ITEMID: 001-106791
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF MAMMAD MAMMADOV v. AZERBAIJAN
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Anatoly Kovler;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 5. The applicant was born in 1983 and lives in Baku.
6. He is currently serving a life sentence in Gobustan Prison.
7. In the period from March to December 2001 the applicant, as a member of a small group of “volunteers” from Azerbaijan, underwent military training organised by Chechen militants based in Georgia’s Pankissi Gorge. The aim of this training was subsequent participation in insurgent operations against the Russian Federal forces in Chechnya.
8. The applicant returned to Baku in December 2001. On 27 December 2001 he was arrested. On 17 May 2002 the Assize Court convicted him of forming an illegal armed group under Article 279.1 of the Criminal Code and gave him a suspended sentence of four years’ imprisonment.
9. On 12 August 2003 the applicant was arrested again. On 12 April 2004 he was indicted in the Assize Court on charges of premeditated aggravated murder, firearms smuggling, illegal possession of firearms, creation of an illegal armed group, and illegal border crossing under Articles 29, 120, 206, 228, 279 and 318 of the Criminal Code.
10. On 17 June 2004 the Assize Court found the applicant guilty as charged and sentenced him to life imprisonment.
11. On 6 July 2004 the applicant appealed against this judgment. He complained, in particular, that the facts of the case had not been assessed correctly, that he had not intended to kill law-enforcement officers and that the Assize Court had erred in applying and interpreting the criminal law.
12. On 20 August 2004 the Court of Appeal dismissed his appeal and upheld the first-instance judgment. The appeal hearing was held in the applicant’s absence. His lawyer was present.
13. On 24 December 2005 the applicant lodged a cassation appeal. He reiterated his previous complaints claiming the misapplication of the relevant criminal law. He did not complain about his absence from the hearing before the Court of Appeal.
14. On 14 March 2006 the Supreme Court held a hearing in the presence of the public prosecutor. The applicant and his lawyer had not been summoned to that hearing. The Supreme Court upheld the lower courts’ judgments.
15. The applicant is held, together with one other inmate, in a cell measuring 5.25 x 2.80 metres. The cell has two beds, a small bedside cupboard, and one small table and two chairs fixed to the cell floor. The toilet area is separated from the rest of the cell. The floor and ceiling are made of stone and concrete respectively. The temperature inside the cell is very high in summer and very low in winter. Central heating is available, but insufficient.
16. The window with metal bars has no windowpane in it and, in winter, is closed with a transparent polyethylene film. The air inside is stale and the cell cannot be naturally ventilated. The food served in the prison is often of poor quality and lacks sufficient meat and vitamins, and the menu is unvaried and monotonous. The inmates are only allowed thirty to forty minutes of outdoor exercise per day.
17. The applicant’s cell is assigned to two inmates and measures 5.25 x 2.80 metres. The conditions of the applicant’s detention meet all national and international requirements and standards. The window of the cell can be opened from the inside. The window is large enough and does not prevent natural light and fresh air from coming in. The cell is also equipped with electric lamps, a ventilator and a radio set.
18. Since June 2008 the prisoners have had the right to watch TV for four hours per day and for six hours per day at weekends and on holidays. The prison has a library accessible to the prisoners. Sanitary conditions are normal and the food served is of good quality. The applicant has the right to one hour of outdoor exercise per day.
19. The relevant provisions of domestic law concerning proceedings before the Supreme Court are described in detail in the Court’s judgments in Maksimov v. Azerbaijan (no. 38228/05, §§ 22-24, 8 October 2009) and Abbasov v. Azerbaijan (no. 24271/05, §§ 19-21, 17 January 2008).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-85131
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: GRANDCHAMBER
DATE: 2008
DOCNAME: CASE OF ARVANITAKI-ROBOTI AND OTHERS v. GREECE
IMPORTANCE: 2
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - award
JUDGES: Christos Rozakis;David Thór Björgvinsson;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Khanlar Hajiyev;Lech Garlicki;Loukis Loucaides;Margarita Tsatsa-Nikolovska;Mark Villiger;Mindia Ugrekhelidze;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Sverre Erik Jebens;Vladimiro Zagrebelsky
TEXT: 11. In their capacity as doctors, the applicants are members of the National Health System (Εθνικό Σύστημα Υγείας) and are employed by the public hospital “O Evangelismos”.
12. On 28 April 1994 they applied to the Athens Administrative Court of Appeal seeking to have set aside the hospital's refusal to pay them an allowance for overtime work, set at 1/65th of their basic salary. The sole purpose of this application was to challenge the lawfulness of the disputed administrative decision.
13. Initially scheduled for 11 March 1996, the hearing was postponed seven times, one of these being at the applicants' request. It was eventually held on 22 November 1999. On 16 December 1999 the Athens Administrative Court of Appeal set aside the disputed administrative decision (decision no. 2684/1999).
14. On 18 April 2000 the hospital lodged an appeal against that decision. Initially scheduled for 18 January 2001, the hearing was held on 18 October 2001, after four postponements. On 7 March 2002 the Third Division of the Supreme Administrative Court sent the case for examination by that court's seven-judge bench on account of the importance of a question concerning the way in which the document in dispute had been published (judgment no. 763/2002).
15. On 6 February 2003, following the postponement of one hearing, the Supreme Administrative Court overturned the Athens Administrative Court of Appeal's decision. It held that the ministerial decree on which the applicants based their claim to receive an allowance for overtime work had not been published in due form and was therefore without foundation (judgment no. 307/2003).
16. It appears from the case file that, in the meantime, the applicants had on several occasions brought actions in the administrative courts, seeking payment of various amounts in respect of allowances for overtime work allegedly owed by the public hospital in question. The total sum claimed by each applicant in this connection varied between 15,000 and 20,000 euros (EUR). It appears from the case file that these actions were dismissed by the domestic courts.
17. Article 115 § 1 of the Code of Administrative Procedure provides:
“Several persons may bring a joint action, in a single appeal, against the same act or omission, provided that the grounds advanced have, in substance, the same legal or factual basis with regard to the essential issues or are based on the same action. [A joint action may also be lodged] where the grounds advanced concern a shared right or where, in substance, the rights relied upon have the same legal or factual basis with regard to the key issues.
...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-79346
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF WASSDAHL v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
TEXT: 4. The applicant was born in 1947 and lives in Orsa.
5. On 28 May 1996 the Tax Authority (skattemyndigheten) of the County of Kopparberg sent a preliminary consideration (övervägande) to the applicant informing him that it was considering disallowing the deduction he had made for the interest he had paid on debts in the amount of 2,000,000 Swedish kronor (SEK), as well as his declared capital gains for the sale of stocks in the amount of SEK 775,000, that he had made in his tax return for 1995. Further, it was considering imposing tax surcharges (skattetillägg) amounting to SEK 147,000 (approximately 15,800 euros [EUR]), i.e. 40% of the increased tax liability on the sum of SEK 1,225,000.
6. The preliminary consideration was based on an investigation of a company which had done business with a substantial number of private persons. As concerned the applicant, it appeared that he had borrowed SEK 40,000,000 from the company and commissioned it to buy stocks for the same amount on his behalf. The applicant then sold the stocks back to the company at a fixed date, upon which he had made a capital gain. At the same time, he repaid the loan together with interest to the company. As the capital gain corresponded to the interest, they were set off against each other. In the Tax Authority’s view, the transactions had in reality never taken place and the applicant had simply received two statements of account and a promissory note in order to use them to obtain tax advantages.
7. The applicant was requested to submit any comments he might have to the Tax Authority by 22 July 1996, which he did. He claimed that the transactions had taken place and that his tax return should be approved.
8. On 27 September 1996 the Tax Authority decided to follow its preliminary consideration. With regard to the imposition of tax surcharges, it found that the applicant had submitted incorrect information about the purported transactions.
9. On 3 January 1997 the applicant appealed against the decision, disputing the Tax Authority’s findings. He maintained that there were no grounds for disallowing the deductions or imposing tax surcharges on him.
10. On 30 April 1997 the Tax Authority made its obligatory re-assessment of its decision of 27 September 1996 but upheld it. It then forwarded the appeal to the County Administrative Court (länsrätten) of the County of Dalarna.
11. On 29 May 2000 the County Administrative Court rejected the applicant’s appeal after having held an oral hearing. It agreed with the Tax Authority’s conclusion that no transactions had in reality taken place between the applicant and the company, for which reason they could not be included in his tax return. Moreover, the court found that the applicant had submitted incorrect information to the Tax Authority and that there were no grounds on which to remit the tax surcharges.
12. On 30 June 2000 the applicant appealed to the Administrative Court of Appeal (kammarrätten) in Sundsvall, maintaining his claims. On 30 January 2002 he made further submissions to the court, stating inter alia that his rights under Article 6 of the Convention had been violated as he had not had access to the same material as the Tax Authority, and since the tax surcharges had been incorrectly imposed on him.
13. By judgment of 15 April 2002 the Administrative Court of Appeal upheld the lower court’s judgment in full, without giving any new reasons of its own.
14. On 27 May 2002 the applicant appealed to the Supreme Administrative Court (Regeringsrätten), relying on the same grounds as before the lower courts and expanding them further.
15. On 11 September 2003 the Supreme Administrative Court refused leave to appeal.
16. On 25 November 2003 the applicant sued the Swedish State, through the Chancellor of Justice, before the District Court (tingsrätten) in Stockholm. He sought SEK 6,850,000 (approximately EUR 736,000) in damages on the grounds that the Tax Authority and the administrative courts had not afforded him a fair procedure, having withheld certain information from him, and that the proceedings had been of excessive length. He invoked national legislation as well as the Convention and its case-law.
