ITEMID: 001-107716
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF POPIVCAK v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1;Remainder inadmissible
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
TEXT: 5. The applicant was born in 1950 and lives in Košice. He is a selfemployed entrepreneur.
6. In his capacity as an entrepreneur, the applicant received a subsidy for the creation of a number of positions of employment deemed “socially desirable”. The subsidy was paid to him on terms specified in a contract with the District Employment Office (Okresný úrad práce).
7. In a decision of 28 November 1996 the Košice I. District Tax Authority (Daňový úrad) found that the applicant had breached the abovementioned contract by failing to fill all the positions. The applicant was therefore ordered to return 430,000 Slovakia korunas (SKK) of the subsidy and to pay SKK 860,000 by way of a financial penalty.
8. The period for appealing against the decision was fifteen days from the date of service.
9. The written version of the decision was sent to the applicant through the postal service, to be served on him in person (do vlastných rúk).
However, after repeated attempts to do so had proved unsuccessful the decision was deposited with the local post office and a notice was left in the applicant’s mailbox to the effect that he could collect the decision there within three days.
Should the applicant not collect the decision within that period, as proved to be the case, it was to be deemed to have been served on him by force of a legal presumption on the date of expiry of the period.
10. The question of when the decision of 28 November 1996 became final and binding (právoplatnosť) was not subject to full administrative or judicial examination. However, the authorities took the view that it had become final and binding on 23 December 1996, by operation of the presumption mentioned in the preceding paragraph. At that time the applicant had no legal representation.
11. Under a legal-assistance contract of 1 October 1997, the applicant retained the services of a lawyer to provide him with general legal assistance, including representation in litigation.
12. Being a member of the Slovakian Bar Association, the lawyer was under a duty conscientiously to defend her clients’ rights and diligently to apply all legal means available for the assertion of their interests and to have taken out and to maintain professional liability insurance (see paragraphs 40 and 42 below).
13. On 26 January 1998 the applicant paid a visit to the District Tax Authority, accompanied by his lawyer. It was on this occasion that the applicant obtained the decision of 28 November 1996 (see paragraph 7 above) by collecting it from the Tax Authority in person.
14. On 18 August 1998, through his lawyer, the applicant challenged the decision of 28 November 1996 by way of an administrativelaw action (see paragraph 47 below).
15. Simultaneously, also through the lawyer, the applicant requested an extraordinary review of the impugned decision by the Central Tax Directorate (Ústredné daňové riaditeľstvo) outside the framework of appellate proceedings (see paragraph 51 below). In his request, the applicant argued, inter alia, that he had in fact complied with the terms on which he had been provided with the subsidy.
16. On 30 September 1998 the Central Tax Directorate modified the decision of 28 November 1996 in that it reduced the amount of the subsidy to be repaid to SKK 180,000 and the penalty payment to SKK 360,000. In the proceedings leading up to that decision the applicant’s lawyer officially acted as his legal representative. Although it was open to her, the lawyer filed no administrative appeal against it on the applicant’s behalf.
17. The District Tax Authority subsequently relieved the applicant of the duty to pay any more than SKK 160,000 in penalties.
18. On 10 November 1998 the Košice Regional Court (Krajský súd) declared the applicant’s administrative-law action (see paragraph 14 above) inadmissible and discontinued the proceedings. In the proceedings leading up to that decision the applicant’s lawyer officially acted as his legal representative.
19. The Regional Court found that the applicant had failed to fulfil the statutory admissibility requirement of exhausting ordinary remedies by lodging an administrative appeal (see paragraphs 48 and 50 below) and, as appropriate, by challenging the decision on the administrative appeal by way of a fresh administrativelaw action (see paragraph 47 below).
20. In so far as there might have been any misgivings as to the way in which the impugned decision had been served on the applicant and, consequently, as to when the period for lodging an administrative appeal had expired, the Regional Court held:
“The court dealing with the action of 18 August 1998 cannot examine whether the defendant served the impugned decision [on the applicant] in accordance with Article 24 of the Code of Administrative Procedure. This question may be examined only by the appellate administrative agency, in the context of an [administrative] appeal against the decision of the defendant.
...
Should the [applicant] have been of the opinion that the decision by the defendant was not served on him through the postal service in accordance with Article 24 of the Code of Administrative Procedure, it was open to him to challenge that decision by means of an [administrative] appeal within the period for appealing, namely fifteen days from the collection of that decision in person from the defendant on 26 January 1998. The question whether the decision by the defendant was served on the applicant in accordance with Article 24 of the Code of Administrative Procedure and, as the case may be, whether the [applicant] lodged his [administrative] appeal against the decision by the defendant within the statutory time-limit would have to be resolved by the administrative agency dealing with the appellate proceedings. Upon receipt of the decision of the appellate administrative agency on his appeal, it was open to the [applicant] to proceed as indicated above.”
21. On 12 July 2000 the applicant lodged a civil action against the lawyer with the Košice I District Court (Okresný súd). He alleged that the lawyer had breached her duty of care by failing to use all remedies, in particular administrative appeals against the decisions of 28 November 1996 and 30 September 1998, followed – as the case may be - by administrativelaw actions.
22. The applicant argued, inter alia, that, in a judgment of 20 February 1997 in an unrelated but similar case the Supreme Court (Najvyšší súd) had found for the plaintiff and had quashed the impugned decisions of the tax authorities.
23. The applicant sought an order for payment of SKK 540,000 in damages. This sum represented the total amount that he had to pay back to the tax authorities. In the course of the proceedings the applicant reduced his claim by SKK 200,000.
24. On 16 April 2004 the District Court dismissed the action and ordered the applicant to pay the defendant’s costs.
25. Referring to the Regional Court’s decision of 10 November 1998 (see paragraph 18 above), the District Court observed that the applicant’s lawyer had not lodged an administrative appeal against the decision of 28 November 1996 (see paragraph 7 above) and that, consequently, the Regional Court had no jurisdiction to deal with the applicant’s administrative-law action.
26. The District Court also noted that the applicant’s lawyer could have challenged the decision of 30 September 1998 by means of an administrative appeal, but had not done so.
27. The District Court concluded that the lawyer had indeed breached her professional duties in that she had failed to use all available legal means for the protection of the applicant’s interests.
28. However, no causal link could be established between that breach and the applicant’s loss since it was unknown how the case would have proceeded on the merits had all the ordinary remedies been applied.
An administrative appeal against the decision of 28 November 1996 fell to be determined by the Central Tax Directorate. An administrative-law action against the decision of 30 September 1998 fell to be determined by the Supreme Court sitting as an administrative tribunal. Relying on Article 135 § 2 of the Code of Civil Procedure, the District Court concluded that the ordinary courts had no jurisdiction to take the place of these bodies and to pre-empt the outcome of the proceedings before them.
29. On 28 June 2005 the Regional Court upheld the judgment following the hearing of an appeal by the applicant. The Regional Court observed that the ordinary courts held no power of review as regards the substantive aspect of administrative decisions. It held that, similarly, the ordinary courts could not be a substitute for administrative agencies and tribunals by determining matters of substance within the latter’s jurisdiction.
30. The Regional Court denied leave to appeal on points of law on the grounds that no issue of particular legal significance was involved and that the matter was the subject of well-established case-law, although this was not referred to in any detail.
31. On 21 April 2006 the applicant lodged a complaint under Article 127 of the Constitution (see paragraph 37 below) with the Constitutional Court (Ústavný súd). He argued that the dismissal of his action for damages had violated his rights of access to a court under Article 6 § 1 of the Convention and to judicial or other legal protection under Article 46 § 1 of the Constitution (see paragraph 36 below).
32. On 4 May 2006 the Constitutional Court declared the complaint inadmissible. The decision was served on the applicant on 22 September 2006.
33. The Constitutional Court was of the view that the outcome of the applicant’s action for damages hinged on a point of law that fell under the jurisdiction of the ordinary courts and had already been decided there. The ordinary courts, in particular the Regional Court, had supported the decision with exhaustive, relevant and sufficient reasoning. There was no appearance of any constitutionally relevant arbitrariness or irregularity and the applicant’s complaint was accordingly manifestly ill-founded.
34. The applicant requested the Prosecutor General to exercise his discretionary powers to challenge the judgment of 28 June 2005 on the applicant’s behalf by way of an extraordinary appeal on points of law on similar grounds to those raised in the applicant’s constitutional complaint.
35. In a letter of 2 October 2006 the public prosecution service informed the applicant that it fully endorsed the ordinary court’s reasoning and consequently, his request was dismissed.
