Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger

The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr L. Olovjanishnikov , a lawyer 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 applicant was a manager of B.E.I. Survey OÜ , a private limited company authorised to monitor the conformity of liquid fuels to applicable norms and to issue the pertinent certificates .

On CARDINAL DATE Zh . , who was interested in entering the liquid fuels business and explored the prices for their storage and certification , visited B.E.I. Survey PERSON and met the applicant . The latter gave Zh . a price list for the analyses performed by the company . According to Zh . , the applicant told him that it was possible to issue certificates of conformity in respect of fuel that did not actually conform to the applicable quality standard if the fuel was to be sold in the countryside , in smaller places where there was no control . According to Zh . , the applicant said that there would be “ possibilities ” if they could find a common language and that in such a case fuel samples could be brought by Zh . himself , otherwise a representative of the laboratory had to take the samples from the fuel tanks . The applicant told him that if he was not present he would be replaced by NORP , an expert in the company . Zh . agreed with the applicant that he would come DATE with the samples .

On DATE Zh . reported to the police that conformity certificates for fuel not actually conforming to the applicable standard could be obtained from B.E.I. Survey OÜ . On DATE a criminal investigation was initiated into the suspected taking of bribes by the applicant and PERSON . was interviewed as a witness and he agreed to co - operate with the police to simulate the offence of bribery .

On DATE the chairperson of ORG ( halduskohus ) authorised interception and undercover audio and video recording of conversations between PERSON . , the applicant and NORP , as well as simulation of the offence of bribery by Zh . in order to entrap the applicant . The authorisation was for a CARDINAL-day period and remained valid until DATE . It could be appealed against within DATE .

On DATE the police officers took samples from fuel brought by Zh . According to him it was a mixture of fuels conforming and not conforming to the standards . A CARDINAL plastic bottle with fuel was given to Zh . for the simulation of the offence .

In TIME of CARDINAL DATE Zh . went to the applicant ’s office and gave him the fuel sample for analysis , saying that he had QUANTITY of fuel on a truck and that customers who wished to buy it wanted to see a conformity certificate for it . Zh . and the applicant discussed the fee for the analyses ; the applicant named different sums around CARDINAL,CARDINAL NORP kroons ( EEK ; MONEY ( ORG ) ) , apparently on the basis of the price list . The applicant asked if Zh . wanted the true information about the quality indicators ; Zh . replied in the affirmative adding that if anything did not match the applicant could give him a call . The applicant agreed . Zh . gave him EEK CARDINAL ( ORG CARDINAL ) in cash without receiving an invoice .

The analyses in respect of the fuel were actually carried out by a laboratory of a different company , with the applicant ’s company serving as intermediary .

In TIME of CARDINAL DATE the applicant called Zh . and said that the results of the tests were not good and that several indicators were not in compliance with the applicable standard . He asked PERSON . what he would propose and whether they would proceed . Zh . expressed certain doubts but then agreed with the applicant that the test results were not of substantial importance and added that the fuel would in any event be used in the countryside in tractors . They agreed to meet DATE .

On DATE Zh . went to the applicant ’s office . The applicant said that the analyses had been completed and that the results were bad . They agreed that there would be no problem if the fuel was to be used in tractors . The applicant gave Zh . a certificate indicating that the fuel conformed to the standard . He wrote his own and NORP ’s signatures on it . Zh . paid the applicant EEK CARDINAL and received an invoice in the amount of EEK MONEY ( EUR CARDINAL ) .

On DATE the police searched the applicant ’s office and seized the cash , the invoice , the certificate and some other documents . The applicant was interviewed as a suspect . He was represented by a lawyer throughout the criminal proceedings .

On DATE the applicant concluded a plea - bargain agreement with the prosecution .

On DATE ORG ( linnakohus ) examined the case . The applicant pleaded guilty to the charge of falsification of an official document but not that of taking a bribe . He alleged that the money he had received had been a fee received by his company . As the applicant did not plead guilty to all the charges , the court discontinued the summary proceedings and remitted the case to the prosecution with a view to proceeding on general grounds .

On DATE the bill of indictment was drawn up . The applicant was charged with taking a bribe and falsification of an official document . According to the charges , he had taken a bribe in the sum of EEK CARDINAL ( EUR CARDINAL ) from Zh . in return for issuing a certificate of conformity in respect of fuel that did not actually conform to the applicable quality standard . He had also forged the signature of NORP , an expert at B.E.I. Survey GPE , on the certificate .

On DATE the ORG convicted the applicant as charged . He was sentenced to DATE imprisonment , DATE of which were to be served immediately and the remainder suspended .

According to the judgment , the applicant pleaded guilty to the falsification charge . He denied the charge of taking a bribe , arguing that Zh . had paid according to the price list and that the price for the analyses would have been EEK CARDINAL regardless of their results . He had not been able to issue the receipt because the police had come in before . According to the applicant , he had stated higher quality indicators on the certificate because Zh . had asked him to do so . Zh . had explained that the fuel would be used for agricultural purposes , and according to the applicant such fuel could indeed be used , in compliance with the PERSON ( государственный стандарт ; NORP , later ORG , standard ) norms , in tractors of NORP origin .

According to Zh . , who gave evidence in court , the security police had provided him with a bottle of fuel which did not conform to the applicable quality standard and the bribe money . He had agreed with the applicant that certain indicators would be “ improved ” on the certificate .

ORG also heard submissions from CARDINAL witnesses from companies which had actually carried out the fuel analyses at the request of the applicant ’s company , and CARDINAL employees of the applicant ’s company – the accountant and NORP , who stated that he had not signed the certificate in question . It also examined video and audio recordings of the meetings and conversations between PERSON . and the applicant and various written evidence , including the transcripts of the recordings .

ORG established that the applicant had falsified the fuel test results in respect of CARDINAL indicators , whereas in the case of CARDINAL indicators no analyses had been made and random entries to match the applicable norms had been written on the certificate . Furthermore , the certificate had been falsified in that it indicated that NORP had taken the sample from a certain vehicle – whilst in fact it had been Zh . who had brought a bottle containing the fuel – and the applicant had forged NORP ’s signature .

The court considered that the applicant ’s explanations concerning the price of the analyses and of the certificate , as well as the sums on the invoice , were inconsistent . It examined his submissions at various stages of the proceedings , price lists and accounting documents and concluded that the whole amount of EEK CARDINAL had to be considered as a bribe and not a payment for a service rendered to Zh . The court ordered the transfer back to the state budget of the sum of EEK CARDINAL used by the authorities in the covert operation . In determining the applicant ’s sentence , ORG noted that he had discredited the officials and institutions authorised to certify the quality of liquid fuels .

The applicant appealed against ORG judgment in so far as his conviction of taking a bribe was concerned . He did not challenge his conviction on the falsification charge . In respect of bribery , he argued that ORG had been wrong to consider the money in question as a bribe . He also noted , in the context of the sentence given by the first - instance court , that the police had simulated the offence , that is , deliberately created the circumstances constituting an offence and had sought such a result . Therefore , the question arose as to who had been discredited . He admitted that simulating an offence was in principle authorised by law but insisted that in this case the police incitement had to be taken into account as a mitigating circumstance , because otherwise the offence might not have been committed .

On DATE ORG ( ringkonnakohus ) dismissed the applicant ’s appeal and upheld ORG judgment . It held , inter alia , that the fact that the bribe had been offered in the course of simulation of an offence – a measure authorised under DATE had no effect on the question of the applicant ’s guilt or his punishment . The court found that neither the police nor the undercover agent could be considered the instigators of the offence .

The applicant appealed against ORG judgment , arguing that under LAW ( NORP seadus ) the surveillance procedure could be started if there was information DATE and if this information was insufficient to initiate a pre - trial criminal investigation – concerning a criminal offence in the first degree being prepared or committed or having been committed , or concerning a criminal offence in the second degree having been committed intentionally , if the latter carried a sentence of DATE imprisonment . Thus , there had to be sufficient information that an offence was being planned or committed . However , in the present case no offence had been being planned or committed and the criminal offence had been simulated without the existence of any of the information required by LAW , such information having only been created by way of the simulation . Accordingly , there had been an incitement and there was good reason to believe that without it no offence would have been committed . He also reiterated that the simulation of the offence should have been considered as a mitigating circumstance .

On DATE ORG ( NORP ) refused the applicant leave to appeal .

Section CARDINAL of LAW ( NORP seadus ) , as in force at the material time , provided that surveillance was unlawful unless carried out in cases and according to the procedure foreseen by that LAW and in pursuance of the goals contemplated therein .

It further provided as follows :

“ ( CARDINAL ) The goal of surveillance shall be to gather information and perform other actions authorised by this LAW that are necessary for :

CARDINAL ) prevention of criminal offences being prepared or committed ;

CARDINAL ) discovering criminal offences that have been committed , finding persons who have committed criminal offences , compensating for damage caused by criminal offences and clarifying other circumstances that have an important bearing on criminal proceedings ;

“ ( CARDINAL ) The reasons for the commencement of the surveillance procedure are :

CARDINAL ) the need to establish truth in a criminal case ;

CARDINAL ) information concerning a criminal offence in the first degree being prepared or committed or having been committed or concerning a criminal offence in the second degree having been committed intentionally if the latter carries a sentence of DATE imprisonment , if this information is insufficient to initiate a pre - trial criminal investigation ;

Sections CARDINAL ) and CARDINAL of the Act provided that the police could , with the authorisation of ORG ( halduskohus ) , simulate criminal acts in order to arrest a criminal offender or for the purpose of investigating a criminal offence .