17. The State contested the suit, claiming that it had not caused the applicant any injury, either by fault or neglect, for which he could claim damages.
18. In a judgment of 21 December 2004, the District Court rejected the applicant’s claims. As concerned the length of the proceedings, the court considered that the administrative courts’ examination of his tax case had not taken so long as to incur the State’s liability for damages.
19. On 27 December 2004 the applicant appealed to the Svea Court of Appeal (hovrätten), maintaining his claims.
20. On 2 November 2005 the Court of Appeal upheld the lower court’s judgment in full. With regard to the complaint about the length of the proceedings, the court, without giving any reasons, found that the tax proceedings could not be considered to have been of excessive duration.
21. On 12 October 2005 the applicant appealed to the Supreme Court (Högsta domstolen) where the case is still pending, awaiting a decision on leave to appeal.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-111957
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: GRANDCHAMBER
DATE: 2012
DOCNAME: CASE OF SABRİ GÜNEŞ v. TURKEY
IMPORTANCE: 2
CONCLUSION: Preliminary objection allowed (Article 35-1 - Six month period)
JUDGES: András Sajó;Dean Spielmann;Elisabeth Steiner;Erik Møse;Françoise Tulkens;Helen Keller;Ireneu Cabral Barreto;Ján Šikuta;Josep Casadevall;Khanlar Hajiyev;Lech Garlicki;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Nicolas Bratza;Peer Lorenzen;Vincent A. De Gaetano
TEXT: 8. The applicant, Mr Sabri Güneş, is a Turkish national who was born in 1981 and lives in İzmir.
9. He suffered a personal injury while doing his military service. He was hospitalised on 30 October 2001 and subsequently underwent several operations on his right knee. He is now permanently disabled.
10. On 7 April 2003 the applicant submitted a claim to the Ministry of Defence for compensation in respect of his permanent disability.
11. Following tacit dismissal of the claim by the administrative authorities, the applicant brought an action for damages in the Supreme Military Administrative Court on 12 August 2003 in respect of the disability suffered during his military service. He claimed 15,000 Turkish liras (TRY – approximately 9,400 euros (EUR)) in respect of pecuniary damage and the same sum in respect of non-pecuniary damage.
12. Two expert reports ordered by the Supreme Military Administrative Court were added to the case file. The first, dated 12 March 2004, established a 5% disability. The second, dated 30 April 2004 and communicated to the applicant on 11 May 2004, assessed the applicant’s pecuniary damage at more than TRY 27,438 (approximately EUR 17,150).
13. Having held a public hearing on 7 July 2004, the Supreme Military Administrative Court delivered its judgment on the same day. It ruled in favour of the applicant and awarded him the full amount of his claim in respect of pecuniary damage, namely, TRY 15,000. It awarded him a further TRY 2,000 in respect of non-pecuniary damage. The court considered in particular that the conclusions of the expert report of 30 April 2004 were relevant and satisfied the criteria established by its case-law.
14. On 21 November 2004 the applicant applied to the Ministry of Defence for additional compensation in respect of his permanent disability. He claimed that he had only become aware of the extent of his pecuniary damage for the first time on 11 May 2004, when he received the report of 30 April 2004 assessing his pecuniary damage at TRY 27,438.
15. On 29 March 2005, following tacit dismissal of the claim by the administrative authorities, the applicant lodged a fresh claim with the Supreme Military Administrative Court for additional compensation, namely, TRY 12,438 (approximately EUR 5,600), on the basis of the expert report of 30 April 2004. He argued that he had received the expert report of 30 April 2004 on 11 May 2004, whereupon he had become aware of the true extent of the damage he had suffered.
16. By a judgment of 22 June 2005 the Supreme Military Administrative Court considered the applicant’s fresh claim to be an application to have the initial amount amended (ıslah) and dismissed it for being out of time. The court stated in particular:
“The claimant has clearly sought an amendment of the initial amount. The purpose of an amendment is to rectify a procedural act. Having regard to the judgment of the Constitutional Court published in the Official Journal of 14 November 2000, we must conclude that, in civil law, injured persons are entitled to seek additional compensation once an expert report has been issued. However, in the proceedings before the Supreme Military Administrative Court, the time-limits of one year and sixty days from the date of referral to the administrative authorities apply. Under section 46(4) of the Supreme Military Administrative Court Act, the amount claimed cannot be rectified once those deadlines have passed. Consequently, this claim must be rejected for being out of time ...”
One judge (out of five) expressed a dissenting opinion. He stated in particular:
“The amount of damage in personal injury cases is established only upon production of an expert report. Moreover, the date on which such reports are confirmed is taken into account when calculating the time-limits for referral to the administrative authorities and for bringing an action ...
The claim for additional compensation based on the expert report was lodged within the relevant time-limit because the applicant did not become aware of the extent of the damage until after that report had been issued ....”
17. On 9 September 2005 the applicant lodged an application for rectification of the judgment.
18. By a judgment of 16 November 2005, served on the applicant on 28 November 2005, the Supreme Military Administrative Court rejected that application.
19. Section 8(2) of the Administrative Procedure Act (Law no. 2577) and Article 162 of the Code of Civil Procedure provide that if the dies ad quem of a time-limit is a public holiday, that time-limit will be extended to the following working day.
20. Article 31 § 1 of the Vienna Convention, entitled “General Rule of Interpretation”, states that a treaty shall be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”
21. The European Convention on the Calculation of Time-Limits, opened for signature on 16 May 1972 in Basle, came into force on 28 April 1983. It was drawn up with a view to establishing uniform European rules for calculating time-limits on the basis of responses obtained from governments. It applies both domestically and internationally, as clearly stated in the preamble thereto which affirms that “the unification of rules relating to the calculation of time-limits, both for domestic and international purposes”, will contribute to the attainment of greater unity between Council of Europe member States (see the explanatory report). Currently, only four of the ten signatory States have ratified that Convention. Turkey has neither signed it nor acceded to it.
22. Article 5 of that Convention provides as follows:
“Saturdays, Sundays and official holidays shall count when calculating a timelimit. However, where the dies ad quem of a timelimit before the expiry of which an act shall be performed is a Saturday, a Sunday, an official holiday or a day which shall be considered as an official holiday, the timelimit shall be extended to include the first working day thereafter.”
23. Article 3 § 4 of Council Regulation (EEC, Euratom) no. 1182/71 of 3 June 1971 determining the rules applicable to periods, dates and time limits (Official Journal no. L 124 of 08/06/1971) provides as follows:
“Where the last day of a period expressed other than in hours is a public holiday, Sunday or Saturday, the period shall end with the expiry of the last hour of the following working day.”


ITEMID: 001-80333
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF GEBREMEDHIN [GABERAMADHIEN] v. FRANCE
IMPORTANCE: 1
CONCLUSION: Violation of Art. 13+3;No violation of Art. 5-1-f;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award
JUDGES: András Baka;Antonella Mularoni;Elisabet Fura;Ireneu Cabral Barreto;Jean-Paul Costa
TEXT: 7. The applicant was born in 1979. He is currently in accommodation in Paris provided by a non-governmental organisation.
8. In 1998, like many other persons, the applicant and his family were displaced from Ethiopia to Eritrea. In Eritrea, the applicant worked as a reporter and photographer, chiefly for the independent newspaper Keste Debena, whose editor-in-chief at the time was Mr Milkias Mihretab. The applicant stated that the latter was well known as a champion of the free press in Eritrea and that his case had been dealt with in Amnesty International’s 2002 report, which referred in particular to the fact that he had been arrested and arbitrarily detained in that country on more than one occasion on account of his work as a journalist. The applicant added that on 27 June 2002 the British Section of Amnesty International had awarded Mr Mihretab its “Special Award for Human Rights Journalism under Threat”.
The applicant and Mr Mihretab were arrested in 2000, apparently on account of their professional activities. They were held in Zara Prison for eight months and six months respectively.
In that connection the applicant stated that he had been referred to – under the name of “Yebio”, a diminutive form of his pseudonym “Yayneabeba” – on a website dedicated to reform in Eritrea (www.awate.com) as one of the six journalists arrested on 14 October 2000 at the same time as Milkias Mihretab.
9. Unlike Mr Mihretab, who fled to Sudan in September 2001, the applicant remained in Eritrea, in Asmara, in order to take care of his widowed mother and his four brothers and sisters. Some time after Mr Mihretab’s departure – on an unspecified date – the police questioned the applicant about him. Police officers searched his home and found photographs which they considered to be compromising. The applicant was arrested and was subjected to ill-treatment, signs of which allegedly persist in the form of cigarette burns and injuries to his back caused by the position in which he was held for about twenty days, lying face down with his feet and hands tied above his back. He was subsequently imprisoned for six months before falling ill and being transferred to hospital, from where he escaped by paying the guards, with the help of relatives of his maternal grandmother who worked there. He then hid in his grandmother’s home in Areza, where he was treated by a doctor. As soon as he had recovered he fled to Sudan where one of his uncles lived. When an Eritrean was shot dead in Sudan he decided to leave the country, as the Eritrean community there believed the killing had been carried out by Eritrean government agents in pursuit of opponents of the government.
