wife was subjected in DATE , the first applicant was not informed thereof until the asylum proceedings in GPE . The first applicant ran a factory with CARDINAL employees in GPE , but had to close it down in DATE due to the increased persecution . There were always meaningless inspections , with completely unfounded complaints about his book - keeping and the hygiene in the factory . Thereafter , he had no means of providing for his family . The last time he was assaulted was in DATE when the police asked about his wife ’s whereabouts . Since he refused to answer , he was beaten up , resulting in fractured ribs .

In DATE the second applicant was dragged out of a shop in GPE and beaten up in public . The perpetrators told the bystanders that they did not care about the consequences because the woman was NORP . She was hit and kicked in the kidneys and the head . Her jaw was broken . The first applicant managed to intervene and stop the assault with the help of CARDINAL NORP bystanders . The police left without taking any action against the CARDINAL men , despite the first applicant ’s efforts to make them draw up a report . The second applicant consulted a private doctor and then went to a hideout . The first applicant filed a report with the police but to no avail . In the light of the constant lack of success that the first applicant had had , being NORP , whenever he reported incidents to the police , the second applicant abstained completely from making use of this remedy .

The Government submitted that some of the ORG statements before ORG were new to them and did not correspond to the information provided during the domestic proceedings .

For example , as to the second applicant ’s claim that she and her son kept moving around in the countryside because they continuously were beaten up and threatened , according to the second interview with ORG , the second applicant stated that the reason she moved around was that she did not wish to be a nuisance to her friends , but that she never experienced any problems while staying in the countryside .

Moreover , as to the first applicant ’s claim that his ribs were fractured in DATE when the police beat him up because he refused to reveal his wife ’s whereabouts , according to the second interview with ORG , the first applicant stated that his ribs were fractured “ after DATE ” when he took part in a demonstration organised by the opposition .

Also , the Government pointed out , according to TIME the second interview with ORG , in reply to a question from his counsel , the first applicant replied that he did receive receipts of the police reports . When asked whether he brought such receipts to GPE , he replied in the negative .

A new Aliens Act ( SFS CARDINAL:CARDINAL ) , replacing the DATE LAW , entered into force on DATE . The Act established a new system for examining and determining applications for asylum and residence permits . While ORG continued to carry out the initial examination , an appeal against the ORG ’s decision was determined by CARDINAL of the CARDINAL new migration courts . ORG was the court of final instance . It examined appeals against the decisions of the migration courts , provided leave to appeal was granted . Upon the entry into force of LAW , ORG ceased to exist . ORG acted as the alien ’s opposing party in proceedings before the courts .

The provisions mainly applied in the present case were to be found in the DATE LAW , now repealed . In accordance with the LAW , an alien staying in GPE for DATE had to , as a rule , have a residence permit ( chapter CARDINAL , section CARDINAL ) . A residence permit could be issued , inter alia , to an alien who , for humanitarian reasons , was to be allowed to settle in GPE ( chapter CARDINAL , section CARDINAL ) . Serious physical or mental illness could , in exceptional cases , constitute humanitarian reasons for the granting of a residence permit .

An alien who was considered to be a refugee or otherwise in need of protection was , with certain exceptions , entitled to a residence permit in GPE ( chapter CARDINAL , section CARDINAL ) . The term “ refugee ” referred to an alien who was outside the country of his nationality owing to a well - founded fear of being persecuted for reasons of race , nationality , membership of a particular social group , or religious or political opinion , and who was unable or , owing to such fear , unwilling to avail himself of the protection of that country . This applied irrespective of whether such persecution was at the hands of the authorities of the country or whether those authorities could not be expected to offer protection against persecution by private individuals ( chapter CARDINAL , section CARDINAL ) . An “ alien otherwise in need of protection ” denoted , inter alia , a person who had left the country of his nationality because he had a well - founded fear of being sentenced to death or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment ( chapter CARDINAL , section CARDINAL , subsection CARDINAL ) . By making that a separate ground for granting a residence permit , the legislature had highlighted the importance of such considerations . The correspondence between national legislation and LAW had been emphasised as a result .

