ITEMID: 001-101906
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: ALLIANZ-SLOVENSKA POISTOVNA, A.S., AND OTHERS v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicants are the following six private insurance companies which were established under the laws of Slovakia in 1991, 1993, 1992, 1994, 1997 and 1991 respectively and have their registered seats in Bratislava (Slovakia): Allianz – Slovenská poisťovňa, a.s.; Česká poisťovňa - Slovensko, akciová spoločnosť; ČSOB Poisťovňa, a.s.; KOMUNÁLNA poisťovňa, a.s. Vienna Insurance Group; Generali Slovensko poisťovňa, a. s. and UNIQA poisťovňa, a.s.
The applicant companies were represented before the Court by Mr Ľ. Fogaš, a lawyer practising in Bratislava.
The Slovak Government (“the Government”) were represented by Ms M. Pirošíková, their Agent, and Ms M. Bálintová, Co-Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 1 March 2002 Act no. 95/2002 Coll. on Insurance (“the Act”) came into force. The Act set an obligation for insurance companies doing business in the field of compulsory contractual insurance of liability for damage caused by the operation of motor vehicles to pay, on a yearly basis, 8 % of the premiums collected the previous year to the Ministry of the Interior (“the Ministry”). The Ministry would pass on those funds to certain bodies responsible for saving and protecting lives and property in road accidents such as fire brigades, rescue services and emergency hotlines.
On 2 December 2002 the applicant companies, who do business in the above-mentioned field, lodged an action against the Ministry with the Bratislava I District Court (Okresný súd). They requested that the District Court rule that they were not obliged to pay 8 % of the premiums they collected as stipulated by the Act. In their view the Act violated their property rights and the nondiscrimination principle guaranteed by the Constitution and the Convention.
On 15 October 2003 the District Court terminated the proceedings and stated that there was no other State organ to which the case could be transferred. It held that the relation between the parties was of a public-law nature and could not be considered civil or commercial, in which case it would be covered by the area of private law and the ordinary courts would have jurisdiction to examine it on the basis of the Code of Civil Procedure. No dispute over private-law matters was found to exist.
On 30 April 2004 the Bratislava Regional Court (Krajský súd) upheld the decision of the District Court following an appeal by the applicant companies. The view was expressed that the specific obligation had been imposed upon the applicants by legislation and no legal provision permitted ordinary courts to rule on the alleged non-conformity of legislation with the Constitution. That was a matter solely for the Constitutional Court (Ústavný súd) to examine in the context of a motion lodged under Article 125 of the Constitution by one of various specified State organs.
The applicants then claimed before the Constitutional Court, in a complaint under Article 127 of the Constitution, that they were not obliged to pay the above-mentioned contributions as the obligation had been imposed on them unconstitutionally. They further complained that the courts had refused to determine their claim.
On 15 December 2004 the Constitutional Court declared the complaint inadmissible for the applicant companies’ failure to exhaust ordinary remedies, in view of which the Constitutional Court lacked jurisdiction to consider the complaint. In particular, the Constitutional Court found that the applicant companies had failed to appeal against the decision of 30 April 2004 on points of law under Article 237 (f) of the Code of Civil Procedure, whereas that remedy was available to any party who had been “prevented from acting before a court as a result of the court’s conduct”.
On 30 April 2003 the Government passed a resolution proposing that section 30 of the Act be repealed, specifying in the explanatory report that this provision interfered with the insurance companies’ property in a discriminatory manner. The amendment was not adopted by the Parliament, however.
In 2008 a new Insurance Act was adopted which maintained the applicant companies’ obligation to pay 8 % of the premiums collected.
Section 30 (1) provided that insurance companies which did business in the field of compulsory contractual insurance of liability for damage caused by the operation of motor vehicles were obliged to pay to the Ministry, by the end of February, 8 % of the premiums for insurance in the abovementioned field collected in the preceding year. The insurance companies were obliged to report their fulfilment of this obligation to the National Bank of the Slovak Republic within three working days.
Section 30 (2) provided that the Ministry (of the Interior), after consulting the Ministry of Finance, would pass on these funds to fire brigades, departments of the Ministry (of the Interior), rescue services and emergency hotlines in order to meet the costs incurred in obtaining, maintaining and operating the material and facilities needed to research the causes of road accidents and to save and protect lives and property in road accidents.
In 2008 a new Insurance Act was adopted which replaced the relevant provisions of the 2002 Act. The obligation for the insurance companies to pay 8 % of the premiums collected on a yearly basis was maintained in section 33 of the 2008 Act. By 15 February each year the Ministry (of the Interior) is required to inform the Ministry of Finance about the use made of the contributions paid by the insurance companies. The Ministry (of the Interior) is also under an obligation to make this information public.
Section 3 imposes a duty to take out an insurance policy in respect of motor vehicles. With regard to domestic motor vehicles, this duty lies with the vehicle’s holder, owner, operator or lessee (sub-section 1). As to foreign motor vehicles, unless it is otherwise provided for, the person liable to arrange for the insurance of a vehicle is the vehicle’s driver (subsection 2). The duty to take out an insurance policy commences at the latest on the first day on which the motor vehicle is used (sub-section 3).
The Constitutional Court has held on many occasions that an examination of complaints lodged by natural or legal persons under Article 127 of the Constitution cannot entail a review of the constitutionality of legislation (see, for example, decisions no. II. ÚS 40/00, no. II. ÚS 5/02, no. II. ÚS 238/03, no. III. ÚS 10/07 or no. IV. ÚS 124/07).


ITEMID: 001-85863
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: PEAL  v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi
TEXT: The applicant, Mr Anthony Peal, is a British national who was born in 1945 and lives in Leeds. 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 24 January 2000. In June 2001, the applicant made a claim for widows’ benefits. On 29 June 2001 he 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 applicant was not entitled to child benefit at the time of his claim.
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: 001-98752
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF COX v. TURKEY
IMPORTANCE: 2
CONCLUSION: Violation of Art. 10;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 5. The applicant was born in 1944 and lives in Philadelphia, the United States.
6. The applicant lived and studied in Turkey at various times from 1972 onwards. In 1983 she received a postgraduate degree from Boğaziçi University in Istanbul. Between 1983 and 1984 she worked as a lecturer at Istanbul University. In 1984 she started working as a lecturer at the Middle East Technical University (Ortadoğu Teknik Üniversitesi) in the city of Gaziantep in southern Turkey.
7. On 23 September 1985 the deputy governor of Gaziantep sent a letter to the Ministry of the Interior, recommending that the applicant be expelled from Turkey on account of her “harmful activities”. According to the deputy governor, the applicant had said to her students and colleagues at the university that the Turks had expelled the Armenians and had massacred them. Moreover, the Turks had assimilated the Kurds and exploited their culture. In January 1986 the applicant's contract of employment was terminated by the university. On 4 April 1986 the National Intelligence Service also recommended that the applicant be expelled from Turkey. On 12 August 1986 the Ministry of the Interior ordered that the applicant be expelled and a ban imposed on her return. The applicant left Turkey in 1986.
8. At some stage the applicant returned to Turkey, where she was arrested in 1989 while distributing leaflets protesting against the film The Last Temptation of Christ. The applicant was subsequently expelled from Turkey.
9. At the time, and following the applicant's expulsion from Turkey, the Ministry of the Interior allegedly compiled classified reports about the applicant containing phrases such as “[the applicant, who] works as a missionary in our country” and “[the applicant, who] was put under surveillance following her attendance at a service in a Protestant church in Turkey”. The applicant did not submit a copy of these reports to the Court.
10. At some stage in 1996 the applicant entered Turkey again. On 31 August 1996, while she was leaving Turkey, an entry was made in her passport by the authorities, stating that she was banned from entering Turkey. She was urged by the authorities not to return.
11. On 14 October 1996 the applicant, with the assistance of her lawyer in Turkey, brought proceedings against the Ministry of the Interior before the Ankara Administrative Court and asked for the ban to be lifted. She argued that the decision to ban her from entering Turkey had been taken on the basis of a decision adopted by the Ministry of the Interior on 12 August 1986. She maintained that the reason for the decision had been her religion. This, she argued, had been in breach of domestic legislation, the Constitution and international conventions, including Article 9 of the European Convention on Human Rights.
12. The Ministry of the Interior submitted written observations to the Ankara Administrative Court on 25 December 1996, stating that, while she was teaching at the university in Gaziantep, the applicant had had discussions with her students and colleagues about Turks assimilating Kurds and Armenians, and Turks forcing Armenians out of the country and committing genocide. On account of her separatist activities against the national security of Turkey, her name had been included in the Ministry's list of persons whose entry into Turkey was prohibited. Her contract of employment had subsequently been annulled and she had been expelled on the advice of the National Intelligence Service and in accordance with section 19 of the Foreigners in Turkey (Visits and Travels) Act (no. 5683). She had also been banned from re-entering Turkey, pursuant to section 8(4) and (5) of the Passport Act (no. 5682).
