ITEMID: 001-61635
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF VENKADAJALASARMA v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: No violation of Art. 3
TEXT: 8. The applicant was born in 1958 and currently resides in Heerlen.
9. On 2 November 1995 the applicant arrived in the Netherlands, where, on 3 November 1995, he applied for asylum or, alternatively, a residence permit for compelling reasons of a humanitarian nature (klemmende redenen van humanitaire aard). In support of his claim for asylum he submitted the following.
10. He belonged to the Tamil population group, was married with two children and lived in the town of Jaffna on the Jaffna peninsula. This area was controlled by the Tamil Tigers (the “LTTE”), a Tamil terrorist organisation, engaged in an armed struggle for independence.
11. The applicant owned a minibus which was his livelihood. From January 1994 the LTTE forced him to transport foodstuffs as well as its members two or three times a month. The LTTE would pay for his petrol. In March 1995 the LTTE confiscated his minibus because he had refused to transport bombs for them. They subsequently forced him to work in their kitchens and to help dig trenches. On 21 September 1995 some LTTE members came to his house and told his wife that the applicant had to report to their camp, which meant that he was expected to fight alongside them and to transport their weapons. Upon hearing this, the applicant immediately went into hiding. Since two friends of his, who had also driven his minibus, had recently been shot dead by the LTTE when they had refused to join the LTTE's ranks, the applicant decided to flee to the national capital Colombo.
12. On 1 October 1995 he went to the army camp at Vavuniya to apply for the required travel pass. He was apprehended and held until 3 October 1995 as he was suspected of being an LTTE supporter. He was taken to a mill where he was undressed and beaten with a small iron rod. This left a horizontal scar of about five centimetres in length on the heel of his right foot. He was also stabbed with a knife, leaving a number of scars on the underside of his forearms, and a cigarette was put out on his left arm, leaving a round scar. His hands were tied and he was strung up and beaten. After two days he was made to stand in a line. A man wearing a black mask walked past the people in the line, indicating the moment he recognised somebody. This man was an informant. The applicant was not recognised. He was released and issued with a travel pass on condition that he return from Colombo within one week.
13. He travelled to Colombo by train. In Colombo he stayed at the house of an acquaintance for one month without leaving the house as he feared arrest by the army. A doctor came to the house to see to his injuries. As he was not allowed to settle in Colombo, and he could not go back to Jaffna because of his problems with the LTTE, he decided to leave the country. An acquaintance of his father's arranged for his flight to Amsterdam via Bombay. He left the country using his own passport, but the “travel agent” kept his passport in Bombay.
14. After his arrival in the Netherlands on 2 November 1995, he was interviewed by an official of the Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst) on 6 December 1995. According to this official, the scars which the applicant showed him were much more than two months' old, and the round scar on the applicant's left forearm was bigger than the diameter of a cigarette.
15. On 5 January 1996 the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the applicant's requests. It was noted that it had not appeared that the Sri Lankan authorities had such grave presumptions against the applicant that he could be said to have a well-founded fear of persecution. Although he had once been detained for a short period, there had been no evidence against him of any LTTE involvement. The fact that the applicant had been able to leave his country using his own passport also did not suggest that the applicant had to fear persecution. Finally, according to a country report (ambtsbericht) of the Ministry of Foreign Affairs of 15 December 1995, Tamils coming from the Jaffna peninsula were able to find safety in the centre, south and west of Sri Lanka.
16. The Deputy Minister further informed the applicant that he would not be allowed to remain in the Netherlands pending the consideration of any objection (bezwaar) he might wish to submit against the decision to refuse his requests.
17. The applicant filed on objection on 10 January 1996 and, on the same date, also applied for an interim measure (voorlopige voorziening) to the President of the Regional Court (arrondissementsrechtbank) of The Hague. By letter of 10 May 1996, the applicant was informed that his expulsion would in fact be suspended while his objection was being considered. The applicant withdrew his request for an interim measure.
18. The applicant's objection was rejected by the Deputy Minister of Justice on 5 November 1996. He was also informed that he would not be allowed to remain in the Netherlands pending the examination of any appeal he might lodge. On 11 December 1997 the applicant lodged an appeal with the Regional Court of The Hague and at the same time requested an interim measure from the President of that court. By final decision of 9 July 1997, the acting President of the Regional Court of The Hague rejected the applicant's appeal against the Deputy Minister's decision as well as his request for an interim measure.
19. Following this decision, an expulsion order was issued to the Aliens Police (vreemdelingendienst) in the applicant's place of residence on 16 July 1997. However, the applicant did not leave the country and neither was he forcibly expelled.
20. On 5 September 1997 he lodged a new request for a residence permit based on compelling reasons of a humanitarian nature. Finding that the applicant had not submitted any new facts or circumstances which invalidated the decision of the Regional Court of 9 July 1997, the Deputy Minister of Justice rejected this request on 24 April 1998. In his objection to this decision, the applicant argued that, according to information that had recently become available, some groups of Tamils in Colombo ran an increased risk of persecution or treatment contrary to Article 3 of the Convention. The applicant submitted that he belonged to one of these identified “risk categories”, given that he came from Jaffna, spoke no Sinhalese, was suspected of LTTE membership, had already been detained for more than 48 hours on the basis of that suspicion and had been seriously ill-treated on that occasion.
21. The Deputy Minister rejected the objection on 8 December 1998. Referring to domestic case-law, the Deputy Minister held that merely belonging to one of the “risk categories” was an insufficient basis on which to accept that Article 3 of the Convention might be violated if the applicant was expelled. Since it had not appeared that, in addition to belonging to one of the “risk categories”, any other special circumstances existed which could give rise to the assumption that the Sri Lankan authorities wished to apprehend the applicant, he was not eligible for residence in the Netherlands. As regards the applicant's argument that the Deputy Minister of Justice ought to have sought the advice of the Ministry's Medical Adviser to have his scars examined, it was held that such a step would only have been called for if doubts existed as to the truthfulness of the applicant's account, which was not the case. The Deputy Minister also informed the applicant that he would not be allowed to remain in the Netherlands pending the examination of any appeal he might lodge against this decision.
22. By letter of 5 January 1999, the applicant appealed to the Regional Court of The Hague against the decision of 8 December 1998. In order to prevent his expulsion, he also requested an interim measure from the President of that court.
23. In his appeal, the applicant argued that he did run an increased risk of being subjected to treatment contrary to Article 3 if expelled, because he had given practical assistance to the LTTE. His chances of being apprehended were also increased, given that he had no identity card, no fixed address and no accommodation. If he was arrested and detained for a second time, he would certainly not be treated well or released after only a few days. There would, on the contrary, be a great likelihood that he would be killed. Moreover, arrested Tamils ran a real risk of being tortured if their bodies bore signs of military training or deployment, such as grazes or scars.
24. In addition, the applicant lodged a request for revision (herziening) of the Deputy Minister's decision of 8 December 1998, submitting that the fact that he bore scars increased the risk of being subjected to torture, and informing the Deputy Minister that a member of Amnesty International's Medical Examination Group was going to conduct an examination of his scars. In the applicant's submission, this development required the Deputy Minister to review the decision of 8 December 1998.
25. On 16 September 1999 the Regional Court of The Hague rejected the applicant's appeal of 5 January 1999 in a judgment delivered orally. The Regional Court found that the applicant had failed to adduce new facts or changed circumstances, and added that the matter of the applicant's scars had already been taken into account in the determination of his first requests. In view of this decision, the applicant's request for an interim measure was declared inadmissible.
26. Following the Regional Court's judgment, an expulsion order was issued to the Aliens Police on 28 October 1999.
27. By decision of 4 January 2000, the application for revision of the Deputy Minister's decision of 8 December 1998 was dismissed by that authority.
28. On 11 January 2000 the applicant was examined by a physician belonging to Amnesty International's Medical Examination Group. The applicant's lawyer had put the following questions to the physician:
- could the applicant's scars be linked to the torture he had undergone?
- was the applicant traumatised as a result of his experiences in Sri Lanka?
29. In his report, the physician described, inter alia, the scars he had noted on the applicant's body. There were a number of horizontal scars, three to six centimetres in length and differing in width, on the underside of the forearms (four on the left and one on the right), consistent with unsutured, open wounds, possibly caused by knives. There were also two round scars on the right forearm and one round scar on the left forearm, with a diameter of 10 millimetres, consistent with burns, possibly caused by the putting out of a cigarette. Finally, there was a round scar, sensitive to pressure, 15 millimetres in diameter, and level with the Achilles tendon of the right foot, from which ran a three-centimetre scar outwardly with clear traces of sutures. In the conclusion to his report, the physician answered the questions put by the applicant's lawyer in the affirmative.