In enforcing a decision on refusal of entry or expulsion , the risk of torture and other inhuman or degrading treatment or punishment was taken into account . In accordance with a special provision on impediments to enforcement , an alien could not be sent to a country where there were reasonable grounds for believing that he would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment ( chapter CARDINAL , section CARDINAL ) . In addition , he could not , in principle , be sent to a country where he risked persecution ( chapter CARDINAL , section CARDINAL ) .

Until DATE an alien who was to be refused entry or expelled in accordance with a decision that had gained legal force could be granted a residence permit if he filed a so - called “ new application ” with ORG based on circumstances which had not previously been examined in the case concerning refusal of entry or expulsion . A residence permit could then be granted if the alien was entitled to a residence permit under LAW , section CARDINAL , of the LAW or if it would be contrary to the requirements of humanity to enforce the refusal - of - entry or expulsion decision ( chapter CARDINAL , section CARDINAL b , in its wording before DATE ) .

Amendments to LAW , section CARDINAL b , of the DATE LAW entered into force on DATE , whereby a new legal remedy of a temporary nature was introduced . The new procedure for obtaining a residence permit replaced the rules relating to new applications for a residence permit laid down in chapter CARDINAL , section CARDINAL b , in its previous wording . Furthermore , the amendments to the DATE Act introduced additional legal grounds for granting a residence permit to aliens against whom a final expulsion order had been made . The object of these temporary amendments was to grant residence permits to aliens who , inter alia , had been in GPE for a very long time or where there existed “ urgent humanitarian interests ” ( humanitärt angeläget ) . Special consideration was given to the situation of children . The temporary provisions remained in force until the new LAW entered into force on DATE . ORG continued , however , to examine applications which it had received before that date but had not yet determined .

C. Relevant background material

ORG

GPE became a member of ORG on DATE and ratified LAW on DATE .

ORG , “ ORG , DATE , stated , inter alia as to “ Groups at Risk ” :

Ethnic Minorities

The claims for union of GPE - Karabakh with GPE led to acts of violence of serious intensity against NORP in GPE and in ORG in DATE and DATE . Interethnic tensions extended also to other parts of the country . Because of interethnic violence and with the escalation of the conflict in Nagorno - Karabakh in DATE , the overwhelming majority of the ethnic NORP population of GPE left the country .

To the knowledge of ORG , none of these ethnic NORP displaced in DATE has actually returned to GPE and therefore a detailed assessment of the risk remaining in the case of such return , if permitted at all by the NORP authorities , is difficult to make . While a number of these refugees of the DATE caseload have been naturalized and others enjoy secure refugee status in GPE , a number of ethnic NORP refugees who went to other parts of the former GPE have not received or no longer enjoy a secure status . A durable solution for them is yet to be resolved . In the case of secondary movement of such refugees , an assessment of the remaining protection needs , as well as on safely found elsewhere , would require a careful analysis of the individual case .

According to a survey conducted in DATE by a UNHCR Implementing Partner , up to CARDINAL NORP may still reside in NORP , mostly women with ethnic NORP or NORP husbands . The treatment of ethnic NORP varies from community to community . However , discrimination instances against ethnic NORP are regularly reported . ORG includes access to governmental jobs , payment of pensions and other social benefits , and more generally problems with the authorities when claiming one ’s right . A pattern of discrimination in the workplace is common . Access to public post might indeed be obstructed to persons with NORP family names or with NORP family members . As far as private employers are concerned , it is entirely their choice to hire or dismiss employees .

Ethnic NORP residing in GPE prefer to conceal their names and keep a low profile .

To sum up , while discrimination against ethnic NORP is not proclaimed official policy in GPE , clearly there is a certain amount of discrimination in everyday life against them , which is tolerated by the authorities . Such discrimination is not such as to to amount to persecution per se , however , in individual cases it is possible that the cumulative effects amount to it .

Religious Minorities

GPE ’s population is traditionally NORP , the majority being NORP , but after DATE of NORP atheistic rule , the society is largely secular . Militant NORP fundamentalism is not tolerated and the general policy and attitude towards other religious groups , including NORP and NORP , is generally tolerant .