10. The applicant stated that he had travelled to South Africa and, with the help of a smuggler and using a Sudanese passport (in the name of “Mohammed Eider” or similar), which had been kept by the smuggler, had arrived in Paris-Charles de Gaulle Airport in Roissy at around 5.30 a.m. on 29 June 2005 on a flight from Johannesburg. He submitted that he had been held in the airport’s international zone until 1 July 2005 and had thus been unable to apply for leave to enter the country. Eight hours after his arrival he reported to the police station, saying that he was Eritrean and wished to apply for asylum. The police officer asked him to “prove where [he] had come from, claiming that [he] was not Eritrean but Pakistani, and for the first time refused [him] permission to leave the international zone”. According to the applicant, over a period of two days (between 29 June and 1 July), he went regularly to the police station – at each change of shift, or approximately eight times – in the vain hope of finding a police officer who would deal with his application. He said that “it was not until 1 July that a new police officer whom [he] had not seen previously finally registered [his] application”.
The Government contested this version of the facts. They said that they had checked the passenger lists for flights from South Africa which landed at Roissy Airport on 29 and 30 June and 1 July 2005 and that there had been no mention of anyone by the name of Gebremedhin, Gaberamadhien or Eider. They referred to the report by Roissy airport and border police dated 1 July 2005, which stated that the applicant had been questioned at 11 a.m. that day.
11. On 1 July 2005 the applicant applied for leave to enter France as an asylum-seeker. He was questioned at 11 a.m. by a senior police officer (officier de police judiciaire) assisted by an English-speaking interpreter. The record of the interview simply states that “the interviewee did not provide any evidence in support of his statements”. The decision to hold the applicant in the waiting zone was taken by the administrative authority on that date and time, for an initial period of forty-eight hours, which was subsequently extended (see paragraph 18 below).
12. The applicant said that he had been interviewed for the first time on 3 July 2005 by an official from the French Agency for the Protection of Refugees and Stateless Persons (OFPRA), who had recommended that the applicant be granted leave to enter the country as an asylum-seeker. The Government, for their part, contended that no recommendation had been issued on 3 July. The record of the interview and the proposed recommendation, both drafted by the official concerned, had been considered unsatisfactory by the official’s immediate superior, who was responsible for approving them. For that reason the applicant had been interviewed a second time, on 5 July 2005, by the latter official (assisted by an interpreter). The official concerned issued the following recommendation that the applicant be refused leave to enter:
“Statement taken in Amharic through an ISM interpreter
Reason for the application? My parents are of Eritrean origin. We had Ethiopian nationality and lived in Addis Ababa. In 1998 the Ethiopian authorities told us we were not Ethiopians. We were expelled from Ethiopia to Eritrea. I was supposed to sit my school-leaving exams that year, but was unable to sit them in Eritrea. I worked in a garage for six months, and then did my national service. While I was there I met a guy who was a journalist. When I’d finished my service I worked with this journalist friend as a cameraman and photographer, and we travelled together on reporting assignments. My friend was having problems with the authorities and wanted to leave the country. As soon as I got back the authorities questioned me about my friend and put me in prison. While I was in prison the police searched my house and found two photos which they considered compromising. Then they started torturing me with cigarettes. I stayed in prison for six months until I fell ill with tuberculosis. They took me to hospital. By chance, it was the hospital where some of my maternal grandmother’s relatives worked. They bribed the guards, brought me clothes and helped me to escape. I went to my grandmother’s place in Areza and stayed there for four months while I was being treated. Then I left the country secretly for Sudan. I found work straight away in a garage in Khartoum, but there were Eritrean agents around, and an Eritrean who worked not far away was killed. I was afraid and went to Port Sudan, where I worked as a porter on the quays. I stayed in Sudan for about two years in all (eight months in Khartoum, a year in Port Sudan and another two months in Khartoum). My uncle sold his car to pay for my trip. I travelled to South Africa before coming to France. My uncle found the network of people smugglers. I don’t know how they organised things.
What is your friend called and how did you meet him? His name is Milkias Mihretab, he’s a friend of the family, he knew my parents in Addis Ababa. When we moved back to Asmara, I spent eighteen months doing my national service. After that I was in the reserves and worked in an army garage but didn’t wear a uniform. That was when my friend arranged for me to go and work for him, by acting as a guarantor for me.
Can you give some examples of events you covered? We covered the student strikes in Asmara in 2002 (no further details given).
What were the two “compromising” photos found at your home? I don’t know, I can’t remember.
What newspaper did your friend Milkias Mihretab work for? Keste Debena (Rainbow). What was his job? Editor-in-chief.
Do you know what kind of problems your friend had with the authorities? There were two main reasons. Firstly, my friend was in favour of a Constitution and, secondly, thirteen ministers were imprisoned and my friend had published their biographies. They were put in prison just after the students’ strike in 2002.
When did your friend leave the country? It was in April 2002, when all the journalists were arrested.
Have other journalists been arrested? All the Eritrean journalists are in prison. Do you know other journalists from Keste Debena who were arrested? (No reply). Other photographers? (No reply).
Can you give more details about your arrest (date, circumstances, place of detention)? I was arrested in October or November 2002. They took me to Maytamanay Prison, where I spent six months.
Were you not arrested “as soon as you got back” to Asmara? No, I continued working here and there for six months.
What has become of your family? My father became ill and died before the family was expelled. My mother and my two brothers and two sisters live in Asmara. My brothers and sisters are studying.
What are you afraid of if you go back? When I was arrested, the main thing they wanted to know was what network my friend had used to leave the country. I think they’re still trying to get that information.
Is this your real name? Yes, I don’t have any other name, I never have had.
Have you anything to add? No.
Reasoned recommendation
Mr Asebeha Gaberamadhien, an Eritrean national, has stated that he worked as a photographer with a family friend who is a journalist. According to Mr Gaberamadhien, in April 2002, while they were on a reporting assignment on the Sudanese border, the journalist took the opportunity to leave Eritrea. On his return to Asmara, Mr Gaberamadhien continued to work for six months before being arrested by the Eritrean authorities. He was placed in detention for six months and was regularly questioned about the circumstances surrounding the departure of his friend and colleague. After contracting a serious illness he was transferred to hospital, from where he managed to escape with the help of family members working there. He then stayed with his grandmother for four months before leaving Eritrea for Sudan, where he lived and worked for about two years.
However, Mr Gaberamadhien’s account contains a large number of inaccuracies and erroneous references which cast doubt on the truth of his statements. While the episode in which several journalists were arrested in Asmara is very well known and received widespread media coverage, Mr Gaberamadhien’s account bears no relation to what actually happened. The Eritrean journalists were arrested in September 2001, not in April 2002, and the applicant displays no knowledge of the reasons leading to the closing-down of the newspapers and the arrest of the journalists. The editor-in-chief of the newspaper Keste Debena also left Eritrea in September 2001 (it therefore seems impossible that he could have covered the student strikes in 2002). The circumstances of his departure, accompanied by another reporter from the same newspaper, do not tally either with Mr Gaberamadhien’s statements. It seems surprising to say the least that, apart from the editor-in-chief of Keste Debena, he is unable to name any other journalist or photographer arrested by the Eritrean government of the day, or to name any other newspaper that was banned. Likewise, it is extremely surprising that Mr Gaberamadhien is only able to cite – in a very sketchy and imprecise way – one event which he covered as a photographer. His lack of knowledge is such that it raises serious doubts as to whether he was actually engaged in this activity. Given the widespread media coverage of the events at the time, it seems strange that Mr Gaberamadhien’s name does not appear anywhere, either as a member of staff of Keste Debena or as one of the persons arrested. All these factors taken together suggest that Mr Gaberamadhien is attempting to falsify his past.
The French Agency for the Protection of Refugees and Stateless Persons takes the view that the application for leave to enter France as an asylum-seeker made by Mr Asebeha Gaberamadhien should be considered as manifestly unfounded, and therefore issues a
RECOMMENDATION TO REFUSE LEAVE TO ENTER”
13. On 6 July 2005 the Ministry of the Interior held that the applicant’s application for leave to enter French territory as an asylum-seeker was “manifestly unfounded”. It therefore rejected the application and decided to remove him “to Eritrea, or if need be to any country where he may be legally admissible” (the applicant claimed that 93% of the applications made at the airport were rejected in this way). The decision read as follows:
“...
Having regard to the Geneva Convention of 28 July 1951 relating to the Status of Refugees;
Having regard to the Immigration and Asylum Code, and in particular Articles L. 221-1 and L. 213-4 thereof;
Having regard to Decree no. 82-442 of 27 May 1982 as amended implementing section 5 of the Ordinance of 2 November 1945, as amended in respect of leave to enter French territory, and in particular Article 12 thereof;
Having regard to the application for leave to enter France as an asylum-seeker made at Roissy Airport on 1 July 2005 by X, purporting to be Mr Asebaha or Asebeha Gaberamadhien, born on 15 March 1979 and of Eritrean nationality;
Having regard to the report drawn up by the border police on 1 July 2005;
Having consulted the French Agency for the Protection of Refugees and Stateless Persons on 5 July 2005;
X, who purports to be Mr Asebaha or Asebeha Gaberamadhien, an Eritrean national, has stated that during his national service he met a journalist, editor-in-chief of the newspaper Keste Debena (Rainbow), for whom he worked as a cameraman and photographer after completing his service. The latter had had problems with the authorities because of his support for a Constitution and because he had published biographies of thirteen ministers imprisoned after the student strikes in 2002. His journalist friend left the country in April 2002 after they had carried out a reporting assignment on the Sudanese border. He himself returned to Asmara and continued working. After six months, in October or November 2002, the authorities questioned him on the circumstances in which his friend and colleague had left the country. The police found two compromising photographs at his home and he was later subjected to illtreatment. He was imprisoned for six months and, after falling ill, was transferred to the hospital where relatives of his grandmother worked. He escaped from the hospital by bribing the guards and went to Areza, staying there for four months before travelling to Sudan, where he lived and worked for two years.