The authorities authorised to carry out surveillance could include adults in temporary or permanent secret collaboration with their consent ( section CARDINAL ) ) .

LAW ( Karistusseadustik ) provided that offences carrying a fine or a sentence of up to CARDINAL years’ imprisonment were criminal offences in the second degree .

Section CARDINAL § CARDINAL of the Penal Code provided that the criminal offence of taking a bribe carried a sentence of CARDINAL to CARDINAL years’ imprisonment . Section CARDINAL § CARDINAL provided that the criminal offence of falsification of an official document carried a fine or a sentence of DATE imprisonment .


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

David Thór Björgvinsson;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

The applicant is married and has CARDINAL children . Prior to his application for an earlyretirement pension he had been employed for DATE and had paid social security contributions to the ORG .

On DATE the applicant filed an application with ORG ( ORG ) to be granted the right to an earlyretirement pension for persons raising children who , due to the seriousness of their health condition , required constant care , the socalled “ EWK ” pension .

Along with his application for a pension , the applicant submitted , among other documents concerning his daughter ’s health condition , a medical certificate issued by a specialist medical centre on DATE . The certificate stated that the child ( born in DATE ) suffered from neurofibromatosis and scoliosis and that she was in need of her parent ’s constant care .

On DATE ORG ( “ the FAC ” ) issued a decision granting the applicant the right to an earlyretirement pension as of DATE in the net amount of MONEY ( ORG ) .

ORG initially suspended the payment of the pension due to the fact that the applicant was still working on the date of the decision . The payments were resumed as of DATE after the applicant resigned from his DATE job .

On an unspecified date ORG asked ORG doctor ( PERSON ) to inform it whether the applicant ’s son required the permanent care of a parent . On DATE the doctor stated that , on the basis of the medical documents , the child could not be considered as ever having required such care .

On DATE ORG issued simultaneously CARDINAL decisions in respect of the applicant . By virtue of CARDINAL decision , the payment of the applicant ’s pension was discontinued with immediate effect . By virtue of the other decision , ORG reopened the proceedings , revoked the initial decision granting a pension and eventually refused to grant the applicant the right to an earlyretirement pension under the scheme provided for by the ORG ’s Ordinance of CARDINAL DATE on the right to early retirement of employees raising children who require permanent care ( ORG PERSON . DATE w sprawie uprawnień do wcześniejszej emerytury pracowników opiekujących się dziećmi wymagającymi stałej opieki ) ( “ the DATE LAW ) .

The applicant appealed against the respective decisions divesting him of the right to an earlyretirement pension . He submitted that he should receive the benefit because his child required constant care , as confirmed by the medical certificate attached to the applicant ’s original application for a pension . Moreover , the applicant alleged that the revocation of his retirement pension was contrary to the principle of vested rights .

On DATE ORG ( PERSON ) dismissed the appeal . ORG concluded on the basis of the evidence , including a medical expert opinion , that while indeed the applicant ’s child suffered from neurofibromatosis he did not require his father ’s permanent care since his health condition did not significantly impair his bodily functions . The domestic court held that the applicant had been rightfully divested of his right to a pension under the scheme provided by the DATE Ordinance as he did not satisfy the requirement of necessary permanent care .

The applicant further appealed against the firstinstance judgment .

On DATE ORG ( FAC ) dismissed the appeal .

On DATE ORG ( Sąd Najwyższy ) refused to entertain the cassation appeal lodged by the applicant .

Following the social security proceedings the applicant was not ordered to return his earlyretirement benefits paid by ORG , despite the revocation of his right to an earlyretirement pension .

The applicant submitted that since the revocation of the EWK pension he remained unemployed until DATE . During this time he received no social or unemployment benefits . His wife was unemployed until DATE and later found a temporary employment . Their eightyear DATE old daughter inherited from her grandparents a small farm from which they derived no income .

The Government submitted that the applicant did not take up any employment after terminating it on DATE . They submitted that his wife had been employed DATE . The ORG also maintained that some of their children worked and that their child born in DATE owned a farm which could have been a source of income for the family .

In addition , the Government submitted information as regards the various types of social benefits available in GPE . However , they did not specify which of those benefits , if any , were available in the applicant ’s situation .

Under the relevant laws currently in force , it appears that the applicant will qualify for a regular retirement pension in DATE .

CARDINAL applications arising from a similar fact pattern have been brought to the ORG . The majority of the applicants form ORG ( ORG przez ZUS ) ( “ the Association ” ) , an organisation monitoring the practices of ORG in GPE , in particular in the ORG region .

Out of all applications lodged with the ORG , about twentyfour applicants decided not to lodge a cassation appeal against the judgment of ORG given in their case .

One hundredandfour applicants lodged cassation appeals against the final judgments given in their cases . ORG entertained and dismissed on the merits DATE appeals . In eightyone applications ORG refused to entertain cassation appeals on the ground that they did not raise any important legal issues or require ORG to give a new interpretation to legal provisions which raised serious doubts or gave rise to ambiguity in the jurisprudence of the domestic courts . In the remaining CARDINAL cases cassation appeals were rejected for failure to comply with various procedural requirements .

NORP The legal provisions applicable at the material time and questions of practice are set out in the judgment in the case of GPE GPE , no . CARDINAL , § ORG , DATE .

NORP The social security scheme for farmers is regulated by ORG the DATE LAW ; ustawa o ubezpieczeniu społecznym rolników ) .

The reopening of the proceedings concerning the earlyretirement pension is regulated in section CARDINAL ( CARDINAL ) of the LAW DATE on retirement and disability pensions paid from ORG ( LOC o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych ) ( “ the DATE LAW ) , which at the relevant time read as follows :

“ The right to benefits or the amount of benefits will be reassessed upon application by the person concerned or , ex officio , if , after the validation of the decision concerning benefits , new evidence is submitted or circumstances which had existed before issuing the decision and which have an impact on the right to benefits or on their amount are discovered . ”

On DATE a new subparagraph CARDINAL ( CARDINAL ) ( a ) was added , which reads as follows :

“ Section CARDINAL shall apply respectively , if , after the validation of the decision it is discovered that the evidence that had been submitted did not give the right to a pension , disability pension or its amount . ”

A party to civil proceedings could , at the material time , lodge a cassation appeal with ORG against a judicial decision of a secondinstance court . A party had to be represented by an advocate or a legal adviser .

Article CARDINAL of the Code of Civil Procedure as applicable at the material time listed the grounds on which a cassation appeal could be lodged . It read as follows :

“ The cassation appeal may be based on the following grounds :

CARDINAL ) a breach of substantive law as a result of its erroneous interpretation or wrongful application ;

CARDINAL ) a breach of procedural provisions , if that defect could significantly affect the outcome of the case . ”

Pursuant to LAW , having allowed a cassation appeal , could quash the challenged judgment in its entirety or in part and remit the case for reexamination . Where ORG failed to find nonconformity with the law , it dismissed the cassation appeal . According to Article CARDINAL if the cassation appeal was wellfounded ORG could also amend the impugned judgment and adjudicate on the merits .

On DATE the ORG made an application to ORG , asking for section CARDINAL § CARDINAL of the Law of DATE on retirement and disability pensions paid from ORG ( LOC o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych ) ( “ the DATE LAW ) to be declared unconstitutional in so far as it restricted the application of the DATE Ordinance to persons born before DATE . More specifically , the ORG submitted that the introduction of an agelimit in respect of persons taking care of a child , which in essence amounted to a deprivation of the right to a benefit , constituted a violation of the principle of equality set forth in LAW .

On DATE ORG ( KCARDINAL/CARDINAL ) declared the impugned section CARDINAL § CARDINAL of the DATE Law unconstitutional in so far as it restricted the application of the DATE Ordinance to persons born before DATE . ORG reiterated among other things the constitutional principle of acquired rights which guarantees particularly strong protection for the right to receive social welfare benefits .

On DATE the ORG made an application to ORG , asking for section CARDINAL ( CARDINAL)(a ) of the DATE Law to be declared unconstitutional in so far as it allowed the ORG to reopen ex officio proceedings relating to the grant of a pension or a disability pension on the basis of a new assessment of evidence which had already been submitted .

On DATE ORG ( GPE declared the impugned section CARDINAL ( CARDINAL)(a ) of the DATE Law unconstitutional in so far as it allowed the ORG to reopen such proceedings following a new assessment of evidence which had already been submitted .


No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion) (Conditional) (Nigeria)

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

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

The applicant , who was born in DATE , claims to have arrived in GPE at DATE . However , there is no official record of his presence until DATE , when he was DATE . He first came to the notice of the Secretary of ORG for ORG on DATE , when the family court sought clarification of the applicant ’s immigration status , while considering an application for a residence order in respect of the applicant by his aunt .

