ITEMID: 001-58004
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 1996
DOCNAME: CASE OF CHAHAL v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 3;Violation of Art. 5-4;Violation of Art. 13;No violation of Art. 5-1;Not necessary to examine Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: John Freeland;N. Valticos
TEXT: 12. The four applicants are members of the same family and are Sikhs. The first applicant, Karamjit Singh Chahal, is an Indian citizen who was born in 1948. He entered the United Kingdom illegally in 1971 in search of employment. In 1974 he applied to the Home Office to regularise his stay and on 10 December 1974 was granted indefinite leave to remain under the terms of an amnesty for illegal entrants who arrived before 1 January 1973. Since 16 August 1990 he has been detained for the purposes of deportation in Bedford Prison.
The second applicant, Darshan Kaur Chahal, is also an Indian citizen who was born in 1956. She came to England on 12 September 1975 following her marriage to the first applicant in India, and currently lives in Luton with the two children of the family, Kiranpreet Kaur Chahal (born in 1977) and Bikaramjit Singh Chahal (born in 1978), who are the third and fourth applicants. By virtue of their birth in the United Kingdom the two children have British nationality.
13. The first and second applicants applied for British citizenship in December 1987. Mr Chahal's request was refused on 4 April 1989 but that of Mrs Chahal is yet to be determined.
14. Since the partition of India in 1947 many Sikhs have been engaged in a political campaign for an independent homeland, Khalistan, which would approximate to the Indian province of Punjab. In the late 1970s, a prominent group emerged under the leadership of Sant Jarnail Singh Bhindranwale, based at the Golden Temple in Amritsar, the holiest Sikh shrine. The Government submit that Sant Bhindranwale, as well as preaching the tenets of orthodox Sikhism, used the Golden Temple for the accumulation of arms and advocated the use of violence for the establishment of an independent Khalistan.
15. The situation in Punjab deteriorated following the killing of a senior police officer in the Golden Temple in 1983. On 6 June 1984 the Indian army stormed the temple during a religious festival, killing Sant Bhindranwale and approximately 1,000 other Sikhs. Four months later the Indian Prime Minister, Mrs Indira Gandhi, was shot dead by two Sikh members of her bodyguard. The ensuing Hindu backlash included the killing of over 2,000 Sikhs in riots in Delhi.
16. Since 1984, the conflict in Punjab has reportedly claimed over 20,000 lives, peaking in 1992 when, according to Indian press reports collated by the United Kingdom Foreign and Commonwealth Office, approximately 4,000 people were killed in related incidents in Punjab and elsewhere. There is evidence of violence and human rights abuses perpetrated by both Sikh separatists and the security forces (see paragraphs 45-56 below).
17. On 1 January 1984 Mr Chahal travelled to Punjab with his wife and children to visit relatives. He submits that during this visit he attended at the Golden Temple on many occasions, and saw Sant Bhindranwale preach there approximately ten times. On one occasion he, his wife and son were afforded a personal audience with him. At around this time Mr Chahal was baptised and began to adhere to the tenets of orthodox Sikhism. He also became involved in organising passive resistance in support of autonomy for Punjab.
18. On 30 March 1984 he was arrested by the Punjab police. He was taken into detention and held for twenty-one days, during which time he was, he contended, kept handcuffed in insanitary conditions, beaten to unconsciousness, electrocuted on various parts of his body and subjected to a mock execution. He was subsequently released without charge.
He was able to return to the United Kingdom on 27 May 1984, and has not visited India since.
19. On his return to the United Kingdom, Mr Chahal became a leading figure in the Sikh community, which reacted with horror to the storming of the Golden Temple. He helped organise a demonstration in London to protest at the Indian Government's actions, became a full-time member of the committee of the "gurdwara" (temple) in Belvedere (Erith, Kent) and travelled around London persuading young Sikhs to be baptised.
20. In August 1984 Mr Jasbir Singh Rode entered the United Kingdom. He was Sant Bhindranwale's nephew, and recognised by Sikhs as his successor as spiritual leader. Mr Chahal contacted him on his arrival and toured the United Kingdom with him, assisting at baptisms performed by him. Mr Rode was instrumental in setting up branches of the International Sikh Youth Federation ("ISYF") in the United Kingdom, and the applicant played an important organisational role in this endeavour. The ISYF was established to be the overseas branch of the All India Sikh Students' Federation. This latter organisation was proscribed by the Indian Government until mid-1985, and is reportedly still perceived as militant by the Indian authorities.
21. In December 1984 Mr Rode was excluded from the United Kingdom on the ground that he publicly advocated violent methods in pursuance of the separatist campaign. On his return to India he was imprisoned without trial until late 1988. Shortly after his release it became apparent that he had changed his political views; he now argued that Sikhs should pursue their cause using constitutional methods, a view which, according to the applicants, was unacceptable to many Sikhs. The former followers of Mr Rode therefore became divided.