However, X’s statements contain numerous inconsistencies which detract from their credibility. His account does not tally with the actual events to which he refers, namely the arrest of several journalists in Asmara, which was very well known and received widespread media coverage. The Eritrean journalists were arrested in September 2001, not in April 2002, and X displays no knowledge of the reasons leading to the closing-down of the newspapers and the arrest of the journalists. Moreover, the editor-in-chief of the newspaper Keste Debena left Eritrea in September 2001 and could not therefore have covered the student strikes in 2002 as X claims. The circumstances of the editor’s departure, together with another reporter from the same newspaper, do not tally either with X’s statements. In addition, there is no proof of his professional activity: it is very surprising that he is unable to name any other newspaper that was banned or any other journalist or photographer arrested by the Eritrean government of the day. It is also astonishing that X is able to cite only one event which he covered as a photographer, and in a very sketchy and imprecise way. Finally, his name does not appear anywhere, either as a member of staff of Keste Debena or as one of the persons arrested, despite the widespread media coverage of the events at the time. All these factors taken together cast doubt on the sincerity of his application and whether it is well founded.
Consequently, the application for leave to enter France for the purposes of asylum made by X ..., purporting to be Mr Asebaha or Asebeha Gaberamadhien, is to be considered manifestly unfounded.
Under Article L. 213-4 of the Immigration and Asylum Code, directions are to be given for his removal to Eritrea, or if need be to any country where he may be legally admissible ...”
14. On 7 July 2005 the applicant made an urgent application to the Cergy-Pontoise Administrative Court under Article L. 521-2 of the Administrative Courts Code, seeking an order requiring the Minister of the Interior to grant him leave to enter France in order to lodge an application for asylum. He argued that the refusal to grant him leave to enter amounted to a serious and manifestly unlawful breach of the right of asylum – a fundamental freedom whose corollary was the right to apply for refugee status, entailing the right to temporary residence in the country – and of the right to life and the right not to be subjected to inhuman or degrading treatment within the meaning of Article 3 of the Convention. In that regard the applicant maintained, in particular, that the Ministry had not only exceeded the scope of its powers in examining the substance of his asylum application, but had also committed an error of assessment in finding the application manifestly unfounded. He stressed in particular that, as a cameraman and photographer working for a journalist, he had been subjected to persecution in his country of origin, where he had been imprisoned twice and subjected to ill-treatment, before seeking refuge in Sudan, from where he had fled as his life had been in danger.
The applicant submitted to the urgent-applications judge the following statement, drawn up the same day by the non-governmental organisation Reporters without Borders (Reporters sans frontières):
“... Reporters without Borders, an international organisation dedicated to defending freedom of the press, wishes to draw your attention to the case of Asebaha Gaberamadhien, a journalist and Eritrean national.
Thanks to the efforts of our permanent correspondents, we are in a position to confirm that Mr Gaberamadhien worked as a cameraman and journalist. We have contacted the Eritrean journalist Yohannes Milkias Mihretab, now in exile in the United States, who confirmed that he worked with Mr Gaberamadhien. He also confirmed that the two men were held at the same time in Zara Prison, one of the harshest prisons in the country, in very difficult conditions.
While mindful of the deadlines which must be met in examining this case and carrying out the necessary checks, I would nevertheless stress that Reporters without Borders supports Mr Gaberamadhien’s application for political asylum. We would welcome the opportunity to meet with him in order to study the case more closely and furnish all the evidence required for the purposes of his application. We would be greatly obliged if you would grant him leave to enter France ...”
In addition, the applicant produced two e-mails in English sent by Mr Mihretab to Reporters without Borders on 7 July 2005 (Mr Mihretab sent a third, similar, e-mail to the applicant’s counsel on 11 July 2005). In the two e-mails, Mr Mihretab confirmed that he had known Asebeha Gebremedhin for a long time. Having been shown a photograph of the applicant, he stated that it was indeed Mr Gebremedhin, a journalist and dissident activist who had worked as a freelance photographer for the newspaper Keste Debena, and that they had been detained together for several months in Zara Prison. Mr Mihretab added that the applicant had suffered a great deal and had undergone numerous ordeals on account of his involvement in campaigning for democratic change and his work with the independent press. In view of the current situation in Eritrea and the fact that the applicant, who had been held in Zara Prison, was known to the authorities, he would undoubtedly be arrested in that country. His life would be in danger and he would run the risk at the very least of being tortured and of “disappearing” like very many journalists, dissidents and other activists.
15. On 8 July 2005 the urgent-applications judge of the Cergy-Pontoise Administrative Court issued an order rejecting the applicant’s application, without holding a hearing. The order read as follows:
“...
Article L. 521-2 of the Administrative Courts Code states as follows: ‘Where such an application is submitted to him or her as an urgent matter, the urgent-applications judge may order whatever measures are necessary to protect a fundamental freedom which has been breached in a serious and manifestly unlawful manner by a publiclaw entity or an organisation under private law responsible for managing a public service, in the exercise of their powers. The urgent-applications judge shall rule within fortyeight hours.’ Article L. 522-1 of the same Code provides: ‘The urgentapplications judge shall give a ruling following written or oral adversarial proceedings. Where the judge is requested to order the measures referred to in Articles L. 521-1 and L. 521-2, to amend them or bring them to an end, he or she shall inform the parties without delay of the date and time of the public hearing ...’ Lastly, Article L. 522-3 of the Code provides: ‘Where the application is not urgent or where it is clear from examination of the application that it does not fall within the jurisdiction of the administrative courts, is inadmissible or is unfounded, the urgent-applications judge may reject it in a reasoned order, without applying the first two paragraphs of Article L. 522-1.’
Article L. 221-1 of the Immigration and Asylum Code, meanwhile, states as follows: ‘An alien who arrives in France by ... air and who (a) is refused leave to enter French territory or (b) applies for asylum may be held in a waiting zone situated in ... an airport, for the time strictly necessary to arrange his departure and, if he is an asylum-seeker, to investigate whether his application is manifestly unfounded ...’ Article 12 of the Decree of 27 May 1982 as amended states: ‘Where an alien arriving at the border applies for asylum, a decision to refuse him or her leave to enter France may be taken only by the Minister of the Interior, after consultation with the French Agency for the Protection of Refugees and Stateless Persons.’
The documents in the file show that Mr Asebeha Gaberamadhien, an Eritrean national, arrived in France by air and on 1 July 2005 requested leave to enter the country as an asylum-seeker. In accordance with the provisions of Article L. 221-1 of the Immigration and Asylum Code, cited above, Mr Gaberamadhien was held in the waiting zone while his application for asylum was examined. After consulting the French Agency for the Protection of Refugees and Stateless Persons on 5 July 2005, the Minister of the Interior and Regional Development, in the impugned decision of 6 July 2005, refused Mr Asebeha Gaberamadhien leave to enter France on the ground that his asylum application was manifestly unfounded.
It is true that the right of asylum and its corollary, the right to request refugee status and, accordingly, to remain in France for the time necessary for the asylum application to be examined, constitute a fundamental freedom for aliens and that, in urgent cases, the urgent-applications judge may order whatever measures are necessary to protect that freedom on the basis of the above-mentioned provisions of Article L. 512-2 of the Administrative Courts Code, where the administrative authorities, in the exercise of their powers, have breached it in a serious and manifestly unlawful manner. However, such a breach cannot result solely from the fact that, in accordance with Article L. 221-1 of the Immigration and Asylum Code, the Minister of the Interior personally took a decision on the asylum application, in this case in the form of the decision of 6 July 2005, since under Article L. 711-1 of the same Code the French Agency for the Protection of Refugees and Stateless Persons can consider only applications for refugee status made by aliens who have been granted leave to enter the country. Moreover, there is nothing in the case file to suggest that the refusal to grant Mr Asebeha Gaberamadhien leave to enter the country – on account of the manifestly unfounded nature of his asylum application – was manifestly unlawful. In particular, the applicant did not provide sufficient and substantiated details as to his identity, his alleged professional activity as a cameraman and photographer in his country of origin, the persecution he alleged and the reasons for it, or the risks he would actually run were he to return to his country of origin or to Sudan, where he was last resident, or any prima facie evidence capable of substantiating those risks or altering the Minister of the Interior’s assessment of the asylum application. The only documents produced by Mr Gaberamadhien, namely the testimony from a journalist who is a refugee in the United States, which contains very little detail, and a letter from Reporters without Borders, are insufficient to establish that he was at personal risk if he returned to his own country or to Sudan.
It follows from all the above considerations that the decision of 6 July 2005 of the Minister of the Interior and Regional Development refusing Mr Asebeha Gaberamadhien leave to enter France as an asylum-seeker cannot be said to have breached his right to request refugee status in a serious and manifestly unlawful manner such as to justify ordering measures under Article L. 521-2 of the Administrative Courts Code. Consequently, and in accordance with the abovementioned provisions of Article L. 522-3 of the Administrative Courts Code, the applicant’s application must be rejected as manifestly unfounded ...”
16. On 7 July 2005 the applicant was accompanied to the Eritrean embassy by police officers. The applicant claimed that the authorities had presented his account of the events surrounding his asylum application – giving details of the circumstances in which he had fled and the names of the persons who had helped him – to the Eritrean ambassador. The ambassador had launched a violent verbal attack on him in her own language and refused to recognise him as a national of Eritrea and issue him with a laissez-passer.