36. The “right to judicial and other legal protection” is laid down in Section (Oddiel) Seven of Part (Hlava) Two, dealing with “basic rights and freedoms”. The relevant part of Article 46 provides as follows:
“1. Everyone shall be able to assert his or her rights in a procedure provided for by a statute before an independent and impartial court of law and, in cases defined by a statute, before another organ of the Slovak Republic.
...
4. Conditions and details of judicial and other legal protection shall be provided for by a statute.”
37. Article 127 provides:
“1. The Constitutional Court shall decide on complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.
2. If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash such decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order such authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation.
3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to the person whose rights under paragraph 1 have been violated.”
38. Article 152 § 4 provides:
“The interpretation and application of constitutional laws, acts of parliament and other generally binding statutes must be in accordance with this Constitution.”
39. The general rule on liability for damage is laid down in Article 420, paragraph 1 of which provides:
“Everyone shall be liable for any damage he or she causes by breach of statutory duty.”
40. Section 13 reads as follows:
“1. In the exercise of his or her profession, an advocate is bound to uphold the Constitution, acts of parliament and regulations issued for their implementation and, within their boundaries, to follow the client’s instructions.
2. An advocate is bound to protect the rights and lawful interests of the person he or she represents, to act conscientiously in doing so, diligently to use all legal means and to apply what he or she considers useful according to his or her conscience and the client’s instructions.
3. An advocate is bound to see to it that the legal assistance rendered is purposeful and economical.”
41. The relevant part of section 21 provides:
“1. An advocate is liable to his or her client for damage that he or she has caused in connection with the exercise of his or her profession; this liability extends to damage caused by his or her trainee advocate (koncipient) or employee.
...
4. An advocate shall be released from liability under subsection 1 if he or she shows that the damage could not have been prevented with all efforts that may be expected of him or her.”
42. Under section 22:
“Before the commencement of the exercise of his or her profession, the advocate is bound to furnish to the Bar a professional liability insurance policy. This insurance must be valid throughout the period of the exercise of the advocate’s profession.”
43. Article 7 defines the jurisdiction of the ordinary courts. It provides:
“1. Courts in civil proceedings shall examine and decide upon disputes and other legal matters which stem from relations under civil law, labour law, family law, commercial law and economic law, provided that an act of parliament does not confer jurisdiction on other authorities.
2. Courts in civil proceedings shall also review the lawfulness of decisions of public administrative authorities and the lawfulness of decisions, measures and other actions by public-power authorities, provided that an act of parliament does not confer jurisdiction on other authorities.
3. Other matters may be examined and decided upon by courts in civil proceedings if an act of parliament so provides.”
44. Article 135 defines which decisions are binding upon courts in civil proceedings. It provides:
“1. A court shall be bound by a decision by the Constitutional Court as to the compatibility of a statute with the Constitution, an act of parliament or an international treaty binding upon the Slovak Republic ... A court shall also be bound by a decision of the Constitutional Court or the European Court of Human Rights which concerns a question of fundamental human rights or freedoms. Moreover, a court shall be bound by a decision of the competent authorities that a criminal offence, a minor offence or another administrative offence punishable under special statute has been committed and by whom, as well as by a decision concerning personal status, the inception and winding up of a company and the entry of [information on] registered capital [in the Commercial Register]; a court shall, however, not be bound by a decision taken in summary minor-offence proceedings (blokové konanie).
2. Other than that, questions falling to be decided by other authorities may be decided upon by a court directly. However, should such a question have been decided upon by the competent authority, the civil court shall adopt its decision (vychádza z neho).”
45. Under Article 228 § 1 (d), civil proceedings can be reopened where the Court has found a violation of the requesting party’s Convention rights and where serious consequences of the violation have not been adequately redressed by the award of just satisfaction.
46. In the new decision in a reopened matter, the court determines issues relating to the reimbursement of the costs that the parties incurred both in the original and in the reopened proceedings (Article 235 § 3).
47. Chapter (Časť) 5 governs the administrative judiciary. In accordance with its provisions, administrative tribunals review the lawfulness of decisions taken by public administrative authorities on the basis of administrative-law actions under Section (Hlava) 2 of that Chapter and administrative-law appeals under Section 3 of that Chapter.
48. Judicial review of administrative decisions and procedures by way of administrative-law actions under Section 2 of Chapter 5 necessitates that the matter be resolved by a decision that has become final and binding (právoplatnosť) upon the exhaustion of all ordinary remedies (Article 247 § 2).
49. The possibility of disregarding failure to comply with a time-limit is laid down in Article 28, the relevant part of which provides:
“1. The administrative authority may disregard a failure to comply with a time-limit (lehota) for serious reasons, provided that the party to the proceedings makes a request to that effect within fifteen days of the day when the reasons for the failure [to comply with the time-limit] cease to exist, and that [the party] rectifies the omission within the same time-limit. The administrative authority may confer suspensive effect on such a request.
2. Failure to comply with a time-limit cannot be disregarded after a year has elapsed from the day when the action should have been taken.”
50. An administrative appeal is normally to be lodged within fifteen days of the day when the decision challenged is served (Article 54 § 2).
51. In the three years after an administrative decision becomes final and binding, it may be quashed or amended (Article 68 § 1) upon a review by an administrative agency at the nearest level above the agency that issued the decision, of the higher agency’s own motion or on an application by a third party (Article 65 § 1).
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23669
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: ASHWORTH AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: The applicants are British citizens, born in 1924, 1932, 1925, 1955 and 1945 respectively. They live near Denham aerodrome, Buckinghamshire. They were represented before the Court by Mr Richard Buxton, a lawyer practising in Cambridge, England. The Government were represented by their agent, Mr Huw Llewellyn, of the Foreign and Commonwealth Office, London.
The facts of the case, as submitted by the parties, may be summarised as follows.
Denham aerodrome is a privately owned and operated aerodrome, most of which lies within the London Control Zone. 110 full-time and 45 part-time employees, of various companies, work there. Current activity at Denham comprises flights by fixed wing aircraft and helicopters, maintenance and testing, pilot training and aerobatics. The most common aircraft are the Piper 23 and Cessna 152, which are four-seater light propeller aircraft with fixed undercarriages. The most common helicopters are Robinson 22s.
An Air Traffic Zone (ATZ) is set aside exclusively for the safe operation of aircraft using the aerodrome. It extends for a radius of 2 nautical miles around the aerodrome, and it is only within the ATZ that the aerodrome operator has supervision of the airspace and the aircraft within it. Pilots must advise the aerodrome of their entry into the ATZ. Because of its proximity to Northolt and Heathrow airports, the circuit height at Denham is limited to 750 feet.
The aerodrome currently has two runways, a 779m asphalt runway which runs north-east/south-west, and a 564m grass runway which runs north-west/south-east.
Helicopters have used the aerodrome since 1955. Most (some 95%) of the large helicopter activities are commercial, and include training, maintenance and testing.
Aircraft flights are divided roughly equally between commercial and leisure purposes; many flights in each category involve pilot training, with basic training most often carried out in fine weather.
Aerobatic flying takes place on average once a fortnight during the summer.
On 13 June 1996, the applicants’ lawyer wrote to the Secretary of State for Aviation and Shipping on behalf of the Denham Airfield Environment Federation (“DAEF”), an association with about 1,000 members. The lawyer formally requested that the Minister should exercise the powers given to him under Section 5 of the Civil Aviation Act 1982 (“the 1982 Act”) to specify Denham Aerodrome for the purposes of that section, and then have the Civil Aviation Authority re-licence the airfield taking into consideration the need to minimise so far as reasonably practicable any adverse effects on the environment and disturbance to the public.
On 7 August 1997, Mr Grindrod of the Aviation Environmental Division of the Department of Environment, Transport and the Regions (“DETR”) replied to the lawyer that he was not satisfied that specification or designation of Denham Aerodrome under either Section 5 or Section 80 (for the purposes of Section 78) of the 1982 Act would be appropriate. He indicated that in reaching this view he had taken into account the aerodrome’s procedures for noise mitigation including their implementation, and he indicated that the aerodrome had also been visited by officers from the Aviation Environmental Division of the DETR.
Mr Grindrod further stated that he was not persuaded that there was significant or serious weakness in the environmental policies of the aerodrome or in their implementation. He concluded that the disturbance from aircraft at the aerodrome was not such as to justify specification under Section 5 of the 1982 Act. Mr Grindrod indicated that designation of Denham aerodrome under Section 80 of the 1982 Act for the purposes of Section 78 would not accord with Ministers’ general policy that noise issues should so far as possible be resolved at local level. He stated that, given that he had seen no evidence to persuade him that Denham aerodrome was not being managed in an environmentally responsible manner, he did not consider that there was evidence of particular circumstances at Denham such as would justify the Secretary of State intervening to stipulate noise mitigation measures there as an exception to this general policy.