The applicant ’s aunt made an application for indefinite leave to remain in GPE , on the basis of her long stay , and with the applicant listed as her dependant , on DATE . While this application was under consideration , a further application for indefinite leave was made on behalf of the applicant by ORG . This application stated that the applicant had been thrown out by his aunt on DATE and placed in foster care . It also mentioned that the applicant claimed to have been the victim of beatings by his aunt and her boyfriend since DATE . Indefinite leave to remain was granted to the applicant , outside the immigration rules , on DATE . The applicant lived in foster care from DATE until he was DATE , when he began to live alone in council accommodation .

The applicant was convicted on DATE , at DATE , of CARDINAL counts of possession of Class A drugs with intent to supply . He pleaded guilty on the basis that he had been coerced into letting his premises be used for the preparation and sale of drugs by a group of people whom he feared because of a previous attack in DATE , in which the applicant had been shot . He was sentenced to CARDINAL GPE imprisonment , and on DATE was notified of the Secretary of ORG ’s intention to deport him . The Secretary of ORG found that there was no evidence that the applicant had been present in GPE since DATE . His aunt had stated that he had been left with her by his mother at DATE , and the first official record of his presence was when he was DATE . Even allowing for his long stay in GPE , DATE had been with valid leave . It was believed that he was in contact with his mother , who remained in GPE , and that as he had lived alone since attaining the age of majority , the applicant was evidently independent and capable of adapting to new circumstances . It was not accepted that he had family life in GPE .

The applicant appealed against the decision to deport him and his appeal was dismissed by ORG on DATE . The ORG noted the applicant ’s previous criminal record : he had been convicted of possession of Class A and Class B drugs in DATE ; handling stolen goods in DATE ; and possession of Class C drugs in DATE .

The ORG also noted his claim to be in a relationship of some years’ duration , but observed that he had never mentioned his girlfriend in previous applications to ORG , and that he and his girlfriend had given mutually inconsistent evidence at the hearing . It was not therefore accepted that he was in a serious or permanent relationship . He had no contact with the aunt with whom he had previously lived , but had another aunt in GPE whom he claimed was a surrogate mother to him . However , the ORG found that he could not be as close to this aunt as he claimed , given that she had not taken him in when he had been thrown out , and that it was clear from her evidence at the hearing that she had been unaware of his criminal conviction . The applicant ’s relationship with his CARDINAL - brother in GPE was found to have been similarly exaggerated . The ORG concluded that the applicant did not have any protected family life in GPE . With regard to his private life , while it was accepted that he had been in the country since a young age and had been educated there , as well as gaining some work experience , it was not considered that these ties were sufficiently strong to render his deportation an interference with his private life . It appeared that his mother still lived in GPE and , even if contact had been lost , as claimed by the applicant , there was no reason why it could not be re - established . Whilst the applicant would have practical difficulties in relocating to GPE , he could re - establish his private life there . The ORG took into account the case of GPE v. the GPE [ ORG ] , no . CARDINAL , ORG CARDINALXII , in finding that , on balance , and having due regard to the public interest , the applicant ’s deportation was proportionate .

A deportation order against the applicant was signed on DATE . The applicant made an application to have the order revoked on human rights grounds , which was rejected by the Secretary of ORG on DATE on the basis that all matters raised by the applicant had previously been considered by ORG . An application for judicial review of this decision was refused on DATE . ORG , in refusing the application , stated that the applicant had no family life in GPE , and that the interference with his private life was proportionate . The applicant did not renew his application for judicial review .

NORP The applicant was taken into immigration detention on DATE and directions for his deportation to GPE were set on CARDINAL DATE for DATE . On CARDINAL DATE the applicant sought interim measures from ORG under Rule CARDINAL of ORG to prevent his deportation . He submitted with his application a report from a specialist psychiatric registrar dated DATE , which stated that the applicant had attempted suicide on CARDINAL DATE , after being notified of the refusal of his human rights application by the Secretary of ORG . He had then been held as an in - patient until DATE . The report also stated that the applicant had continued to express feelings of despair throughout his in - patient treatment . He was described as suffering from moderate depression .

On DATE , the Acting President of the Fourth Section decided to apply Rule CARDINAL of ORG , indicating to the Government that it was in the interests of the parties and the proper conduct of the proceedings that the applicant should not be expelled to GPE pending the ORG ’s decision . Rule CARDINAL was initially applied by the Acting President for a period of DATE , in order to give the Government the opportunity to comment on the applicant ’s mental health history and to state whether any special measures had been put in place to alleviate the risk of suicide prior to and during his proposed removal .

NORP By letter dated DATE , the Government informed the ORG that they had not previously been aware of the applicant ’s attempted suicide , but had now considered the psychiatric report of DATE . As regards the logistics of the applicant ’s removal , the ORG stated that all appropriate measures to protect the applicant from risk were already in place at the centre at which he was detained . Trained members of staff were aware of the applicant ’s situation and the applicant was under constant supervision . As to the risk during removal , the contractor effecting removal would be informed and a suitable escort would be provided , including a medical escort if deemed necessary . The applicant would be escorted up until the point of arrival in GPE . The Government also considered that there were sufficient mental health facilities in GPE , which would be available to the applicant if needed . The Government therefore invited the ORG to lift the interim measure which had been indicated in respect of the applicant . However , on DATE , the Acting President decided to prolong until further notice the interim measure under Rule CARDINAL .

The applicant notified the authorities in the immigration detention centre that he had taken an overdose of paracetamol on DATE . He was assessed by the medical team and found only to have taken a few tablets . No further concerns as to his well - being appear to have been raised and the applicant was released from immigration detention on DATE . He does not claim to have made any further attempts at suicide .

Section CARDINAL(CARDINAL)(a ) of LAW DATE ( as amended by ORG ) provides that a person who is not a NORP citizen shall be liable to deportation from GPE if the Secretary of ORG deems his deportation to be conducive to the public good .

Sections CARDINAL(CARDINAL ) and CARDINAL of the Nationality , Immigration and Asylum Act DATE provide for a right of appeal against this decision , inter alia , on the grounds that the decision is incompatible with the Convention .

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

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

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

( i ) had not already been considered ; and

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

A fresh claim , if it is accepted as such by the Secretary of ORG , and if refused , gives rise to a fresh right of appeal on the merits . If submissions are not accepted as amounting to a fresh claim , their refusal will give rise only to a right to seek judicial review of the decision not to treat them as a fresh claim .

In PERSON Secretary of ORG for ORG [ DATE ] EWCA Civ CARDINAL , ORG considered the case of a GPE national suffering from depression and post - traumatic stress disorder , who had made a suicide attempt upon learning that his claim for asylum had been refused , and who claimed that he would commit suicide if it appeared that he would be removed to GPE . Lord Justice PERSON , delivering the judgment of the court , held that the correct test as to whether there was a real risk in terms of LAW in a suicide case was , as in other LAW cases involving expulsion , whether there were strong grounds for believing that the person , if returned , would face a real risk of torture , inhuman or degrading treatment or punishment .

ORG went on to expand upon the nature of the test . It required firstly , that the treatment that the person was at risk of suffering should reach a minimum level of severity . Secondly , there must be a causal link between the act or threatened act of removal or expulsion and the treatment relied upon as breaching LAW . The court also found , thirdly , that because of the “ foreign ” nature of expulsion cases , the threshold for what would meet the threshold of LAW would be particularly high and higher still when the treatment did not result from the direct or indirect actions of the authorities of the receiving ORG but from a naturally occurring physical or mental illness . Fourthly , a risk of suicide could , in principle , form the basis of a successful claim under LAW Fifthly , an important factor in determining whether removal would breach LAW in the case of an applicant who claimed to be suicidal was whether his or her alleged fear of ill - treatment in the receiving ORG , if such a fear was at the root of the risk of suicide , was objectively well - founded . A fear found not to be objectively well - founded would weigh against a finding of a real risk of a violation of LAW . Finally , ORG also considered it to be of considerable relevance whether the removing and/or receiving ORG had effective mechanisms in place to reduce the risk of suicide . The existence of such mechanisms would also weigh heavily against a finding of a violation of LAW as a result of removal .

The Court of Appeal further held that the correct approach to an alleged risk of suicide in an expulsion case was to consider the risk in CARDINAL stages , namely , in GPE , in transit , and in the receiving ORG . The threshold for LAW of the risk in the receiving ORG was higher than it was in respect of the risk in GPE . In the case of the particular appellant , ORG found that ORG had been correct to find that the risk of suicide in GPE would be adequately managed by the relevant authorities ; that the Secretary of ORG would provide appropriately qualified escorts and as such mitigate the risk of suicide whilst in transport ; and that in light of the finding that the applicant ’s fears of return to GPE were not objectively well - founded , and that he would have family support and access to adequate medical treatment in that ORG , the risk of suicide in GPE would not reach the very high threshold of LAW .


Preliminary objection dismissed (non-exhaustion);Violation of Art. 8 in respect of control of correspondence with the Commission and with lawyer;No violation of Art. 8 in respect of other correspondence;Violation of Art. 13

On DATE the applicant was arrested in GPE ) and placed in detention on the basis of a extradition request from the authorities of GPE where he had been charged with embezzlement and forgery . He was extradited to GPE on CARDINAL DATE and detained in FAC on the island of GPE .