22. In the United Kingdom, according to the Government, this led to a split in the ISYF along broadly north/south lines. In the north of England most branches followed Mr Rode, whereas in the south the ISYF became linked with another Punjab political activist, Dr Sohan Singh, who continued to support the campaign for an independent homeland. Mr Chahal and, according to him, all major figures of spiritual and intellectual standing within the United Kingdom Sikh community were in the southern faction.
23. In October 1985 Mr Chahal was detained under the Prevention of Terrorism (Temporary Provisions) Act 1984 ("PTA") on suspicion of involvement in a conspiracy to assassinate the Indian Prime Minister, Mr Rajiv Gandhi, during an official visit to the United Kingdom. He was released for lack of evidence.
In 1986 he was arrested and questioned twice (once under the PTA), because he was believed to be involved in an ISYF conspiracy to murder moderate Sikhs in the United Kingdom. On both occasions he was released without charge. Mr Chahal denied involvement in any of these conspiracies.
24. In March 1986 he was charged with assault and affray following disturbances at the East Ham gurdwara in London. During the course of his trial on these charges in May 1987 there was a disturbance at the Belvedere gurdwara, which was widely reported in the national press. Mr Chahal was arrested in connection with this incident, and was brought to court in handcuffs on the final day of his trial. He was convicted on both charges arising out of the East Ham incident, and served concurrent sentences of six and nine months.
He was subsequently acquitted of charges arising out of the Belvedere disturbance.
On 27 July 1992 the Court of Appeal quashed the two convictions on the grounds that Mr Chahal's appearance in court in handcuffs had been seriously prejudicial to him.
25. On 14 August 1990 the Home Secretary (Mr Hurd) decided that Mr Chahal ought to be deported because his continued presence in the United Kingdom was unconducive to the public good for reasons of national security and other reasons of a political nature, namely the international fight against terrorism.
A notice of intention to deport was served on the latter on 16 August 1990. He was then detained for deportation purposes pursuant to paragraph 2 (2) of Schedule III of the Immigration Act 1971 (see paragraph 64 below) and has remained in custody ever since.
26. Mr Chahal claimed that if returned to India he had a well-founded fear of persecution within the terms of the United Nations 1951 Convention on the Status of Refugees ("the 1951 Convention" - see paragraph 61 below) and applied for political asylum on 16 August 1990. He was interviewed by officials from the Asylum Division of the Home Office on 11 September 1990 and his solicitors submitted written representations on his behalf.
He claimed that he would be subjected to torture and persecution if returned to India, and relied upon the following matters, inter alia:
(a) his detention and torture in Punjab in 1984 (see paragraph 18 above);
(b) his political activities in the United Kingdom and his identification with the regeneration of the Sikh religion and the campaign for a separate Sikh State (see paragraphs 19-22 above);
(c) his links with Sant Bhindranwale and Jasbir Singh Rode; (see paragraphs 17 and 20 above);
(d) evidence that his parents, other relatives and contacts had been detained, tortured and questioned in October 1989 about Mr Chahal's activities in the United Kingdom and that others connected to him had died in police custody;
(e) the interest shown by the Indian national press in his alleged Sikh militancy and proposed expulsion from the United Kingdom;
(f) consistent evidence, including that contained in the reports of Amnesty International, of the torture and murder of those perceived to be Sikh militants by the Indian authorities, particularly the Punjab police (see paragraphs 55-56 below).
27. On 27 March 1991 the Home Secretary refused the request for asylum. In a letter to the applicant, he expressed the view that the latter's known support of Sikh separatism would be unlikely to attract the interest of the Indian authorities unless that support were to include acts of violence against India. He continued that he was
"not aware of any outstanding charges either in India or elsewhere against [Mr Chahal] and on the account [Mr Chahal] has given of his political activities, the Secretary of State does not accept that there is a reasonable likelihood that he would be persecuted if he were to return to India. The media interest in his case may be known by the Indian authorities and, given his admitted involvement in an extremist faction of the ISYF, it is accepted that the Indian Government may have some current and legitimate interest in his activities".
The Home Secretary did not consider that Mr Chahal's experiences in India in 1984 had any continued relevance, since that had been a time of particularly high tension in Punjab.
28. Mr Chahal's solicitors informed the Home Secretary that he intended to make an application for judicial review of the refusal of asylum, but would wait until the advisory panel had considered the national security case against him.
29. Because of the national security elements of the case, there was no right of appeal against the deportation order (see paragraphs 58 and 60 below). However, on 10 June 1991, the matter was considered by an advisory panel, chaired by a Court of Appeal judge, Lord Justice Lloyd, and including a former president of the Immigration Appeal Tribunal.