The Government denied that the applicant’s account of events had been presented to the ambassador or that she had expressed a definite opinion on that occasion as to whether the applicant should be issued with a laissez-passer (she had not informed the French authorities of her position on the matter until 15 July 2005).
17. In a decision of 20 July 2005, “in view [among other considerations] of the request made by the European Court of Human Rights under Rule 39 of its Rules of Court to suspend the applicant’s removal until 30 August 2005”, the Ministry of the Interior granted the applicant leave to enter France. At the same time the applicant was issued with a safe conduct valid for eight days – which referred also to the interim measure indicated to the respondent Government under Rule 39 – to enable him to report to the prefecture and apply for a temporary residence permit as an asylum-seeker. With the help of the National Association for Assisting Aliens at Borders (ANAFÉ – a non-governmental organisation made up of twenty associations and trade unions) and Reporters without Borders, he obtained a one-month residence permit from the Paris Prefecture on 26 July 2005, with a view to his lodging an asylum application with OFPRA (which he duly did).
18. As stated above, the decision to hold the applicant in the waiting zone for forty-eight hours was taken by the administrative authority on 1 July 2005 at 11 a.m. (see paragraph 11 above). The measure was extended for a further forty-eight hours on 3 July.
On 5 July 2005 the liberties and detention judge (juge des libertés et de la détention) of the Bobigny tribunal de grande instance – before whom the applicant had appeared, assisted by a lawyer and an interpreter – authorised the holding of the applicant for a further eight days, in an order giving the following reasons:
“Mr Gaberamadhien’s application for political asylum is under consideration. He should continue to be held in the waiting zone.”
On 13 July 2005 the same judge – before whom the applicant had again appeared, assisted as before – authorised the holding of the applicant in the waiting zone for another eight days, in an order giving the following reasons:
“The asylum application was rejected on 6 July 2005. Mr Gaberamadhien does not have a passport. He was taken to the Eritrean embassy on 7 July 2005 and the authorities are waiting for him to be issued with a laissez-passer. He should continue to be held in the waiting zone.”
19. In a decision of 11 August 2005, following an appeal lodged by the applicant on 18 July 2005 against the order of 8 July 2005, the Conseil d’Etat held in the following terms that it was unnecessary to give a ruling:
“...
... Mr Asebeha Gaberamadhien ... lodged an application with the European Court of Human Rights which, in a decision of 15 July 2005, indicated to the French government under Rule 39 of its Rules of Court that it was ‘desirable, in the interests of the parties and of the proper conduct of the proceedings before it, not to remove the applicant to Eritrea before midnight on 30 August 2005’. In response to that request the Minister, in a decision of 20 July 2005 taken after this appeal had been lodged, granted Mr Gaberamadhien leave to enter France, thus enabling him to make an application for asylum. The appellant duly did so, having been issued on 26 July 2005 with a temporary residence permit. The measure thus enacted has the same effect as the measure requested in the application to the urgent-applications judge, which was by definition temporary. In the circumstances, the arguments set out in Mr Gaberamadhien’s appeal against the order rejecting his application have become devoid of purpose.
...”
20. By a decision of 7 November 2005 served on 9 November 2005, OFPRA granted the applicant refugee status. As a result, from that point on, Article 33 of the Geneva Convention of 28 July 1951 relating to the Status of Refugees acted as a bar to the applicant’s expulsion to his country of origin. The Government produced a memorandum from the Deputy Head of the Legal and International Affairs Division of OFPRA attesting to this. The memorandum stated that “the Agency therefore considered in view, among other considerations, of the inhuman conditions of imprisonment to which [the applicant] had already been subjected in his country of origin, that his removal to Eritrea would place him at risk of persecution within the meaning of the Geneva Convention”.
21. The applicant stated that, during his time in the waiting zone in Roissy Airport, the authorities had omitted to carry out a medical examination capable of establishing whether his scars and injuries were the result of illtreatment. However, he had been able on several occasions (on 6, 7, 11 and 12 July 2005) to meet with an employee from ANAFÉ in the organisation’s office in the airport waiting zone. On 15 July 2005 ANAFÉ drew up a written statement (produced by the applicant) certifying that the employee in question, in the course of her interviews with him, had observed traces of burns on one of his arms at least. The statement added that she had noted “a hollow in the [applicant’s] lower back, which he explained had resulted from the torture inflicted on him in the Zara camp. He demonstrated the position in which he had been forced to remain during his detention, lying face down and with his feet and hands tied above his back”. The applicant also produced a statement written on the same day by the employee herself. In addition, apparently under the guidance of ANAFÉ, the applicant was examined on 17 July 2005 by Dr Lam of the Roissy medical unit of Robert Ballanger Hospital, who issued a medical certificate stating that the applicant did not require any specific medical treatment, but noting the presence of “old scars on the left arm and the right and left knees”.
22. The fourth paragraph of the Preamble to the French Constitution reads as follows:
“Any person persecuted on account of his or her actions in furtherance of freedom shall have a right of asylum within the territories of the Republic.”
The Conseil d’Etat has ruled that the constitutional right of asylum is a fundamental freedom and has as its corollary the right to apply for refugee status. This implies that aliens who request refugee status are authorised in principle to remain on French soil pending a ruling on their application. The Conseil d’Etat has also specified that only if an asylum application is “manifestly unfounded” (see paragraph 23 below) may the Minister of the Interior refuse leave to enter the country, after consulting the French Agency for the Protection of Refugees and Stateless Persons (OFPRA) (see, for example, Ministry of the Interior v. Mbizi Mpassi Gallis, order of 24 October 2005).
23. Under the terms of the Immigration and Asylum Code:
“Refugee status shall be granted to any person persecuted on account of his or her activities in furtherance of freedom and to any person in respect of whom the Office of the United Nations High Commissioner for Refugees exercises its mandate under the terms of Articles 6 and 7 of its Statute as adopted by the United Nations General Assembly on 14 December 1950, or who meets the criteria laid down in Article 1 of the Geneva Convention of 28 July 1951 relating to the Status of Refugees. Such persons shall be governed by the applicable provisions concerning refugees laid down in the above-mentioned Geneva Convention.”
“Subject to the provisions of Article L. 712-2, subsidiary protection shall be afforded to persons who do not satisfy the criteria for obtaining refugee status referred to in Article L. 711-1 but who demonstrate that they would be exposed to the following serious threats in their country:
(a) the death penalty;
(b) torture or inhuman or degrading treatment or punishment;
(c) in the case of civilians, a serious, direct and individual threat to their life or personal safety on account of widespread violence resulting from domestic or international armed conflict.”
“The persecution taken into account in granting refugee status and the serious threats which may result in the granting of subsidiary protection may emanate from the State authorities, parties or organisations which control the State or a substantial part of the territory of the State, or from non-State agents in cases where the authorities defined in the following paragraph are unwilling or unable to afford protection.
The authorities in a position to afford protection may be the State authorities or international and regional organisations.”
“Persons who have access to protection in part of the territory of their country of origin may have their asylum application refused if they have no reason to fear persecution or a serious threat there and if it is reasonable to consider that they can remain in that part of the country. Account shall be taken of the overall conditions prevailing in that part of the country and of the personal situation of the applicant and the perpetrator of the persecution at the time a decision is taken on the asylum application.”
24. Under the terms of Article 1 A (2) of the Geneva Convention of 28 July 1951 (ratified by France on 23 June 1954) and Article 1 of the New York Protocol of 31 January 1967 relating to the Status of Refugees (to which France acceded on 3 February 1971), a “refugee” is any person who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”. Article 33 of the Geneva Convention reads as follows:
“1. No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
...”
25. The purpose of the procedure for claiming asylum at the border is to grant or refuse leave to enter France to aliens who arrive at the border by air without the necessary documents and request leave to enter the country as asylum-seekers. The procedure falls within the sphere of competence of the Ministry of the Interior, which takes the decision whether or not to grant leave to enter, after consulting OFPRA (decree of 21 July 2004 amending Article 12 of the decree of 27 May 1982).
26. Article L. 221-1 of the Immigration and Asylum Code states that “[a]n alien who arrives in France by rail, sea or air and who (a) is refused leave to enter French territory or (b) applies for asylum may be held in a waiting zone ... for the time strictly necessary to arrange his departure and, if he is an asylum-seeker, to investigate whether his application is manifestly unfounded”.
The Government indicated that the criteria applied in assessing whether or not requests for asylum made at the border were “manifestly unfounded” were based on those contained in the resolutions adopted by the ministers responsible for immigration of the member States of the European Communities, meeting in London on 30 November and 1 December 1992, and on OFPRA’s experience and practice. The criteria were as follows: “the grounds of the application are not asylum-related (economic grounds, pure personal convenience, etc.); the application is based on deliberate fraud (the applicant makes manifestly false claims as to his nationality, makes false statements, etc.); the applicant’s statements are devoid of any substance, do not contain any personal information or provide insufficient detail; the applicant refers to a general situation of unrest or insecurity, without providing evidence relating to his personal situation; his statements are fundamentally inconsistent or improbable or contain major contradictions, depriving his account of any credibility.” In a judgment adopted in plenary on 18 December 1996 in the case of Rogers, the Conseil d’Etat held that the above resolutions did not have legal effect and could not therefore be relied on in assessing whether an asylum application was “manifestly unfounded”.
27. Aliens who apply for asylum at the border may do so on arrival or at any time while in the waiting zone. The application is to be made to the border police, who draw up an asylum-application report and forward the file to the Ministry of the Interior. All applicants are interviewed by an official from OFPRA’s border asylum office with a view to establishing the reasons for the application. The office sends the Ministry of the Interior a written recommendation stating its opinion as to whether or not the application is manifestly unfounded. The Ministry then decides whether or not to grant the applicant leave to enter France.