In DATE , President PERSON announced that the Government henceforth would abide by FAC standards concerning freedom of religion . Apparently , in conformity with his directives , government officials subsequently took steps to rectify some past violations of these standards , including the registration of a number of religious organisations that previously had been denied it . In DATE , the ORG and the ORG jointly sponsored a conference on religious freedom and combating terrorism .

As a side note , some Government officials share a common popular prejudice against ethnic PERSON , who have converted to NORP and other religions .

New religious groups with no history in GPE are not always socially acknowledged . However , following the statement by President PERSON , instances of harassment of and discrimination against members of such non traditional religious denominations have been reduced considerably . While each case will have to be considered in its own merit , the mere fact that an NORP asylum seeker is merely a member of CARDINAL of the above - mentioned non traditional religious denominations would not in itself suffice to substantiate his / her claim for refugee status . However , claims by leaders or high profile activists of non traditional religious groups would warrant careful consideration .

GPE acceded to LAW in DATE .

In DATE , ORG ( CERD ) noted with satisfaction that GPE had made the optional declaration recognising the ORG ’s competence to receive communications under LAW CO/CARDINAL ) . Moreover , in its reports from DATE on the sixty - sixth and DATE sessions , it stated inter alia as to GPE :

ORG notes the position of ORG that , despite the negative effects of the conflict in the ORG region , persons of NORP origin do not experience discrimination in GPE . However , the ORG is concerned that , according to reports , incidents of racial discrimination against NORP occur , and that a majority of the NORP residing in GPE prefer to conceal their ethnic identity in order to avoid being discriminated against ( Convention , article CARDINAL ) .

The ORG encourages the ORG party to continue to monitor all tendencies that give rise to racist and xenophobic behaviour and to combat the negative consequences of such tendencies . In particular , the ORG recommends to ORG that it conduct studies with a view to effectively assessing and evaluating occurrences of racial discrimination , in particular against ethnic NORP .

In its second report on GPE , of CARDINAL DATE , ORG against Racism and Intolerance ( ECRI ) stated inter alia :

Persistence of the negative climate against NORP

In its first report , ORG recommended that the NORP authorities ensure an adequate response to all instances of discrimination and hate - speech against NORP , including through the use of the relevant legal provisions . It also encouraged the NORP authorities to contribute more actively to generating a climate where NORP do not feel threatened when exposing their identity publicly .

ECRI deeply regrets that since the adoption of its first report in DATE , the situation as concerns ethnic NORP living in GPE ( hereafter : NORP ) has not improved at all . While ORG continues to receive alarming information concerning racism and racial discrimination against this group of persons , the NORP authorities have not demonstrated their will to tackle this problem . On the contrary , the general attitude among national and local authorities is rather to purely and simply deny that NORP are confronted with problems in GPE . ECRI is surprised by this position which comes in stark contrast to information from numerous national and international non - governmental sources . NORP are often referred to as the most vulnerable group in GPE in the field of racism and racial discrimination . The issue is sufficiently serious for NORP to sometimes be described as “ second - class citizens ” in GPE . This situation is generally said to be a consequence of the overall negative climate in GPE generated by the conflict over GPE - Karabakh .

According to official sources the number of NORP living on NORP territory outside Nagorno - Karabakh and the occupied zones amounts to CARDINAL CARDINAL , Non - official sources estimate that the real number is probably lower , QUANTITY . These persons are almost exclusively persons married to PERSON or of mixed NORP descent .

A first problem is apparently the discrimination with which NORP are confronted in their daily lives , particularly in access to public services . Allegedly , some officials merely refuse to proceed with request from NORP when they discover their ethnic origin . The discrimination amounts sometimes to harassment which prevents the persons concerned from exercising their basic rights such as the right to pension allowance or the right to work . Judicial proceedings opened by NORP trying to secure their rights are said to systematically fail due to the general negative climate against NORP . As mentioned in another part of this report , some refugees and IDPs have been occupying properties belonging to NORP who are still unable to regain their property .