13. The Ministry maintained that the applicant had been expelled and banned from entering Turkey on account of her separatist activities, which were incompatible with national security, and not because of her religious opinions or for disseminating Christian propaganda.
14. The applicant submitted her written observations in response to those of the Ministry of the Interior, arguing that the Ministry's allegations against her had not been proven. Even assuming that she had said those things at the university, she had remained within the permissible limits of criticism. Furthermore, she had never been prosecuted for having expressed those opinions. The action taken against her by the Ministry had therefore been devoid of any legal basis.
15. On 17 October 1997 the Ankara Administrative Court rejected the applicant's claim. It considered that the opinions expressed by the applicant at the university in Gaziantep had been on issues followed closely by society because those issues concerned terrorism, from which the country had been suffering. Such opinions were, without any doubt, incompatible with national security and also with political imperatives. The Ministry's decision had been in accordance with the applicable legislation and the situation complained of by the applicant did not fall within the ambit of any of her fundamental rights and freedoms.
16. The applicant appealed. She referred to the above-mentioned reports allegedly detailing her religious activities, and maintained that she had been subjected to unjust treatment because of her religion.
17. The appeal was dismissed by the Supreme Administrative Court on 20 January 2000.
18. The applicant requested a rectification of the decision of 17 October 1997. She argued, inter alia, that the entire case had revolved around her having expressed opinions on certain subjects. The Ministry's action and the courts' decisions had restricted her freedom of expression. She added that she still believed that it was possible to rectify this at the national level before she applied to international courts.
19. Her request for rectification was rejected by the Supreme Administrative Court in a decision of 26 December 2001, which was communicated to the applicant on 5 March 2002.
20. By section 19 of the Foreigners in Turkey (Visits and Travels) Act (no. 5683), aliens whose presence in Turkey is deemed by the Ministry of the Interior to be contrary to national security and to political and administrative imperatives are required to leave the country within a given period. If they fail to leave the country at the end of that period, they may be deported.
21. By section 8(4) and (5) of the Passport Act (Law no. 5682), persons who have been deported from Turkey and who are refused permission to return, as well as persons who are deemed to have entered the country with the aim of harming, or of assisting those whose aim is to harm the public order and the security of the Turkish Republic, will not be allowed to enter the country.
VIOLATED_ARTICLES: 10


ITEMID: 001-69317
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF BAKLANOV v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Violation of P1-1
JUDGES: Christos Rozakis
TEXT: 8. The applicant was born in 1957 and lives in Riga.
9. In 1997 he decided to move from Latvia to Russia. He negotiated a real estate deal with a Moscow-based agent.
10. On 20 March 1997 the applicant withdrew from his bank accounts 250,000 US dollars (“USD”) in cash and asked his acquaintance, B., to deliver the money to Moscow.
11. B. arrived in the Sheremetyevo-1 airport later the same day. He failed to declare the money at the customs checkpoint and was charged with smuggling.
12. On 13 September 2000, the Golovinskiy District Court of Moscow found B. guilty of smuggling under Article 188-1 of the Criminal Code and sentenced him to two years' suspended imprisonment. With regard to the money, the court said in the operative part of the judgment:
“USD 250,000, deposited with the Sheremetyevo Customs Board, are to be forfeited to the Treasury as an object of smuggling.”
13. In his appeal against the judgment, B.'s lawyer submitted that the Golovinskiy District Court had failed to indicate any legal ground for the conﬁscation order. He argued that the money had been included in the case-ﬁle as evidence and that no relevant law provided for its conﬁscation. Moreover, lawfully obtained assets were to be returned to their owners. B.'s lawyer also claimed that Article 188-1 of the Criminal Code did not provide for such a sanction as conﬁscation.
14. On 25 October 2000, the Moscow City Court refused the appeal. With regard to the money, the court said:
“USD 250,000, which was the object of the smuggling, was rightfully forfeited to the Treasury.”
15. On 1 July 2002 a Deputy President of the Supreme Court lodged an application for supervisory review against the judgments. He claimed that the smuggled money could only be conﬁscated if proven to have been acquired criminally.
16. On 18 July 2002 the Presidium of the Moscow City Court refused the application on the ground that a Ruling of the Plenary Supreme Court of the USSR issued in 1978 permitted the conﬁscation of smuggled goods which had been attached to case-ﬁles as exhibits.
17. On 15 August 2002 the Deputy President of the Supreme Court lodged another application for supervisory review claiming, among other things, that the Ruling of 1978 was inconsistent with later superseding legislation. However, on an unspeciﬁed date the Deputy President of the Supreme Court withdrew his application.
18. Article 169-1 of the Criminal Code of 1960, as in force from 15 July 1994 to 31 December 1996, provided:
“The carrying across the [State] border of considerable amounts of goods or other items ... in evasion of customs controls ... or without declaring [them] or with untrue declarations ... shall be penalised by imprisonment of up to ﬁve years ... and by forfeiture of the goods and other items carried across the border...”
18. Article 188-1 of the Criminal Code of 1996 (“CrC”) provides:
“Smuggling, i.e. transportation across the customs border of the Russian Federation of considerable amounts of goods and other items ... without due customs control, or in evasion of such control, or with fraudulent use of documents or identiﬁcation means, or in violation of rules of declaration, shall be penalised by imprisonment of up to ﬁve years.”
19. Article 279 of the Customs Code of 1993, as in force at the material time, provided:
“Failure to declare or an inadequate declaration of goods ... carried across the customs border ... which disclose no appearance of smuggling ... shall be punished by a ﬁne of 100 to 200 per cent of the cost of the goods which are the object of the offence, with or without their forfeiture...”
20. The Code of Criminal Procedure of 1960 (“CCrP”), in force at the relevant time, provided as follows:
“Exhibits include items which served as instruments of crime, or which have retained traces of the crime, or against which the crime was directed. [Exhibits also include] criminally acquired money and other valuables earned by crime, and any other items which can help detect the crime, establish factual circumstances, reveal the guilty or refute the charges or lessen the responsibility.”
“The destiny of exhibits used in criminal proceedings must be determined in a judgment..., and:
1. instruments of the crime which belong to the accused shall be conﬁscated and passed to a competent agency or destroyed;
2. items prohibited for circulation shall be passed to a competent agency or destroyed;
3. items of no value or use shall be destroyed or returned to interested persons or agencies if they so wish;
4. criminally acquired money and other assets shall be forfeited; other items shall be returned to their lawful owners, or, if the owners are not established, shall become the State's property. In the event of a dispute concerning the ownership of such items, the dispute shall be resolved in civil proceedings;
5. documents which serve as exhibits shall be kept in the case ﬁle as long as the case ﬁle is archived or shall be passed to interested agencies”.
21. The Ruling of the Plenary Supreme Court of the USSR no. 2 of 3 February 1978 (“the Ruling of the Supreme Court”, “the Ruling”) provides:
“...With a view to ensure a uniform and correct application of laws in proceedings concerning smuggling, the Plenary Supreme Court decides [that]:...
7. In accordance with the legislation in force, smuggled items must be forfeited as exhibits...”
22. Article 243-1 of the Civil Code of 1994 (“CivC”) provides:
“In cases established by law, a person may be deprived of his property without compensation pursuant to a court judgment as a sanction for a crime or other offence (conﬁscation)...”
23. On 10 June 1998 the Presidium of the Supreme Court exercised supervisory review of the criminal case against a certain Mr Petrenko, who had been convicted of smuggling a considerable amount of foreign currency into Russia. After conviction, the trial court returned the money – which had been included in the ﬁle as evidence – to its owner, Mr Petrenko. The Supreme Court overturned the judgment having found that the money should have been considered as an instrument of the crime and, as such, it should have been conﬁscated pursuant to Article 86-1 of the CCrP.
24. On 8 July 2004, the Constitutional Court held that Article 86-1 of the Code of Criminal Procedure was constitutional, even though it permitted to conﬁscate instruments of crime, for example smuggled money, belonging to other than the accused. In particular, the Constitutional Court said:
“The rule set out in ... Article 86-1 of the Code of Criminal Procedure ... helps Russia implement its international-law obligations in criminal proceedings, does not overrule criminal laws which permit conﬁscation as a punishment, and, hence, allows the procedural law to regulate conﬁscation with regard to [international instruments on money laundering and crime control].
...
It is a [criminal] court ... who may determine the procedural status of [smuggled items] under Article 86-1 of the Code of Criminal Procedure....”


ITEMID: 001-77309
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF BIALAS v. POLAND
IMPORTANCE: 4
CONCLUSION: No violation of Art. 6-1
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1922 and lives in Tarnowska Wola.