30. Under Article 15 § 1 of the Aliens Act 1965 (vreemdelingenwet, hereinafter “the Act”), in force at the relevant time, aliens coming from a country where they have a well-founded reason to fear persecution on account of their religious or political conviction, or of belonging to a particular race or a particular social group, could be admitted by the Minister of Justice as refugees.
31. The expression “refugee” in this provision was construed to have the same meaning as in Article 1 of the Convention relating to the Status of Refugees of 28 July 1951 (decision of the Judicial Division of the Raad van State of 16 October 1980, Rechtspraak Vreemdelingenrecht – Immigration Law Reports – 1981, no. 1).
32. Aliens, other than refugees, wishing to reside in the Netherlands for any length of time had to hold a residence permit (Article 9 of the Act). Such a permit was to be requested from, and granted by, the Minister of Justice (Article 11 § 1 of the Act).
33. Given the situation obtaining in the Netherlands with regard to population size and employment, Government policy was – and is – aimed at restricting the number of aliens admitted to the Netherlands. In general, aliens are only granted admission for residence purposes if:
(a) the Netherlands are obliged under international law to do so, as in the case of citizens of the European Union or Benelux member States and refugees covered by the above-mentioned Geneva Convention; or
(b) this serves the “essential interests of the Netherlands”, e.g. economic or cultural interests; or
(c) there are “compelling reasons of a humanitarian nature”.
34. An alien not, or no longer, qualifying for admission to the Netherlands could be expelled (Article 22 § 1 of the Act). However, aliens claiming that their removal from the Netherlands would compel them to travel to a country where they have reason to fear persecution on one of the grounds set out in Article 15 § 1 (see paragraph 30 above) could not be expelled except by a specific order of the Minister of Justice (Article 22 § 2).
35. An objection (bezwaar) against the refusal to grant refugee status or a residence permit lay to the Deputy Minister of Justice (Articles 6:4 and 7:1 of the General Administrative Law Act (Algemene Wet Bestuursrecht), Article 29 of the Aliens Act). An appeal against the rejection of an objection lay to the Administrative Law Section of the Regional Court of The Hague (Article 8:1 of the General Administrative Law Act; Article 33a of the Aliens Act). No further appeal was allowed (Article 33e of the Act).
36. At the time of the decision on the applicant's objection (8 December 1998), Netherlands policy was based on country reports issued by the Ministry of Foreign Affairs on 24 March and 6 November 1998.
37. To assess whether a person ran a real risk of being treated in a manner contrary to the provisions of Article 3 of the Convention, the following factors were taken into account:
- All young Tamils in Colombo who speak little Sinhalese and whose documents reveal that they were born in the north ran the risk of being taken to a police station for questioning following an identity check. Most were released within 48 to 72 hours once their identity had been established and they had explained their reasons for being in the city.
- People who had recently come to Colombo from a war zone and had no identity documents or “valid” reason for being in Colombo, ran the risk of being held for longer than 48 to 72 hours so that further enquiries could be made. People who failed to register on arrival also lay themselves open to suspicion.
- Tamils suspected of LTTE activities on the basis of police files or information from other sources ran the risk of being held for more than a week. This also applied to people whom the authorities believed could provide information on the LTTE, such as people known to have a relative who is an LTTE member.
- People could be detained for 3, 12 or 18 months under the Emergency Regulations or the Prevention of Terrorism Act if there was firm evidence that they were involved in the LTTE. Such evidence included arms caches or suspect documents.
38. Persons held for longer than 48 to 72 hours for further questioning could be treated roughly (beatings). Where the person concerned was held for more than a week, and questioned about LTTE involvement, the risk of illtreatment was considerable.
39. The mere fact that a Tamil belonged to one or more of the above categories of persons, who in theory ran the risk of longer detention did not necessarily mean that there was a real risk of their being subjected to treatment prohibited by Article 3 of the Convention. According to the country report of 6 November 1998, it could be assumed that, in any event, no such risk existed in the case of Tamils falling into the first two categories.
40. Netherlands policy in force when the Government submitted their observations on the admissibility of the present application was based on the country reports of 28 July and 22 August 2000. These reports indicated that Tamils fleeing the war could find an alternative place of residence in Government-controlled areas, including Colombo. Tamils were subject to frequent identity checks in such areas, especially on or around public holidays, after attacks and if the military position of Government troops had deteriorated. Tamils who could not identify themselves on the spot or who were believed to come from the north or east of Sri Lanka could be arrested. Most were released within 48 to 72 hours, after their identity and background had been checked. As to the factors which could occasion longer detention, the report of 28 July 2000 referred to that of 6 November 1998.
41. The country report of 15 May 2002 included information on the developments of the peace process that was started in 2000, stating that a formal cease-fire agreement (CFA) between the Government and the LTTE had been signed on 22 February 2002. It further stated that during the period under review one suicide attack had taken place in Colombo, which had not been followed by the usual round-ups, large-scale identity checks and arrests. After the installation of Ranil Wickremasinghe as prime minister in December 2001, the security situation in Colombo had improved considerably and the atmosphere in the city was relaxed and had normalised. Most roadblocks and checkpoints were removed. The number of identity checks had been drastically reduced and there were no reports of arrests of LTTE suspects.
42. The most recent country report, of 28 May 2003, confirmed that the security situation in Sri Lanka had significantly improved as had freedom of movement. Tamils were free to travel through the whole of the country without requiring prior permission to enter certain areas. As a result, it was now far simpler for Tamils fleeing LTTE-controlled areas to go to areas under Government control. In Colombo, no restrictions on freedom of movement applied. During the period under review, the Sri Lankan authorities had in general respected human rights, in line with the provisions of the CFA. No arbitrary arrests had been made. Ill-treatment and torture to which persons who had been arrested on suspicion of membership of, or involvement in, the LTTE had been subjected in the past, no longer occurred.
43. As of 2001, returning unsuccessful asylum seekers were for the most part allowed to leave the airport after their identity documents had been checked. In a few cases, returnees had been handed over to the Criminal Investigation Department (CID), usually within 24 but sometimes within 48 to 72 hours, and subsequently transferred to a Magistrates Court. The Magistrates Court judge had to decide whether, on the basis of the information provided by the CID, the person concerned should be remanded in prison, released on bail pending the conclusion of the investigation, or simply released. During the period under review, all returnees were released the same day, either on or without bail.
44. The country report of 30 September 1999 stated that persons who were suspected of LTTE membership because they bore scars ran a risk of detention for a period longer than 48 to 72 hours. According to the report of 27 April 2001, the presence of scars could constitute an indication for further questioning, but this element alone would not be a reason for such questioning. If a Tamil, when checked in the street or during a round-up, had valid identity documents and a credible explanation for his presence in Colombo, there would generally be no reason to question that person further. None of the sources interviewed by the Ministry of Foreign Affairs thought it likely that in that case the presence of scars would constitute an element of risk.
45. The report of 11 July 2001 stated that the presence of scars alone did not lead to an increased risk of detention longer than 48 to 72 hours. In the country report of 15 May 2002, it was stated that the presence of clearly visible scars of whatever nature generally did not by itself lead to a suspicion of LTTE-involvement, and this was even less so if the person concerned was in possession of correct identity papers. Such visible scars could nevertheless constitute a reason to stop a person. In practice, it was only on very rare occasions that a person would be taken to the police station for questioning solely because he or she bore scars. There were no indications that Tamils were ordered to undress during identity checks at checkpoints so that any scars might be detected. The report of 28 May 2003, finally, stated that the treatment of returning unsuccessful asylum seekers bearing scars of whatever nature was no different from the treatment of returnees without scars. Neither were there any indications that, during the 48 to 72 hour period that they were held by the CID, returnees with scars encountered an increased risk of suspicion of LTTE-involvement or longer detention.
46. In its Annual Report 2003, covering events from January to December 2002, Amnesty International noted with respect to Sri Lanka:
“There was a major improvement in the human rights situation in the context of a cease-fire and peace talks between the Government and the LTTE. However, torture in police custody continued to be reported frequently...
Unilateral cease-fires declared by both the Government and the LTTE in late 2001 were followed by a formal cease-fire agreement (CFA) that came into force on 23 February. Peace negotiations, facilitated by the Norwegian Government, started in September in Thailand. A Sri Lanka Monitoring Mission (SLMM) consisting of representatives of Nordic countries was set up to verify the implementation of the agreement through on-site monitoring. By November, about 180,000 of the estimated 800,000 internally displaced persons (IDPs) had returned home. ...
As part of the CFA, the Government made a commitment not to arrest anyone under the PTA. ...
Especially in the first part of the year, there were numerous complaints of hostage- taking and recruitment of children by the LTTE.”