In a document dated DATE bearing the applicant ’s signature , it is stated that the applicant appointed Mr PERSON as the :

“ true and lawful Attorney in my name , place and stead and for my use and benefit : To exercise any or all of the following powers as to my criminal case in GPE , any interest therein and thereon . To appoint or terminate lawyers , receive and take possession of documents , to ask demand , sue for , recover , collect and receive all necessary documents in my criminal case , and appeal any decision , file complaints and whatsoever . Giving and granting to my said Attorney full powers and authority ... until this power is revoked . ”

On DATE , following adversarial proceedings during which the applicant was assisted by Mr R. – a local legal aid lawyer to whom the case had been assigned – , ORG ( PERSON in PERSON ) of GPE convicted the applicant of embezzlement and fraud and sentenced him to DATE and QUANTITY months’ imprisonment . Both the applicant and the public prosecutor filed an appeal with ORG ( FAC ) of GPE and GPE .

On DATE , following adversarial proceedings during which the applicant was represented by Mr J. – a local lawyer – , ORG of ORG quashed the judgment of DATE , convicted the applicant of embezzlement and forgery and sentenced him to CARDINAL GPE imprisonment . Although on DATE the applicant filed an appeal in cassation with ORG ( PERSON ) , he subsequently withdrew this appeal . Consequently , ORG of ORG ’s judgment of DATE became final . On DATE , after having served his sentence , the applicant was released from prison .

On DATE the applicant sent a letter of complaint about the conditions of detention in ORG , where he was held , to CARDINAL of the judges of ORG Maarten , in the latter ’s capacity as a member of ORG ( GPE PERSON Huizen PERSON ) .

NORP In this letter , in which the applicant referred to a conversation he had had with this judge on DATE , the applicant explained , among other things , that inmates were locked in their cells for TIME a day with nothing to do , that after CARDINAL days’ detention in Point Blanche an inmate was permitted on the following DATE a maximum of CARDINAL sheets of paper and CARDINAL envelopes , that there were no telephone facilities apart from previously announced incoming telephone calls not exceeding QUANTITY minutes , that inmates had to provide for their own clothing and bed linen , which they had to wash in the showers or primitive sinks during recreation , that toilets did not flush and that shower taps and pipes were leaking . In his letter the applicant suggested practical solutions for these matters and explained why such solutions would be beneficial for all concerned .

On DATE , the applicant informed ORG ( “ the Commission ” ) that he had been transferred to GPE on the island of GPE for medical reasons and had been admitted to the infirmary there . The applicant stated that , apart from the bathroom , the infirmary had no lights after sunset and inmates remained locked in for TIME a day .

In his letter of CARDINAL DATE , the applicant informed the ORG that , on DATE , he had been transferred from the infirmary to the adjacent old infirmary building , where he was detained in a cell of QUANTITY long and QUANTITY wide . He shared this cell with QUANTITY other persons . CARDINAL slept on temporary beds , QUANTITY others on the floor . He was provided with a foam mattress . No sheets or blankets were provided and he was not allowed to retrieve his own sheets from his personal belongings . He stated that he used a towel as a cover .

By letter of DATE , Mr PERSON , who initially represented the applicant in the proceedings before the Commission and subsequently the ORG , complained to the Director of ORG that his letters to the prisoners there , including the applicant , had been opened and withheld by the prison authorities although these letters were marked “ from lawyer to client ” . Mr PERSON drew the Director ’s attention to the ORG ’s judgment of CARDINAL DATE in the case of ORG v. GPE no . CARDINAL ) . He requested the Director to ensure that his earlier letters , which had been withheld in the past , be delivered to the addressees and that his clients be provided with official letter paper for their correspondence with him .

By letter of DATE , enclosing a copy of his letter of DATE to the Director of ORG , PERSON filed a complaint against the Director of ORG with the Governor ( PERSON ) of GPE . Apart from other general problems concerning this Director ’s activities , Mr PERSON complained that the ORG prison authorities had restricted the applicant ’s possibilities to acquaint himself with the contents of his case - file , a copy of which his defence lawyer had given him . On the basis of these restrictions , the lawyer retrieved the documents , as the lawyer - client privilege was not guaranteed . Mr PERSON requested the Governor to ensure that the principle of confidentiality between lawyers and their clients be respected by issuing the necessary instructions to the Director of ORG .

On DATE , the ORG of the Governor informed PERSON that the Governor had received a report on these matters from the Minister of ORG and that the latter had been requested on DATE to answer Mr PERSON ’s letter . On DATE , the ORG of the Governor informed PERSON that the Minister of ORG had been reminded to answer Mr PERSON ’s letter .

On DATE , Mr Gebhardt informed the Governor of GPE that he had not yet received any response from the Minister of Justice of GPE . Mr PERSON further stated the applicant had appointed him to represent him in proceedings before the Commission , in which context the applicant needed to sign a power of attorney sent to Mr PERSON by the ORG ’s ORG . With reference to his letter of DATE , Mr PERSON stated that , contrary to LAW , the prison authorities were blocking his access to the applicant . Mr PERSON therefore requested the Governor to ensure that the applicant would receive and return the ORG ’s standard letter of authority .

On DATE , the public prosecutor of GPE , to whom Mr PERSON ’s letter of DATE had been forwarded , sent the power of attorney signed by the applicant to PERSON .

As in the meantime Mr PERSON had also informed the ORG ’s ORG that he had had difficulties obtaining access to the applicant , the Secretariat of the Commission sent a letter on DATE to the applicant directly , requesting him to complete , sign and return a power of attorney for his representation by PERSON in the proceedings before the Commission .

On DATE , the ORG ’s ORG received the completed and signed letter of authority from the applicant directly . The letter was stamped by the GPE prison authorities and bore an illegible mark written by hand with a red ink ballpoint pen , which appeared to be a prison officer ’s visa . In the accompanying letter , the applicant informed the ORG that the prison authorities had opened the ORG ’s letter of DATE .

NORP By letter of DATE , the ORG ’s ORG requested the applicant to provide further details as to the opening of the DATE ’s letter of DATE and the control exercised by the prison authorities of correspondence between the applicant and the Commission .

On DATE , the Commission received the applicant ’s reply , stating that he had also received the ORG ’s letter of DATE after it had been opened by the prison authorities . When the letter was given to him , he was told that it had been opened by mistake and that , after it had been read , it had not been stamped . The applicant submitted the original of the ORG ’s letter of DATE which carried the same stamp and red ballpoint mark as the authority form – and the original letter of DATE which carried no stamp or other mark .

In his letter , the applicant explained that the prison stamp on his letters to ORG had been placed on blank paper prior to his writing on it . He had addressed this letter to the President of ORG and had sealed the envelope himself , as only letters addressed to the President of ORG were exempted from control by the prison authorities and , consequently , could be sealed by inmates themselves . He further stated he was not allowed to personally seal his mail to his lawyer .

On DATE , Mr PERSON addressed a complaint to ORG about problems at FAC in respect of his correspondence with various detainees there . The applicant was not included in the list of detainees cited . Referring to LAW , Mr PERSON requested the public prosecutor to ensure that any correspondence between detainees and the Commission and between detainees and himself be treated as confidential by the Point Blanche Prison authorities .

In his letter of CARDINAL DATE , the applicant informed the ORG that on DATE he had received a letter from his lawyer which had been opened .

On DATE , Mr PERSON addressed a letter concerning the applicant ’s case to the Queen of the GPE . On DATE , Mr PERSON was informed by the Minister for ORG and ORG that the letter of DATE had been forwarded to ORG . Since the applicant ’s case was still sub iudice , the Minister stated that :

“ the NORP judicial authorities still have to judge your defence statement , in which your refer to the treatment of your client . I have full confidence in the judgment of these authorities . ”

Mr PERSON was further informed that a copy of his letter had been sent to the Governor of GPE , requesting the latter to bring the matter to the attention of the Minister of ORG .

On DATE , Mr PERSON addressed a petition to ORG GPE requesting the applicant ’s release , arguing that the applicant was being unlawfully detained in inhuman conditions .

On DATE , Mr PERSON addressed a further letter to the Queen of the GPE in which he gave an account of the applicant ’s state of health while in detention and , among other things , complained of the lack of response to these problems from the authorities . He requested the Queen to intervene in order to obtain medical parole for the applicant .

On DATE , with reference to the letter of DATE , PERSON informed the Minister for ORG and ORG that neither the Governor of GPE nor the Minister of Justice of GPE had replied .

II . RELEVANT DOMESTIC LAW AND PRACTICE

Under LAW of the former LAW Wetboek van Strafvordering ) of GPE , as in force at the relevant time , every practising lawyer registered with ORG of GPE and GPE is competent to represent accused persons in criminal proceedings in GPE . When absolutely necessary ( “ volstrekte noodzakelijkheid ” ) other suitable persons , such as foreign lawyers , may be allowed to act as counsel .