5. On 23 February 1989 the applicant filed an action with the Tarnobrzeg District Court in which she sought a court order against third parties requiring them to remove an electricity cable they had installed on her land.
6. Between May and August 1989 three hearings were held. An expert opinion was submitted to the court during that period.
7. As the parties were subsequently invited to settle the case, between 15 November 1990 and 6 May 1991 the proceedings were stayed at their request in order to negotiate a settlement.
8. On 29 June 1991 the Tarnobrzeg District Court delivered a judgment dismissing the applicant’s action. The applicant appealed on 28 August 1991.
9. At the appeal hearing of 28 October 1991 the Tarnobrzeg Regional Court decided to stay the proceedings pending the termination of other proceedings for the establishment of the defendant’s ownership of the land. Those proceedings ended on 26 October 1998 with the Supreme Court’s decision rejecting the applicant’s cassation appeal as inadmissible.
10. On 3 December 1999 the proceedings were resumed upon the applicant’s request of 16 November 1999.
11. On 23 December 1999 the Tarnobrzeg Regional Court quashed the first-instance judgment and remitted the case for re-examination, indicating the need to obtain an expert opinion on the exact route of the electricity line across the land.
12. A hearing was held on 9 February 2000; the court ordered the preparation of the expert opinion and ordered the applicant to pay the expert’s fee within 14 days.
13. Between February and April 2000 the applicant repeatedly sought exemption from payment of the expert’s fee. She was ordered to pay the fee, failing which the evidence provided by the expert opinion would be excluded. The applicant failed to comply with the order.
14. On 31 May 2000 the Tarnobrzeg District Court decided to omit the evidence contained in the expert opinion. It examined as evidence the case files of three other sets of related proceedings and on that basis delivered a judgment dismissing the action.
15. On 7 September 2000 the Tarnobrzeg Regional Court dismissed the applicant’s appeal. The court agreed with the first-instance court that the defendant had the right of co-ownership to the plot on the date on which the proceedings were instituted and that the applicant’s claim was accordingly inadmissible.
16. Articles 417 et seq. of the Civil Code (kodeks cywilny) provide for the State’s liability in tort.
In the version applicable until 1 September 2004, Article 417 § 1, which lays down a general rule, read as follows:
“1. The State Treasury shall be liable for damage caused by a State official in the course of carrying out the duties entrusted to him.”
17. Article 418 of the Civil Code, as applicable until 18 December 2001, provided for the following exception in cases where damage resulted from the issue of a decision or order:
“1. If, in consequence of the issue of a decision or order, a State official has caused damage, the State Treasury shall be liable only if a breach of the law has been involved in the issue of the decision or order and if that breach is the subject of prosecution under the criminal law or of a disciplinary investigation, and the guilt of the person who caused the damage in question has been established by a final conviction or has been admitted by the superior of that person.
2. The inability to establish guilt by way of a criminal conviction or in a decision given in disciplinary proceedings shall not exclude the State Treasury’s liability for damage if such proceedings cannot be instituted in view of a [statutory] exception to prosecution or disciplinary action.”
18. On 1 September 2004 the Law of 17 June 2004 on amendments to the Civil Code and other statutes (Ustawa o zmianie ustawy – Kodeks cywilny oraz niektórych innych ustaw) (“the 2004 Amendment”) entered into force. While the relevant amendments have in essence been aimed at enlarging the scope of the State Treasury’s liability for tort under Article 417 of the Civil Code – including the addition of a new Article 4171 and the imposition on the State of tortuous liability for its omission to enact legislation (the so-called “legislative omission”; “zaniedbanie legislacyjne”) – they are also to be seen in the context of the operation of a new statute introducing remedies for the unreasonable length of judicial proceedings.
Following the 2004 Amendment, Article 4171, in so far as relevant, reads as follows:
“3. If damage has been caused by failure to give a ruling (orzeczenie) or decision (decyzja) where there is a statutory duty to give them, reparation for [the damage] may be sought after it has been established in the relevant proceedings that the failure to give a ruling or decision was contrary to the law, unless otherwise provided for by other specific provisions.”
19. However, under the transitional provisions of Article 5 of the 2004 Amendment, Article 417 as applicable before 1 September 2004 shall apply to all events and legal situations that subsisted before that date.
20. On 4 December 2001 the Constitutional Court (Trybunał Konstytucyjny) dealt with two constitutional complaints in which the applicants challenged the constitutionality of Articles 417 and 418 of the Civil Code. They alleged, in particular, that those provisions were incompatible with Articles 64 and 77 § 1 of the Constitution.
21. On the same day the Constitutional Court gave judgment (no. SK 18/00) and held that Article 417 of the Civil Code was compatible with Article 77 § 1 of the Constitution in so far as it provided that the State Treasury was liable for damage caused by the unlawful action of a State official carried out in the course of performing his duties. It further held that even though Article 418 of the Civil Code was compatible with Article 64 of the Constitution, it was contrary to Article 77 § 1 since it linked the award of compensation for such damage with the personal culpability of the State official concerned, established in criminal or disciplinary proceedings.
22. On 18 December 2001, the date on which the Constitutional Court’s judgment took effect, Article 418 was repealed. The Constitutional Court’s opinion on the consequences of the repeal read, in so far as relevant:
“The elimination of Article 418 of the Civil Code from the legal system ... means that the State Treasury’s liability for the actions of a public authority consisting in the issue of unlawful decisions or orders will flow from the general principles of the State liability laid down in Article 417 of the Civil Code. This, however, does not rule out the application in the present legal system of other principles of State liability laid down in specific statutes and not necessarily only those listed in the Civil Code.”
23. On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.
A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under Article 2 read in conjunction with Article 5(1) of the 2004 Act.
Article 2, in so far as relevant, reads as follows:
Article 5 provides, in so far as relevant:
“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”
24. Article 16 refers to proceedings that have been terminated and that do not fall under the transitional provision of Article 18 in the following terms:
“A party which has not lodged a complaint about the unreasonable length of the proceedings under Article 5 (1) may claim – under Article 417 of the Civil Code ... – compensation for the damage which resulted from the unreasonable length of the proceedings after the proceedings concerning the merits of the case have ended.”
25. Article 442 of the Civil Code sets out limitation periods in respect of various claims based on tort. That provision applies to situations covered by Article 417 of the Civil Code. Article 442, in so far as relevant, reads:
“1. A claim for compensation for damage caused by a tort shall lapse 3 years following the date on which the claimant learned of the damage and the persons liable for it. However, the claim shall in any case lapse 10 years following the date on which the event causing the damage occurred.”
26. Article 18 of the 2004 Act lays down the following transitional rules in relation to the applications already pending before the Court:
“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.
2. A complaint lodged under subsection 1 shall indicate the date on which the application was lodged with the Court.
3. The relevant court shall immediately inform the Minister of Foreign Affairs of any complaints lodged under subsection 1.”
27. Article 394 of the Code of Civil Procedure of 1964 provides, in so far as relevant:
“An appeal to a second-instance court is available for decisions issued by a first-instance court and terminating the proceedings in the case (...)”.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-4519
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: MAJIC v. SWEDEN
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall
TEXT: The applicant, born in 1969, presently resides in Karlskrona, Sweden. In his application form, he states that he has Croatian nationality.
On 21 February 1994 the applicant arrived in Sweden and requested asylum. He stated that he is an ethnic Croat from Ljubuski in Bosnia-Hercegovina. Between May 1992 and January 1994 he served in a Croatian infantry unit and was involved in many battles in Bosnia-Hercegovina. In January 1994 he refused to comply with an order for active duty and was put in a military prison for a month. Upon release, he was ordered to report to his unit but, instead, he fled to Croatia where he obtained a passport with which he travelled to Sweden. He claimed that, if returned to Bosnia-Hercegovina, he would be put in prison or sent to the front-line.
On 14 September 1994 the National Immigration Board (Statens invandrarverk) rejected the applicant’s request and ordered his deportation to Croatia. Finding that the applicant held both Bosnian and Croatian citizenship, the Board referred to a decision concerning asylum seekers with such double nationality taken by the Swedish Government on 26 May 1994. According to the decision, the prevailing situation in Bosnia-Hercegovina rendered deportations to that country impossible. Consequently, in assessing applications from these asylum seekers, the crucial question was whether they could be afforded protection in Croatia. The Board noted that, according to available information, persons in the applicant’s situation did not risk to be sent from Croatia to Bosnia-Hercegovina against their will. Moreover, no acts of warfare had taken place on Croatian territory for some time and a cease-fire had been agreed upon by the contending parties. Thus, there was no apparent risk that Croatian citizens in general would be forced to take part in armed conflict. Further, the applicant had failed to show that he personally faced such a risk.