47. On 31 March 2003 the US Department of State released the Sri Lanka Country Report on Human Rights Practices for 2002. It stated:
“In the past, arbitrary arrest and detention were problems; however, there were no reports of arbitrary arrests or detentions during the year. ...
Unlike in previous years, there were no large-scale arrests of Tamils during the year. ...
The ... reports of regular mistreatment by security forces largely ceased. ...
The reconciliation also has led to a sharp reduction in roadblocks and checkpoints around the country, the return of approximately 150,000 IDPs to their points of origin in the north and east, and to the opening of numerous investigations into actions by security force personnel. ...
The Government restricted the movement of displaced Tamils due to possible security, economic, and social concerns. These restrictions have been lifted with the onset of the peace process. ...
The LTTE continued to commit serious human rights abuses. The LTTE reportedly committed several unlawful killings, and was responsible for disappearances, torture, arbitrary arrest, detentions, and extortion.”
48. The Operational Guidance Note on Sri Lanka, issued on 23 July 2003 by the Immigration and Nationality Directorate (Asylum and Appeals Policy Directorate) of the United Kingdom Home Office reported:
“The authorities in Sri Lanka will no longer be concerned with those individuals with past low-level support for the LTTE (e.g. digging trenches, providing food/shelter to LTTE fighters), those with no police/criminal record or those who may have been arrested in the past and subsequently released. Those individuals who may be of continuing interest to the authorities would be ... 'those wanted in a relatively serious fashion'. This could mean high-profile members of the LTTE who are still active and influential, and wanted by the authorities.”
49. A letter dated 1 September 1999 from the Netherlands section of Amnesty International to the applicant's representative stated:
“Amnesty International are aware that the presence of scars suggestive of LTTEtraining may cause army and police to suspect him or her of LTTEmembership. Police look for traces on the body of an arrested person, such as grazes or scars, which may point to military training or deployment as a fighter for the LTTE.”
50. A report by the Medical Foundation for the Victims of Torture entitled “Caught In The Middle: A study of Tamil torture survivors coming to the UK from Sri Lanka” dated June 2000 stated:
“The evidence available to the Medical Foundation suggests that any sort of scar can be interpreted by the Sri Lankan security forces as linking that person to the LTTE. ... Nor is it the presence of easily visible scars alone that leads the security forces to the conclusion that the person arrested is an LTTE supporter. Several of our clients have reported that their bodies were actively searched for scars, which, when discovered, were taken as evidence of LTTE support. Thus we maintain that any sort of scar can be and has been taken by the Sri Lankan security forces as 'evidence' of LTTE support and the bearers of such scars detained and tortured. ... It is our view therefore that whether an asylum seeker has the type of scars described as 'battle' or 'combat', whether the scars are 'significant and visible' is not relevant to an assessment of the likelihood of further persecution if returned. What is relevant is simply whether or not they have scars. ”
One of the recommendations made in the Medical Foundation's report mentioned above read:
“That it is not safe to return to Colombo Tamils with scars, or who do not have proper identity documents until the Sri Lankan Government ends its torture of many of the Tamils arrested.”
51. In a letter of 15 April 2002 to a solicitor in London, the UNHCR (United Nations High Commissioner for Refugees) noted:
“Although steps towards peace have been taken in Sri Lanka recently, it is still premature to advocate that the situation has reached a satisfactory level of safety to warrant the return of all unsuccessful asylum applicants to Sri Lanka. In this regard, UNHCR has been aware that returning Tamils are potentially open to risk of serious harm similar to those generally encountered by young male Tamils in certain circumstances. ... In UNHCR's view, the presence of torture-related scars on the body of a returnee should be a relevant consideration in assessing the likelihood of danger upon the return of Sri Lankan Tamil asylum seekers. Where such scars are related to human rights abuses, they would likely be seen as evidence of the security forces' previous interest in the particular individual. This could in turn serve to trigger further adverse attention to that individual. While every case should be assessed on its own merits, UNHCR would reiterate its view that special care must be taken in relation to the return of failed asylum seekers to Sri Lanka.”
52. The Sri Lanka Country Report of October 2003, drawn up by the Immigration and Nationality Directorate (Country Information and Policy Unit) of the United Kingdom Home Office, noted:
“The UNHCR has indicated [in January 2000] that Tamil asylum seekers with scars, should they be returned to Sri Lanka, may be more prone to adverse identification by the security forces and taken for rigorous questioning and potential ill-treatment. However, in discussions in Sri Lanka in July 2001, respondents including local NGOs rarely mentioned scarring, and then generally only when the subject was brought up by members of the UK Home Office fact-finding mission team. The views of many of the NGOs, and indeed the police, was that scarring was not likely to be an overriding reason for arresting or suspecting someone, but if a person had been stopped or arrested for some other reason, the presence of certain types of scars could be a reason for holding or questioning them further. Most respondents felt that scarring was only one of many factors which could play a part in the authorities' decision to detain someone...
On a more recent visit to Sri Lanka between 14 and 23 March 2002 a Home Office delegation discussed the issue of scarring with the Director of the CID. The Director explained that if a returnee was not wanted they would not be stopped at the airport. However, when the CID are certain that the individual has committed or been convicted of an offence then they would be stopped. A computer holds the name, address and age of a wanted person. The police purely go on records – scars would not make a difference, and the authorities would not make a decision only on that basis.”
53. On 4 November 2003, Sri Lankan President Chandrika Kumaratunga suspended parliament and sacked three senior ministers. The President accused the Government of making too many concessions to the LTTE. On 14 November 2003, Norwegian mediators said, after talks with the LTTE, that the peace process was on hold until the country's political crisis was resolved. The mediators had passed on to the LTTE guarantees from both the President and the Prime Minister that they would abide by the terms of the CFA. The LTTE stated that they would be patient during the political upheaval.
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-23446
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: KORNILOV and OTHERS v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The first applicant, Vladimir Sergeyevich Kornilov, is a Ukrainian national, who was born in 1944.
The second applicant, Victor Yegorovich Lyekontsev, is a Ukrainian national, who was born in 1948.
The third applicant, Nikolay Vasilievich Kravchuk, is a Ukrainian national, who was born in 1947.
The fourth applicant, Nikolay Dmitrievich Samoylenko, is a Ukrainian national, who was born in 1950.
All the applicants reside in the village of Naberezhny, Odessa Region, Ukraine.
They were represented before the Court by Valeriy Valeriyevich Sudakov, a lawyer practising in Odessa, Ukraine.
The facts of the case, as submitted by the parties, may be summarised as follows.
All the applicants are retired military servicemen. In March 1999, they retired from the Armed Forces and were entitled to certain financial assistance. However, this aid was only partially paid.
The first applicant was entitled to 7683,55 UAH, but received only 3714,90 UAH, 3968,65 UAH remaining unpaid.
The second applicant was entitled to 9642,40 UAH, but received only 4524,80 UAH, 5117,60 UAH remaining unpaid.
The third applicant was entitled to 9457,60 UAH, but received only 4166,40 UAH, 5291,20 UAH remaining unpaid.
The fourth applicant was entitled to 5490,90 UAH, but received only 2625,15 UAH, 2865,75 UAH remaining unpaid.
The applicants each instituted separate proceedings in the Odessa Garrison Military Court against the Military Unit A-0958, seeking recovery of the unpaid part of their allowances.
The first applicant
On 17 December 2001 the Odessa Garrison Military Court (Решения Военного местного суда Одесского гарнизона) found in favour of the first applicant and awarded him 4019.65 UAH, including 3968.65 UAH for unpaid allowances and the delay in payment, as well as 51 UAH in court costs. On 6 March 2002, the Military Appellate Court of the Southern Region (Определения Военного апелляционного суда Южного региона) upheld the decision of the first instance court.
On 23 January 2002, the applicant submitted the execution writ to the Belyaevska District Bailiffs’ Office of the Odessa Region (Отдел Государственной исполнительной службы Беляeвского районного управления юстиции Одесской области).
On 21 February 2002, the same first instance court found for the applicant in another set of proceedings against the same defendant and awarded him 4511 UAH, including 4500 UAH for unpaid allowances and 111 UAH in court costs. On 25 April 2002, the Military Appellate Court of the Southern Region upheld the decision of the first instance court.
On 24 May 2002, the applicant submitted the execution writ to the Belyaevska District Bailiffs’ Office of the Odessa Region.
On 12 September 2002, both judgments in the applicant’s favour were fully enforced and the applicant was paid 8630.65 UAH.
The second applicant
On 17 December 2001 the Odessa Garrison Military Court found in favour of the second applicant and awarded him 5168.60 UAH, including 5117.60 UAH for unpaid allowances and the delay in payment, as well as 51 UAH in court costs. On 14 March 2002, the Military Appellate Court of the Southern Region upheld the decision of the first instance court.