Mr and Mrs Ashworth: Mr and Mrs Ashworth moved to the current address in Denham, Buckinghamshire, in 1970. Mr Ashworth died on 4 March 2003.
The Ashworths’ house is approximately 115 metres from the airfield perimeter fence, and the end of their garden is approximately 53 metres from the airfield. The part of the airfield which is closest to the Ashworths’ property was, until 1997, the area where most of the airfield-based helicopter activity, and all of the helicopter testing, including compass testing, took place. Compass testing involves a helicopter hovering a few feet above the ground for 20 to 30 minutes. It was not unusual for a single helicopter to be operating continuously within the area of the airfield closest to the Ashworths’ property for up to an hour. Occasionally, more than one helicopter is involved simultaneously.
Mr and Mrs Ashworth found that the noise generated by the operation of the airfield at Denham was not merely intrusive, but after a short time became absolutely intolerable. The applicants have submitted a report which includes the result of tests carried out by CST Environmental and Acoustic Consultants in which they recorded the noise levels in the garden of the Ashworths’ house from 16 to 22 October 1996. The report indicates that mid-morning background noise levels without aviation activity are between 41 to 43 dB(A), which is a level typically found in a semi-rural location such as the area in which the property is located. It notes that it is generally accepted that noise excursions which give an LAeq reading of 10dB(A) or more above background may generate justifiable complaints, and states that this situation was frequently recorded at the Ashworths’ house. Further, the report states that individual LA max. levels generated by both fixed-wing and helicopter aircraft were unexpectedly high, with typical LA max. values of 64 to 67 dB(A) for aircraft and helicopters were recorded, with some excursions in excess of 75 dB(A). Finally, the report indicates that the audio recording revealed that helicopter activities lasted for several minutes at a time, compared with fixed-wing flights which usually passed overhead in under one minute.
The applicants contend that the level of noise in the summer is much greater than that recorded in October 1996, which is the end of the season. Nevertheless, they contend that the results of the tests indicate that the level of noise experienced by the Ashworths is such as to amount to a nuisance, and that it is only by virtue of the operation of the relevant legislation, and in particular Section 76(1) of the 1982 Act, that it is not actionable.
It is estimated that the value of the Ashworths’ property has been reduced by about a third as a result of the existence of the airfield and activity at current levels.
Mr Vogel: Mr Vogel lives in Gerrards Cross, Buckinghamshire. He has lived at his present address since 1960. He lives with his wife.
Mr Vogel’s property is 3 km from Denham Aerodrome. He estimates that on average, one aircraft passes his property about every 40 seconds. The maximum height of the aircraft is 225 metres due to the proximity of Northolt aerodrome. If the wind is blowing towards Mr Vogel’s property, he finds the noise from take-off makes conversation in the garden, and therefore social use of the garden, impossible.
Aircraft on circuit usually pass slightly to the airfield side of Mr Vogel’s property, causing a serious and repetitive intrusion into their home and family life.
Mrs Rawson: Mrs Rawson has lived with her husband at her present address in Harefield, Middlesex, since 1997.
Mrs Rawson’s property is about 2 miles to the east of Denham Aerodrome. She complains that the noise from the aircraft engines is very intrusive and intimidating. Mrs Rawson and her husband noted the frequency of flights on various days between 13 July and 25 August 1999. Their notes indicate that they were often able to read the numbers on the aircraft with the naked eye. The notes show that during certain periods at weekends the frequency of flights close to the house reached approximately one every minute to two-and-a-half minutes. Mrs Rawson states that during the week, flights are less frequent. She complains that the aircraft fly low over her house and garden, and that they do not keep to the circuit prescribed by the aerodrome when taking off or landing, or practising approaches to landing.
Mrs Rawson works from home, and she is therefore adversely affected by the noise from the airfield during the week as well as at weekends.
Mr Holyoake: Mr Holyoake has lived with his wife and son at his present address in Gerrards Cross, Buckinghamshire, since 1997.
Mr Holyoake complains of “incredible” noise resulting from low flying aircraft completing circuits of four or five minutes’ duration on a regular basis. He states that often at weekends this results in an aircraft every one or two minutes flying over his house and garden, which creates an impossible situation outside the house and can be heard inside the house. The maximum height of the aircraft flying from Denham Aerodrome and the circuit which they may take is limited by the proximity of Northolt airfield. Aircraft flying from Denham often take a low flight path, which increases the noise at ground level. Mr Holyoake states that aircraft from Denham Aerodrome regularly fly well below 500 feet (150 metres) and sometimes at half this height. He complains that the position is exacerbated by the fact that aircraft use four large oak trees in the grounds of his house, which is positioned on the top of a hill, as markers when they come in to land, and therefore continuously take this route when landing. Helicopters use the same circuit, and fly at lower heights. Mr Holyoake states that the resultant high noise and resonance levels have caused earaches and headaches, particularly after regular exposure when circuits are carried out.
Section 35 of the Civil Aviation Act 1982 (the 1982 Act) provides for designation of aerodromes by the Secretary of State. Where an aerodrome has been designated under Section 35 (1), the management of the aerodrome is required to consult organisations representing the interests of local people (amongst others) “with respect to any matter concerning the management or administration of the aerodrome which affects their interest ...”. Guidelines for Airport Consultative Committees, published in 1987, state that the aim of consultation is “to provide an effective forum for the discussion of all matters concerning the development or operation of the aerodrome, which have an impact on ... people living and working in the surrounding area”, and to “provid[e] an opportunity to reconcile any differences of view that may arise, and [to resolve] difficulties through agreed voluntary action”.
Denham aerodrome has been designated under Section 35.
Sections 5 and 78/80 of the 1982 Act permit the imposition of specific noise and/or use control measures.
Where an aerodrome has been specified under Section 5, the Civil Aviation Authority is under a duty “to have regard to the need to minimise so far as reasonably practicable - (a) any adverse effects on the environment, and (b) any disturbance to the public, from noise, vibration, atmospheric pollution or any other cause attributable to the use of aircraft for the purpose of civil aviation”.
No aerodromes have been specified under Section 5, although the Secretary of State has indicated to Plymouth City Airport that he is “minded” to specify it.
Where the Secretary of State has designated aerodromes under Section 78 of the 1982 Act, the operator of the aerodrome is required to comply with requirements set out in the notice relating to noise and vibration connected with the taking off or landing of aircraft.
Only the major London airports (Heathrow, Gatwick and Stansted) have been designated under Section 78.
Section 79 of the 1982 Act permits the Secretary of State to make grants towards the cost of sound-proofing buildings near an aerodrome which has been designated under that section.
Section 76 of the 1982 Act excludes civil liability in trespass or nuisance in respect of flights of aircraft over property provided that the provisions of Air Navigation Orders have been complied with.
The Rules of the Air Regulations 1996 made under the Air Navigation (No. 2) Order 1995 apply to all pilots. They prohibit low flying (generally, flying below a height of 1500 feet (450 metres) above the highest fixed object within 600 metres of the aircraft or helicopter (Rule 5(1)(a)), or closer than 500 feet (150 metres) to any person, vessel, vehicle or structure: Rule 5(1)(e)). However, the prohibition in Rule 5(1)(e) does not apply to aircraft which are taking off or landing (Rule 5(2)(d)); nor does it apply to practising approaches to landing at aerodromes (Rule 5(4)(a)), as long as this is “confined to the airspace customarily used by aircraft when landing or taking off in accordance with normal aviation practice at the aerodrome concerned” (Rule 5(4)(b)).
The general planning legislation in the Town and Country Planning Act 1990 (as amended) is applicable to airports. Where planning consent is necessary, the local authority (in the first place) must determine the application in the light of Planning Policy Guidance issued by central Government. PPG24 relates to Planning and Noise. Certain operational developments are excluded by the Town and Country Planning (General Permitted Development) Order 1995 from the need for planning permission, although even in those cases the local authority must be consulted. For certain types of development, such as applications to construct airports with a basic runway length of 2100 metres or more, environmental impact assessments must be submitted (Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations (SI 1999/293).
In a Consultation Paper published in July 2000, the DETR asked for comments on a number of proposals connected with the control of aircraft noise, including proposals to give aerodromes power to establish noise control arrangements, and proposals to compel aerodromes to prepare noise amelioration schemes. The conclusions drawn from the consultation paper, together with procedures arising from a proposed EC Directive Com 2001 (695), will be included in, or published with, a White Paper which is expected to be published at the end of 2003.
The current aerodrome rules at Denham date from December 1999, and are set out in a document entitled “Operations and Procedures”, and in the “Denham Aerodrome Rules”.