If leave to enter is granted, the border police issue a safe conduct which gives the person concerned eight days in which to submit an asylum application under the ordinary-law procedure.
If entry is refused, the person concerned is immediately returned to his or her country of origin or the country of provenance.
28. As with all administrative decisions, an application may be made to the administrative court seeking the setting-aside of a decision refusing leave to enter. The application does not have suspensive effect.
An “urgent application for a stay of execution” (référé suspension) or an “urgent application for an order to protect the applicant’s interests” (référé injonction) (also known as an “urgent application for the protection of a fundamental freedom” (référé liberté)) – neither of which has suspensive effect – may also be made under Articles L. 521-1 and L. 521-2 of the Administrative Courts Code, which provide:
“When an application is made to set aside or vary an administrative decision, including a refusal, the urgent-applications judge may order that execution of the decision or certain of its effects be stayed where the urgent nature of the matter warrants it and where grounds are advanced capable of raising serious doubts, as the evidence stands, as to the lawfulness of the decision.
Where an order is made staying execution, a ruling shall be given as soon as possible on the application to have the decision set aside or varied. The stay of execution shall end at the latest when a decision is taken on the application to have the decision set aside or varied.”
“Where such an application is submitted to him or her as an urgent matter, the urgent-applications judge may order whatever measures are necessary to protect a fundamental freedom which has been breached in a serious and manifestly unlawful manner by a publiclaw entity or an organisation under private law responsible for managing a public service, in the exercise of their powers. The urgent-applications judge shall rule within forty-eight hours.”
Article L. 522-1 of the Code states that the urgent-applications judge must in principle give a ruling following written or oral adversarial proceedings. Where the judge is requested to order the measures referred to in Articles L. 521-1 and L. 521-2 or to amend or discontinue such measures, he must inform the parties without delay of the date and time of the public hearing. However, Article L. 522-3 provides for a “filtering” procedure which allows the urgent-applications judge, simply by means of an order giving reasons, to reject an application without giving the parties notice to appear or holding an adversarial hearing, if the matter is not urgent or if “it is clear from examination of the application that it does not fall within the jurisdiction of the administrative court, is inadmissible or is unfounded”.
An appeal may be lodged with the Conseil d’Etat within fifteen days of the decision being served. The Conseil d’Etat must rule within forty-eight hours.
The Conseil d’Etat has specified that the notion of “fundamental freedom” within the meaning of Article L. 521-2 of the Administrative Courts Code “encompasses, in the case of non-nationals who are the subject of specific measures governing their entry into and residence in France and who therefore, unlike French nationals, do not have free entry into the country, the constitutional right of asylum and its corollary, the right to apply for refugee status, the granting of which is decisive for the exercise by those persons of the freedoms enjoyed by non-nationals generally” (order of 12 January 2001 by the urgent-applications judge in Hyacinthe; see also the order of 24 October 2005 in Mbizi Mpassi Gallis).
In accordance with the principles of French administrative law, an urgent application, like any application to the courts, does not result in the immediate suspension of an administrative decision. However, the Government stated that “in very general terms, where the administrative authority [was] aware that an urgent application ha[d] been made to the administrative courts, it suspend[ed] the measure refusing asylum until the judge ha[d] given a ruling”.
29. The initial decision to hold a person in the waiting zone is made by the administrative authority in writing and giving reasons, for a period not exceeding forty-eight hours. The measure may be extended once on the same basis and for the same period (Article L. 221-3 of the Immigration and Asylum Code). The liberties and detention judge intervenes for the first time after four days in order to decide whether or not to extend the measure by a maximum of eight days. He or she intervenes again at the end of that period to rule on whether an exceptional extension of a further maximum of eight days should be granted (Articles L. 222-1 and L. 222-2).
In principle, therefore, the maximum period for which a person can be held in the waiting zone is twenty days. In exceptional cases, however, if an asylum application is made between the sixteenth and twentieth day, the liberties and detention judge may order an extension of four days from the date of the application (Article L. 222-2).
The liberties and detention judge gives a ruling in the form of an order, after hearing evidence from the person concerned, in the presence of his or her lawyer if he or she has one, or after the latter has been duly informed. The judge may order extension of the measure or may refuse the request for extension and either release the person in question or place him or her under house arrest. The judge has discretion to rule on the application to extend made by the administrative authorities and may dismiss the grounds advanced by the authorities for the application and reject it accordingly (the Court of Cassation has specified that holding a person in the waiting zone “is simply one option open to the judge”; Court of Cassation, Second Civil Division, 8 July 2004). Normally speaking, the ruling is given in public (Article L. 222-4). An appeal lies against such an order to the President of the Court of Appeal or his or her delegate, who must rule within forty-eight hours (Article L. 222-6).
30. Aliens held in the waiting zone must be informed as soon as possible that they may request the assistance of an interpreter and a doctor, may speak to a lawyer or any other person of their choosing and may leave the waiting zone at any time for a destination outside France. This information must be conveyed to them in a language they understand (Article L. 221-3).
The alien may request the judge to appoint a lawyer to represent him or her (Article L. 222-4). The State pays the lawyer’s fees and those of the interpreters appointed to assist the alien during the court proceedings concerning his or her confinement in the waiting zone (Article L. 222-7).
State Counsel and, after the first four days have elapsed, the liberties and detention judge, may visit the waiting zone to inspect the conditions in which the person concerned is being held. State Counsel may visit the waiting zones whenever he or she deems necessary and must do so at least once a year. The French delegation to the Office of the United Nations High Commissioner for Refugees (UNHCR), as well as some humanitarian associations, have access to the waiting zone as provided by Decree no. 95507 of 2 May 1995 as amended. In particular, they may hold talks in confidence with asylum-seekers being held there (Articles L. 221-1 et seq. of the Immigration and Asylum Code). The Government informed the Court that, in accordance with an agreement concluded between the State and ANAFÉ, the latter was entitled to be present round the clock in order to provide legal assistance to aliens; the Red Cross was also on hand to provide humanitarian assistance (likewise under the terms of an agreement).
31. OFPRA, a public agency with legal personality and financial and administrative autonomy attached to the Ministry of Foreign Affairs (Article L. 721-1 of the Immigration and Asylum Code) is the authority responsible for granting refugee status and subsidiary protection (Articles L. 713-1 and L. 721-2).
The asylum-seeker must report to a prefecture in order to obtain a temporary residence permit (autorisation provisoire de séjour) valid for one month and to fill out the asylum application form. On receipt of the file, OFPRA sends the asylum-seeker a “letter of registration” which enables him or her, among other things, to obtain an acknowledgment of receipt of the asylum application. This is valid for three months and can be renewed until such time as a decision has been taken by OFPRA and, as the case may be, by the Refugee Appeals Board.
OFPRA gives its decision after a single examination procedure during which the asylum-seeker is given the opportunity to submit evidence in support of his or her claim and, as a rule, after evidence has been heard from the asylum-seeker (Articles L. 723-2 and L. 723-3).
32. A decision by OFPRA refusing an application taken under Articles L. 711-1 and L. 712-1 in particular may be appealed within one month before the Refugee Appeals Board (Article L. 731-2), an administrative court with a president who is a member of the Conseil d’Etat and is appointed by the latter’s vice-president (Article L. 7312). The persons concerned may make representations to the Appeals Board and be assisted by a lawyer and an interpreter (Article L. 733-1).
In principle, this appeal has suspensive effect and the temporary residence permit is renewed until the Board has reached its decision (section 9 of the Asylum Act of 25 July 1952). In that connection, Article L. 742-3 of the Immigration and Asylum Code states as follows:
“Aliens who are granted leave to enter France shall have the right to remain until OFPRA’s decision has been served or, where an appeal is lodged, until the decision of the Appeals Board has been served. They shall have one month from the date of service of the decision not to extend or to withdraw their residence permit in which to leave French territory of their own accord.”
The Conseil d’Etat has also established the principle whereby aliens seeking refugee status have the right to remain in the country temporarily until a decision has been taken on their application, provided the application is not vexatious or submitted with undue delay (Conseil d’Etat plenary, 13 December 1991, M.N.).
33. An appeal on points of law against the decision of the Refugee Appeals Board may be lodged with the Conseil d’Etat within two months. However, such appeal does not have suspensive effect (Conseil d’Etat, 6 March 1991, M.D.).
34. An alien whose application for refugee status or for subsidiary protection has been the subject of a final refusal and who is not authorised to remain in France on any other basis must leave the country or face removal (Article L. 742-7 of the Code). Aliens facing removal may, within forty-eight hours of the order for their removal being served (if it is served by means of administrative procedure) or within seven days (if it is served by post), apply to the president of the administrative court to have the order set aside. The president or his or her delegate must rule on the application within seventy-two hours (Article L. 512-2 of the Code). The order may not be enforced before these time-limits have expired or, where an application is made to the president of the administrative court or his or her delegate, until he or she has given a ruling (Article L. 512-3). An appeal against the judgment of the president of the administrative court or his or her delegate may be made within one month to the president of the Judicial Division of the Conseil d’Etat or a member of the Conseil d’Etat to whom he or she delegates his or her powers; such appeal does not have suspensive effect (Article L. 512-5 of the Code).
35. Under Article L. 742-6 of the Code, if the person concerned is granted refugee status or subsidiary protection, the administrative authority must repeal any order made for his or her removal. In the case of refugees, it must immediately issue the residence permit provided for in Article L. 31411, point 8 (valid for ten years and automatically renewable); in the case of persons granted subsidiary protection, it must immediately issue the temporary residence permit provided for in Article L. 313-13 (valid for one year, renewable).