Pursuant to LAW ( Landsbesluit – Official Bulletin of GPE ( ORG ) DATE no . CARDINAL ) and ORG CARDINAL of LAW ( PERSON en ORG en de Huizen van Bewaring – Official Bulletin of GPE ( ORG ) DATE no . CARDINAL ) , which were in force at the material time , detainees were entitled to write letters on DATE and to receive letters at all times . The prison governor ensured that GPE letters , which could only be written with materials provided free of charge by the prison authorities , were posted without delay . The prison authorities also paid the costs of postage . Apart from GPE letters addressed to the Governor of GPE , the Minister of ORG , ORG , ORG , ORG , ORG , the Procurator - General and the Lieutenant Governor ( gezaghebber ) , all correspondence of detainees was subject to control by the prison authorities .

The Rules of Order and Discipline for Prisons and Remand Centres were replaced by a new GPE on Prisons in GPE ( PERSON ) , which entered into force on DATE . ORG ) and ORG ( PERSON ) are currently being prepared .

The National Decree ( PERSON ) of DATE ( ORG DATE no . CARDINAL ) , in force at the relevant time , set up ORG . ORG was responsible for the supervision of all matters relating to penal establishments , with particular reference to the treatment of detainees and compliance with regulations . However , under the system established under LAW , detainees had no formal right of complaint .

This situation changed with the entry into force of the new GPE on Prisons in GPE , which provides detainees with a limited right of complaint and by which the mandate of ORG includes supervising the execution of custodial sentences , examining detainees’ complaints and considering other grievances presented by detained persons . Under LAW of the new GPE , compensation may be granted where ORG finds a complaint to be partially or wholly well - founded .

Under the system in force at the material time , problems relating to conditions of detention could also be reported to ORG . In the case of unacceptable behaviour taking place in a detention facility , FAC could order an inquiry to be carried out by ORG ( Landsrecherche ) .

The first paragraph of LAW of the former Code of Criminal Procedure of GPE , in so far as relevant , provided as follows :

“ Counsel has free access to a lawfully detained suspect , can speak with him in private and exchange letters with him without others reading them , . ORG “

NORP Under the second paragraph of Article CARDINAL of the former Code of Criminal Procedure of GPE , the public prosecutor or , if involved , the investigating judge ( rechter - commissaris ) may , during the preliminary criminal investigation ( voorbereidend onderzoek ) and in the interests of this investigation , order restricted contacts between a suspect and his lawyer , namely a denial of access to the suspect , non - private consultations or the withholding of correspondence and/or other documents . Such restrictions can only be ordered for a maximum DATE and , pursuant to LAW , are subject to review by ORG .

The wording of LAW , which entered into force on DATE , is almost identical to Article CARDINAL of the former LAW .

If no legal remedy exists under administrative law , the GPE civil courts have traditionally had competence to grant relief against the administration . This competence is based on LAW ( PERSON ORG ) , which reads :

“ Jurisdiction in civil cases involves hearing all disputes over civil rights and debt claims . ”

In accordance with ORG findings in its leading judgments of DATE and DATE ( PERSON ( GPE ) DATE , p. CARDINAL , and GPE CARDINAL/CARDINAL , no . CARDINAL ) on a similar provision in GPE on ORG ) , the GPE courts permit themselves a broad interpretation of the notion of “ civil rights ” . The right claimed by a plaintiff , and not the relationship between the parties , determines the competence of the civil courts ( ORG , PERSON v. the GPE , judgment of CARDINAL DATE ) . This means that civil courts are competent to hear disputes under civil law as well as under public law , provided that the protection of a civil right is being sought .

The civil courts’ competence as to the lawfulness of acts of the administration is , however , limited where a remedy offering sufficient guarantees for a fair procedure is available under statutory administrative law . Whilst in principle remaining competent , civil courts are to refrain from examining the lawfulness of an administrative act or decision against which an administrative appeal lies . Examination of the lawfulness of such an act or decision is not , however , excluded if the administrative appeal does not offer sufficient guarantees for a fair procedure .

On this basis the GPE civil courts consider themselves competent to rule on the lawfulness of acts of the administration when these relate to or are directed against persons in detention .

Claims against the administration submitted to the civil courts are , generally speaking , brought in the form of an action for tort ( onrechtmatige daad ) within the meaning of LAW ( Burgerlijk Wetboek ) of GPE and GPE . An act of the administration is unlawful and constitutes a tort under LAW when it is contrary to a rule of international or domestic law which seeks to protect the plaintiff ’s interests , or to the general principles of proper administration ( algemene beginselen van behoorlijk bestuur ) , which in GPE are for the most part unwritten legal standards with which acts of the administration must comply . Where civil courts are competent , it is possible to request the court , in summary civil proceedings ( kort geding ) , to take an interim measure .

The Convention , which according to the domestic courts’ case - law is directly applicable in the legal order of GPE , is frequently used by the civil courts in their examination of claims that an act of the administration is unlawful .

In a decision taken on CARDINAL DATE in summary civil proceedings brought by CARDINAL inmates of GPE , ORG of ORG reviewed inter alia a claim for unlimited correspondence rights under LAW ( Rietwijk et al . v. GPE , ORG ) . It held on this claim :

“ For the time being it has not been established that the interference with the fundamental right of respect for correspondence provided by < Article CARDINAL of LAW and Articles CARDINAL of LAW > exceeds the boundaries set out in the second paragraph of LAW . The special position of detainees simply renders such interference necessary .

It has been established that the < prison > direction does not allow detainees from GPE to write CARDINAL letters per week and that , for detainees from abroad , the maximum amount has been set at DATE . It is further the rule for all detainees that they may send DATE cards per year at public expense and CARDINAL extra at their own expense .

Also in the assessment of these limitations , the special position of detainees may be taken into consideration . The circumstance that all letters , both incoming and outgoing , must be censured constitutes a ground of justification for the limitations submitted . It has been established that the director , by virtue of LAW , is empowered to limit the fundamental right in this sense . The claim is consequently rejected . ”

ORG did , however , find in favour of the detainees on a number of other claims : It ordered the defendant to allow each detainee to have visits of TIME , to cover an open sewer in the prison ’s courtyard and to ensure the availability of health care services for DATE hours per week . It further prohibited the defendant from placing detainees in a punishment cell for DATE . Such cells must anyway have daylight and a water supply .

In a decision taken on DATE in summary proceedings taken by CARDINAL detainees who did not explicitly invoke the LAW , the First Instance Court of GPE set out the conditions under which a person could be held in pre - trial detention ( voorlopige hechtenis ) in the ORG Canario police cell complex . As these conditions were not met , it issued an interim measure prohibiting the defendant from keeping CARDINAL of the CARDINAL plaintiffs ( the other CARDINAL having been transferred already ) in detention in this complex . It ordered his transfer to the LOC remand centre within TIME or , if this was not possible , to release him ( PERSON and PERSON v. GPE , KG CARDINAL/CARDINAL ) .

In a decision taken on DATE in summary proceedings brought by a detainee , ORG of GPE ruled that to hold a person in custody ( inverzekeringstelling ) for DATE in a police cell – that he shared with another person – of QUANTITY without sanitary facilities and without a possibility of outdoor exercise , was contrary to LAW , and ordered the immediate release of the plaintiff ( NORP v. GPE , ORG ) .

In a decision taken on DATE in summary proceedings brought by CARDINAL detainees ( PERSON v GPE , KG CARDINAL/CARDINAL ) , ORG of Curaçao held

“ CARDINAL . The plaintiffs ... claim against the defendant , the < GPE authorities > ,

- CARDINAL orders , described in their petition , identical to the orders already issued by ORG by judgment of DATE ( ORG CARDINAL against the < GPE authorities > at the suit of CARDINAL other plaintiffs , and which orders all concern facilities of an elementary hygienic and humanitarian nature ;

- a prohibition on imposing collective punishments in the form of a denial of visits , mail or access to the canteen ;

- a prohibition on administering corporal punishments to detainees , in particular “ circle ill - treatment ” ( kringmishandelingen ) and the “ soultrain ” ;

all of this on penalty of a default fine of CARDINAL GPE Antilles CARDINAL ( NAF ) for DATE that the < GPE authorities > violate CARDINAL of these orders or prohibitions as regards CARDINAL of the plaintiffs , with a maximum of NAF CARDINAL per plaintiff . ...

< It has been > established that none of the humanitarian and sanitary facilities which the authorities of GPE had been ordered to execute , following this court ’s judgment of DATE , have materialised , so that < the plaintiffs > justly claim that the < GPE authorities > be ordered once again to do so .

Indeed :

- it has not been argued nor does it appear that nutritional plans have been drawn up by a dietician , whereas ... these should have been available DATE . This is not altered by the recent activities of a dietician since these have not actually resulted in the practical introduction and implementation of menus .

- it has been argued but not shown that up to now sufficient pest control ... < by placing anti - cockroach devices in cells > has taken place ;

- the < GPE authorities > recognise that an increase in the number of visiting cells by CARDINAL has not yet taken place , and no well - founded reason for this has been given ; it is understandable that security demands render that increase laborious and time - consuming , but after DATE it should have been completed ;

- the < GPE authorities > do not deny in so many words that placements in a punishment cell take place without < a prior > hearing of the detainees concerned ; the reference to the sanctions that may be applied where the instruction to hear is not respected does not constitute rebuttal ;

- the < GPE authorities > have submitted that there is now sufficient natural light and air in the punishment cell , but this is not plausible and the court fails to see , if this was indeed the case , why < the plaintiffs > would make a claim to this end , and why , in addition , an order with a default fine could therefore harm the < GPE authorities > ;

- the < GPE authorities > have not really denied that the punishment cell is not or only partially equipped with a mattress , bedding , a table and a chair .