The circuit applied at Denham follows a rectangular path around the aerodrome measuring roughly 2 nm x 1 nm. The height of circuit flying is 1000 feet, which is lower than some aerodromes, but enables aircraft to fly a smaller circuit than if they had to fly higher. The circuit is designed to be as small as practically possible to avoid flying over sensitive residential areas. Only four aircraft are permitted to fly circuits at any one time.
In connection with engine failure practice (which involves throttling the engine back in the circuit and returning it to full power a few seconds later), the rules draw attention to the fact that pilots cannot be prosecuted for low flying whilst landing or taking off in according with normal aviation practice, but that they may commit an offence if they deliberately go nearer than 500 feet to a person or structure.
Runways are available for use between 8.00 am and 6.00 pm in winter, and 8.00 am and 8.00 pm in summer. Twin-engined aircraft are not permitted to carry out circuit training after 1.00 pm at weekends.
Helicopters are not allowed to carry out hover training or circuit training on Sundays or after 1.00 pm on Saturdays, and are restricted to 10 minutes hovering followed by a circuit.
The Government state that alleged breaches of the rules are investigated by the aerodrome management, and the pilot is asked to explain his or her actions. The disciplinary regime includes written warnings, fines, requests for further training to be undertaken, and banning from using the aerodrome. One pilot has been banned in the last five years.
The applicants complain under Article 8 § 1 of the Convention that the noise caused by low flying aircraft including aerobatic activity, and helicopters, particularly training and maintenance, amounts to an interference with their right to respect for their private and family lives, and their homes, and that it cannot be justified under Article 8 § 2 because Denham Aerodrome does not serve important national economic interests.
The applicants identify a legitimate aim which might be put forward in the case of a small, privately owned and operated aerodrome such as Denham, that of allowing “innocent passage” for aircraft across people’s property. They contend that a balance should be struck between this and the interference with the rights guaranteed under Article 8 § 1. They complain that the fact that a bar on actions for nuisance is imposed by the 1982 Act, and in particular by Section 76(1) thereof, that the bar applies regardless of the time of day or night when the noise is made, and regardless of the level or type of noise made, and that there are no effective alternative mechanisms in place to prevent noise nuisance, means that no balance has been struck, in breach of Article 8.
The applicants further contend that the fact that the 1982 Act prevents them from bringing an action in nuisance, together with the fact that there is no other remedy available to them for breach of Article 8, amounts to a violation of Article 13 of the Convention.
Finally, the applicants contend that the level of noise generated by Denham Aerodrome has serious potential effects on the value of their properties. The Ashworths contend that this is particularly so in their case, as the noise has become significantly worse since they purchased the house in 1970. The applicants contend that this amounts to a violation of Article 1 of Protocol No. 1.


ITEMID: 001-86471
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: CLARKE v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr William Clarke, is a British national who was born in 1946 and lives in Sheffield. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 16 January 2000. In October 2000, the applicant made a claim for widows’ benefits. On 26 January 2001 the applicant was informed that his claim had been disallowed as he was not a woman. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-59166
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF HOLZINGER v. AUSTRIA (No. 2)
IMPORTANCE: 3
CONCLUSION: Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
TEXT: 10. On 8 July 1987 the applicant brought proceedings (17 C 1018/87) in the Salzburg District Court (Bezirksgericht) against a former lawyer for the sum of AS 11,294.05. The lawyer opposed the proceedings, and a hearing was held on 25 January 1988. The court decided to adjourn the proceedings until other proceedings (20 SW 2/87) had been determined. The latter ended on 15 March 1988, and on 12 April 1988 the applicant requested the continuation of the second proceedings (17 C 1018/87), increasing the amount claimed. On 26 April 1988 the applicant filed an extensive request for the taking of evidence and, at the same time, reduced his claim. On 23 June 1988 the District Court invited the defendant to comment on the applicant’s submissions, which he did on 23 November 1988. Meanwhile, on 8 August 1988, the applicant requested the District Court to join the present proceedings with other proceedings (3 Cg 216/88) pending before the same court. On 6 October 1988 the District Court dismissed this request. From November 1988 the applicant was represented by a lawyer but continued to make applications to the court on his own behalf.
11. On 1 November 1988 and again on 4 November 1989 the judge dealing with the applicant’s case was replaced.
12. A second hearing took place on 1 December 1989. The court adjourned the case pending the outcome of further parallel proceedings (3 Cg 216/88) against the same defendant. The final decision in the latter proceedings entered into force on 4 November 1993, and on 15 November 1993 the applicant requested the resumption of the previous proceedings. He also increased the amount claimed.
13. On 12 December 1994 a hearing was held in the case. The applicant limited the amount claimed to AS 24,339.80 and submitted further documentation. The court adjourned the hearing for the files in all parallel proceedings to be obtained.
14. On 16 January 1995 the defendant died. On 18 April 1995 the case was adjourned (unterbrochen) pursuant to Article 155 of the Code of Civil Procedure (Zivilprozessordnung). On 4 May 1995 the applicant applied for the proceedings to be continued, and on 29 June 1995 the applicant purported to withdraw his action as he (wrongly) thought that it was statute-barred. On 19 March 1997 the applicant applied for the proceedings to be “re-opened” on the ground that his belief that the action was statute-barred derived from misleading information given by the defendant’s insurer. On 11 April 1997 the applicant revoked his withdrawal, and again applied for the proceedings to be continued.
15. The Salzburg District Court rejected the applications for continuation, and declined to re-open the proceedings as no final decision had been taken. The applicant appealed.
16. On 23 July 1997 the Salzburg Regional Court (Landesgericht) allowed the applicant’s appeal in part, and remitted the case to the District Court which, on 20 July 1998, gave judgment in the applicant’s favour as to AS 15,157.80 and against him as to AS 9,182. The applicant was awarded his costs. The applicant’s appeal against the part of the judgment against him was dismissed by the Salzburg Regional Court on 20 January 1999. The latter judgment was received by the applicant’s representative on 4 February 1999.
17. Section 91 of the Courts Act (Gerichtsorganisationsgesetz), which has been in force since 1 January 1990, provides as follows.
"(1) If a court is dilatory in taking any procedural step, such as announcing or holding a hearing, obtaining an expert's report, or preparing a decision, any party may submit a request to this court for the superior court to impose an appropriate time-limit for the taking of the particular procedural step; unless sub-section (2) of this section applies, the court is required to submit the request to the superior court, together with its comments, forthwith.
(2) If the court takes all the procedural steps specified in the request within four weeks after receipt, and so informs the party concerned, the request is deemed withdrawn unless the party declares within two weeks after service of the notification that it wishes to maintain its request.
(3) The request referred to in sub-section (1) shall be determined with special expedition by a chamber of the superior court consisting of three professional judges, one of whom shall preside; if the court has not been dilatory, the request shall be dismissed. This decision is not subject to appeal."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23239
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: RIEKWEL v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Marco Riekwel, is a Netherlands national, who was born in 1967. He is represented before the Court by Mr L.C.M. Jurgens, a lawyer based in Amsterdam who is not licensed to practise but who provides legal assistance and representation in cases where representation by a licensed advocate is not prescribed by law.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 5 July 1997, at approximately 2.50 a.m., police officers in Rotterdam stopped a motor car and tested the driver’s breath for alcohol. There being an indication that the driver’s breath might contain more alcohol than was legally permitted, the driver was taken to a police station and subjected to a more precise test. This second test showed that the driver’s breath did in fact contain a higher proportion of alcohol than permitted.
The driver of the car gave the applicant’s name. It appears from a police report dated after the event, which the applicant claims is inaccurate, that the driver of the car was found in possession of a driving licence or other identity document in the applicant’s name containing a photographic likeness of the bearer.
The driver of the car confessed that he had drunk five glasses of beer. He was sent home with a summons to appear on 25 September 1997 before the single-judge chamber (politierechter) of the Regional Court (arrondissementsrechtbank) of Rotterdam on a drink-driving charge.
No one appeared at the hearing on 25 September 1997. The applicant was convicted in absentia of drink-driving and sentenced to pay a fine of 800 Netherlands guilders (NLG). The applicant claims, essentially, that he only became aware of this when he was ordered to pay the fine. He lodged an appeal against his conviction and sentence to the Court of Appeal (gerechtshof) of The Hague.