36. On 18 September 1998 the Committee of Ministers adopted Recommendation No. R (98) 13 on the right of rejected asylum-seekers to an effective remedy against decisions on expulsion in the context of Article 3 of the European Convention on Human Rights, in which it called on member States to ensure that the following guarantees were complied with in their legislation or practice:
“1. An effective remedy before a national authority should be provided for any asylum-seeker, whose request for refugee status is rejected and who is subject to expulsion to a country about which that person presents an arguable claim that he or she would be subjected to torture or inhuman or degrading treatment or punishment.
2. In applying paragraph 1 of this recommendation, a remedy before a national authority is considered effective when:
2.1. that authority is judicial; or, if it is a quasi-judicial or administrative authority, it is clearly identified and composed of members who are impartial and who enjoy safeguards of independence;
2.2. that authority has competence both to decide on the existence of the conditions provided for by Article 3 of the Convention and to grant appropriate relief;
2.3. the remedy is accessible for the rejected asylum-seeker; and
2.4. the execution of the expulsion order is suspended until a decision under 2.2. is taken.”
On 4 May 2005 the Committee of Ministers adopted “Twenty Guidelines on Forced Return”. Guideline 5 reads as follows:
“Guideline 5. Remedy against the removal order
1. In the removal order, or in the process leading to the removal order, the subject of the removal order shall be afforded an effective remedy before a competent authority or body composed of members who are impartial and who enjoy safeguards of independence. The competent authority or body shall have the power to review the removal order, including the possibility of temporarily suspending its execution.
2. The remedy shall offer the required procedural guarantees and present the following characteristics:
– the time-limits for exercising the remedy shall not be unreasonably short;
– the remedy shall be accessible, which implies in particular that, where the subject of the removal order does not have sufficient means to pay for necessary legal assistance, he/she should be given it free of charge, in accordance with the relevant national rules regarding legal aid;
– where the returnee claims that the removal will result in a violation of his or her human rights as set out in Guideline 2.1., the remedy shall provide rigorous scrutiny of such a claim.
3. The exercise of the remedy should have a suspensive effect when the returnee has an arguable claim that he or she would be subjected to treatment contrary to his or her human rights as set out in Guideline 2.1. [real risk of being executed, or exposed to torture or inhuman or degrading treatment or punishment; real risk of being killed or subjected to inhuman or degrading treatment by non-State actors, if the authorities of the State of return, parties or organisations controlling the State or a substantial part of the territory of the State, including international organisations, are unable or unwilling to provide appropriate and effective protection; other situations which would, under international law or national legislation, justify the granting of international protection].”
37. As far back as 12 April 1994, the Parliamentary Assembly adopted Recommendation 1236 (1994) on the right of asylum, in which it recommended that the Committee of Ministers insist that asylum procedures provide that “while appeals [were] being processed, asylum-seekers [could] not be deported”. In Recommendation 1327 (1997) on the protection and reinforcement of the human rights of refugees and asylum-seekers in Europe, adopted on 24 April 1997, it called upon the Committee of Ministers “to urge the member States ... to provide in their legislation that any judicial appeal should have suspensive effect”.
In its Resolution 1471 (2005) on accelerated asylum procedures in Council of Europe member States, adopted on 7 October 2005, the Parliamentary Assembly stressed in particular that “[t]he need for States to process asylum applications in a rapid and efficient manner must ... be weighed against the obligation to provide access to a fair asylum determination procedure for those who are in need of international protection”. It specified that this “balancing of interests” did “not imply in any circumstances that States may compromise with respect to their international obligations, including under the 1951 Geneva Convention relating to the Status of Refugees ... and its 1967 Protocol and the 1950 European Convention on Human Rights ... and its Protocols”.
In that Resolution, the Parliamentary Assembly called on the governments of the Council of Europe member States to take the following measures (among others):
“...
8.4. as regards border applicants, to:
8.4.1. ensure, in accordance with the principle of non-discrimination, that all asylum-seekers are registered at the border and given the possibility of lodging a claim for refugee status;
8.4.2. ensure that all asylum-seekers, whether at the border or inside the country, benefit from the same principles and guarantees in terms of their request for refugee status;
8.4.3. ensure adoption of clear and binding guidelines on treatment of asylum-seekers at border points, in accordance with international human rights and refugee law and standards;
8.5. as regards the right of appeal with suspensive effect: to ensure that the right to an effective remedy under Article 13 of the European Convention on Human Rights is respected, including the right to lodge an appeal against a negative decision and the right to suspend the execution of measures until the national authorities have examined their compatibility with the European Convention on Human Rights;
...”
38. The Commissioner for Human Rights issued a recommendation concerning the rights of aliens wishing to enter a Council of Europe member State and the enforcement of expulsion orders (CommDH(2001)19). The recommendation, dated 19 September 2001, stresses in particular the following:
“11. It is essential that the right of judicial remedy within the meaning of Article 13 of the ECHR be not only guaranteed in law but also granted in practice when a person alleges that the competent authorities have contravened or are likely to contravene a right guaranteed by the ECHR. The right of effective remedy must be guaranteed to anyone wishing to challenge a refoulement or expulsion order. It must be capable of suspending enforcement of an expulsion order, at least where contravention of Articles 2 or 3 of the ECHR is alleged.”
VIOLATED_ARTICLES: 13
3
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_BULLETPOINTS: 5-1-f


ITEMID: 001-89811
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: WEINOHRL v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: The applicant, Mr Alois Weinöhrl, is an Austrian national who was born in 1944 and lives in Reichelsheim in Germany. He was represented before the Court by Mr H. Wenz, a lawyer practising in Fürth/Odenwald.
The applicant had worked intermittently as a composition floor layer and construction worker in Germany since 1961.
On 7 July 1994 the Employer’s Liability Insurance Association for the Engineering and Metal Industries (Maschinenbau- und Metall-Berufsgenossenschaft) received medical notification that the applicant was suffering from lumbar spine problems. It was further notified on 19 September 1994 by the applicant’s employer at the time that the applicant had given up work in March 1994 due to these problems. The Insurance Association therefore initiated a procedure to determine whether the applicant’s lumbar spine problems constituted an occupational disease.
Following consultation of the Insurance Association’s Technical Supervision Service, the relevant health insurance funds, other insurance associations and the competent medical adviser at the Hessen Ministry for Women, Labour and Social Order, the Insurance Association found on 8 August 1995 that the applicant’s disease was not work-related and that the applicant was thus not entitled to the payment of benefits. Pursuant to No. 2108 of Annex 1 to the Guidelines pertaining to occupational diseases (Berufskrankheiten-Verordnung), lumbar spine problems can only be recognised as an occupational disease if the worker has been regularly lifting or carrying heavy loads or has had to work in an extremely bent position over a long period of time. In line with the outcome of its investigations, the Insurance Association held that the technical conditions of the applicant’s occupation did not meet those criteria.
An administrative appeal by the applicant, referring to a medical certificate according to which it was likely that the applicant’s spine problems were related to his former occupation, was rejected by the Insurance Association on 12 January 1996.
The applicant then referred the case to the social courts and was represented by counsel throughout the subsequent proceedings.
The case was rejected by the Darmstadt Social Court (Sozialgericht) on 23 April 2002 following a hearing of the applicant and examination of two expert witness opinions that were collected in separate court proceedings dealing with a comparable case. The Social Court found that the applicant’s occupation and the conditions in which it was carried out were in general not capable of causing the alleged occupational disease and that it had therefore not been established that the applicant’s disease was work-related. The Social Court held that it was thus not decisive whether the applicant did in fact suffer from the alleged health problems and accordingly dismissed the applicant’s request for a further medical expert opinion.
On 16 January 2004 the Hessen Social Court of Appeal (Landessozialgericht), following a hearing of the applicant and further consultation of the Technical Supervision Service, rejected an appeal by the applicant. It held that even when taking into account all of the applicant’s submissions as to the nature and duration of his previous employment, the conditions of his occupation did not justify the recognition of his spine problems as an occupational disease. The Social Court of Appeal therefore upheld the decision of the Social Court that it was not necessary to grant the applicant’s request for a further medical expert opinion and, further, rejected his newly introduced alternative application to hear evidence from a medical expert on the technical conditions of his work.
On 17 June 2004 a complaint by the applicant against the Court of Appeal’s refusal to grant him leave to appeal to the Federal Social Court (Bundessozialgericht) was rejected as inadmissible. The Federal Social Court found that the applicant had failed to substantiate his allegation that the proceedings had been flawed by procedural shortcomings that might have affected the decision of the Social Court of Appeal pursuant to section 160 (2)(3) of the Social Code Act.
On 8 September 2004 the Federal Constitutional Court declined to consider a constitutional complaint lodged by the applicant.
Section 103 of the Social Court Act stipulates that the court has to investigate the facts of a case of its own motion and in consultation with the parties to the proceedings.
Pursuant to section 106 of the Social Court Act, the President must endeavour to ensure the elimination of procedural shortcomings, clarification of unclear applications, submission of relevant applications, completion of the statement of facts of a case and submission of all declarations necessary for the assessment of the facts.
Section 109 of the Social Court Act provides that, upon the request of the insured person, a particular medical expert has to be heard by the social courts unless the admission of such evidence would delay the proceedings or the court is convinced that the request was submitted in an attempt to delay the proceedings or that the request was not submitted earlier due to gross negligence.