The requested prohibition on imposing collective and corporal punishments shall also be ordered .

The < GPE authorities > have not denied that collective punishments have been applied , but have pointed out an emergency situation that may occur . That it is sometimes impossible to find out who in a shared cell has committed a prosecutable offence is no justification for punishing everyone concerned ; in this way innocent people are knowingly punished , and that can never be justified .

And it is further established that corporal punishments have been administered , not only on the basis of declarations made during the trial that have been hardly disputed , but also on the basis of ORG the contents of which have not been disputed . Corporal punishments are prohibited under conventional - law provisions .

The claims will therefore be granted . Given the nature of the prohibition , no maximum limit shall be fixed for the default fine concerning the prohibition on corporal punishment .

In this connection it is further considered that , in so far as the interests of < the plaintiffs > in granting < their claims > do not lie in offences already committed , their interests lie in the prevention thereof since the danger that these < offences > will reoccur is apparently real .

The question remains whether a default fine must be attached to this ruling .

The defence of the < GPE authorities > that they will voluntarily comply with judicial ruling is not credible ; the < GPE authorities > have apparently done nothing about the orders contained in the judgment of DATE . This pleads in favour of imposing default fines .

CARDINAL.CARDINAL . ... nothing has induced the < GPE authorities > to do something about the worrisome wrongs in GPE . In the entire country and GPE there is unanimous agreement that the prison by far does not comply with the norms that are internationally recognised and set out in Treaties , DATE also the < GPE authorities > through their Minister continuously recognises DATE but nothing happens .

If the < GPE authorities > realise that a wide variety of measures are required to guarantee the physical security and the mental and physical health of detainees ... then they receive a judicial order and nevertheless fail to do what is urgently required of them , the question arises whether a default fine would be of any help .

Nevertheless , the reason to impose a default fine is that , within the framework of the present summary proceedings , no other coercive measure is available and < the plaintiffs > can not be denied the right to try now to obtain enforcement of the orders which have been granted ... ”

ORG found in favour of the plaintiffs on all claims and set a default fine of NAF CARDINAL for DATE of failure to respect any of the orders or prohibitions to the detriment of CARDINAL of the plaintiffs up to a maximum of NAF CARDINAL per plaintiff , and a default fine of NAF CARDINAL for each time the prohibition on corporal punishment was not respected as regards any of the plaintiffs .

Following a violent incident on DATE at GPE in GPE ( see paragraph CARDINAL below ) , CARDINAL detainees brought tort proceedings against the authorities of GPE . In its decisions of DATE , ORG of GPE held that the plaintiffs had been subjected to treatment contrary to LAW and awarded them damages varying from NAF CARDINAL,CARDINAL to NAF CARDINAL ( ORG v. GPE , PERSON . GPE , GPE v. GPE , PERSON . CARDINAL/CARDINAL , PERSON v. GPE , PERSON . CARDINAL/CARDINAL , PERSON v. the GPE , PERSON . ORG , and PERSON v. GPE , PERSON . PERSON ) .

In its Report of DATE , ORG for the Prevention of Torture and Inhuman Treatment ( “ CPT ” ) on its visit to GPE from DATE , found that the conditions of detention in GPE amounted to inhuman and degrading treatment . This finding led the ORG ’s delegation to send a letter on DATE to the Minister of ORG setting out a number of urgent measures which had to be taken to improve conditions of detention there .

According to this ORG , GPE regulations make no provision for the use of telephones by prisoners and that , in practice , it appeared that prisoners who are resident in the island of GPE could make calls DATE and foreign nationals once DATE . Calls were apparently limited to TIME and were monitored by prison staff . As to the visiting facilities , the ORG recommended their complete review in order to establish more open arrangements for ordinary visits .

The ORG further observed that placements in the punishment cell , with only bread and water on DATE , was current practice , and recommended that GPE take immediate steps to prohibit the placement of prisoners in punishment cells on a bread and water diet . The ORG further found that the amount of time that CARDINAL general medical practitioners spent in the prison TIME for CARDINAL prisoners DATE was inadequate .

The CPT Report of DATE on its second visit to GPE from DATE , in which the ruling of DATE by ORG of Curaçao ( see paragraph CARDINAL above ) is mentioned , concluded that the material conditions of detention in GPE remained unsatisfactory and the ORG called upon GPE authorities to take immediate steps to draw up a comprehensive strategy to combat violence in all its forms at FAC and that this strategy be vigorously implemented without delay . It also recommended that GPE authorities redouble their efforts in inter alia reducing the overcrowding and improving the overall state of repair of the detention areas ( including the sanitary facilities ) . The ORG further recommended that immediate steps be taken to ensure that every prisoner would be supplied with a mattress at TIME .

Certain positive developments concerning ORG contacts with the outside world were noted by the ORG delegation , particularly as regards improved access to a telephone and the possibility offered to some prisoners of having supervised open visits . Nevertheless , many complaints were heard from prisoners about lengthy delays before they were granted access to a telephone and about such access often being refused arbitrarily ; complaints were also heard about the delayed distribution and/or forwarding of correspondence .

The CPT Report of CARDINAL DATE on its third visit to GPE from DATE records that , as had been the case in DATE , health care staff insisted that many cases of violence went unreported and that apparently efforts to keep a precise record of cases of violence waned during DATE . The ORG also mentions an incident having occurred on DATE at GPE . The information gathered by the ORG delegation suggested that police officers had beaten prisoners who had already been brought under control ; the prisoners were naked and handcuffed behind their backs . The matter had not been immediately reported by the prison staff to their own hierarchical superiors ( the director of the prison ) or to ORG and , DATE , investigations into the conduct of the police and prison officers involved were still at an embryonic stage . It further appeared that those same police officers continued to be deployed in the prison .

The ORG further noted that , by a Decree of DATE , an independent Commission was established ( “ the ORG ” ) to guarantee the physical integrity of persons deprived of their liberty and to investigate any abuse that might occur .

The ORG also observed that the measures adopted to address the acute problem of unauthorised prison staff absenteeism , resulting in levels of prison officer presence on the wings being considerably lower than necessary for the proper and safe functioning of the establishment , had failed , that no target date had been set for strengthening the enforcement of those measures and that apparently no alternative policy was being considered .

As regards the conditions of detention in GPE , the ORG noted the efforts made to improve the material environment , but also observed that the prison continued to suffer some degree of overcrowding , that problems in providing prisoners with adequate food at regular times and ready access to drinking water continued to persist , and that the health care services had worsened in comparison with its second visit in DATE . The ORG delegation was further told that there was a shortage of mattresses , despite the fact that budgetary means were available .

In its response to the ORG report on its third visit , GPE authorities confirmed that , as to the alleged irregularities said to have taken place on DATE , a preliminary judicial investigation had commenced , in the course of which a number of witnesses were being heard by the investigating judge . The ORG was further informed that the water problem ( inadequate pressure ) had been resolved , that the arrangements for supplying meals were satisfactory and that there was no question now of a shortage of mattresses . The response further stated that the medical service had been restructured on DATE in accordance with the recommendations of the ORG .

On DATE , in accordance with LAW . CARDINAL/JAZ , an ORG was established to investigate a number of elements contained in the last ORG report , including conditions of detention . ORG was presided over by PERSON , the then ORG Secretary of ORG of GPE . In the course of its activities , ORG conducted a visit to ORG .

In its report the Commission recorded that inmates at ORG , as well as the judicial authorities , had indicated that there were still cases of ill - treatment of inmates by prison guards . A complaint about this had been filed with the public prosecutor ( PERSON ) in the meantime . The judicial authorities indicated to the Commission that they had strong suspicions that ill - treatment had in fact occurred . The Commission noted that it was unclear what was being done to prevent ill - treatment . It also noted that inmates could file a written complaint to the public prosecutor through the prison director .

Inmates indicated to the Commission that there are no educational or recreational programmes for detainees , thus forcing detainees to remain idle DATE . According to the detainees , it depended on who of the prison guards were on duty whether something was done with the detainees .

The Commission observed that in the recreation rooms , which were in a good state , several activities took place such as music lessons given by an inmate . It further noted that computers could be used and that there was a possibility to play table - tennis and watch television . It noted that , for lack of staff ( CARDINAL staff member ) and means to develop activities , there was only a limited use of the workshops .

The Commission recorded that ORG had a maximum capacity of CARDINAL places which were constantly occupied . Although there were CARDINAL members of staff , in practice CARDINAL were available DATE . The reason for this considerable absenteeism was reportedly the failure to deal quickly enough with staff matters ( payment of overtime , child allowances , salary adjustments , posting allowances , maintenance costs , etc . ) . As staff had already been waiting for these matters to be dealt with for DATE , they were threatening with actions if this situation did not improve soon .