The Court of Appeal decided to consider the drink-driving charge and the charge of driving an uninsured car – of which the applicant had been convicted in separate proceedings – jointly. It held hearings on 24 November 1997, 25 August and 30 November 1998 and 1 March 1999, at which, for various reasons not relevant to the case before the Court, the applicant did not appear. At the hearing on 1 March 1999, the applicant’s counsel, who was present, pleaded on the applicant’s behalf that another person had in fact been arrested on 5 July 1997 and had fraudulently pretended to be the applicant. He invited the police officers who had been called as witnesses to identify the applicant from a series of photographs. The Court of Appeal, however, decided that the applicant’s presence in person was required to establish whether or not he was in fact the person arrested on 5 July 1997.
A further hearing was set for 26 April 1999. By letter of 22 April 1999, the applicant informed the Court of Appeal that he did not intend to appear. He stated that he did not trust the police officers to make a correct identification except in a confrontation attended by sufficient safeguards, for example a line-up of himself and other persons of similar appearance.
The hearing proceeded on 26 April 1999 in the applicant’s absence.
The Court of Appeal gave judgment on 10 May 1999. It declared the applicant’s appeal against the first-instance conviction of drink-driving inadmissible as out of time. Its reasoning included the following:
“In the opinion of the Court of Appeal the original summons for the [single-judge chamber of the Regional Court’s] hearing of 25 September 1997 was handed to the suspect in person on 5 July 1997. It follows that the suspect should have appealed within fourteen days of the judgment delivered on 25 September 1997. However, the suspect only appealed on 19 November 1997, so the suspect’s appeal must be declared inadmissible.
The Court of Appeal is of the opinion that it was the suspect to whom the original summons was handed. The Court of Appeal considers it relevant in this respect that, as appears from the official report drawn up on 8 November 1997 by Police Sergeant S. ..., the suspect identified himself to the reporting police officers by means of an identity document bearing a photographic likeness resembling the suspect. The Court of Appeal has further found that the [record of] the interrogation of the suspect, to which he was subjected on 5 July 1997, is signed with a signature which in the Court of Appeal’s opinion is sufficiently similar to the one which the suspect has placed on the letter of authority with which he has authorised the lodging of an appeal ... and on the receipt belonging to the official record of the delivery of the notification of the pronouncement of the judgment of the single-judge chamber of the Regional Court ...”
The applicant’s counsel, a licensed advocate, lodged an appeal on points of law (cassatie) to the Supreme Court (Hoge Raad) on the applicant’s behalf. Mr Jurgens took over the applicant’s representation from the advocate, it being possible at the time for any person duly authorised in writing to act before the Supreme Court in criminal cases, and gave his own address as the applicant’s elected domicile for correspondence.
The Advocate General (advocaat-generaal) to the Supreme court submitted an advisory opinion to the Supreme Court on 8 May 2001. A copy was transmitted to the last known address of the applicant. However, as appears from the public records, the applicant had already moved to another country on 18 December 2000.
The Supreme Court gave judgment on 19 June 2001 dismissing the applicant’s appeal.
On 28 August 2001 the Registrar of the Criminal Division wrote to Mr Jurgens in the following terms:
“In the above case, in which you act as the representative of the suspect pursuant to a specific letter of authority, the Advocate General Jörg submitted an advisory opinion (enclosed) on 8 May 2001. This advisory opinion was sent to the suspect by letter of 9 May 2001, the latter being offered the possibility to respond. This possibility was not made use of. Subsequently, the Supreme Court dismissed the appeal by its judgment of 19 June 2001.
You have rightly pointed out to the administrative staff of the Criminal Division that you were not sent a copy of the advisory opinion, as was required by (former) Article 439 § 2 of the Code of Criminal Procedure. This lapse is regretted and I offer you my apologies for it. Now that the Supreme Court has given its irrevocable judgment (onherroepelijk uitspraak heeft gedaan), it would be entirely pointless to give you the opportunity to react at this stage. That will therefore not be done.
Unfortunately, there is now nothing more to be done than to acknowledge that a mistake was made towards you which should not have been allowed to occur. ...”


ITEMID: 001-100483
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF YANKOV AND OTHERS v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13+6-1
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 4. The applicants were born in 1966, 1947, 1947, 1972 and 1968 respectively and live in the village of Stryama near Plovdiv.
5. On 24 August 1993 the second, third, fourth and fifth applicants and the son of the second and third applicants, Mr R.R., were caught by the police when attempting to transport stolen fruit. The police officers ordered the second applicant who was driving the cart with the stolen goods to bring the goods to the police station. He did not comply and drove the cart away. The remaining applicants and Mr R.R. went home.
6. On 27 August 1993 the third and fourth applicants and Mr R.R. were questioned in connection to the theft, admitted to it and stated that the fifth applicant had also participated in the theft. The second applicant was questioned and confessed to the offence on 2 September 1993.
7. Apparently these questionings were carried within the framework of police investigation (дознание) no. 582/93.
8. On 20 September 1993 a police officer from the Rakovski district police department proposed to the prosecution authorities to initiate preliminary investigation (предварително производство) for theft against the second, third, fourth and fifth applicants and Mr R.R. He stated in his report that the fifth applicant had not been questioned as he was hiding.
9. Thereafter the case remained dormant until January 2002.
10. On 3 January 2002 a witness was questioned and on 27 January an expert opinion was commissioned.
11. On 29 January 2002 the second, third, fourth and fifth applicants and Mr R.R. were questioned as suspects (уличени) under police investigation no. 582/93 and were charged with theft on the basis of the materials from that police investigation.
12. In February 2003 the case was brought to the Plovdiv District Court, which on 20 February remitted it back to the prosecution authorities because of procedural breaches.
13. On an unspecified date thereafter the charges against Mr R.R. were dropped.
14. On an unspecified date in the end of 2003 or the beginning of 2004 the case was again brought to the District Court.
15. On 24 November 2004 the second, third, fourth and fifth applicants concluded a plea bargain agreement and were sentenced to three months' imprisonment suspended for a period of three years. On the same day the agreement was approved by the Plovdiv District Court.
16. The first applicant did not take part in the above events and was never a party to the criminal proceedings.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-114090
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF ABLYAZOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: 5. The applicant was born in 1970 and lived, prior to his arrest, in Orsk, Orenburg Region.
6. At 1 p.m. on 23 July 2003 the applicant was arrested on suspicion of manslaughter. According to the applicant, a certain investigator, K., and officers from the police department of the Oktyabrskiy District of Orsk beat him severely in order to obtain a confession. K. hit the applicant in the jaw whereupon he fell down onto the floor. A police officer then hit him on the head with an object which appeared to be a mobile phone. Other officers kicked him many times. A plastic bag was placed over his head and the applicant then lost consciousness. After an ambulance had been summoned by the police officers and medical help had arrived, the beatings ceased.
7. On 24 July 2003 the applicant’s lawyer submitted a request for the applicant to be examined by a forensic medical expert. The examination took place on the same day. According to the Government, it was conducted some time after 11.30 a.m. The expert established that the applicant had a bruise on his left jaw, caused by the impact of a hard blunt object approximately twenty-four hours beforehand. The expert also noted that the applicant complained of pain in the parietal region of his head as well as sickness and dizziness. In the expert’s opinion, the applicant did not sustain any serious physical damage .
8. On 25 July 2003 the applicant was transferred to remand prison no. IZ 56/2 in Orsk. Upon arrival, he was examined by a doctor, who recorded in the registration log that the applicant had no visible injuries.
9. On 12 August 2003 the applicant filed a complaint about ill-treatment with the district prosecutor’s office.
10. On 15 August 2003 the deputy district prosecutor Ch. dismissed the applicant’s complaint. In his decision, he stated as follows:
“In response to the complaint, [the prosecutor’s office] ... studied the materials from the criminal case file [against the applicant].
It has been established that ... the investigation in respect of [the applicant] has been in compliance with the rules of criminal procedure and that the [applicant’s] allegations of ill-treatment have not been confirmed. This finding is based, inter alia, on the results of the forensic medical examination undergone by [the applicant].”
11. On 1 October 2003 the applicant filed another complaint with the district prosecutor’s office about the beatings he had allegedly received in police custody. On 3 October 2003 the investigator K.- who was also in charge of the criminal investigation against the applicant - dismissed his allegations as unsubstantiated based on the statements made by three policemen. On 10 October 2003 the deputy district prosecutor dismissed the applicant’s complaint once again.
12. On 20 December 2003 the deputy district prosecutor upheld the decision of 3 October 2003 on appeal.
13. On 29 August 2005 the acting district prosecutor set aside the decision of 3 October 2003 noting that the inquiry into the applicant’s allegations of ill-treatment had been incomplete. In particular, the investigator had failed to question the applicant and the alleged perpetrators of the ill-treatment and to identify and question other possible witnesses.