In January 2002 the applicant submitted the execution writ to the Belyaevska District Bailiffs’ Office of the Odessa Region.
On 12 September 2002, the judgment in the applicant’s favour was fully enforced and the applicant was paid 5168.60 UAH.
The third applicant
On 17 December 2001 the Odessa Garrison Military Court found in favour of the third applicant and awarded him 5342.20 UAH, including 5291.20 UAH for unpaid allowances and the delay in payment, as well as 51 UAH in court costs. On 19 March 2002, the Military Appellate Court of the Southern Region upheld the decision of the first instance court.
On 23 January 2002, the applicant submitted the execution writ to the Belyaevska District Bailiffs’ Office of the Odessa Region.
On 12 February 2002, the same first instance court found for the applicant in another set of proceedings against the same defendant and awarded him 5064 UAH, including 5004 UAH for unpaid allowances and 60 UAH in court costs. On 23 May 2002, the Military Appellate Court of the Southern Region upheld the decision of the first instance court.
On 5 June 2002, the applicant submitted the execution writ to the Belyaevska District Bailiffs’ Office of the Odessa Region.
On 12 September 2002, both judgments in the applicant’s favour were fully enforced and the applicant was paid 11705.20 UAH.
The fourth applicant
On 17 December 2001 the Odessa Garrison Military Court (Решения Военного местного суда Одесского гарнизона) gave decisions in favour of the fourth applicant and awarded him 2865.75 UAH for unpaid allowances and the delay in payment. On 5 March 2002, the Military Appellate Court of the Southern Region upheld the decision of the first instance court.
On 23 January 2002, the applicant submitted the execution writ to the Belyaevska District Bailiffs’ Office of the Odessa Region.
On 12 February 2002, the same first instance court found for the applicant in another set of proceedings against the same defendant and awarded him 3768 UAH, including 3708 UAH for unpaid allowances and 60 UAH in court costs. On 16 May 2002, the Military Appellate Court of the Southern Region upheld the decision of the first instance court.
On 9 August 2002, the applicant submitted the execution writ to the Belyaevska District Bailiffs’ Office of the Odessa Region.
On 3 October 2002, both judgments in the applicant’s favour were fully enforced and the applicant was paid 6635.75 UAH.
1. Civil Code of Ukraine
Under Article 214 of the Civil Code, in case of delay in the fulfilment of its financial obligations, the debtor must, upon a claim by the creditor, pay the amount of the debt, plus any interest payable at an established inflation rate during the default period.
2. Law of Ukraine of 21 April 1999 “on Enforcement Proceedings”
Under Article 2 of the Law, the enforcement of judgments is entrusted to the State Bailiffs’ Service. Under Article 85 of the Law, the creditor may file a complaint against actions or omissions of the State Bailiffs’ Service with the head of the competent department of that Service or with a local court. Article 86 of the Law entitles the creditor to institute court proceedings against a legal person, entrusted with enforcement of a judgment, for inadequate enforcement or non-enforcement of a judgement, and to receive compensation.
3. Law of Ukraine of 24 March 1998 “on the State Bailiffs’ Service”
Article 11 of the Law provides for the liability of bailiffs for any inadequate performance of their duties, and compensation for damages caused by a bailiff when enforcing a judgment. Under Article 13 of the Law, acts and omissions of the bailiff can be challenged before a superior official or the courts.


ITEMID: 001-107539
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF FRENDO RANDON AND OTHERS  v. MALTA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Just satisfaction - reserved
JUDGES: David Scicluna;George Nicolaou;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 6. The applicants were born in 1926, 1969, 1925, 1923, 1926, 1937, 1938, 1949, 1953, 1946, 1973, 1975, 1949, 1950, 1953, 1951, 1955, 1957, 1946, 1941, 1944, 1944, 1945, 1946, 1950, 1960, 1955, 1931, 1923, 1926, 1940, 1941, 1943, 1944, 1946, 1925, 1955, 1954, 1930, 1958, 1959, 1954, 1979, 1982, 1987, 1953, 1929 and 1959 respectively. The first thirty-eight applicants live in Malta, the next eight applicants live in the United States of America, the penultimate applicant lives in Canada and the last applicant lives in the United Kingdom.
7. The applicants or their predecessors in title (hereinafter “the applicants”) owned four plots of land of varying sizes. The applicants were notified that their land had been made subject to two declarations by the Governor General dated 13 February 1969 and 20 February 1969, stating that the land would be expropriated for a public purpose. The intended public purpose was the building of the Malta Freeport. The said plots were numbered Plot 2 (16,544 sq.m), Plot 3 (405 sq.m), Plot 41 (6,841 sq.m) and Plot 53 (12,538 sq.m).
8. Following notices to treat of 21 February 1969 and 24 February 1969 respectively, the applicants were offered 3,225 Maltese liras ((MTL) - approximately 7,512 euros (EUR)) for Plot 2, MTL 973,40 (approximately EUR 2,267) for Plot 3, MTL 575 (approximately EUR 1, 340) for Plot 41, and MTL 1,127 (approximately EUR 2,625) for Plot 53. In March 1969 the applicants refused the above-mentioned offers in respect of Plots 2, 41 and 53 and submitted their counteroffers. According to the Government, the applicants accepted the offer in respect of Plot 3; however, the applicants contested this. Subsequently, the Commissioner of Lands (CoL) was required to institute proceedings before the Land Arbitration Board (LAB) (see “Relevant domestic law below”). Although no such proceedings ensued, the CoL gave possession of the four plots of land to the Malta Freeport Corporation.
9. The applicants unsuccessfully requested the CoL to initiate proceedings a number of times; however, the latter did not do so, insisting that he wanted further information in relation to the applicants’ ownership title. The law at the relevant time did not provide for a procedure which would allow the applicants to initiate proceedings for compensation. The initiation of compensation proceedings was an action which could be undertaken only by the authorities, and to which no time-limit applied. However, in the 1990s it had been confirmed that the ordinary courts had the competence, upon a request made by persons in a similar position to the applicants, to set a time-limit for the performance of that obligation, by virtue of Article 1078 of the Civil Code.
10. Thus, on 27 August 1996 the applicants lodged ordinary civil proceedings, requesting the court to order the CoL to initiate the necessary proceedings within an established time frame.
11. On 4 February 2000 the Civil Court upheld the applicants’ request, and ordered the CoL to initiate proceedings before the LAB within three months of that date. It noted that the relevant notices to treat had been issued to all the owners concerned who at the time were still alive. Moreover, it was incumbent on the CoL to establish the identity of the owners of the land and to ensure that they were notified and that the relevant proceedings were pursued properly. No appeal having been lodged, the judgment became final.
12. On 18 April 2000 the CoL instituted compensation proceedings in respect of only two of the plots of land in question (Plots 41 and 53). These proceedings are still pending, as they were suspended sine die, pending the outcome of the constitutional proceedings mentioned below.
13. Compensation proceedings in relation to Plots 2 and 3 had not been initiated by the time the applicants instituted constitutional redress proceedings. However, pending the constitutional proceedings, on 6 February 2003, a schedule of deposit was filed in court, in relation to Plot 2, consisting of MTL 3,225 (approximately EUR 7,512) covering the price of the land and MTL 3,288 (approximately EUR 7,659) as damages for the delay in payment.
14. By that date, only a portion of the four plots of land had been used, the remaining portion remaining unused but earmarked for future expansion. More precisely, most of Plot 2 is currently being developed as a stacking area for containers for the purposes of the Freeport, the remaining 500 sq. m forming part of an area of land conceded on lease by the Freeport Corporation to Medserv Ltd. Plot 3 (consisting of a farmhouse and adjacent rural structures) and Plot 41 are outside the Freeport zone, and are currently in their original state but may be earmarked for future expansion. Plot 53 is almost entirely within the Freeport zone and has been used for that purpose, including the building of roads, except for a piece of land measuring 600 sq.m, which is outside the Freeport zone and is currently in its original state but may be earmarked for future expansion.
15. In consequence, the applicants, who remain uncompensated to date, instituted two sets of constitutional proceedings.
16. In 2002 the applicants instituted proceedings in relation to the taking of Plots 41 and 53, complaining under Article 6 of the Convention of a lack of access to court; a lack of a fair hearing within a reasonable time (in respect of the thirty years before the proceedings started and in respect of the current pending proceedings before the LAB), before an independent and impartial tribunal, the latter in that they considered that the LAB’s constitution did not fulfil the said requirements. They further complained under Article 1 of Protocol No. 1 to the Convention about the lack of adequate compensation in relation to the taking; in particular, they noted that the law as it stood referred to values applicable at the time of taking. At the final stages of oral submissions they further argued that the taking had not been carried out in the public interest as it had been given to a commercial entity and that the unused land was to be returned according to the Cachia jurisprudence (see relevant domestic law and practice below).