Section 160(2)(3) of the Social Court Act provides that an appeal against the decision of the Social Court of Appeal may only be admitted if it refers to procedural shortcomings that might affect the decision being appealed. A violation of section 109 cannot be considered as a procedural shortcoming for this purpose and a violation of section 103 can only be considered as such in the event that a refusal to accept an application to take evidence has not been sufficiently reasoned by the Social Court of Appeal.


ITEMID: 001-57701
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 1991
DOCNAME: CASE OF HELMERS v. SWEDEN
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed
JUDGES: C. Russo;R. Pekkanen
TEXT: 11. The applicant, Mr Reinhard Helmers, is a German citizen. He is a university lecturer and resides in Lund in Sweden.
12. In 1979 Mr Helmers was not selected for appointment to an academic post at the University of Lund. As he considered that the decision was discriminatory and that the recruitment board had been biased, he appealed to the National Board of Universities and Colleges (universitets- och högskoleämbetet, "UHÄ"), which requested a specially established university committee to submit a written opinion. In this opinion, which was dated 2 October 1980, the committee stated, inter alia, that in his appeal Mr Helmers had accused the person eventually selected for the post, Mr L., of having obtained it by means of secret pressure exercised on one of the members of the recruitment board by a Professor E. (who had also taken part in the recruitment procedure) as a reward for Mr L.’s assistance in a campaign led by Professor E. against Mr Helmers.
On 10 December 1981 the Government, at last instance, rejected the applicant’s appeal against the appointment decision.
13. Meanwhile, the applicant, who considered that the university committee’s statement amounted to defamation, had reported the matter to the police. However, the Chief District Prosecutor of Lund chose not to pursue the investigation and his decision was upheld on appeal, ultimately by the Prosecutor General.
14. The applicant then decided to use his entitlement under Chapter 20, section 8, of the Code of Judicial Procedure (rättegångsbalken) to bring a private prosecution for defamation or, alternatively, aggravated defamation (förtal or grovt förtal, Chapter 5, sections 1 and 2, of the Criminal Code, brottsbalken) and for making false statements (osant intygande, Chapter 15, section 11, of the Criminal Code), against one of the members of the special university committee, Mr F., and against its secretary, Ms E. Ms E. was also accused of having incited Mr F. to commit the offences (Chapter 23, section 4, of the Criminal Code). The maximum sentence prescribed by law for aggravated defamation was two years’ imprisonment.
Mr Helmers also availed himself of the possibility under Chapter 22, section 1, of the Code of Judicial Procedure of joining an action for damages to the private prosecution, and he sought compensation in the amount of one Swedish krona from each of the accused.
15. The Lund District Court (tingsrätten) held a public hearing on 9 September 1981, at which the applicant and the defendants had the opportunity to address the court.
On 19 November 1981 the court delivered its judgment. It noted that the special committee’s summary of Mr Helmers’ appeal satisfied the objective criteria of defamation in that it was likely to discredit the applicant in the eyes of others. However, the court found that neither Ms E. nor Mr F. had incurred any criminal liability: Ms E. could not be held responsible for the committee’s statements as she had only been the rapporteur and not a decision-taking member; it was true that Mr F. had not been under any duty to make a statement as he had not been present when the committee examined Mr Helmers’ appeal, but it had to be considered justifiable for him, as a member of the committee, to join its opinion. After examining the correctness of the summary, the District Court concluded:
"It was not an easy task for the committee to summarise Mr Helmers’ long submissions which, in the opinion of the court, were also difficult to interpret. The summary made must therefore, as Mr F. and Ms E. have maintained, be considered as a reasonable interpretation of what Mr Helmers has put forward. In any event, it has not been established that Mr F. knowingly made any untrue statements."
The District Court furthermore found no evidence to support the allegation that Ms E. had made a false statement or incited Mr F. to commit a criminal offence. The applicant’s private prosecution was accordingly dismissed and the claim for compensation was also rejected.
16. On 9 December 1981 Mr Helmers appealed to the Court of Appeal (Hovrätten) of Skåne and Blekinge. He submitted, inter alia, the following.
The District Court had, contrary to well-established case-law, excluded criminal liability on the part of Ms E. on the ground that she had only been rapporteur and not a decision-taking member of the committee.
The summary made by the special committee was untrue as a matter of fact. The fact that one of the professors involved in the recruitment procedure, Professor E., had for a long time led a campaign against Mr Helmers had become a matter of public knowledge throughout the whole of Europe, as could be seen from legal textbooks, parliamentary documents, newspaper articles and radio and television programmes. It was also well-known that Professor E. had sought to have abolished the subject for the teaching of which the impugned appointment procedure took place and this was evidenced by, amongst other things, a complaint to the Chancellor of Justice (justitiekanslern) and an appeal by the students to UHÄ. Mr Helmers claimed that in view of the above facts, his appeal submissions to the UHÄ (see paragraph 12 above) could not possibly be construed as anything more than a challenge, on account of bias, of Professor E.’s involvement in the appointment decision. He stated that this must have been clear both to Ms E. and Mr F. and that they were thus both guilty of defamation because of their libellous statement in the committee’s opinion.
He added that, even if the District Court had not found it to be an easy task to summarise his submissions, the same could not hold true for the defendants, who had been in possession of all the documents in the appointment case for four months. In this connection, he also pointed out that his appeal submissions had referred to all the relevant facts and these were well-known to those concerned at the university department in question.
Finally, he requested the Court of Appeal to hold an oral hearing.
17. On 11 March 1982 the Court of Appeal received Ms E.’s and Mr F.’s reply to Mr Helmers’ appeal. This reply was sent to Mr Helmers the next day, together with a note indicating that the case could be decided without an oral hearing and that he had 14 days to file his pleadings with the court. Mr Helmers submitted these on 16 April and they were forwarded to the accused the same day, together with a note similar to the one sent to Mr Helmers.
Between April and November 1982 the parties lodged a number of further written observations with the court. Mr Helmers claimed that some of the material submitted by the defendants was irrelevant as it was a mere appeal to political prejudices and he asked the court to refuse it. He referred in particular to four newspaper articles written by others and a press release issued by the Secretary to the European Commission of Human Rights on 15 March 1982, all of which material related to a previous application by Mr Helmers to the Commission (no. 8637/79), which had been declared inadmissible on 10 March 1982 (see paragraphs 24-25 below).
18. In a judgment of 28 November 1983 the Court of Appeal decided the case on the basis of the written evidence, without having held any public hearing. It rejected the applicant’s plea that some of the material submitted by the defendants should be ruled inadmissible. As to the merits, the court found both Mr F. and Ms E. responsible for the committee’s opinion of 2 October 1980, which it considered was likely to discredit the applicant in the eyes of others. The judgment went on to state:
"The scope of criminal liability for defamation is limited by the provision contained in Chapter 5, section 1, second sub-paragraph, of the Criminal Code. A person who has uttered a defamatory statement is thus free from liability, inter alia, if he was under a duty to make a statement and the information given was true or had a reasonable foundation. The legislature has included appointment cases among those in which there may be a conflict between opposing interests.
The circumstances were such that both Mr F. and Ms E. were under a duty to make a statement. The fact that Mr F. gave his opinion only later is of no relevance in this context. The summary must furthermore, just as the District Court found, be considered as a reasonable précis of what Mr Helmers put forward in his memorial supporting his appeal. Mr F. and Ms E. therefore had a reasonable foundation for the information they provided. Accordingly they cannot be convicted of defamation. Nor can the Court uphold the prosecution brought against them on the charge of having made false statements or that brought against Ms E. on the charge of having incited these offences.
As a result of this conclusion in respect of the defendants’ criminal liability, Mr Helmers’ claim for damages must be dismissed - just as the District Court found."
19. The applicant appealed to the Supreme Court (högsta domstolen), claiming that a number of serious breaches of procedural law had occurred at first instance and that although he had pointed out these irregularities to the Court of Appeal, it had given a judgment on the merits based on new evidence without having held an oral hearing. In support of his complaints Mr Helmers also invoked Article 6 (art. 6) of the Convention and the serious and far-reaching consequences the outcome of the proceedings would have for him.
On 21 December 1984 the Supreme Court refused the applicant leave to appeal.
20. According to Chapter 21 of the Code of Judicial Procedure, lower courts must not as a rule give judgment in criminal cases until the accused has been able to defend himself at an oral hearing. Exceptions to this rule do, however, exist, particularly at appellate level. Thus, Chapter 51, section 21, as worded at the relevant time (it was subsequently amended with effect from 1 July 1984), provided:
"The Court of Appeal may decide the case without a hearing if the prosecutor appeals only for the benefit of the accused or if an appeal lodged by the accused is supported by the opposing party.
The case may be decided without a hearing if the lower court has acquitted the accused or discharged the offender or found him to be exempted from punishment by virtue of mental abnormality or if it has sentenced him to a fine or ordered him to pay a money penalty (vite) and there is no reason to impose a more severe sanction than those mentioned above or to impose any other sanction ... "
21. The Court of Appeal has the power to review questions both of law and of fact. However, there are some limits on its jurisdiction. Section 23 of Chapter 51, for instance, lays down that the Court of Appeal may not normally change the lower court’s assessment of the evidence to the disadvantage of the accused without the evidence in question being produced afresh before the Court of Appeal; Chapter 51, section 25 (as amended by Laws 1981:22 and 228), also contains a rule prohibiting the appellate court, in cases where the appeal is lodged by the accused or by the prosecutor for the benefit of the accused, from imposing a sentence which can be considered more severe than that imposed at first instance.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1