Another problem is the oral and written inflammatory speech on the conflict over Nagorno - Karabakh . These statements do not only target GPE and NORP citizens . It also often portrays NORP living in GPE as enemies and traitors . ECRI is concerned to learn that some media , and particularly certain TV channels , some members of the general public , some politicians and even some authorities at local and national levels apparently fuel negative feelings among society towards NORP in general , and ethnic NORP living on NORP territory in particular . At present , PERSON notes that no steps have been taken to use the relevant criminal law provisions to prohibit material inciting to racial hatred against NORP . As already described in ORG ’s first report , the mere attribution of NORP ethnic origin to an ethnic NORP may be perceived as an insult . Thus , there have continued to be trials for slander and insult opened by public figures against persons who had publicly and falsely alleged their NORP ancestry .

CARDINAL of the consequences of discrimination and inflammatory speech against NORP is that many NORP keep a low profile in GPE , trying as much as possible to avoid drawing attention to themselves . They often seek to hide their ethnic identity , for instance through changing their names .

This negative climate mainly resulting from the conflict over Nagorno - Karabakh does not only have an impact on NORP living in GPE . It also allegedly affects NORP individuals or NGOs assisting NORP when they try to exercise their basic rights . They are reportedly victims of anonymous threats , defamation campaigns in some media and harassment by some authorities . They are often publicly and falsely accused of “ having NORP roots ” and of treason to GPE . Another consequence of this negative climate is that NORP individuals travelling to GPE or to the occupied territories of GPE are victims of threats , harassment and attacks on their goods or persons on the grounds that they “ betray their country ” . ECRI notes that so far , the NORP authorities have not taken adequate steps to protect the relevant persons from these acts . In its first report , ORG already expressed its concern at the lack of opportunities available for members of civil society to resume dialogue in order to favour the full reconciliation of all people living in the region and the restoration of mutual confidence among members of the different communities . Apparently , the situation has not evolved much in this field .

ORG reiterates that a fair and peaceful solution of the conflict over GPE - Karabakh would have a positive impact on the general sentiments of the NORP population towards NORP , including those living at present on the territory of GPE under the effective control of the NORP authorities .

Recommendations :

ORG strongly recommends that the NORP authorities contribute more actively to generating a climate where NORP do not feel threatened when exposing their identity publicly .

ORG once more urges the NORP authorities to ensure an adequate response to all instances of discrimination and hate - speech against NORP , including through the use of the relevant legal provisions . They should also ensure an adequate response to harassment and hate - speech against persons trying to defend ORG basic human rights or travelling to GPE or to the occupied territories of GPE .

ORG , GPE , Country Reports on Human Rights Practices DATE , stated , inter alia :

c. Freedom of Religion

The law provides for freedom of religion ; however , there were some abuses and restrictions in practice . Although the law expressly prohibits the government from interfering in the religious activities of any individual or group , there are exceptions , including cases where the activity of a religious group " threatens public order and stability . "

A number of legal provisions enable the government to regulate religious groups , including a requirement that religious organizations , including individual congregations of a denomination , be registered by the government ...

Although unregistered religious groups continued to function , some , such as DATE Adventists , ORG , and NORP , reported official harassment , including disruption of religious services and police intimidation , fines , and occasional beatings of worshippers by police . Some non traditional religious groups operated in an atmosphere of fear ...

ORG reported that authorities regularly interfered with their ability to rent public halls for religious assemblies and on occasion fined or detained and beat individuals for meeting in private homes . On DATE , police raided a gathering of CARDINAL GPE ’s Witnesses in GPE , detaining CARDINAL members of the group and then releasing them after TIME in police custody . Local television stations also aired " raids " of religious meetings for " exposes " of religious groups .

The law expressly prohibits religious proselytizing by foreigners , and this was enforced strictly . On DATE , police authorities seized ORG Witnesses religious literature in LOC on these grounds .