14. At the beginning of September 2005 the Oktyabrskiy district prosecutor questioned the applicant, who gave a description of the police officer who had allegedly hit him with “an object looking like a mobile phone”. The prosecutor then questioned police officer Z. who denied beating the applicant and further claimed that none of the police officers of the Oktyabrskiy district police station matched the description given by the applicant. He did not remember whether the applicant had sustained any visible injuries immediately after the arrest. The prosecutor also questioned the head of the temporary detention centre where the applicant had been held on 23 and 24 July 2003 and the doctor who had admitted the applicant to the remand prison on 25 July 2003. They both stated that the applicant had not had any visible injuries and that there were no complaints of illtreatment by him recorded in the registration logs of their respective detention facilities.
15. On 8 September 2005 investigator T. refused to open criminal proceedings, finding that there was no evidence of ill-treatment. On 7 November 2005 the district prosecutor set that decision aside and ordered an additional inquiry.
16. On 10 November 2005 the investigator T. again refused to open a criminal investigation into the applicant’s allegations. In order to obtain further evidence, the investigator questioned the applicant’s neighbours who had seen him prior to the arrest on 23 July 2003. S. confirmed that the applicant had had no visible injuries on that day. D. did not remember if the applicant had evidence of any injuries prior to the arrest. Sosh. submitted that the applicant’s girlfriend had asked her specifically to say, if questioned, that the applicant had no injuries.
17. On 18 January 2006 the Oktyabrskiy District Court found the decision of 10 November 2005 to be unlawful. The court considered that the prosecutor’s office had not established when, where and under what circumstances the applicant had received the injury noted by the forensic expert on 24 July 2003. On 30 January 2006 the district prosecutor quashed the decision of 10 November 2005 and ordered a further inquiry.
18. On 2 February 2006 the investigator G. issued a fourth decision refusing to initiate criminal proceedings. He reiterated the findings of the previous inquiries, concluding, in particular, as follows:
“... the evidence collected disproves the [applicant’s] allegations that the investigator K. and [the police officers] put any physical or psychological pressure on [him]. It follows that [the investigator and the police officers] acted in compliance with the law, they did not abuse their authority and did not infringe the [applicant’s] rights and interests. These conclusions are confirmed by the evidence collected and numerous witness statements. There is no sufficient ground to believe that the injuries [the applicant] had when examined on 24 July 2003 were sustained by him after he was taken into custody. Furthermore, there is sufficient information ... showing that no physical or psychological pressure was put on [the applicant] by the investigator K. and [the police officers].”
19. On 15 February 2006 the deputy district prosecutor set the decision of 2 February 2006 aside finding that the investigator had failed to comply with the decision of 18 January 2006. In particular, he had not established when, where and under what circumstances the applicant had sustained the injuries.
20. On 7 March 2006 the investigator G. issued a fifth decision refusing to initiate criminal proceedings, finding that the existing evidence refuted the applicant’s allegations of ill-treatment.
21. On 10 October 2007 the District Court partly upheld a complaint by the applicant and found the decision of 7 March 2006 unlawful and unsubstantiated. The court noted that the investigator had failed to conduct a further inquiry and to clarify the circumstances of the matter. On 19 December 2007 the head of the town (Orsk) investigating committee quashed the decision of 7 March 2006 and ordered a further inquiry.
22. On 29 December 2007 the investigator N. issued a sixth decision refusing to open criminal proceedings. As regards the applicant’s injuries, the investigator stated as follows:
“The fact that the applicant had certain injuries detected in the course of the examination conducted on 24 July 2003 does not signify that they were inflicted by [the policemen or the investigator]. There is no causal link and it is not required to establish when, where and how the applicant had sustained them.”
23. On 29 January 2008 the District Court found the investigator’s decision of 29 December 2007 not to open criminal proceedings unlawful as he had failed to discover the reasons for the applicant’s injuries. On 22 February 2008 the deputy head of the investigating committee attached to the regional prosecutor’s office quashed the decision of 29 December 2007 and referred the matter back for a further inquiry.
24. On 3 March 2008 a senior investigator, G., issued a seventh decision refusing to open criminal proceedings. The investigator reiterated practically verbatim the reasoning set out in the previous decision.
25. On 31 March 2008 the District Court found the decision of 3 March 2008 unlawful on the grounds that the investigator had not provided a plausible and convincing explanation of how the applicant’s injury had been caused. On 15 May 2008 the Orenburg Regional Court upheld the decision of 31 March 2008 on appeal.
26. On 11 April 2008 the deputy head of the investigating committee attached to the regional prosecutor’s office quashed the decision of 3 March 2008 and ordered a further inquiry.
27. Subsequently, the investigators attached to the regional prosecutor’s office refused to open a criminal investigation into the applicant’s allegations on five further occasions. The relevant decisions, providing identical reasoning to that underlying the earlier decisions, were taken on 23 April, 28 June, 8 and 18 July and 20 August 2008. All these decisions were subsequently quashed by the investigators’ superiors on 18 and 28 June, 8 July and 11 and 20 August 2008 on account of their failure to clarify
28. On 30 September 2008 the investigator F. issued the thirteenth decision refusing to open a criminal investigation. Although he found no evidence supporting the applicant’s allegations of ill-treatment in police custody he allowed that the applicant’s injuries could have been caused by his having been beaten and that a criminal investigation should be opened on charges of battery but this was not within the jurisdiction of his office. The materials were transmitted to a district police unit. The applicant’s complaint against the decision of 30 September 2008 was subsequently dismissed by the District and Regional Courts on 16 October and 20 November 2008 respectively.
29. On 13 October 2008 the police investigator refused again to open a criminal investigation because the statutory time-limit for criminal liability on the charge of battery had expired. On 18 March 2009 the District Court dismissed a complaint by the applicant against that decision.
30. On an unspecified date the applicant was committed for trial on a charge of manslaughter before the Oktyabrskiy District Court of Orsk.
31. The applicant complained to the trial court about his ill-treatment. On 17 March 2004 the Oktyabrskiy District Court ordered an inquiry. On 24 March 2004 the Oktyabrskiy district prosecutor found that there was no evidence of ill-treatment and refused to open criminal proceedings.
32. On 15 June 2004 the Oktyabrskiy District Court convicted the applicant as charged and sentenced him to eight years’ imprisonment. On 31 August 2004 the Orenburg Regional Court upheld the judgment on appeal.
33. On 11 August 2004 the applicant sued the Orsk Town police department, the Orenburg regional prosecutor’s office and the Ministry of Finance of the Russian Federation for compensation. He claimed 5,000,000 Russian roubles (RUB) in respect of non-pecuniary damage sustained as a result of his ill-treatment, unlawful arrest and conviction.
34. On 22 April 2005 the Leninskiy District Court of Orsk dismissed his claim. It referred, in particular, to the results of the prosecutor’s inquiry into the applicant’s allegations of ill-treatment; the investigator K.’s decision of 3 October 2003 refusing to open criminal proceedings against the police officers; and the applicant’s conviction. It also observed that the applicant’s complaint that the police officers had beaten him to obtain a confession was unconvincing, given that he had never confessed to the crime. There was no evidence that the bruise on the applicant’s face had been the result of illtreatment by the police officers.
35. On 16 June 2005 the Orenburg Regional Court quashed the decision and remitted the matter to the Leninskiy District Court for fresh consideration.
36. On 25 August 2006 the District Court granted the applicant’s claims in part. The court dismissed the applicant’s allegations of torture as unsupported by any evidence. At the same time, the court noted that the applicant had been taken into custody in good health and that he had received an injury while in detention. The respondent parties failed to provide any explanation as to how that injury had been caused. The court found that the applicant had been subjected to degrading treatment in police custody on 23 July 2005 and awarded him RUB 1,000.
37. On 11 October 2006 the Regional Court upheld the judgment of 25 August 2005 on appeal.
VIOLATED_ARTICLES: 3


ITEMID: 001-108549
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF DOVZHENKO v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence);Violation of Article 6 - Right to a fair trial (Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6-3-c - Defence through legal assistance);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence)
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Mykhaylo Buromenskiy
TEXT: 5. The applicant was born in 1972 and is currently serving a life sentence in prison.
6. On 19 May 2002 the applicant was arrested on suspicion of having committed a series of murders.
7. On 22 October 2002 the investigation was completed and the applicant started to study the case file. During the pre-trial investigation and the examination of the case file the applicant was assisted by a legal-aid lawyer.
8. On 7 November 2002 the applicant and the lawyer finished examining the case file in full.
9. On 8 September 2003 the Donetsk Court of Appeal, acting as a first-instance court (“the first-instance court”), found the applicant guilty of seventeen murders and other less serious crimes committed by him between 1999 and 2002 and sentenced him to life imprisonment with confiscation of property. During the trial the applicant was represented by the lawyer.