The applicant appealed to the Aliens Appeals Board (Utlänningsnämnden). On 13 March 1995 the Appeals Board, sharing the opinion of the Immigration Board, rejected the appeal.
The applicant later requested a temporary residence permit in Sweden. By a decision of 30 August 1995 the Appeals Board granted the applicant such a permit until 1 December 1995 and quashed the deportation order. In so doing, the Board referred to a Government decision of 5 May 1995 according to which the worsened situation in Croatia constituted an impediment to the deportation of asylum seekers to that country.
On 24 November 1995 the applicant submitted a new application for a residence permit. He referred to his previous statements. Further, at an oral hearing held by the Immigration Board on 20 May 1997 he claimed that he could not return to Croatia, as he would not receive any help and would have great difficulties in supporting himself. Consequently, if returned to that country, he would be forced to go back to BosniaHercegovina where he would be punished for having evaded military service. Further, as the most extreme Croats lived in his home district in Bosnia-Hercegovina, he would be at risk due to the evasion and the fact that he had applied for asylum in a foreign country. He submitted a document showing that he was wanted for draft evasion by the military authorities of Herceg-Bosna. The applicant referred also to the time he had spent in Sweden and claimed that he had adjusted himself to Swedish society.
On 30 June 1997 the Immigration Board rejected the applicant’s new application and ordered his deportation to Croatia. The Board had regard to guiding decisions taken by the Swedish Government and found that the applicant should not be sent back to BosniaHercegovina. With regard to the possible deportation to Croatia, the Board noted that no new circumstances had been invoked by the applicant. Consequently, the Immigration Board reiterated the conclusions drawn in the previous decisions concerning the applicant. Furthermore, the Immigration Board found that there were no reasons of a humanitarian nature to grant the applicant a residence permit.
The applicant’s appeal against the Immigration Board’s decision is still pending before the Aliens Appeals Board.
In a medical certificate issued at a psychiatric clinic in Karlskrona on 21 April 1998 chief physician P.R. stated that the applicant showed signs of depression, powerlessness and insomnia as a result of having spent four years in refugee camps in Sweden. However, the applicant refused to take medication as he did not consider that he was suffering from any serious illness.


ITEMID: 001-111455
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: ABDOLLAHPOUR v. NORWAY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 1. The applicant, Mr Loqman Abdollahpour, is an Iranian national who was born in 1979 and lives in Lørenskog. The Norwegian Government (“the Government”) are represented by Mrs F. Platou Amble, Attorney, AttorneyGeneral’s Office (Civil Matters), as their Agent, assisted by Ms K. Mellingen, Attorney.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant arrived in Norway on 19 June 2003 without passport or other recognised travel document. When applying for asylum, he stated that he was of Kurdish ethnic origin and came from Piranshahr (a town situated in the West Azerbaijan Province in north-western Iran), that he was not married and had no children. He feared being imprisoned and tortured by the Iranian authorities if returned because he had been active in working for the Kurdish Democratic Party in Iran (KDPI).
4. The applicant submitted that in 1996 he had been recruited by four KDPI members. They had known that he had a cousin and a brother in Iraq who worked for the party. The applicant formed part of a cell together with his cousin and a nephew. The cousin had been the leader of the group and had been the only person who had met their contact person on the Iraqi side. The members of the cell cooperated and had met once a month. They had selected a part of the Piranshahr town in Iran and had mapped out escape routes so that it would be safe to distribute leaflets. They had also tried to identify people who worked for the regime. The applicant had been active in distributing political materials and in recruiting new members.
5. According to the applicant the KDPI’s office in Iraq had invited him to travel to its main base there in order to discuss with other KDPI activists. During his journey he had been recognised by a neighbour from Iran who had acted as a guard at his cousin’s house when the applicant had spent the night there. The neighbour had known that the applicant had come to meet with KDPI activists who were responsible for the party’s activities in Piranshahr.
6. After 40 to 45 days the applicant had been told that the neighbour who had recognised him had given himself up to the authorities in Iran. The applicant stated that the neighbour no longer wished to be a guerrilla soldier. The applicant had then understood that the neighbour would inform the authorities about the applicant and therefore went into hiding for ten days. The applicant further explained that his brother had told him that the secret services had come to ask about him and had detained his brother for two days.
7. The applicant then felt that his life was in danger. In 2000 he had left Iran with the help of a smuggler, to Salmas and from there to Turkey. There he had applied for asylum through the UNHCR, but without success. A smuggler had also assisted him to travel illegally from Turkey to Norway.
8. On 7 September 2004 the Directorate of Immigration rejected the applicant’s asylum application, finding it insufficiently probable that the applicant would be exposed to persecution for the purposes of the Refugee Convention and national law.
9. The Directorate did not find it likely that a guerrilla soldier linked to the party organisation in Iraq would have reported to the Iranian authorities because he wished to break away from that organisation. A person of such background would risk serious reactions from the Iranian authorities. Therefore, the Directorate did not find it sufficiently probable that the applicant would be in the authorities’ limelight because of links to the KDPI.
10. Making an assessment of the concrete circumstances as a whole, the Directorate did not find that there were such weighty humanitarian considerations or that the applicant had strong links to Norway as could warrant a residence permit. Since he had relatives living in Iran, it could not be decisive that he had a brother living in Norway.
11. On 28 September 2004 the applicant, represented by the same lawyer as before the Directorate, appealed against the latter’s rejection, arguing that it had erroneously based itself on the consideration that the neighbour had been a guerrilla soldier linked to the party organisation in Iraq. The applicant pointed out that this person had been working for the Iranian regime but had pretended that he was a guerrilla soldier so that he could spy on the activities of the KDPI and report on this to the Iranian authorities. He had withdrawn from the KDPI in Iraq when he feared that the party would discover his spying activities. This had not clearly come to light in the asylum interview and the Directorate of Immigration had based its decision on wrong facts. The neighbour would not have risked serious reactions from the authorities but feared the reactions of the KDPI if he were to be revealed, which had been the reason why he had withdrawn as a guerrilla soldier. The applicant had received this information in Turkey where he had been in contact with the KDPI. His brother, Salah, had also told the applicant about the matter. Accordingly, the person in question had possessed all the information about the applicant and had reported to the Iranian authorities. They had come to his home an had asked for him and his brother, Amir, had been arrested while the applicant was absent. This showed that the authorities had been aware of the applicant’s activities. He was convinced that he would be arrested and executed should he be returned to Iran.
12. The applicant further submitted that his brother, Salah, had also been linked to the KDPI in Iraq and had been granted political asylum in Norway. This fact would worsen the applicant’s situation if returned to Iran. Iranian authorities would also associate him with further activities in Norway. The Directorate had in its decision acknowledged that links to the KDPI would lead to serious reactions form the Iranian authorities.
13. The Directorate of Immigration refused to alter its decision, finding no new information that could warrant this.
14. On 14 March 2005 the Norwegian Organisation for Asylum Seekers (NOAS) supported the applicant’s contention that the Directorate had based itself on an error of fact when considering that it was not probable that a guerrilla soldier linked to the party organisation in Iraq would report to the Iranian authorities because he wished to break away from that organisation. NOAS further pointed to the fact that the applicant still was a KDPI member and that during the visit of its Secretary General, Mr Mustafa Hejris, in Norway in March 2005 the applicant had taken part in a KDPI meeting and had been photographed together with him.
15. NOAS in addition referred to a report of the Schweizerische Flüchtlingshilfe according to which Iranian citizens who left the country illegally or did not follow the rules on exit risked between one month and three years’ imprisonment and/or a fine upon return, and would face ransacking and questioning about the reasons for their sojourn abroad as well as electronic verification of whether they had breached Islamic laws or criminal law.
16. On 13 June 2006 the Immigration Appeals Board rejected the applicant’s appeal, stating inter alia:
“The Board observes that the [applicant]’s account of how he attracted the attention of the authorities owing to KDPI activities has not been made sufficiently probable to be relied upon. In the asylum interview, the [applicant] informed that his work for the party was discovered by a neighbour from Iran who worked as a guerrilla soldier for the KDPI, but who later gave himself up to the authorities. The Board concurs in the Directorate’s assessment, and finds this very improbable.
It was further argued in the appeal that the Directorate had based its decision on an incorrect premise. It was made clear that the [applicant]’s neighbour from Iran did not work for the KDPI, as the Directorate had assumed, but as a spy for the Iranian authorities. According to information the [applicant] was said to have received from KDPI members, his neighbour had as time went on become afraid of being revealed as a spy for the authorities, and had therefore pulled out. The [applicant] has also submitted that the Iranian regime carries out considerable intelligence activities by infiltrating agents into oppositional political parties.