ORG

There were CARDINAL NORP in the country . There were few cases of prejudice and discrimination against NORP , and in the few instances of anti - NORP activity the government responded quickly . There was popular prejudice against NORP who convert to non - NORP faiths and hostility toward groups that proselytize , particularly evangelical NORP and missionary groups . The government appeared to encourage such social stigmatization through orchestrated exposes and raids of non traditional groups .

... The government ’s human rights record remained poor , and it continued to commit numerous abuses . The public ’s right to peacefully change the national legislature was restricted in the DATE parliamentary elections , although there were some improvements in the period leading up to the elections and in the DATE parliamentary election reruns that took place in CARDINAL parliamentary constituencies . Torture and beating of persons in police custody resulted in CARDINAL deaths , and police officials acted with impunity . Prison conditions -- despite improvements in infrastructure -- were generally harsh and life threatening . Arbitrary arrest and detention , particularly of individuals considered by the government to be political opponents , and lengthy pre - trial detention continued . The government continued to imprison persons for politically motivated reasons . Pervasive corruption in the judiciary and in law enforcement continued . Restrictions on media freedom , freedom of assembly , and political participation worsened . ...

Role of the Police and Security Apparatus

... Police officers acted with impunity , and in most cases the government took little or no disciplinary action . During DATE , however , the government reported that it took action against NORP police officers for human rights violations , CARDINAL of whom were disciplined for inflicting bodily harm . The government reported that it dismissed CARDINAL officers from the ministry of internal affairs police forces , removed CARDINAL officers from their position and administratively disciplined CARDINAL others . The government did not state whether it criminally charged any officers for violating human rights and civil liberties during DATE .

Freedom of Religion

... ORG reported that authorities regularly interfered with their ability to rent public halls for religious assemblies and on occasion fined or detained and beat individuals for meeting in private homes . Local television stations also aired " raids " of religious meetings for " exposes " of religious groups .

On DATE , police accompanied by a television crew raided a gathering of FAC in GPE . Police detained and released most participants , but held QUANTITY foreigners in immigration detention pending deportation proceedings . These individuals remained in immigration detention at DATE .

ORG

There were CARDINAL NORP in the country , the vast majority located in GPE . Incidences of prejudice and discrimination against NORP were rare , and in the few instances of anti - NORP activity the government responded quickly . There was popular prejudice against NORP who converted to non - NORP faiths and hostility toward groups that proselytized , particularly evangelical NORP and missionary groups . The government appeared to encourage such social stigmatization through orchestrated exposes and raids of non traditional groups .

The government actively undertook programs to encourage religious tolerance . For example , on DATE , the ORG [ ORG ] , foreign affairs ministry , and NORP board co - hosted an interfaith tolerance conference . ...

ORG

Some of the CARDINAL citizens of NORP descent living in the country historically have complained of discrimination in employment , schooling , housing , the provision of social services , and other areas . NORP citizens who were ethnically NORP often concealed their ethnicity by legally changing the ethnic designation in their passports .

Some groups complained that authorities restricted their ability to teach or print materials in their native languages . Specifically , LANGUAGE - speaking PERSON in the south , PERSON in the north , displaced ORG from LOC , and displaced NORP from the NORP - occupied LOC reported sporadic incidents of discrimination , restrictions on the ability to teach in their native languages , and harassment by local authorities . ...

ORG , GPE , ORG , DATE and DATE , stated , inter alia :

The LAW provides that persons of all faiths may choose and practice their religion without restrictions ; however , there were some abuses and restrictions .

There was no change in the status of respect for religious freedom during the period covered by this report . Some religious groups reported delays in and denials of registration and limitations upon their ability to import religious literature . Others have indicated that they either received or expect to receive their registration , they are able to import religious literature , and they meet without government interference . However , local authorities occasionally monitor religious services , and officials at times harassed non traditional religious groups .

... There are no reliable statistics on memberships in various faiths ; however , according to official figures PERCENT of the population is NORP ... Shi’a , NORP , NORP Orthodoxy , and NORP are considered traditional religious groups . There also have been small congregations of ORG , NORP , NORP , NORP ( NORP ) , DATE Adventists , and Baha’is in the country for DATE . In DATE , a number of new religious groups considered foreign or non traditional have been established , including " PERSON " NORP , NORP and evangelical NORP , ORG , and PERSON ...