10. According to the applicant, following the judgment of 8 September 2003, he was not assisted by any lawyer despite his complaints to the first-instance court on this account.
11. On 2 October 2003 the applicant lodged with the Supreme Court a cassation appeal against the judgment of 8 September 2003.
12. On 17 September 2003, in the course of preparation to the proceedings before the Supreme Court, the applicant requested the first-instance court to familiarise him with the minutes of the hearings.
13. On 23 January 2004 the applicant started to examine the minutes of the hearings held by the first-instance court.
14. On 26 January 2004 the applicant submitted that he would continue examination of the minutes only after he had studied the case file one more time. He therefore requested that the case file be provided to him for examination.
15. On 2 February 2004 the first-instance court, having regard to the applicant’s statements, set a five-day period for him to examine the minutes of the hearings. Despite the fact that the applicant was invited on several occasions to continue studying the minutes of the hearings, he refused to do so, insisting that he needed to examine the case file first.
16. On 28 April 2004 the first-instance court found that the applicant had refused to familiarise himself with the minutes of the hearings for no valid reason and allowed no further time to do so. The applicant was then provided with the case file.
17. On 16 July 2004 the first-instance court found that, despite having been provided with the case file on several occasions, the applicant had examined only two volumes of the file. As the file consisted of twenty-five volumes, the court concluded that the applicant’s actions suggested that he had deliberately sought to draw out the time allowed for examining the case file. It set therefore a thirty-five-day time-limit for him to complete his examination of the case file.
18. During fifty-three days between July and September 2004 the applicant was provided with the case file. He managed to examine twelve volumes of the file.
19. On 28 September 2004 the first-instance court decided to allow no further time for the applicant to study the case file, as the relevant time-limit had expired.
20. On 7 April 2005 the Supreme Court held a hearing in the applicant’s case. In his further submissions before the Supreme Court the applicant complained, inter alia, that there had been a lack of legal assistance and lack of time to study the case file.
21. The same day the Supreme Court, in the presence of the prosecutor and the applicant, who had not been represented by a lawyer, found that the applicant’s guilt had been well founded and dismissed the applicant’s appeal in cassation as unsubstantiated.
22. On 25 May 2002 a local newspaper, Priazovskiy Rabochiy, reported that the police had arrested the applicant on suspicion of a number of murders. It read, in particular:
“But the most sensational is the fact that the arrestee turned out to be former police lieutenant of the criminal investigation department, Sergey Dovzhenko. ...”
23. On 28 May 2002 another newspaper, Salon Dona i Basa, reported on a press conference held by K., the Head of the Mariupol Police Department. According to the newspaper, with respect to the progress of the investigation of series of murders K. announced that the police had arrested “a person who was reasonably suspected of having committed crimes with the use of a firearm” and then emphasised that it would be inappropriate to divulge any other information about the investigation.
24. On 8 June 2002 Priazovskiy Rabochiy provided a summary of another press conference given by K. on the subject of the applicant’s arrest. The journalist reporting on the press conference referred to the detainee by his real name and provided some extracts from K.’s speech. In particular, when opining as to who might have been the next victims of the detainee, K. was quoted as noting as follows:
“Those would be the police officers ... and others... But in this respect we can only trust in the words of the criminal ... And I have doubts about many of his statements...”
25. On 11 December 2002 the same journalist reported in Priazovskiy Rabochiy that the first hearing in the applicant’s case was to commence on that day. He noted that the police had always insisted that the applicant had acted without any accomplices, while in the latest press release M., the Head of the Donetsk Regional Police Department, expressed a different opinion. The journalist reported as follows:
“In the beginning of July [M.] stated in the official press release that Dovzhenko is just – quoting him word for word – ‘one member of a criminal group which committed a series of murders’...”.
26. The criminal proceedings against the applicant were further extensively reported on by the same journalist in a number of his publications, some of which contained pictures of the applicant.
27. On 4 June 2004 that journalist published an interview with the prosecutor, who commented on the procedural actions taken by the applicant after the judgment of the first-instance court.
28. In his submissions before the Supreme Court the applicant complained that his right to be presumed innocent had been affected by multiple newspaper articles reporting on the proceedings in his case, specifying further that in some of the articles State officials had clearly indicated that he had committed the murders, despite the fact that the proceedings were pending.
29. On 5 November 2004 the first-instance court referred the case file to the Supreme Court, following which the applicant was refused permission by the officials of the detention facilities to send correspondence. The refusals were based on the fact that the written permit for the applicant’s correspondence, issued by the first-instance court, was no longer valid, while a new one had not been issued by the Supreme Court, which had become responsible for his case. The authorities acted on the basis of section 13 of the Pre-Trial Detention Act (see paragraph 33 below).
30. On 2 February 2005 and 1 March 2005 the applicant lodged two applications with the Supreme Court asking for such a permit to be issued, but to no avail. On 28 June 2005 the applicant could still not dispatch any correspondence.
31. The relevant provisions of the CCP read as follows:
“Participation of a defence lawyer in the inquiry, pre-trial investigations and trial by the first-instance court shall be compulsory:
...(4) from the moment of the person’s arrest or when he or she is charged with a criminal offence carrying a penalty of life imprisonment ...
The participation of a defence lawyer in the proceedings before the court of appeal shall be compulsory in cases as provided by the first paragraph of this Article if the appeal raises issues capable of worsening the position of the convicted or acquitted person.”
“A defence lawyer shall be selected by a suspect, an accused, a defendant or a convicted person ...
A defence lawyer shall be appointed [by the authorities] in the following cases:
(1) when, in accordance with Article 45 §§ 1 and 2, the participation of the defence lawyer is compulsory but the suspect, accused or defendant does not wish to or cannot appoint a defence lawyer;
(2) when a suspect, an accused or a defendant wishes to appoint a defence lawyer but cannot do so for lack of means or other objective reason. ...”
32. Article 395 of the CCP provides, inter alia, that the court of cassation shall review whether the challenged court decision is lawful and substantiated based on the case file and additionally submitted material. The scope of the review shall be limited by the arguments of the cassation appeal(s). The court shall be empowered to review the case beyond the arguments of the cassation appeal(s) provided that this does not worsen the position of the convicted or acquitted person.
33. Section 13 of the Act provides, inter alia, that a person held in custody may correspond with their relatives, other individuals and legal entities upon obtaining a written permit from the authority dealing with the criminal case against the detainee concerned.
VIOLATED_ARTICLES: 6
8
VIOLATED_PARAGRAPHS: 6-1
6-2
6-3
8-1
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-96471
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: E.N. v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: 1. The applicant, Mr E.N., is a Burundian national who was born in 1978 and is currently in France.
2. , may be summarised as follows.
3. On 3 October 2006 the applicant applied for asylum and a residence permit in Sweden. Before the Migration Board (Migrationsverket) he stated that his name was X, born on 15 August 1980, and of Tutsi ethnicity. He was from Bujumbura Rural, married and had finished his studies in June 2005. The applicant further claimed that he had flown from Bujumbura airport to Sweden on 30 September 2006, with a stop-over in an unknown country. He had used a fake passport and a “white man” had escorted him. As concerned his grounds for seeking asylum he submitted that, in June 1997, his mother had been killed by L., a man who was now a police officer, and that he had been the only witness to the murder. Moreover, two of his brothers had been killed by a man named P. in 1993. The applicant further alleged that, since 1999, he had been active in the Association Pour La Lutte Contre Le Genocide (hereafter “the Association”). He had been arbitrarily detained from 5 February 2003 to 26 July 2003 and again from 19 March 2004 to 6 August 2004. On neither of these two occasions had he been given any explanation for the deprivation of his liberty or his release. He had again been arbitrarily detained between 14 and 20 August 2005. He suspected that this deprivation of liberty had been ordered by L. and that he had been released only because he had been so badly beaten that they had feared that he would die. He had again been detained from 13 January 2006 to 28 August 2006 because he had participated in a demonstration to protest against a decision to release a number of persons convicted of genocide. The applicant claimed that he had been the victim of serious abuse each time he had been detained. Furthermore, on 4 September 2006 he and some friends had been attacked but he had managed to escape. He thought that the attack was due to his political engagement and his witness statements. The applicant submitted to the Board that the main reason for his persecution was his ethnicity and his political opinion.