The Board observes that, in the asylum interview, the [applicant] had been asked several specific questions on precisely this topic, and that he had given a detailed account of the events. The [applicant] had moreover read and signed the transcript of his answers. The [applicant] had also been informed that this was probably the only interview that would be held. In the view of the Board, it therefore seems remarkable and implausible that the [applicant] should present a new explanation of this matter in the appeal. The Board has therefore very little faith in the [applicant]’s testimony on this point.
...
The Board has noted the declarations of 29 October 2004 from the Kurdish Cultural Association, the letters of support of 14 February 2005 from the Kurdish Democratic Party in Norway and of 8 March 2005 from the East Kurdistan Writers’ Association, the confirmation of 26 April 2005 from the Kurdish Youth Association of Norway and the membership confirmation of 10 March 2006 from the KDPI in Norway, but does not find that it is able to attach decisive importance to these documents. Reference is made to the very general nature of the declarations, and that they do not associate the [applicant] with concrete episodes entailing a well-founded fear of persecution.
The Board has further noted the submissions from NOAS, but does not find that it can attach decisive importance to these either. The Board observes that reference is made to reports of a general nature that do not associate the [applicant] with concrete episodes entailing a well-founded fear of persecution.
The Board therefore does not find sufficient evidence that the [applicant] had aroused the attention of the authorities of his country of origin to such an extent that he foreseeably risked persecution prior to his departure.
The Board finds otherwise reason to doubt that the [applicant] has been active as a member of the party in his country of origin by distributing flyers, etc. Besides referring to the above points, which, in the view of the Board, weaken his general credibility, it is observed that the party, according to the information available to the Board, no longer espouses the goal of an independent Kurdistan in its party program nor does it take part in armed conflict. However, the [applicant] has asserted the opposite in his self-declaration and in a supplementary letter. Nor is there any evidence that the party has been conspicuous in distributing flyers with oppositional content in Kurdish areas of Iran in recent years. Nor in the Board’s view do the [applicant]’s answers and the information in his self-declaration and asylum interview support his statements concerning his activities prior to his departure. His account of his activities appears partly superficial and of little evidential value in itself, cf. otherwise the above. However, this is not decisive, since it cannot regardless be assumed that his alleged activities are known to the Iranian authorities or that it is otherwise foreseeable that the authorities will persecute him.
The Board has taken into consideration that the [applicant] has participated in various political events in Norway, and has noted the various websites where this is said to have been documented, and where pictures of the [applicant] in the company of members of the KDPI have been published. After assessing these websites, the Board does not consider that this will entail any foreseeable danger of persecution on his return. As far as the Board is aware, the Iranian authorities show relatively little interest in the political activities of Iranians in exile, and do not view these as constituting any real threat to the regime. The [applicant] cannot on the basis of the above-mentioned activities be said to appear to be a particularly important dissident or to be particularly at risk of serious reactions as a consequence of these activities.
The Board therefore does not find sufficient evidence that the [applicant] will be of particular interest to the authorities as a consequence of his political involvement while in Norway.
As regards the KDPI background of his brother and other family members, the Board observes that, as far as the Board is aware, the Iranian authorities do not engage in derivative persecution of family members or other relatives of politically active persons.
Making an overall assessment, the Board therefore finds that it has not been shown to be sufficiently probable that the [applicant] would risk persecution on return to his country of origin, and he is not to be deemed a refugee within the meaning of the Immigration Act and the Refugee Convention.”
17. Nor did the Board find, even on a reduced standard of proof, any risk of the applicant loosing his life or being subjected to ill-treatment should he be returned.
18. Finally, the Board did not find that granting the applicant a residence permit was warranted by strong humanitarian considerations. He was an adult man without serious health problems who had strong links to his home country and who did not have any particular links to Norway, although he had a brother and a cousin living there.
19. The applicant subsequently made a number of requests for reconsideration of the Board’s rejection of 13 June 2006, but to no avail. After two rejections, dated 22 August and 19 December 2006, respectively, the applicant, represented by a new lawyer, presented several new factual arguments to the Board requesting it to reconsider the matter. Together with his brother, he had cooperated with the resistance movement in Iraq. Whilst the brother had obtained asylum in Norway the applicant’s asylum request had been refused. They had arrived in Turkey five days apart from each other in 2000. In Turkey they had assumed that the authorities would return them to Iraq. They had therefore decided that only one of them should inform that they had been in Iraq working for the resistance movement, so that one of them should have the chance to get out of Turkey without being returned. As to why they had adopted such a strategy, the applicant stated that he would forward documentation that proved that he had been in Iraq working for the resistance. He also alleged that while in Iraq, he had made political songs against the Iranian regime that had been disseminated in Iran. He believed that he was known in Iran also for this reason.
20. On 14 December 2007 the Board rejected the request. It considered that the new information in part expanded on the basis for his asylum claim, in part conflicted with his earlier explanation. Neither in the asylum interview, nor in his appeal, had the applicant stated that he had worked for the KDPI in Iraq. On the contrary, he had affirmed that his activities had been limited to his hometown Piranshahr. Also the information that he and his brother had assumed that the Turkish authorities would return them to Iraq was new and inconsistent with what the applicant had stated during the asylum interview. The Board did not find the applicant’s new information credible.
21. On 25 June 2008 the Board dismissed another revision request in which the applicant had relied on a statement from the KDPI in the Sulaymaniyah Governorate in Iraq regarding his activities for the party.
22. On 1 July 2009 it refused a further request invoking the general security situation in Iran after the elections and that he had married (on 24 May 2008) a Norwegian citizen, Mrs Helala Rezai, in accordance with Islamic tradition.
23. The Board rejected yet a further petition, on 4 February 2010. The applicant had invoked that he had left Iran twelve years ago, he had stayed in Norway for the past seven years, he had worked lawfully and paid taxes in Norway, his wife and brother were Norwegian citizens and his wife was pregnant. As to the latter, the Board drew attention to the possibility to apply for family reunification.
24. On 15 September 2010 the Directorate of Immigration decided that the applicant should be expelled from Norway indefinitely (sections 66 (a) and 71(2) of the Immigration Act 2008) on the ground of his aggravated breaches of Norwegian immigration laws: He had avoided the implementation of decisions that implied a duty for him to leave the country, had resided illegally in Norway for four years, and had worked illegally in Norway after the revocation of his work permit on 13 June 2006. The Directorate observed that this was not a disproportionate measure. He had had no legitimate expectation of being able to stay in Norway when he married Mrs Rezai on 24 May 2008 and no or little weight could be attached to the fact that he had a brother living in Norway. The Directorate considered that this decision was consistent with Article 8 of the Convention.
25. By a further decision of 7 April 2011, the Board limited the duration of the prohibition on re-entry to five years. In this connection it reiterated that no document had been submitted to the effect that the couple had concluded a valid marriage (under Norwegian law). Neither their marriage nor their parenthood had been registered in the population register.
26. In the meantime, on 25 October 2010, the Court decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Norwegian Government, under Rule 39 of the Rules of Court, that the applicant should not be expelled to Iran until further notice.
27. Under the Code of Civil Procedure of 17 June 2005 No. 90 (tvisteloven), a decision by the Immigration Appeals Board could form the subject of an appeal to the competent city court or district court (tingrett) (Articles 1-3, 1-5, 4-1), from there to the High Court (lagmannsrett) (Articles 4-1 and 29-1) and ultimately to the Supreme Court (Article 30-1). The domestic courts had full jurisdiction to review the lawfulness of the Board’s decision and were empowered to quash the decision should they find that it was unlawful. Pursuant to section 4 of the Immigration Act 1988, the provisions of the Act were to be applied in accordance with Norway’s international legal obligations intended to strengthen the legal position of a foreign national. In the event of conflict between the national legal provision and Norway’s obligations under the Convention, the latter was to take precedence (sections 2 and 3 of the Human Rights Act of 21 May 1999 No. 30).
28. Under Chapters 32 and 34 of the Code of Civil Procedure, a person whose expulsion had been ordered by the immigration authorities could apply to the courts for an interlocutory injunction to stay the implementation of the expulsion order.
29. Further conditions regarding judicial review of the Immigration Appeals Board’s decision were set out inter alia in the following provisions and guidelines.
30. At the material time, the fee for filing a lawsuit before a city court or a district court was 4,300 Norwegian Krone (NOK), corresponding to approximately 560 euros (EUR), if the hearing lasted for one day and NOK 6,880 (EUR 900) if the hearing lasted for two days.
31. Pursuant to section 3 of the Court Fees Act of 17 December 1982 No. 86 (rettsgebyrloven), fees should be paid in advance. In the event that a sufficient amount had not been paid when a request for a judicial order had been made, the court was to fix a brief time-limit for payment. Should that payment not be effected within the time-limit fixed, the court shall dismiss the case, unless the provisions in section 5 apply. The latter provided:
“If a party has applied for free legal aid or for exemption from the payment of court fees under the Free Legal Aid Act of 13 June 1980 No. 35 [rettshjelploven], a respite should be granted until the application has been decided. In this event no security can be required for the payment of the fee.