17. On 20 October 2008, the Civil Court (First Hall) in its constitutional jurisdiction found a violation of Article 6 § 1 of the Convention, in that the applicants had been denied access to court. Indeed, it was only the CoL who could institute proceedings according to domestic law. The fact that recently the law had been applied to allow the applicants to take up proceedings requesting a court to order the latter to act within a time-limit did not detract from the fact that it ultimately remained the duty of the CoL to take up these proceedings, and the affected individuals had no obligation to solicit such an action. Moreover, even in the event that ownership of land was at issue, it referred to the Civil Court’s earlier reasoning in this respect (see paragraph 11 above) and, moreover, considered that the CoL could have instituted proceedings by means of a curator. It awarded them EUR 100,000 by way of damages and dismissed the remainder of their claims. It held that the taking of the two plots of land which were being used for the Freeport had been in the public interest, the latter being an important economic venture for the country. The fact that it was later privatised did not take away the element of public interest, despite the fact that the deed of expropriation had not yet been finalised. Moreover, the one-tenth of the two plots which was outside the Freeport zone which had remained unused could have been used for future development. It failed to take cognisance of the complaint regarding compensation, holding that this had not yet been determined by the LAB. As to the complaint about the length of the proceedings, namely thirty years for the CoL to initiate proceedings, the court held that apart from the fact that this had been related to the previous complaint under Article 6, the provision referred to proceedings which had already begun and had taken an unreasonable time to be finally decided; therefore it was not applicable in the present case which was still pending. Lastly, since the law had been changed, the composition of the LAB clearly satisfied the Article 6 requirements.
18. On appeal, by a decision of 10 July 2009 the Constitutional Court reversed the said judgment in part. It confirmed that there had been a violation of Article 6 in so far as the applicants had been deprived of access to a court but only from the period starting on 30 April 1987, the date when Malta introduced the right of individual petition. It also considered that there had been a violation of the reasonable time principle between 30 April 1987 and 18 April 2000, the date when the compensation proceedings were initiated. It had regard however to the fact that the applicants were also to blame for not having taken up the civil remedy available to solicit the CoL earlier than they had done. Moreover, no proof had been supplied that the proceedings currently pending before the LAB were not satisfying the reasonable time requirement.
19. The Constitutional Court further found a violation of Article 1 of Protocol No. 1 to the Convention. Holding that the public interest had to persist from the date of the taking to the date of the conclusion of the act of expropriation, it considered that even the land which had remained unused had been taken for such a purpose, since the Freeport could reasonably expand to cover such land. Moreover, the privatisation of the Freeport did not detract from the public interest involved. The court further confirmed that it was not in a position to consider the amount of compensation which had yet to be decided by the LAB. However, the fact that the process of expropriation had taken decades had caused the applicants to suffer a disproportionate burden, constituting a violation of the applicants’ property rights.
20. The Constitutional Court reduced the amount of compensation to EUR 20,000, covering moral damage in relation to the said violations and confirmed the rejection of the remaining complaints.
21. In parallel, in 2002 the applicants instituted proceedings in relation to the taking of Plots 2 and 3, with identical complaints to those in case no. 17/2002 (see paragraph 16 above).
22. On 20 October 2008 the Civil Court (First Hall) in its constitutional jurisdiction found a violation of Article 6 § 1 of the Convention, in that the applicants had been denied access to court, and rejected the remaining complaints on the same ground of the judgment in case no. 17/2002 (see paragraph 17 above). It added however that the present case was a more serious breach of the applicants’ right of access to court, as the CoL had failed to institute proceedings even after he was ordered to do so by a court. It thus awarded the applicants EUR 125,000 by way of damages.
23. On appeal, by a decision of 10 July 2009 the Constitutional Court reversed the said judgment in part. It held that the findings of the Constitutional Court in its judgment in case no. 17/2002, applied in the same way in this case, except for the fact that the violation of the reasonable time principle was in respect of the period from 30 April 1987 to the date of this judgment, since the CoL had not yet instituted the relevant proceedings. It awarded the applicants EUR 27,000 in moral damage.
24. Shortly before and during the constitutional proceedings certain developments took place. Domestic jurisprudence developed by means of the Cachia case (see “Relevant domestic law” below); and the Government announced the privatisation of the Freeport, by conceding it on a long-term lease (of thirty years at the price of one million United States dollars (USD) per year, to be augmented over the years to reach a maximum of USD 15,220,000 per year); the jurisprudence in the Cachia case was overturned; and, in 2002 the law was amended to provide a procedure for an individual to initiate compensation proceedings before the LAB in relation to new and recent expropriations.
25. At the hearing of 5 November 2009 the CoL informed the LAB of the outcome of the constitutional proceedings. However, neither the applicants nor their lawyers were present at that hearing; nor were they present at the subsequent five hearings. On 31 January 2011 the applicants requested an adjournment in order to regularise their position.
26. The Land Acquisition (Public Purposes) Ordinance (Chapter 88 of the Laws of Malta), in so far as relevant, reads as follows:
Section 3
“The President of Malta may by declaration signed by him declare any land to be required for a public purpose.”
Prior to the amendments introduced in 2002, the Land Acquisition (Public Purposes) Ordinance provided that:
Section 12 (1)
“...the competent authority shall give to the owner a notice ... by means of a judicial act, stating the amount of compensation, as shown in a valuation to be attached to the notice to treat.”
Section 13(1)
“The amount of compensation to be paid for any land required by a competent authority may be determined at any time by agreement between the competent authority and the owner ...”
Section 22
“If the owner shall by a judicial act decline to accept the offer made by the competent authority, the matter shall be brought before the Board by an application to be made by the competent authority, and the Board shall give all necessary orders or directions in accordance with the provisions of this Ordinance.”
27. Article 1078 (b) of the Maltese Civil Code, Chapter 16 of the Laws of Malta, in so far as relevant, reads as follows:
“Where the time for the performance of the obligation has been left to the will of the debtor, or where it has been agreed that the debtor shall discharge the obligation when it will be possible for him to do so, or when he will have the means for so doing, the following rules shall be observed:
(b) if the subject-matter of the obligation is other than the payment of a sum of money, the time within which the obligation is to be performed shall be fixed by the court according to circumstances.”
28. In Pawlu Cachia vs Avukat Generali u l-Kummissarju ta l-Artijiet (Rikors Nru 586/97, 28/12/2001) the Constitutional Court held, after giving an overview of the applicable principles under Article 1 of Protocol No.1 to the Convention, that whenever the process by which an individual is divested of his property is not concluded, the interference therefore remains one of control of use, the State has the obligation to release the property to its rightful owners as soon as it transpires that there no longer exist grounds on which the State had originally, validly and justifiably taken the measure by which the owner’s use was restricted. It was for the Government to prove that both at the time of the Governor’s declaration and throughout the proceedings until the transfer of the property concluding the expropriation there existed a public interest for the taking of the property.
29. In this case the evidence revealed that for at least four years the competent authorities had actively considered releasing the property to its rightful owners, as it was no longer needed for the purposes for which it had originally been taken. Moreover, decades had passed since the date of the declaration and the present application, and thus the lack of public interest was evident. The Constitutional Court noted that a general interest had indeed existed at the time of the declaration. However, it subsequently emerged that Mr C.’s property would not have been used for that purpose and therefore the Government should have returned the said property. Failure to comply with this latter obligation amounted to a breach of the applicants’ property rights under the Convention.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58108
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF ERDAGÖZ v. TURKEY
IMPORTANCE: 3
CONCLUSION: No violation of Art. 3;Preliminary objection rejected (non-exhaustion);No violation of Art. 5
JUDGES: John Freeland
TEXT: 9. Mr Mehmet Erdagöz, a Turkish national, was, at the material time, the owner of a shop in Adana. He now lives in Kars.
10. On 3 June 1992 a brawl broke out between the applicant and members of his family on one side and a Mr H.A. and his friends on the other. After the fight each of the protagonists lodged a complaint accusing the other, and on 16 June 1992 the public prosecutor’s office charged H.A. and the others with armed assault, attempted murder and offences under the Firearms Act. The outcome of these proceedings is not known.
11. On 16 September 1992, at about 2 a.m., the police were informed by an anonymous telephone call to Bağlar police station that stones had been thrown against the applicant’s shop and had smashed the windows. The police arrived on the scene half an hour later – before the applicant, who was not on the premises, had even been informed – noted that the windows had been broken and made out a damage assessment report.
Later that night, at 5.30 a.m., Mr Erdagöz, having been informed of the incident, unsuccessfully requested Deputy Inspector S.K., of Bağlar police station, to have the premises searched again before he opened the shop. He also named the persons he suspected of the attack, including H.A., but decided against lodging a complaint and left the police station.