4. At the Board's oral meeting with the applicant, he submitted essentially the following. His father owned land and lived in Kiganda whereas his wife and brothers lived in Bujumbura. Moreover, it was a relative of L.'s, by the name of F., who had killed his mother when the bus they were travelling on had been stopped by rebels. The national army had intervened and so he and the other passengers had survived. He had reported the event to the police and he had been supposed to testify but F. had not appeared for the trial. Instead he had testified in court in 1998 and 2000 against L., despite the fact that he had never witnessed L. commit any crime, but because he had wanted to know where F. was hiding. He had also testified against P. who had killed his brothers in October 1993. Although he and his brothers had been hiding in different houses, he was sure that it was P. who had killed them. He had not been the only witness and P. had been imprisoned. Furthermore, the first time he had been arbitrarily detained, he had been at a meeting with the Association and 12 of them had been arrested. The second time, he had been detained together with about 50 others at the boarding school he attended, probably because they were ethnic Tutsi. The third time, he had been out walking when he had been taken by rebels on the orders of F., who by then had become a police chief, and wanted to prevent him from testifying. He had managed to get a message out to his uncle, who was in the military, and who had come to inquire as to why he had been detained. As there had been no answer, they had released him. The fourth time, he had been detained together with about 20 other persons during a demonstration against a decision to release political prisoners since, among those prisoners, were persons who had committed genocide, inter alia, P. and L. On three occasions, he had been released through the help of an organisation which helps prisoners and he had only been ill-treated when he had been detained by the rebels. Moreover, he had been a member of the Association since 1996 and had participated in meetings and organised one demonstration. He thought that he was sought by the authorities because he had testified.
5. In a written submission to the Migration Board, the applicant added that the trials against L. and P. had been held at the same time in June 1998 and that he had testified against both of them. They had then been imprisoned until the second trial in October 2000, when he had again testified against them. L. had been sentenced to 20 years' imprisonment and P. had been sentenced to death. In May 2006 he had gone to the police to report that F. had killed his mother but the court had not considered his report. On 9 January 2006 everyone who had been convicted of crimes against the Tutsi population had been released from prison and the applicant claimed that he now felt threatened by L., P. and F. since they held positions of power within the Government.
6. On 12 February 2008 the Migration Board rejected the application. It first noted that the applicant had only submitted an identity card, issued after he had left Burundi, and of simple quality. He had not submitted any other documents to prove his identity. The Board also found it highly unlikely that the applicant had travelled to Sweden without having to show a passport during the trip, despite transfers. It considered that the applicant had withheld information and that he had probably left Burundi legally. However, the Board accepted that he was from Burundi but considered that the general situation in that country was not so serious that the applicant could be granted leave to remain in Sweden on this sole ground. Turning to the applicant's personal situation, the Board first observed that he had submitted no evidence at all. It then considered that the applicant had given rather vague and unclear information about his testimonies and police reports. In particular, as concerned his mother's death, the Board found it unlikely that he would have waited from 1997 until 2006 to report the assailant to the police, especially since there had been many witnesses on the bus and the army had intervened. It further found improbable that the applicant had testified against L. as he had not witnessed him commit any crime and since, as a witness, he did not have the right to question L. The Board also found reason to doubt that he had testified against P. since he had only been 13 years old at the time of the crimes and had been hiding in a different house from where his brothers had been killed. Furthermore, the Board observed that there had been several witnesses testifying against P. and L. during their trials for which reason it was unlikely that they would seek revenge on the applicant. As concerned F., it appeared that he had neither been charged nor prosecuted. Hence, it was improbable that he would be looking to eliminate the applicant and, if the applicant had been detained and ill-treated by rebels in August 2005, this was rather due to the general violence than due to F.'s orders. Turning to the applicant's claim that he had been arbitrarily detained, the Board found no reason to question this since such detention was widespread in Burundi. It then noted that the applicant had not been ill-treated during these arrests and that he had been released with the help of a specialised organisation. Moreover, he had not held a prominent position within the Association and had each time been detained together with several others. Thus, the Board considered that it had not been shown that the arbitrary arrests had been due to his activities within the Association. Also, since he had been released each time without being charged with a crime, the Board found it very unlikely that he was sought in Burundi. It also observed that he was a young, well-educated man whose wife and relatives were in his home country. Consequently, the Board concluded that the applicant was not a refugee or otherwise in need of protection in Sweden.
7. The applicant appealed to the Migration Court (Migrationsdomstolen), relying on the same grounds as before the Board and adding, inter alia, the following. He had never claimed to have been persecuted by the Burundian government. However, he had been persecuted, imprisoned and the victim of an attempt to kill him by persons against whom he had testified. Other witnesses, who had testified in such proceedings, had been killed or tortured by the rebels against whom they had testified once these rebels had been released. The authorities could not protect him since some of the criminals were now in high positions within the government and police. The applicant claimed that he was most afraid of F. who had been a rebel but had since become a police officer with friends in many places. P. and L. were normal persons.
8. On 2 July 2008 the Migration Court, after having held an oral hearing where the applicant was heard, rejected the appeal. It noted that the applicant had only been detained in connection with concrete situations and that he had been released with the help of an organisation. In the court's view, this did not amount to persecution but was rather a reflection of the unstable situation in the country. The court further observed that the applicant had been unable to account for any tangible threats against him personally. It also pointed out that he had been released, relatively unharmed, after one week of captivity by F.'s rebel group which indicated that F. had not intended to kill him. Hence, it concluded that the applicant had not made probable that he was in need of protection in Sweden.
9. Upon further appeal, the Migration Court of Appeal (Migrationsöverdomstolen) refused leave to appeal on 24 September 2008.
10. In January 2009 the applicant requested the Migration Board to review his case since he was a survivor of the genocide in Burundi and therefore entitled to protection in Sweden.
11. On 21 January 2009 the Migration Board rejected the request as the applicant had failed to invoke any new circumstances and as there were no impediments to the enforcement of the deportation order.
12. The applicant appealed to the Migration Court and added to his earlier claims that, on 15 September 2006, he had left Burundi on a flight to France where he had remained for some days before continuing his journey to Sweden by train. Hence, it was France that should try his asylum request. In the alternative, he asked to be allowed to travel to France to renew his registration at a French university. The applicant produced a copy of a passport in the name of E.N., born on 5 August 1978, with an entry stamp dated 15 September 2006 at Roissy Airport in France. The passport also contained a multi-entry visa for France, valid from 21 August 2006 until 19 November 2006. On the visa it was stated that the holder was a student and that he should request a residence permit (carte de séjour) upon arrival in France.
13. On 20 February 2009 the Migration Court upheld the Migration Board's decision in full and, upon further appeal, the Migration Court of Appeal refused leave to appeal on 20 March 2009.
14. On 22 March 2009 the applicant requested the Court to apply Rule 39 of the Rules of Court in order to stop the enforcement of his deportation, scheduled for the following day. He submitted that his name was E.N., born on 5 August 1978, and he produced a copy of his French visa as proof. He maintained the claims he had presented to the Swedish authorities.
15. On 23 March 2009 the Acting President of the Section to which the case had been allocated rejected the request. On the same day the Swedish police tried to enforce the deportation of the applicant but he violently resisted. Although the police officers managed to get him on the plane, the pilot felt that he could not ensure the safety of all passengers with the applicant on board and so he was taken off the plane again and returned to the detention centre.
16. The applicant then renewed his request for interim measures to the Court, insisting that deportation would violate his right to life and adding that his treatment by the Swedish police had amounted to mental and physical torture. The request was refused by the Acting President of the Section on 25 March 2009, confirmed by a Chamber of the Section on 31 March 2009.
17. On 7 July 2009 the applicant informed the Court that he was in France.
18. The basic provisions applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the 2005 Aliens Act (Utlänningslagen, 2005:716 – hereafter referred to as “the 2005 Act”).
19. Chapter 5, Section 1, of the 2005 Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, Section 1, of the 2005 Act, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, Section 2, of the 2005 Act).
20. Moreover, if a residence permit cannot be granted on the above grounds, such a permit may be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances (synnerligen ömmande omständigheter) to allow him or her to remain in Sweden (Chapter 5, section 6 of the 2005 Act). During this assessment, special consideration should be given to, inter alia, the alien's health status. In the preparatory works to this provision (Government Bill 2004/05:170, pp. 190-191), life-threatening physical or mental illness for which no treatment can be given in the alien's home country could constitute a reason for the grant of a residence permit.
21. As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, Section 1, of the 2005 Act). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, Section 2, of the 2005 Act).
22. Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This applies under Chapter 12, Section 18, of the 2005 Act, where new circumstances have emerged that mean there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced. If a residence permit cannot be granted under this provision, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, Sections 1 and 2, of the 2005 Act, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, Section 19, of the 2005 Act).
23. Under the 2005 Act, matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances; the Migration Board, the Migration Court and the Migration Court of Appeal (Chapter 14, Section 3, and Chapter 16, Section 9, of the 2005 Act).