In most cells DATE each having a surface of CARDINAL ORG and designed for CARDINAL persons – furnishings such as chairs , tables and mattresses were either lacking or in bad condition , and sanitary facilities were in disrepair and dilapidated , sometimes to such an extent that inmates had to use buckets to shower and flush toilets . It recommended replacing the toilet flushes and the replacing the shower heads and taps with vandal - proof materials . The report further states that :

“ the ( natural ) ventilation is “ too ” good . During hurricanes and during certain periods of DATE , inmates must protect themselves against the strong winds ( from hurricanes ) and the humidity caused by condensation . To this end cardboard boxes are hung around the beds . ”

ORG further found the kitchen of ORG , where CARDINAL meals are prepared DATE , to be in an unacceptable state of dilapidation and disrepair , as well as freely accessible to vermin , including rats . It noted , inter alia , that for technical reasons ( the need of repair ) CARDINAL cold - storage rooms were out of use for DATE respectively , and that a much smaller cold - storage facility was being used , as a result of which only limited food supplies could be stored . This caused problems after the island had been hit by a hurricane and food was difficult to obtain . It recommended that the entire kitchen , including all the appliances , be replaced .


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

The applicant was born in DATE and lives in GPE .

He is the owner of a flat in GPE , which he had let to A.M.A.

In a registered letter of DATE , the applicant informed the tenant that he intended to terminate the lease on expiry of the term on DATE and asked her to vacate the LOC by DATE .

In a writ served on the tenant on DATE , the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate .

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

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

On DATE , he informed the tenant that the order for possession would be enforced by a bailiff on DATE .

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

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

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

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

On DATE , the applicant recovered possession of the flat .

Since DATE the public authorities in GPE have frequently intervened in residential tenancy legislation with the aim of controlling rents . This has been achieved by rent freezes ( occasionally relaxed when the Government decreed statutory increases ) , by the statutory extension of all current leases and by the postponement , suspension or staggering of the enforcement of orders for possession . The relevant domestic law concerning the extension of tenancies , the suspension of enforcement and the staggering of evictions is described in the ORG 's judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINAL-V. Lastly , for some cases , a suspension of the enforcement of the orders for possession until DATE was introduced by Legislative Decree no . CARDINAL of DATE , which became PERSON no . CARDINAL of CARDINAL DATE .

As regards the control of the rents , the evolution of the NORP legislation may be summarised as follows .

The first relevant measure was the PERSON no . CARDINAL of DATE which provided machinery for “ fair rents ” ( the so - called equo canone ) on the basis of a number of criteria such as the surface of the flat and its costs of realisation .

The second step of the NORP authorities dated DATE . It was taken in the view of progressive liberalisation of the market of tenancies . Accordingly , a legislation relaxing on rent levels restrictions ( the so - called patti in deroga ) entered into force . Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price .

Lastly , PERSON no . CARDINAL of DATE reformed the tenancies and liberalised the rents .

NORP The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat . In this regard , LAW provides :

“ The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until DATE when he leaves , together with other remaining damages . ”

NORP However , PERSON no . CARDINAL of DATE set out , inter alia , a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease , proportionally increased according to the cost of living ( LAW no . CARDINAL of DATE ) plus PERCENT , along the period of inability to dispose of the possession of the flat .

In the judgment no . CARDINAL of DATE , ORG was called upon to decide whether such a limitation complied with LAW . ORG held that it was compatible with the LAW with regard to periods of time during which the suspension of the evictions was determined by law . ORG explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation , when the housing shortage made the suspension of the enforcement necessary . While evictions were suspended ex lege , the law predetermined the quantum of the reimbursement chargeable to the tenant , both measures being temporary and exceptional . Besides , the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages .

ORG declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention . Accordingly , it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant .


The applicant , PERSON , is an NORP national , who was born in DATE and lives in GPE . She is represented before the Court by PERSON , a lawyer practising in GPE .

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

The applicant applied to the Mayor of PERSON for a farmhouse building permit on DATE .

ORG rejected the request on DATE because a modification of the city plan forbade new buildings in the areas in question .

On DATE the applicant lodged an appeal against this decision with ORG , asking for it to be quashed and for a declaration of her right to obtain the building permit . She alleged that the decision of ORG was unlawful because , before the approval of the modification of the city plan by ORG , she had made written submissions to obtain a building permit in those areas which had been considered by ORG to fall within the modified city plan .

On DATE the ORG quashed the decision of ORG on the basis of the reasons stated by the applicant , but rejected the request to declare that she had a right to obtain the building permit .

The applicant sent a copy of the judgment to ORG on DATE . No appeal was lodged by ORG and the judgment became final on DATE .

In the meantime , on DATE , ORG had approved new modifications of the city plan in relation to the areas in question .

On the basis of the judgment of ORG , the applicant asked ORG for a building permit , but ORG did not reply .

In relation to the delays in complying with the decision of ORG , on DATE the applicant filed enforcement proceedings ( ricorso per l’ottemperanza ) with the same ORG for enforcement of the judgment of DATE . The applicant requested ORG to find that the first judgment had not been enforced and to appoint a special commissioner ( commissario ad acta ) to enforce it .

On DATE ORG admitted the claim and ordered ORG to comply fully with the judgment of DATE within DATE from the communication of the decision . The ORG also appointed a special commissioner who was to intervene if , upon expiry of the DATE period , ORG had not granted the permit . The commissioner was empowered to take the necessary measures to ensure compliance with the decision within DATE . ORG held that the further modifications approved by ORG on DATE were not an obstacle to granting the building permit because the administrative proceedings for their approval had not ended when the judgment of ORG of DATE became final .

ORG lodged an appeal against the judgment of DATE of ORG before the PERSON , asking for it to be quashed .

On DATE the Consiglio di Stato granted the appeal and rejected the application for enforcement . The Consiglio di Stato alleged that the new modifications to the city plan approved on DATE were an obstacle to granting the building permit , even if the administrative proceedings for approval had not ended when the judgment of CARDINAL DATE of ORG had become final .


Violation of Art. 10;Pecuniary and non-pecuniary damage - award

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

The applicant was born in DATE and lives in GPE .

The applicant is a professor of construction management at ORG . In his speech , delivered during the “ First National Construction Conference ” , which took place in DATE , the applicant analysed the progress of the work in his field of discipline . He also distributed a paper in which he criticised the way the examinations for assistant professors were being administered .

On DATE , an assistant professor , N.C.A. , brought a civil action for compensation against the applicant , before ORG . He claimed that certain remarks used by the applicant in the paper constituted an attack on his reputation , although his name was not mentioned . The statements in question were as follows :

“ The panel for the assistant professorship examination in the discipline of construction management was formed by academics of the construction faculty . This led to the election of very inadequate assistant professors . ( ... ) During this period , before a panel on which [ the applicant ] was the only professor of construction management , a candidate was notified that his CARDINAL - page - long report and his examination were not satisfactory . Blaming [ the applicant ] for the unsatisfactory result , the same candidate filed an action for damages , alleging that he had been beaten by [ the applicant ] . Before the action for compensation was finalised , he managed to pass the assistant professorship examination before another panel , whose members were not from the construction management department , and without publishing a single article ... ”

On DATE the first instance court rejected ORG 's claim , holding that these statements were merely a criticism of the academic system and the institutions . ORG appealed .

On DATE ORG quashed the decision holding that the following sentence could be taken as an attack on the plaintiff 's reputation :

“ ... he managed to pass the assistant professorship examination before another panel , whose members were not from the construction management department , and without publishing a single article ... ”

It held that the above sentence implied that , if there had been a different panel , the plaintiff would have failed the examination .

On DATE the applicant 's request for rectification of the latter decision was dismissed .

On DATE ORG of First instance , after having considered ORG views on the case , confirmed its earlier decision . It held that the defendant , who was an academic , should be granted the flexibility enjoyed by members of the press or lawyers . The reasoning of the court was as follows :

“ If these statements were uttered by a press member or a lawyer , it would have been regarded as freedom of the press or the rights of the defence . If we hold that these remarks made by an academic were against the law , then this would be a breach of his constitutional rights , such as freedom of expression , dissemination of ideas ( article CARDINAL ) and freedom of science and the arts ( DATE ) . ”

N.A.C. appealed once again . On DATE ORG of the ORG quashed the decision by CARDINAL votes to CARDINAL , holding that the first instance court should have followed the opinion of ORG .

On DATE the applicant 's request for the rectification of the latter decision was dismissed .

The case was resumed before ORG of First Instance . The applicant informed the court that , at DATE , ORG had dismissed ORG from his post on account of his inadequate scientific competence and personal values . In view of this information , the applicant asserted that he had been right to criticise the system of promotion and thus asked the court to dismiss the plaintiff 's request .

On DATE the first instance court followed the decision of ORG of ORG , and awarded ORG compensation in the sum of MONEY ( TRL ) for non - pecuniary damage . The court did not address the applicant 's argument concerning the dismissal of the plaintiff from the university . Both parties appealed against this decision .

On DATE Court of Cassation upheld the decision of the first instance court .

On DATE the applicant 's request for rectification of the decision of DATE was rejected by ORG .

The applicant was ordered to pay GPE CARDINAL , the sum obtained by adding together the principal compensation , interest and court fees .

Article CARDINAL of the Code of Obligations provides as follows :

“ Any person who alleges that his personality rights have been illegally violated can claim compensation for non - pecuniary damage .