If a party who has requested a procedural step [rettergangsskritt] has obtained respite in accordance with the foregoing, the court shall grant the measure. In other cases the court may grant a measure if the party who has requested it is unable to pay immediately and it would entail a damage or significant inconvenience for that party if the measure is not taken. If the measure requires payments, an advance payment may be made by the public authorities.
If a measure has been taken with a respite, the court shall fix a time-limit for payment. Until payment has been made or the time-limit has expired, the court shall only take such measures as it deems necessary. If payment is not made within the time-limit, the court gives a ruling in absentia according to Articles 16-9 and 16-10 of the Code of Civil Procedure.”
32. An exception from the condition to pay court fees could be granted as part of a grant to free legal representation according to the same rules as those that applied to the latter (section 25 of the Free Legal Aid Act). A person who was not entitled to free legal representation could be granted an exemption from the duty to pay court fees provided that the financial conditions in section 16 (2) or (4) had been fulfilled (see below).
33. According to the Code of Civil Procedure a party could be represented by counsel (Article 3-1), but was not obliged to be so represented, save if the party was unable to present the case in a comprehensible manner and the court has ordered the party to appear with counsel (Article 3-2).
34. Section 16 (1) to (5) of the Free Legal Aid Act 1980 included the following provisions of relevance to the present case:
“(1) Free legal representation shall be granted without means testing in ... the following instances:
...
4. to a foreign national in such instances as mentioned in section 92 (3), second sentence, and (4) of the Immigration Act [2008] ....
...
(2) In such cases as mentioned in section 11(2) nos. 1-5 [not applicable in the instant case], an application for free legal representation may be granted to a person whose income and assets do not exceed certain levels set by the Ministry.
(3) In other cases, free legal representation may be granted exceptionally, provided that the financial conditions pursuant to the second sub-section are fulfilled and that the case affects the claimant especially from an objective point of view. In the assessment, weight should be attached to whether the case has similarities with the litigation areas mentioned in the first and second sub-sections.
(4) In such cases as mentioned in the second and third sub-sections, free legal representation may be granted even if the claimant does not fulfil the financial conditions prescribed in the second sub-section, provided that the expenses for legal assistance will be substantial compared to the claimant’s financial situation.
(5) Free legal representation shall not be granted pursuant to the second through fourth sub-sections where it would be unreasonable that such assistance be paid out of public funds.”
35. In Circular G-12/05 the Ministry of Justice and Home Affairs stated at paragraph 6.5.2:
“In immigration cases not covered by section 16 (1) nr 4, the practice should be very restrictive. The general legal security of the foreigner is considered to be sufficiently secured through the administrative processing of the case. Legal aid to take the case before court should only be granted in exceptional cases, i.e. if there are very specific reasons, for instance if the case presents questions of a particular principal interest that has not previously been tried by the courts.”
36. Section 135 (1) of the Administration of Courts Act 1915 (domstolloven) provided:
“In the event that a person, who does not know Norwegian, is to take part in the proceedings, an interpreter appointed and approved by the court shall be used. Recordings are to be made in Norwegian. If required by the importance of the case, the court may decide that recording shall take place in a foreign language, either in the court records or in separate annexes, to be submitted for approval.”
37. The Government referred in particular to the following provisions of the Code of Civil Procedure:
“(1) The court shall actively and systematically conduct the preparation of the case to ensure that it is heard in a swift, cost effective and sound manner.”
“(1) ....
(2) The parties have the primary responsibility for presenting evidence. The court can take care of the presentation of evidence if the parties do not object. The court is not bound by the parties’ arguments with regard to questions of evidence.”
“The court shall on its own motion apply current law within the scope of section 112(1). In accordance with section 1-1, the court shall ensure that there is a satisfactory basis upon which to apply the law. If the application of law cannot otherwise be clarified in a fully satisfactory manner, the court may decide that evidence of the law shall be presented, or it may allow the parties to present such evidence. The court shall determine the scope of the presentation of evidence and the manner in which it shall be carried out. Statements on the law occasioned by the case may only be submitted as evidence with the consent of all parties.”
“(1) The court shall give the parties such guidance on procedural rules and routines and other formalities as is necessary to enable them to safeguard their interests in the case. The court shall seek to prevent errors and shall give such guidance as is necessary to enable errors to be rectified. ...
(2) The court shall, in accordance with subsections (3) to (7), give guidance that contributes to a correct ruling in the case based on the facts and the applicable rules.
(3) The court shall endeavour to clarify disputed issues and ensure that the parties’ statements of claim and their positions regarding factual and legal issues be clarified.
(4) The court may encourage a party to take a position on factual and legal issues that appear to be important to the case.
(5) The court may encourage a party to offer evidence.
(6) The court shall during the proceedings show particular consideration for the need for guidance of parties not represented by counsel.
(7) The court shall provide its guidance in a manner that is not liable to impair confidence in its impartiality. The court shall not advise the parties on the position they should take on disputed issues in the case or on procedural steps they should take.”
“(1) The court shall prepare a plan for dealing with the case and follow it up in order to bring the case to a conclusion in an efficient and sound manner.
(2) ....
(3) In each case, a preparatory judge shall be responsible for the conduct of the proceedings.
...”


ITEMID: 001-94771
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: I.N. v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: 1. The applicant is a Burundian national who was born in 1973 and is currently in Sweden.
2.
3. On 17 June 2007 the applicant arrived in Sweden and applied for asylum and a residence permit. During her interviews before the Migration Board (Migrationsverket) she claimed that her husband had been taken away from their home by three men on 20 January 2006 and had been found dead two weeks later by Lake Tanganyika. On 2 May 2006 four men dressed in civilian clothes had broken into her home and had cut her with a knife. She had recognised one of her assailants as X., a member of the Security Police and her husband’s business partner. She had been hospitalised and, when she had returned home, she had discovered that all her husband’s documents and money had disappeared. On 15 February 2007 two men had again broken into her home and had abducted her. They had raped her and forced her to sign a document without being allowed to see the content of the document. She had managed to escape the following day. Even though she had reported the events to the police and identified X., the police investigation had come to nothing. Moreover, she alleged that neighbours had thrown stones at her house and had asked her maid threatening questions about her daily routines. Finally, on 20 May 2007, her house had burnt down following an explosion. She did not know why all of this had happened to her but she suspected that it might have been related to her husband’s political involvement with the CNDD (Conseil National pour la Défense de la Démocratie) or the FNL (Forces Nationales pour la Libération) because she had heard one of her assailants mention this in passing, or because X. had wanted access to her husband’s bank account for the business.
4. On 10 December 2007 the Migration Board rejected the application. It first noted that the applicant had not proved her identity but that there were no indications in the case that she was from a country other than Burundi. It then considered that the applicant’s story lacked credibility as she had given remarkably vague information about the events and had shown a lack of knowledge of why she and her husband had been the victims of the alleged attacks. Moreover, although it did not question the scars on her body, the Board observed that the applicant had not been able to substantiate that they were the result of the violence she had described. Furthermore, she had failed to show that her husband had died as she alleged, that he had been involved either with the CNDD or the FNL, or that he had had a business with X. and a bank account. In this respect, the Board observed that the applicant knew nothing at all about her husband’s alleged political involvement or whether he had actually been active for the CNDD or the FNL. The Board also noted that the applicant had claimed that X. had wanted to obtain access to her husband’s bank account while at the same time stating that X. had continued to run the business after her husband’s death. Hence, in the Board’s view, X. already had access to the bank account relating to the business, for which reason the applicant’s statement in this respect did not ring true. In any event, the Board considered that the two attacks of which the applicant claimed to have been the victim were criminal acts and for the Burundian authorities to deal with. The circumstance that the authorities had not acted upon her report due to lack of evidence did not imply that they were unwilling or unable to help and protect her. In this respect, it stressed that the applicant had not in any way been able to show that the alleged events had been politically motivated. Thus, it concluded that the applicant was not a refugee or otherwise in need of protection in Sweden. Moreover, it considered that there were no other special reasons to grant her exceptional leave to remain in Sweden.
5. The applicant appealed to the Migration Court (Migrationsdomstolen) relying on the same grounds as before the Migration Board and adding the following. Her husband had been an important person within “the party” and, before the elections in 2005, he had had an important role in mobilising people. In connection with the election, he had left the party as he had felt that he could not support activities which included eliminating Tutsis. Since he knew the party’s secrets, he had been seen as a threat and therefore eliminated. No one had investigated his death even though she had sought help from various authorities and it was not possible for her to obtain proof that he had been killed. The applicant further claimed that she believed that she had been attacked in May 2006 because her assailants had thought that her husband had told her “party secrets” and she had therefore become a threat. Also, her neighbours had thrown stones at her home and harassed her because she was Tutsi and they were Hutus and wanted her to leave. Some of her employees had seen them throw stones and they had also asked her employees questions about her daily routines.