12. At 10.45 a.m. on the same day, after consulting the security police, and on their advice, the applicant returned to the police station and handed over two spent cartridge cases which he claimed to have found inside his shop. He also lodged a complaint and demanded the arrest of H.A., who had allegedly organised the attack out of animosity towards the applicant. A police squad conducted a fresh search of the scene of the crime. According to the report drawn up at the time, at 11.30 a.m., no bullet marks were found.
13. On 16 March 1993, on account of the events of 16 September 1992, the Adana public prosecutor committed H.A. for trial in the Adana Criminal Court for threatening use of a firearm, criminal damage and an offence under the Firearms Act. In a judgment of 28 June 1993 the Criminal Court acquitted him for lack of sufficient evidence. The Court of Cassation upheld this judgment on 28 February 1994.
14. Shortly after 11.30 a.m. on 16 September 1992, as a result of the events of the previous night and on account of the conduct of the applicant, who was suspected of fabricating evidence (see paragraphs 11–12 above), Chief Inspector Enver Tunç ordered him to be transferred, together with H.A., who had been arrested in the meantime, to the security police headquarters. In the covering letter which he sent with the file to the public order branch of the security police, Mr Tunç wrote as follows:
“In view of the fact that Mehmet Erdagöz has frequently lodged ill-founded complaints against the station personnel, that there is animosity between him and [H.A.], that he has previously abused the police and the judicial authorities, that the version of the events put forward by Mr Erdagöz, namely an armed attack, is probably an invention, that he possesses a registered firearm and may well have another unregistered one and that he has already made several contradictory statements, Mr Erdagöz and [H.A.] have both been transferred to security police headquarters for detailed questioning.
I therefore request you to check whether these persons are wanted in connection with an offence, to inform the public order branch and our station of the result and to send a copy of the document to the criminal investigation branch.”
15. In an order of 17 September 1992 the chief inspector referred H.A. and the applicant, who was suspected of falsely reporting a criminal offence, to the public prosecutor’s office.
16. On the same day, accompanied by summaries of their interviews prepared by Mr Tunç, the applicant and H.A. appeared before the Adana public prosecutor. Mr Erdagöz was released the same day, at a time which has not been specified.
17. On 17 September 1992 the applicant lodged a criminal complaint against the chief inspector and Deputy Inspector S.K. with the public prosecutor. He alleged that during the inquiries into the altercation of 3 June 1992 (see paragraph 10 above) the former had abused his authority by drawing up a biased report of the incident. He accused S.K. of inflicting ill-treatment on him when he first went to the police station, at 5.30 a.m., following the events of the night of 15 to 16 September.
18. The next day, at the request of the police, Mr Erdagöz had a medical examination at the social security hospital in Adana. The provisional report, drawn up on the same day, mentions the following injuries: superficial grazing on the left side of the back and bruises and swelling below both knees. On 24 December 1992 a doctor from the Adana Institute of Forensic Medicine drew up a new report confirming the findings of the report of 18 September.
19. On 29 December 1992 the Adana public prosecutor, after conducting an investigation, discontinued the proceedings. He concluded that the allegation of abusing authority was unfounded and decided not to pursue the investigation concerning the chief inspector. With regard to the complaint of ill-treatment, he noted:
“Following the telephone message to Bağlar police station reporting the fact that on 16 September 1992 the windows of the shop situated at 62B 677th Street had been smashed, Deputy Inspector [S.K.] sent a police squad to the scene. This squad made out a report at 3.30 a.m. At 7 a.m on the same day the complainant went to the police station to complain of the incident. While his complaints were being taken down he decided not to lodge a formal complaint and left the police station. He returned soon after and asserted that he had found two [bullets] inside his shop. Thereupon Mr Enver Tunç, the senior officer at the station, ordered the complainant’s first statement to be altered and sent a squad to the premises. At 11.30 a.m. on the same day this squad made out a report noting that there were no bullet marks whatsoever in his shop. There being no such marks, the inference was drawn that the complainant had falsely produced the bullets in question for the sole purpose of ensuring that [H.A.], the person he had accused, would be arrested. Chief Inspector Tunç accordingly referred him to the criminal investigation branch for questioning. By an order of 17 September 1992 the applicant and [H.A.] were referred to the public prosecutor’s office, the former on suspicion of falsely reporting a criminal offence.
Although traces of blows and injuries on Mr Mehmet Erdagöz’s body are mentioned in the medical report of 18 September 1992, drawn up two days after the incident by the social security hospital to which he had been sent by Chief Inspector Tunç, there is no conclusive evidence that the lesions noted in the report were the result of blows inflicted by the deputy inspector; there is therefore insufficient evidence to prosecute him.”
20. On 27 January 1993 the applicant appealed against the above discontinuation order to the President of the Tarsus Assize Court, who dismissed the appeal on 23 February 1993.
21. On 8 March 1993 the applicant petitioned the Minister of Justice to lodge an appeal in the interests of the law. On 29 March 1993 the Minister of Justice refused.
22. During the investigation Mr Erdagöz lodged a complaint against the chief inspector and another policeman, A.K., alleging that they had insulted him and taken him into police custody for forty-eight hours even though he was the complainant.
23. On 6 December 1993 the Adana public prosecutor made an order discontinuing the proceedings against these two officers in the following terms:
“However, the investigation file (case no. 1992/22569) and the preliminary inquiry conducted in the case show that on 16 September 1992 ... the complainant went to the police station, where he made an oral statement to the effect that the windows of his shop had been smashed and that he wished to lodge a complaint against the person responsible; he was then asked to produce evidence or name a witness; he left the police station and came back two hours later bringing two [bullets] as evidence; police officers accordingly went to the scene to verify Mr Erdagöz’s allegations and found that the windows were broken but that there were no marks which might suggest that they had been smashed by bullets. In the light of the applicant’s history, he was suspected of falsely reporting a criminal offence and the object of the inquiry was therefore modified and an investigation in two branches conducted. However, as the police had not found any pertinent evidence that the offence had been committed, the complainant was referred to the public prosecutor’s office by an order of 17 September 1992. Contrary to his allegations, he was not taken into police custody for forty-eight hours but necessarily held for twenty-four hours so that the inquiry could be completed. Moreover, there is no evidence to support the allegations of defamation.”
24. On 15 February 1994 the applicant appealed against the above discontinuation order to the President of the Assize Court. He alleged in particular that his detention in police custody had lasted for two days and had been due to the resentment the police felt towards him on account of his previous complaints to the European Commission of Human Rights and the domestic courts. On 7 March 1994 the President of the Tarsus Assize Court dismissed the appeal and on 24 June 1994 the Minister of Justice refused a petition in which Mr Erdagöz had asked him to lodge an appeal in the interests of the law.
25. Article 19 § 8 of the Constitution provides:
“A person deprived of his liberty for whatever reason shall have the right to take proceedings before a judicial authority which shall give a speedy ruling on his case and order his immediate release if it finds that the deprivation of liberty was unlawful.”
26. Article 128 § 1 of the Code of Criminal Procedure, in the version in force at the material time, provided:
“Where the arrested person has not been released, and in order to avoid any unnecessary or unjustified delay, he must be brought before the investigating judge and examined within twenty-four hours, not including the time needed to escort him to the investigating judge nearest to the place of his arrest ...”
27. The relevant provisions of the Criminal Code are the following:
“An enforcement official, a police officer or any other official responsible for enforcement who performs his duties in an unlawful manner, whether spontaneously or on the orders of a superior, or who ill-treats, assaults or injures a third party while doing so, shall be sentenced to between three months’ and three years’ imprisonment and suspended from duty.”
“Anyone who, by word or action, offends the honour, reputation or dignity of an official in his presence and while he is performing his duties shall be punished ...”
“Anyone who submits a complaint to a judicial authority or to the holder of a public office who is accountable to that authority or to the holder of another office who is empowered to initiate proceedings or order that proceedings be brought, concerning an offence which he knows has not been committed or who fabricates evidence of such an offence so as to enable criminal proceedings to be opened for the purpose of establishing that offence shall be punished ...”
“Anyone who, by reporting an offence or lodging a complaint with a judicial authority or with an official who is required to forward it to that authority or with the authority competent to bring proceedings or have proceedings brought, accuses a person whom he knows to be innocent of an offence, or who fabricates material evidence implicating that person, shall be punished according to the classification and nature of that offence and the importance of the evidence fabricated ...”