The judge shall take into account the parties ' socio - economic situation , their occupation and social status when determining the amount of compensation ... ”

In its LAW ( DATE ) , ORG of ORG adopted the following declaration for the protection of academic freedom of expression :

In accordance with the Magna Charta GPE , the ORG reaffirms the right to academic freedom and university autonomy which comprises the following principles :

academic freedom in research and in training should guarantee freedom of expression and of action , freedom to disseminate information and freedom to conduct research and distribute knowledge and truth without restriction ; ...

history has proven that violations of academic freedom and university autonomy have always resulted in intellectual relapse , and consequently in social and economic stagnation ; ... ”


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before ORG , solicitors 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 applicant ’s wife died on DATE . On DATE , the applicant made a claim for widows’ benefits . On DATE , the applicant was informed that his claim had been disallowed as he was not a woman . On DATE the applicant made a request for reconsideration . On DATE his claim was reconsidered but the decision remained unchanged .

The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


GUTIERREZ DORADO AND DORADO ORTIZ v. SPAIN

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

The applicants , Mr PERSON and PERSON , are NORP nationals who were born in DATE and DATE respectively and lived in GPE . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE , and PERSON , barrister in GPE .

On DATE , the second applicant died . On DATE , the first applicant informed the ORG that he wished to pursue the application both on his behalf and on behalf of his late mother , the second applicant .

NORP In DATE , Mr PERSON , who was the grandfather of the first applicant and the father of the second applicant and a Member of the NORP ORG belonging to the socialist party ( “ NORP ” ) , was forcibly taken away by military forces in circumstances that have not yet been fully established . On DATE , he was travelling on a train from GPE to GPE . Armed forces took him away with CARDINAL other persons ( another Member of ORG and the NORP consul in GPE ) . They were transferred to the garrison of “ GPE ” in GPE . The NORP Consul was immediately released . Mr PERSON and the other man were detained until DATE because Mr Dorado PERSON ’s signature appears as a witness on the death certificate of another detainee who apparently died in the garrison ( LOC , a journalist and ex - Socialist Member of ORG ) .

The applicants have no reliable information as to their relative ’s fate after DATE .

NORP In DATE a dead body was discovered which had documents with Mr PERSON name in the pockets . The autopsy stated that he died “ as a result of firearm injuries with serious wounds in the brain and liver ” . The dead body was registered in the obituary book as Mr Dorado PERSON . On CARDINAL DATE , the civil registry judge decided that there was insufficient evidence to conclude that the corpse was that of Mr Dorado PERSON and made an entry in the civil registry of PERSON that the body was that of an “ unknown man ” .

On DATE , after the death of PERSON , an ORG PERSON was passed by the newly established ORG which granted immunity from prosecution to everyone who had committed any offence for political reasons prior to DATE .

In DATE , the applicants assisted Mr PERSON wife , PERSON ( their mother and grandmother respectively ) in the proceedings to obtain official confirmation of Mr Dorado PERSON ’s disappearance , a necessary procedural step before PERSON could obtain her widow ’s pension in accordance with the applicable law . NORP authorities dismissed her request for widow ’s pension arguing that she could not be entitled to widow ’s benefits as there was no evidence of her husband ’s death in the civil registry books .

In DATE , PERSON initiated a procedure for voluntary declaration of death before the courts of GPE . The procedure lasted until DATE . On DATE the first instance court no . CARDINAL of GPE , after confirming that Mr PERSON had disappeared and that his fate and whereabouts were unknown , ordered that his death be recorded in the civil registry books . The judge established DATE as the date of death . PERSON was finally entitled to perceive her widow ’s pension .

On DATE , the second applicant brought a criminal complaint before FAC no . CARDINAL of PERSON ( investigating Judge ) . She complained about the abduction and possible murder of Mr PERSON in DATE amounting to war crimes for which there were no statute of limitations . On DATE , the investigating Judge ruled against the applicant stating that the facts complained of amounted to a “ hypothetical simple murder ” which was subject to a statute of limitations of DATE under LAW . As to the possibility that war crimes or crimes against humanity could not be time - barred , the Judge said that this could only apply after DATE when the criminal code was amended in that sense and that the new rule could not be retrospectively applied to crimes which had already been time - barred by then .

The second applicant appealed to FAC of GPE . On DATE , ORG dismissed the appeal and confirmed the decision of the investigating Judge . The appellate court stated that the current constitutional regime prevented the prosecution of crimes committed during the Civil War since such claims would be contrary to the conciliatory nature of the NORP constitutional framework and would only serve at “ reviving old wounds or remove the embers of civil confrontation ” .

The second applicant filed an amparo appeal against this decision before ORG . On DATE , ORG declared the appeal inadmissible for being devoid of constitutional content .

The second applicant , on DATE , together with several ORG associations , filed a complaint before the Audiencia Nacional in GPE . They complained that their relatives had suffered systematic enforced disappearances as well as possible systematic killings as part of a deliberate and calculated plan to eliminate a sector of the population . On DATE , the ORG Investigating Judge no . CARDINAL , in a preliminary investigation , ordered several public and private institutions to submit information on individuals disappeared after DATE as a result of the Civil War and the subsequent PERSON regime .

On DATE , the Investigating Judge issued a ruling accepting jurisdiction , in so far as the crimes had been committed against high - level national institutions and the form of Government ( military rebellion of DATE and the subsequent enforced disappearances ) . The ruling stated that all the facts complained of were not to be considered in isolation but rather within the wider context of the planned , massive repression by the PERSON regime which began on DATE against political opponents , carried out in a systematic manner which could amount to crimes against humanity as provided by LAW ( LAW in force ) . The Investigating Judge further pointed out that the practice of enforced disappearances was used systematically to make it impossible to identify the victims and therefore prevent any judicial action against the perpetrators . He further noted that the whereabouts and fate of CARDINAL of people that had been detained by the authorities were still unknown . These were continuous crimes because no information had been given to the families of the disappeared . The distress and anguish suffered by the relatives of the victims who still did not know the whereabouts and fate of their beloved ones amounted to a violation of LAW ( with reference to GPE v. GPE [ ORG ] , no . CARDINAL , ORG CARDINALIV ) .

The Public Prosecutor appealed against the Investigating Judge ’s decision , requesting the closure of the proceedings .

On DATE , the plenary of the Audiencia Nacional ( criminal division ) ordered all proceedings related to exhumations of mass graves to be suspended until final decision .

On DATE , the Investigating Judge no . CARDINAL issued a decision relinquishing jurisdiction and advising the complainants to pursue their complaints before provincial courts . After receiving evidence that all the officials suspected ( including PERSON ) had died , he declared their criminal responsibility extinguished . Complaints for the same facts alleged against other possible suspects would fall within the jurisdiction of the territorial courts competent in respect of the different mass graves ( among which the territorial courts of GPE ) . In its decision , the ORG reiterated that these crimes should be prosecuted as the continuing crime of enforced disappearance and that there could be no application of the statute of limitations . He pointed out that the lack of official ex officio investigation for DATE coupled with the numerous obstacles introduced by ORG to the opening of an investigation was in conflict with the ORG and the PACE resolution CARDINAL of DATE on enforced disappearances .

On DATE , the plenary of the Audiencia Nacional ( criminal division ) declared its lack of jurisdiction to investigate these crimes . The Audiencia Nacional noted that the crime of military rebellion had never fallen within its jurisdiction .

The family of Mr PERSON initiated several parallel initiatives to the judicial procedures to clarify his disappearance . On DATE , the second applicant sent a petition to the competent military tribunal requesting information about the detention and whereabouts of Mr PERSON . On DATE , the military tribunal responded stating that they had no information about him .

On DATE , ORG dismissed the ORG petition to permit the exhumation of the body of Mr PERSON from a mass grave identified in a pit of the cemetery in GPE . The local authorities argued that there were CARDINAL tombstones above the mass grave and they had no authorization to remove them from the next of kin of the individuals buried there .

On DATE , pursuant to a petition by the applicants , the prison authorities of PERSON issued a certificate confirming that Mr PERSON had been detained there from CARDINAL to DATE . The certificate stated that the reasons for the detention were “ unknown ” and that he was released upon orders from the military commander of PERSON and surrendered to ORG on DATE .

On DATE , the first applicant privately hired the services of forensic experts . In accordance with LAW enacted in DATE ) , the first applicant was granted public funds ( EUR MONEY ) by ORG Presidency to assist in the process of searching and recovering the remains of his grandfather . The forensic experts located a mass grave in the cemetery of “ ORG ” in GPE where allegedly the corpse of Mr PERSON might be buried according to the DATE inscription in the cemetery obituary book . Although ORG Investigative Judge no . CARDINAL had issued a specific order to the courts in GPE stating that the forensic works regarding the exhumation of Mr PERSON were authorized , ORG of Cordoba issued an order to suspend all works . The forensic works have been suspended since then .

On DATE , ORG issued a decision denying the granting of further funds for the exhumation of the remains of Mr Dorado PERSON .

It is submitted by the applicants that provincial courts , including the courts in GPE , are dismissing complaints by individuals disregarding the arguments of the Audiencia Nacional ’s Investigating Judge no . CARDINAL in its decision on relinquishment .