The applicant further submitted a copy of a search warrant (Avis de Recherche) which stated that the applicant and another person were sought by the judicial police for an attack on the interior security of the State (Atteinte à la Sûreté Intérieure de l’Etat). It was dated 15 June 2007 and issued by an officer at the judicial police station in Bujumbura-Mairie, of the Ministry of Interior and State Security. The applicant claimed that a Burundian man, with whom she had become acquainted in Sweden and who had travelled to Burundi, had given it to her. He in turn had obtained it from the girl who took care of her two children in Burundi and whom he had met when he had been there. The applicant also submitted a copy of a hospital bill, dated 8 June 2006 and addressed to the applicant. It stated that she had arrived at the hospital on 2 May 2006 and left on 8 June 2006 and that she had been treated in the surgery section of the “Hôpital Prince Regent Charles” in Bujumbura. It also contained the details of the bill and the total amount due.
6. On 25 August 2008 the Migration Court rejected the appeal. It noted that the copy of the document called “Avis de Recherche” was of poor quality and that her account of how she had come by it was not credible. Moreover, the court considered that the alleged threats against her were vague and that she had not shown that she would risk persecution upon return to her home country. For the rest, it shared the Board’s reasoning and conclusion that the applicant was not in need of protection in Sweden and that there were no special reasons to grant her leave to remain in Sweden.
7. Upon further appeal, the Migration Court of Appeal (Migrationsöverdomstolen) refused leave to appeal on 27 October 2008.
8. On 9 February 2009 the Board rejected a request from the applicant for reconsideration of her case. The Board found that she had invoked no new reasons for her request and that the preparation for the enforcement of her deportation order should continue.
9. On 9 April 2009, upon request by the applicant, the Court decided to indicate to the Swedish Government under Rule 39 of the Rules of Court a suspension of the applicant’s deportation to Burundi until further notice. Moreover, it invited the applicant to provide some more information surrounding her husband’s activities and his death as well as her kidnapping and, if possible, to submit some evidence in support of these events. In addition, the Court requested her to furnish some concrete evidence that she was sought by the Burundian authorities, since the copy of the alleged search warrant was of poor quality.
10. By letter received by the Court on 11 May 2009 the applicant submitted a death certificate for her husband which stated that he had died on 3 February 2006 in Bujumbura as a result of “blows and injuries” (coups et blessures). She further added, inter alia, the following. Her husband was Tutsi and had been a businessman and a member of the CNDD-FDD (Conseil National pour la Défense de la Démocratie-Forces de Défense de la Démocratie). He had been responsible for mobilising and recruiting people to the party. During the elections in 2005, he had decided to leave the party as he had discovered that there was a hidden agenda of ethnicity, arbitrary arrests and assassinations. Moreover he had been asked, together with colleagues, to organise the assassination of Tutsis and certain Hutus in opposition, which he had refused. He had instead joined the CNDD. However, the CNDD-FDD had won the elections and had then started to persecute and eliminate all persons who had not supported them, including the applicant’s husband, as he knew its secrets and even held certain party documents. Hence, on 20 January 2006, three persons had come to their home, one of whom wore a formal police uniform. They had shown her husband a warrant for his arrest and he had had to go with them. She had not been allowed to accompany them but had gone to the police station to ask for him and also to various detention centres in Bujumbura. She had not managed to obtain any information but two weeks later he had been found dead by Lake Tanganyika. A few days after the funeral, the applicant had gone to the police station to complain, since one of the three men had been wearing a police uniform. She had been told that an investigation would be carried out but nothing had been done. Later, when she had insisted, she had been told to stop or she would meet the same fate as her husband, as would the entire family.
11. As to the attacks on her, the applicant stated that she had first been attacked in her home on 2 May 2006 by four persons in civilian clothes. She had heard them enter by force through the main door and she had tried to escape with her children. She had recognised one of them as being X. They had caught her and stabbed her in the chest with a knife and she had lost consciousness. She had regained consciousness at the hospital, where she had then spent about one month recovering. She had several injuries to her face and arms and had also broken her left collar bone. When she had returned home she had found the house in disorder, their valuables had been stolen and a suitcase in which her husband had kept documents had also disappeared. The applicant submitted four photos showing the scars from her injuries, namely a scar on the right side of her chest, a scar by her left armpit, a scar on her right lower arm and a scar over her left eyebrow. She further produced a copy of a certificate dated 4 May 2006, issued by M. Minirakiza, head of psychosocial care at the Nturengaho Centre in Bujumbura. It stated that the centre was specialised in helping victims of sexual violence and that the applicant had been treated there and had received medical, psychological and social care. The author of the certificate had met with her on 2 and 4 May 2006 at the Centre and heard her account of having been the victim of sexual violence and other forms of torture.
12. The applicant further added that the second attack against her had occurred on 15 February 2007 because the party had wanted to eliminate her as she knew some of their secrets through her husband. Thus, she had been kidnapped from her home by two persons and taken to an unknown place where she had been locked up. She had been guarded by men who had raped her one after the other. She had been told that she would be interrogated and then killed. However, one evening the guard outside her room had left and she had taken the opportunity to jump out of the window and escape. She had broken her front teeth when she had jumped. As she had managed to escape the assassination attempt, someone had come during the night of 20 May 2007 and had set fire to her house. She had been asleep, but had woken up and she and her children had managed to escape from the fire. All their belongings had been destroyed except for the applicant’s handbag which she had managed to take with her. She and her children had then stayed with a friend of hers and they had received clothes and food from kind people around them.
13. The applicant ended her account to the Court by claiming that the party (CNDD-FDD) remained in power and thus was still looking to eliminate her in order to erase all evidence of their atrocities.
14. 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”).
15. 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).
16. 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.
17. 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).
18. 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).
19. 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).
20. Burundi is a constitutional republic with an elected government and a population of 8.3 million. Roughly 85% of the population are of Hutu ethnic origin, 15% of the remaining population are Tutsi and fewer than one percent are Twas.
21. The political landscape of Burundi has been dominated in recent years by the civil war and a long peace process and move to democracy. The country has a multi-party system where the parties are usually based on ethnic background. Parties of relevance to the present case are:
- Conseil National pour la Défense de la Démocratie (CNDD) ; it is a smaller faction of the former main Hutu rebel group. It is now a political party led by Léonard Nyangoma. At the legislative elections in 2005, the party won 4.9 % of the votes and 4 out of 118 seats in the Parliament.
- Conseil National pour la Défense de la Démocratie–Forces pour la Défense de la Démocratie (CNDD-FDD) ; it is the largest faction of the former main Hutu rebel group. The CNDD was the political wing of the organisation, while the FDD was the military wing. The CNDD-FDD split from the CNDD in 1998. In January 2005 the group registered as a legal political party, led by Pierre Nkurunziza. At the legislative elections in 2005 the party won 57.8 % of the votes and 64 out of 118 seats in the Parliament and Pierre Nkurunziza was elected President.
- Forces Nationales de Libération (FNL; formerly Parti pour la Libération du Peuple Hutu or “PALIPEHUTU”); it is a rebel group which fought in the Burundi Civil War for the Hutu ethnic group. The armed wing of PALIPEHUTU was the FNL, led by Agathon Rwasa. PALIPEHUTU-FNL was the last Hutu rebel group to sign an agreement with the Burundi government, in September 2006. A final agreement was signed in December 2008, according to which it also changed its name to simply FNL (as Burundian political parties may not refer to ethnicities in their names). In April 2009 it began disarming and became a registered political party.
22. The US Department of State, in its 2008 Country Reports on Human Rights Practices; Burundi, dated 25 February 2009, noted that the Burundian government’s human rights record remained poor and that the government security forces continued to commit numerous serious human rights abuses. Members of the army, the police, and the National Intelligence Service were responsible for killings, torture and beatings of civilians and detainees, although there had been fewer such reports than in the previous year. It further observed that civilian authorities generally maintained effective control of the security forces, although there were instances when elements of the security forces acted independently. Moreover, while government security forces, especially the army, took some steps to prosecute the perpetrators of human rights abuses, most individuals acted with impunity. Security forces also continued to harass members of the opposition. Furthermore, a large number of weapons circulated throughout the general population and many violent incidents and killings were considered the result of vigilante abuse and personal score-settling. Despite the cease-fire, abuses by the FNL against civilians continued, primarily in the FNL traditional strongholds of Bujumbura Rural and the Northern provinces. These abuses included killings, kidnappings, rapes, theft, extortion and the looting and burning of houses.