ORG reported that authorities occasionally fined or detained and beat individuals for meeting in private homes .

Societal Attitudes

The generally amicable relationship among religions in society contributed to religious freedom ; however , there is popular prejudice against NORP who convert to non - NORP faiths and hostility towards groups that proselytize , particularly evangelical NORP and missionary groups . This has been accentuated by the unresolved conflict with GPE over GPE - Karabakh . ...

Hostility between NORP and NORP , intensified by the unresolved conflict over Nagorno - Karabakh , remains strong . In those portions of the country controlled by NORP , all ethnic NORP have fled and those mosques that have not been destroyed are not functioning . Animosity toward ethnic NORP elsewhere in the country forced most of them to depart DATE , and all NORP churches , many of which were damaged in ethnic riots that took place DATE , remain closed . As a consequence , CARDINAL to CARDINAL ethnic NORP who remained are unable to attend services in their traditional places of worship . ...

ORG ) , stated among other things , in their DATE report “ GPE . Extract from the IHF report Human Rights in the LOC ” :

“ GPE has been led by the authoritarian regime of the PERSON family since DATE . After the death of Heydar PERSON in DATE , his son PERSON took over as president . The change in leadership provoked internal competition within ruling circles , which was apparent during the campaign leading up to the parliamentary elections of DATE .

... there were numerous crackdowns on opposition rallies , where participants were beaten and arbitrarily arrested . Journalists covering opposition activities were also targets of police violence . Although the elections were characterized by irregularities , no large - scale protests followed in their aftermath . The opposition , however , refused to participate in the work of the new parliament , where it won CARDINAL out of CARDINAL seats .

There was a visible gap between the country ’s legal framework and its implementation . Courts demonstrated dependence on the executive branch , especially in property cases and politically sensitive cases . The authorities failed to take effective measures to combat the use of torture and ill - treatment by law enforcement officials and there were reports of officials being promoted after resorting to abusive practices . A series of prison riots in DATE were quashed through the use of excessive force . The dismissal of incompetent high - ranking officials within the penitentiary system as well as improved access of human rights defenders to prison facilities , however , represented positive steps toward improving prison conditions .

The human rights situation in GPE was discussed by ORG of ORG PACE ) in DATE . PACE reiterated its concern that some of GPE ’s obligations before ORG remained unimplemented well after the deadline given to GPE upon its accession to ORG . For example , new legislation on national minorities was yet to be adopted , the right to alternative civil service to military service was not observed , and many political prisoners remained detained – despite a series of releases .

... Torture , Ill - treatment and Police Misconduct ...

In DATE , a police officer of the PERSON city police directorate was arrested on charges of exceeding authority ( article CARDINAL.CARDINAL ) of the criminal code ) He had reportedly beaten and raped a man suspected of theft as well the mother of this man . At DATE , the case was still pending . ... ”

ORG from DATE , DATE , DATE and DATE do not contain any specific information as to NORP or GPE ’s Witnesses living in GPE . However , in a report by ORG , NORP Section , of DATE , on asylum seekers from GPE , it is stated , inter alia ,

“ ORG also wishes to draw the NORP Immigration authorities’ attention to the situation for ethnic NORP in GPE which is very critical . Persons of NORP ethnicity are exposed to violence from individuals , both from authorities and civilians , they are refused access to public employment , pension payments and other social benefits . All this creates a general sense of fear , uncertainty and anxiety , which leads to ethnic NORP hiding their ethnicity and keeping a low profile . When taken together these factors may very well be assessed as persecution . There is no doubt that the discrimination is of frequent occurrence and to a large extent tolerated by the authorities .

In ORG view anti - NORP feelings are increasing in GPE , as a result of the fact that NORP authorities have not opposed or intervened sufficiently against this atmosphere . DATE at a ORG training camp an NORP officer killed an NORP officer in revenge for a crime committed during the Nagorno - Karabakh war . Despite it being condemned by public authorities in GPE , nevertheless a large part of the population supported the NORP officer . ... ”