28. The relevant provisions of Law no. 466 of 7 May 1964 are the following:
“Compensation shall be paid by the State in respect of all damage sustained by persons
(1) who have been arrested, or detained under conditions or in circumstances incompatible with the Constitution or statute law;
(2) who have not been immediately informed of the reasons for their arrest or detention;
(3) who have not been brought before a judicial officer after being arrested or detained within the time-limit laid down by statute for that purpose;
(4) who have been deprived of their liberty without a court order after the statutory time-limit for being brought before a judicial officer has expired;
(5) whose close family have not been immediately informed of their arrest or detention;
(6) who, after being arrested or detained in accordance with the law, are not subsequently committed for trial ..., or are acquitted or discharged after standing trial; or
(7) who have been sentenced to a period of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only ...”
“Any person who has sustained damage for the reasons set out in section 1 may lodge a claim for damages ... with the assize court having jurisdiction in respect of his place of residence within three months of the date on which the decision concerning the allegations which form the basis of his claim becomes final.”
NON_VIOLATED_ARTICLES: 3
5


ITEMID: 001-73258
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF POZIN v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson;John Hedigan
TEXT: 5. The applicant was born in 1975 and lives in Zidani Most.
6. On 28 July 1995 the applicant was injured in a car accident. The perpetrator of the accident had taken out insurance with the insurance company ZT.
7. On 3 December 1997 the applicant instituted civil proceedings against ZT in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 2,900,000 tolars (approximately 12,000 euros) for the injuries sustained.
Between 9 December 1999 and 17 April 2002 the applicant lodged four preliminary written submissions and/or adduced evidence.
Of the four hearings held between 23 November 1999 and 21 May 2002 none was adjourned at the request of the applicant.
During the proceedings the court appointed a medical expert and a road traffic expert.
At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 17 June 2002.
8. On 2 July 2002 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju). ZT cross-appealed.
Upon the request of the Celje Higher Court, the Celje District Court amended the flaws in its judgment on 19 December 2003.
On 2 March 2005 the Celje Higher Court allowed the applicant’s appeal, dismissed the ZT’s appeal, and increased the damages awarded.
The judgment was served on the applicant on 24 March 2005.
9. On 14 April 2005 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče).
The proceedings are still pending.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-106282
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF A.A. v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 8 (in case of expulsion to Nigeria)
JUDGES: Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in Nigeria in October 1986 and currently lives in London.
6. On 5 September 2000, at the age of 13 he arrived in the United Kingdom from Nigeria, where he was granted entry clearance together with his two sisters to join their mother, who had resided for four years in the United Kingdom and was working as a nurse. The applicant has not seen his father since 1991, when the latter abandoned the family. Prior to arriving in the United Kingdom, he resided with his elderly maternal grandfather in a town a day’s travel from Lagos.
7. On 27 September 2002, at the age of 15, the applicant was convicted of the rape, together with a group of other boys, of a 13 year-old girl. The sentencing judge remarked:
“The fact is that your self-centred behaviour has had a profound and distressing effect on the everyday life of a thirteen year-old girl. In my view, you are an intelligent and articulate young man, someone who tailored your account to your advantage and you cast deliberate aspersions on your victim. Your intention was to obtain sexual gratification with what in reality was an impressionable schoolgirl by a combination of persistence, charm and finally force ...”
8. Taking into account the applicant’s age and previous good character and the fact that there were few aggravating features, the judge imposed a sentence of detention of four years at a Young Offenders’ Institution, together with registration on the sex offenders’ register under the Sex Offenders Act 1997.
9. On 7 July 2003, while the applicant was still in detention, the Home Office granted him Indefinite Leave to Remain in the United Kingdom following the grant of Indefinite Leave to Remain to his mother.
10. On 8 September 2003, the applicant was served by the Home Office with a notice of liability to a deportation order on account of the rape conviction.
11. On 17 May 2004 a Parole Assessment Report was prepared, concluding that the applicant’s response to rehabilitation was positive overall and that he posed a low risk of re-offending and of causing harm to the public. It noted his exemplary conduct in prison and the consistently good reports received. While in detention, the applicant sat and passed national school education examinations, obtaining GSCE and AS-level qualifications.
12. On 27 July 2004, while still in detention, the applicant was served with a deportation order in the following terms:
“It is concluded that in light of the seriousness of your criminal offence your removal from the United Kingdom is necessary in a democratic society for the prevention of disorder and crime and for the protection of health and morals.
...
You have stated that if you are returned to Nigeria Article 8 would be infringed. The Home Office has carefully considered your representations, but we note that you were convicted of rape at Central Criminal Court for which you were sentenced to four years imprisonment. We consider that the concerns that you have raised about your family life are outweighed by the public interest in preventing crime and consider that any interference with your family life is in your case outweighed by the public interest in preventing crime, and your removal is proportionate in pursuit of that aim under Article 8(2).”
13. The applicant appealed against the order.
14. On 16 August 2004 the applicant was released from prison on licence for good behaviour, having served approximately one year and ten months of his four-year sentence. In September 2004, he enrolled at Croydon College in order to study towards obtaining A-level qualifications, the second part of national school education examinations. He obtained three A-levels in summer 2005.
15. On 6 July 2005, the applicant’s probation officer confirmed that the applicant had complied with all reporting instructions since his release. The probation officer assessed the applicant’s risk of re-offending as low.
16. On 12 August 2005, the Immigration Judge of the Asylum and Immigration Tribunal (“the AIT”) allowed the applicant’s appeal against the deportation order on the basis that the discretion to make the deportation order had not been exercised fairly and proportionately.
17. On 22 August 2005, the Secretary of State applied to the AIT for reconsideration of the decision. The Senior Immigration Judge duly ordered reconsideration on 25 August 2005.
18. In September 2005, the applicant commenced a university undergraduate degree in economics, banking and finance. He lived with friends during term-time but continued to regard his mother’s address as his permanent residence.
19. On 17 January 2007, a panel of the AIT unanimously concluded that there had been a clear material error in the approach of the Immigration Judge and quashed his decision. It adjourned the matter for reconsideration on all issues.
20. On 13 April 2007 a hearing de novo of the applicant’s case was conducted by the AIT. Delivering judgment, the Immigration Judge indicated that the various factors to which this Court’s case-law refers had been taken into account. He noted that the applicant was 20 years old and had spent almost fourteen years, including his youth and formative years, in Nigeria. He further observed that the applicant had resided for six years and seven months in the United Kingdom, a period which included two years and four months spent on remand or serving his sentence. He also considered the strength of the applicant’s connections to the United Kingdom, observing that he was close to his mother (now a British citizen), sisters and uncle, all of whom resided in the United Kingdom, that he attended a church and that he was studying at university. The judge further had regard to the applicant’s personal history, including his rape conviction and the grant of Indefinite Leave to Remain in July 2003. He took account of the applicant’s domestic circumstances and his permanent residence with his mother and previous good character. He examined the nature of the offence for which the applicant was convicted, including the sentencing judge’s remarks (see paragraph 8 above) and the absence of any reference to deportation, and accepted that the applicant was at low risk of re-offending. He considered the likely period before the applicant would be able to apply for re-entry, which he assessed at eight years, observing that by that time the applicant was unlikely to have any ground for applying for entry clearance. Finally, he considered compassionate circumstances and the public interest. In respect of the latter, the judge noted that the presumption was in favour of deportation, that the applicant was 20 and in good health, that he had a grandfather with a home in Nigeria and probably had more relatives in Nigeria than he had admitted and that family visits would be possible. He concluded (at paragraph 130):
“Having considered all the evidence before us and the representations made on behalf of the [applicant], we find that:
a) the [applicant’s] offence was one of the categories of offences regarded by the [Secretary of State] as particularly serious;
b) the circumstances in this case are not particularly exceptional, and they do not outweigh the presumption in favour of deportation in accordance with the current version of Rule 364 [see paragraph 29 below];
c) in any event, even if, contrary to our finding, the provisions of the previous Rule 364 had applied to his case, we would have found that the public interest would have outweighed the other factors in this case;
d) we accordingly dismiss the [applicant’s] appeal against the [Secretary of State’s] decision to deport him.”
21. As regards the applicant’s complaint under Article 8 of the Convention, the judge was not persuaded that the applicant currently had family life in the United Kingdom, given that he was 20 years old, lived with friends during term-time, and had no elements of dependence in respect of his mother, sisters or uncle going beyond normal emotional ties. However, he did accept that the applicant had established a private life in the United Kingdom given the length of his residence, the presence of family members in the United Kingdom, and his attendance at a church and university. He added:
“134. We also find that the [Secretary of State’s] decision interferes with respect for that private life, in that he would be separated from his family and church, and his degree course ... would be cut short.