23. According to the Fifth Report of the Secretary General on the United Nations Integrated Office in Burundi (document S/2009/270), dated 22 May 2009, the period under review (December 2008 to May 2009) witnessed significant breakthroughs in the peace process which led to some improvements in the security situation in Burundi, especially in the north-western provinces. Accordingly, the United Nations security phase was adjusted from IV to III in Bujumbura Rural and Bubanza Provinces, bringing the entire country under security phase III. Criminal activities perpetrated by alleged FNL elements, former combatants, members of the security forces and unidentified armed individuals persisted, however, throughout the country. These included killings, abductions, rapes, lootings, armed robberies, grenade attacks, ambushes and violent incidents related to land conflicts. Moreover, despite limited improvement in the overall human rights situation during the reporting period, impunity continued to be a source of serious concern, in particular for sexual and gender-based crimes.
24. Amnesty International reported in its Report 2009 – Burundi, that there continued to be a high incidence of rape and other sexual violence against women and girls during 2008. For example, a centre run by Médecins sans Frontières in Bujumbura received an average of 131 rape victims a month in 2008.


ITEMID: 001-22345
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: IVISON v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Gaukur Jörundsson;Nicolas Bratza
TEXT: The application was originally introduced by Irene Ivison, a United Kingdom national, born in 1946 and living in Sheffield. Following her death in or about October 2000, her daughter Rebecca Ivison has expressed her intention of continuing the application. She is represented before the Court by Mrs Mary Cunneen, legal director of Liberty, London.
The facts of the case, as submitted by the parties, may be summarised as follows.
Fiona Ivison, the sister of the applicant, was born in 1976 and killed in 1993.
In 1990, Fiona started associating with two older men, Mr B and Mr T. She had sex with them and smoked cannabis. On 8 November 1990, she took an overdose of paracetamol tablets following an argument with her mother. She was seen by an adolescent psychiatrist who found no ascertained evidence of mental illness and attributed her conduct to “rebellion in the context of a liberal household”.
On 12 December 1990, Fiona was referred to the social services.
The applicant’s mother sought the help of the South Yorkshire Police and the Sheffield Social Services repeatedly in relation in particular to her concerns about Fiona’s contacts with B and T. Though she told the police after each occasion that she was aware that Fiona had passed the night at the men’s flats, she stated that she was told that they could do nothing as Fiona refused to complain.
On 18 November 1991, a case conference was convened by Fiona’s social worker using child protection law. It was attended by four social workers, two police officers from the sexual offences and child abuse unit and the applicant. It was decided that, first, the police officer would liase with the South Yorkshire Police Drug Squad about Fiona’s exposure to drugs and talk to T to reinforce concern about his relationship with Fiona and, secondly, the social worker would continue working with Fiona in the hope that the latter would begin to recognise the risks to which she was exposed because of her relationship with T.
In March 1992 the applicant’s mother wrote to the police and received a reply to the effect that “her comments had been passed on to the officers in the case”. The applicant’s mother was not aware of any action being taken.
In April 1992 Fiona, now aged 16, left home to live with T. However, in spring 1993 she returned home.
In late November 1993 however Fiona began working as a prostitute (unbeknown to her mother) on B’s instructions. On Friday, 17 December 1993, Fiona left home in the evening telling her mother that she would not return that night. When she had not returned by Sunday evening, 19 December, her mother reported her missing to the police. On 20 December, she was taken to the mortuary where she identified the body of a girl found on 18 December 1993 as being Fiona. Fiona had been killed by a client, D, who hit her head repeatedly on the floor.
D was arrested on 23 December 1993.
An inquest into Fiona’s death was opened on 6 January 1994 at the Coroner’s Court in Doncaster. Since the Coroner had been informed that D had been charged with murder, the inquest was adjourned. On 7 January 1994, a death certificate was issued to the effect that Fiona had died of head injuries. The inquest was not resumed in the light of the criminal proceedings.
In February 1995 D pleaded guilty to murder and was sentenced to life imprisonment.
On 1 September 1995, the applicant’s mother wrote to the Chief Constable of the South Yorkshire Police raising various questions about the lack of police action before Fiona’s death, including a specific question as to why the Child Abduction Act had not been used. On 13 November 1995 she received a reply in which a representative of the police referred to the difficulties of applying various provisions of the criminal law in this case, but acknowledged “with the benefit of hindsight that more could have been done to prevent <Fiona> from being drawn into the maelstrom of drugs and vice.”
On 16 December 1996, the applicant’s mother issued a writ in the High Court against the South Yorkshire Police and the Sheffield Social Services claiming damages for negligence. She applied for legal aid, submitting a statement of case in which she alleged that the police and social services had been aware of her daughter’s connection with two men with criminal records and had been warned that she was being led into underage sex and drugs. It was argued that there was no absolute immunity against suing the police, this depending on sufficient proximity existing between the parties, and that in this case the police and social services should have taken decisive action to protect Fiona from these men and prevented her from drifting into prostitution with its inevitable consequences. On the form where it was required to estimate prospects of success of the action, the solicitor indicated that it was not possible to say.
On 17 December 1996, the Legal Aid Board area office refused the applicant’s mother legal aid for these proceedings, stating that “on the information submitted it is considered that you are unlikely to succeed in establishing negligence either in relation to your daughter’s death or in relation to your own post-traumatic stress”.
On 29 January 1997, after a hearing at which the applicant’s mother and her legal representative had attended to make representations as to why legal aid should be granted, the Legal Aid Board area committee rejected her appeal on the ground that it had no reasonable prospects of success.
On 20 February 1997, the applicant’s mother was advised by counsel that the common law position was such as to preclude her from pursuing a claim for damages in the domestic courts.
The applicant’s mother made requests to various authorities for information about the background to and circumstances of Fiona’s death. By letter dated 12 August 1998, Sheffield Social Service informed her that Fiona’s file would have been destroyed in December 1996, pursuant to a three year rule applying to persons who were not on a child protection register or otherwise in the care of the social services.
By letter dated 5 February 1999, the applicant’s mother was informed by the South Yorkshire Police that records existed holding details of the enquiry into Fiona’s murder, but that they were not in a position to give any information additional to the extensive material provided during the police investigation by the Senior Investigating Officer. By letter dated 8 December 1999, the solicitors for the Chief Constable of South Yorkshire Police disputed that they were under an obligation to provide any further information or documents, and stated that the Chief Constable would however do so if ordered by a court.
Following further requests to the social services, documents from the Child Protection Team, including the case conference minutes, were given to the applicant’s mother on 13 December 1999.
In England and Wales, there is no single tort which imposes liability to pay compensation for civil wrongs. Instead there are a series of separate torts, for example, trespass, conversion, conspiracy, negligence and defamation. Negligence arises in specific categories of situations. These categories are capable of being extended. There are three elements to the tort of negligence: a duty of care, breach of the duty of care and damage. The duty of care may be described as the concept which defines the categories of relationships in which the law may impose liability on a defendant in damages if he or she is shown to have acted carelessly. To show a duty of care, the claimant must show that the situation comes within an existing established category of cases where a duty of care has been held to exist. In novel situations, in order to show a duty of care, the claimant must satisfy a threefold test, establishing:
– that damage to the claimant was foreseeable;
– that the claimant was in an appropriate relationship of proximity to the defendant; and,
– that it is fair, just and reasonable to impose liability on the defendant.
These criteria apply to claims against private persons as well as claims against public bodies. The leading case is Caparo Industries v. Dickman ([1990] 2 AC 605).
If the courts decide that as a matter of law there is no duty of care owed in a particular situation, that decision will (subject to the doctrine of precedent) apply in future cases where the parties are in the same relationship.
In Hill v. Chief Constable of West Yorkshire (1989 A.C. 53), the mother of a victim of the Yorkshire Ripper instituted proceedings against the police alleging that they had failed properly to exercise their duty to exercise all reasonable care and skill to apprehend the perpetrator of various murders and to protect members of the public who might be his victims. Lord Keith in the House of Lords found that there was no sufficient foreseeability of harm to this victim, there being no general duty of care to protect all young females from a risk at large and that the imposition of liability was also excluded by strong policy reasons relating to the operational efficiency of the police. Exceptions to this approach arose in later cases (e.g. Swinney and another v. the Chief Constable of Northumbria [1997] Q.B. 464).
In X and Others v. Bedfordshire County Council ([1995] 3 AER 353), the House of Lords held that local authorities could not be sued for negligence or for breach of statutory duty in respect of the discharge of their functions concerning the welfare of children. In subsequent cases, it was not excluded that in certain circumstances a duty of care might arise (see e.g. Barrett v. the London Borough of Enfield [1999] 3 WLR 79).