135. However, we also find that the interference pursues the lawful aim of immigration control, that it is in accordance with the law, and that it is proportionate, and in making the finding about proportionality we have balanced the following factors:
a) all the same factors, including the [applicant’s] domestic circumstances, as we have already taken into account when considering the balancing exercise in relation to the deportation of the [applicant];
b) the fact that the public interest in maintaining an effective immigration control normally outweighs respect for an individual appellant’s private life;
c) the fact, as we find, that the public interest in the prevention of crime in this case also outweighs the [applicant’s] right to respect for private life;
d) and we find that none of the factors mentioned on behalf of the [applicant], individually or cumulatively, prejudices the private life of the [applicant] in a manner sufficiently serious to amount to a breach of the fundamental right protected by Article 8 ...”
22. Accordingly, the applicant’s appeal was dismissed.
23. The applicant sought permission to appeal to the Court of Appeal. Permission was refused by the Court of Appeal on 25 January 2008.
24. In July 2008, the applicant completed his undergraduate degree. In December 2009 he completed a Master’s degree. In April 2010 he was offered employment with a local authority in London, which he accepted. He currently lives with his mother and visits his two sisters, who also reside in England, regularly. The applicant continues to attend church in London.
25. On 17 September 2010 the applicant received a letter from the UK Border Agency indicating that the immigration authorities were considering whether deportation action should be taken in respect of the applicant’s conviction. The applicant was requested to provide details of any change in his circumstances since his last contact with the immigration authorities. Upon being advised that a case was pending before this Court, the immigration authorities indicated that they would await the outcome of these proceedings.
26. Section 3(5)(a) of the Immigration Act 1971 (as substituted by the Immigration and Asylum Act 1999) provides that a person who is not a British citizen shall be liable to deportation from the United Kingdom if “the Secretary of State deems his deportation to be conducive to the public good”.
27. Section 5 provides that:
“(1) Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him ... and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force.
(2) A deportation order against a person may at any time be revoked by a further order of the Secretary of State ...”
28. Sections 82(1), 82(2)(j) and (k) and 84 of the Nationality, Immigration and Asylum Act 2002 (as amended) provide for a right of appeal against such decision to make a deportation order or a refusal to revoke a deportation order on the grounds, inter alia, that the decision is incompatible with the Convention.
29. The Immigration Rules, prescribed by the Secretary of State under section 3(2) of the Immigration Act 1971 for the implementation of the Act, provide as follows:
“364. Subject to paragraph 380, while each case will have to be considered on its merits, where a person is liable to deportation the presumption shall be that the public interest requires deportation. The Secretary of State will consider all relevant factors in considering whether the presumption is outweighed in any particular case, although it will only be in exceptional circumstances that the public interest in deportation will be outweighed in a case where it would not be contrary to the Human Rights Convention and the Convention and Protocol relating to the Status of Refugees to deport. The aim is an exercise of the power of deportation which is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects ...
...
380. A deportation order will not be made against any person if his removal in pursuance of the order would be contrary to the United Kingdom’s obligations under the Convention and Protocol relating to the Status of Refugees or the Human Rights Convention.”
VIOLATED_ARTICLES: 8


ITEMID: 001-79655
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF SYPCHENKO v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6;Violation of P1-1
JUDGES: Christos Rozakis
TEXT: 5. The applicant was born in 1955 and lives in Bataysk in the Rostov Region.
6. In 2004 the applicant sued the Bataysk Town Administration for provision of housing. He had by this time for several years suffered from a grave form of infectious tuberculosis and was entitled to housing according to the relevant provisions of the domestic law.
7. On 19 November 2004 the Batayskiy City Court allowed the applicant's claim and ordered the town administration:
“...to grant Mr. Sypchenko, whose family comprises five members, well-equipped housing according to the sanitary-technical requirements, with a living surface of no less than 70 square meters and a total surface of no less than 90 square meters”.
8. On 9 February 2005 the judgment was upheld on appeal by the Rostov Regional Court, and entered into force. The decision was to be implemented by way of providing the applicant with an occupancy voucher (ордер на жилое помещение) from the local municipal authority. The voucher served as the legal basis for taking possession of the flat designated therein and for the signing of a tenancy agreement between the landlord, the tenant and the housing maintenance authority.
9. On 9 March 2005 the enforcement proceedings were opened. However, the judgment could not be enforced because the town administration allegedly possessed no available housing of the indicated size or financial resources to purchase it.
10. Following the Town Administration's request to review the case by way of supervisory review due to the impossibility to enforce it, on 28 March 2005 the Rostov Regional Court decided to obtain the case-file from the Batayskiy City Court and to stay the enforcement proceedings until its examination by way of supervisory review.
11. On 17 June 2005 the Rostov Regional Court granted the request for supervisory review lodged by the Mayor of Bataysk and remitted the matter for examination on the merits to the Presidium of the Rostov Regional Court.
12. On 7 July 2005 the Presidium of the Rostov Regional Court amended the judgment of 19 November 2004 as upheld on 9 February 2005. It found that the previous instances had misapplied certain provisions relating to the rules for calculating the living surface and thus awarded the applicant the maximum possible surface per person (12m² per person) instead of applying the minimum standard (9m² per person) without giving any reasons. The Presidium of the Rostov Regional Court ordered the Town Administration:
“...to grant [the applicant] ... housing... with the living space of no less than 45 square meters”.
13. On 18 October 2005 the Mayor of Bataysk issued an order which granted the applicant a social tenancy voucher for a three room flat with a living surface of 50.5 square meters. The applicant contested the order in court, expressing general discontent with the flat. On 15 March 2006 the Rostov Regional Court in final instance dismissed the applicant's complaint.
14. On 5 June 2005 the Batayskiy City Court obliged the applicant to sign the social tenancy agreement for the awarded flat. The applicant, however, refused to sign the agreement.
15. The RSFSR Housing Code (Law of 24 June 1983, effective until 1 March 2005) provided that Russian citizens were entitled to possess flats owned by the State or municipal authorities or other public bodies, under the terms of a tenancy agreement (section 10). Certain “protected” categories of individuals (disabled persons, war veterans, Chernobyl victims, police officers, judges, etc.) had a right to priority treatment in the allocation of flats.
16. Flats were granted for permanent use (section 10).
17. Section 14 § 5 of the Law on the Prevention of Spread of Tuberculosis in the Russian Federation (Law no.77-FZ of 18 June 2001) provides that those suffering from infectious tuberculosis who do not have a separate living space but share it with other tenants (family members), shall be provided with such by a local authority within one year from the date of lodging their application.
18. A judicial decision becomes legally binding after the appeal court has examined the matter (Article 209 § 1). A judicial decision must be enforced once it became legally binding, unless the law provides for its immediate enforcement (Article 210).
19. The relevant provisions governing the supervisory-review proceedings read as follows:
“1. Courts may issue judicial decisions in the form of judicial orders, judgments and interim decisions...”
“1. Judicial decisions that have become legally binding, with the exception for judicial decisions by the Presidium of the Supreme Court of the Russian Federation, may be appealed against... to a court exercising supervisory review, by parties to the case and by other persons whose rights or legal interests have been adversely affected by these judicial decisions.
2. Judicial decisions may be appealed against to a court exercising supervisory review within one year after they became legally binding...”
“An application for supervisory review must contain:
(1) the name of the court to which it is addressed;
...
(4) a reference to the first-instance, appeal or cassation courts that examined the case and a summary of their decisions;
(5) a reference to the judgment or decision which is being appealed against...”
“2. Having examined an application for supervisory review, the judge issues an interim decision on –
(1) obtaining the case file if there exist doubts as to the lawfulness of the judicial decision;
(2) refusing to obtain the case file if the arguments in the application for supervisory review may not, in accordance with the federal law, result in quashing of the judicial decision.
...
6. The President of the regional Supreme Court... may disagree with the judge's decision refusing to obtain the case file. In such case the President issues his own decision on obtaining the case file.”
“2. Having examined the case file obtained by the supervisory-review court, the judge issues an interim decision on –
– refusing to remit the case for examination on the merits by the supervisory-review court;
– remitting the case for examination of the application for supervisory review on the merits by the supervisory-review court.”
“2. The President of the regional Supreme Court... may disagree with the judge's decision refusing to remit the case for examination on the merits by the supervisory-review court. In such case the President issues his own decision on remitting the case for examination on the merits by the supervisory-review court.”
“1. A judicial decision on remitting the case for examination on the merits by a supervisory-review court must contain:
(7) a reasoned description of the grounds for remitting the case for examination on the merits...”
“Judicial decisions of lower courts may be quashed or altered by way of supervisory review on the grounds of substantial violations of substantive or procedural legal provisions.”
“1. Having examined the case by way of supervisory review, the court may
...
(5) quash or alter the judicial decision issued by a court of first, second or supervisory-review instance and issue a new judicial decision, without remitting the matter for a fresh examination, if substantive legal provisions have been erroneously applied or interpreted.”
20. Once instituted, enforcement proceedings must be completed within two months upon receipt of the writ of execution by the bailiff (Section 13).
VIOLATED_ARTICLES: 6