30. The Home Office had prepared statements on 5 April and 23 May 1991 containing an outline of the grounds for the notice of intention to deport, which were sent to the applicant. The principal points were as follows:
(a) Mr Chahal had been the central figure in directing the support for terrorism organised by the London-based faction of the ISYF which had close links with Sikh terrorists in the Punjab;
(b) he had played a leading role in the faction's programme of intimidation directed against the members of other groups within the United Kingdom Sikh community;
(c) he had been involved in supplying funds and equipment to terrorists in Punjab since 1985;
(d) he had a public history of violent involvement in Sikh terrorism, as evidenced by his 1986 convictions and involvement in disturbances at the Belvedere gurdwara (see paragraph 24 above). These disturbances were related to the aim of gaining control of gurdwara funds in order to finance support and assistance for terrorist activity in Punjab;
(e) he had been involved in planning and directing terrorist attacks in India, the United Kingdom and elsewhere.
Mr Chahal was not informed of the sources of and the evidence for these views, which were put to the advisory panel.
31. In a letter dated 7 June 1991, Mr Chahal's solicitors set out a written case to be put before the advisory panel, including the following points:
(a) the southern branch of the ISYF had a membership of less than 200 and was non-violent both in terms of its aims and history;
(b) the ISYF did not attempt to gain control of gurdwaras in order to channel funds into terrorism; this was a purely ideological struggle on the part of young Sikhs to have gurdwaras run according to Sikh religious values;
(c) Mr Chahal denied any involvement in the disturbances at the East Ham and Belvedere gurdwaras (see paragraph 24 above) or in any other violent or terrorist activity in the United Kingdom or elsewhere.
32. He appeared before the panel in person, and was allowed to call witnesses on his behalf, but was not allowed to be represented by a lawyer or to be informed of the advice which the panel gave to the Home Secretary (see paragraph 60 below).
33. On 25 July 1991 the Home Secretary (Mr Baker) signed an order for Mr Chahal's deportation, which was served on 29 July.
34. On 9 August 1991 Mr Chahal applied for judicial review of the Home Secretaries' decisions to refuse asylum and to make the deportation order. Leave was granted by the High Court on 2 September 1991. The asylum refusal was quashed on 2 December 1991 and referred back to the Home Secretary. The court found that the reasoning behind it was inadequate, principally because the Home Secretary had neglected to explain whether he believed the evidence of Amnesty International relating to the situation in Punjab and, if not, the reasons for such disbelief. The court did not decide on the validity of the deportation order. Mr Justice Popplewell expressed "enormous anxiety" about the case.
35. After further consideration, on 1 June 1992 the Home Secretary (Mr Clarke) took a fresh decision to refuse asylum. He considered that the breakdown of law and order in Punjab was due to the activities of Sikh terrorists and was not evidence of persecution within the terms of the 1951 Convention. Furthermore, relying upon Articles 32 and 33 of that Convention (see paragraph 61 below), he expressed the view that, even if Mr Chahal were at risk of persecution, he would not be entitled to the protection of the 1951 Convention because of the threat he posed to national security.
36. Mr Chahal applied for judicial review of this decision, but then requested a postponement on 4 June 1992, which was granted.
37. In a letter dated 2 July 1992, the Home Secretary informed the applicant that he declined to withdraw the deportation proceedings, that Mr Chahal could be deported to any international airport of his choice within India and that the Home Secretary had sought and received an assurance from the Indian Government (which was subsequently repeated in December 1995) in the following terms:
"We have noted your request to have a formal assurance to the effect that, if Mr Karamjit Singh Chahal were to be deported to India, he would enjoy the same legal protection as any other Indian citizen, and that he would have no reason to expect to suffer mistreatment of any kind at the hands of the Indian authorities.
I have the honour to confirm the above."
38. On 16 July 1992 the High Court granted leave to apply for judicial review of the decisions of 1 June 1992 to maintain the refusal of asylum and of 2 July 1992 to proceed with the deportation. An application for bail was rejected on 23 July (the European Court of Human Rights was not provided with details of this ruling).
39. The Court of Appeal (Criminal Division) quashed Mr Chahal's 1987 convictions on 27 July 1992 (see paragraph 24 above). The Home Secretary reviewed the case in the light of this development, but concluded that it was right to proceed with the deportation.
40. The hearing of the application for judicial review took place between 18 and 21 January 1993. It was refused on 12 February 1993 by Mr Justice Potts in the High Court, as was a further application for bail (the European Court of Human Rights was not provided with details of this ruling either).
41. Mr Chahal appealed to the Court of Appeal. The appeal was heard on 28 July 1993 and dismissed on 22 October 1993 (R. v. Secretary of State for the Home Department, ex parte Chahal [1994] Immigration Appeal Reports, p. 107).
The court held that the combined effect of the 1951 Convention and the Immigration Rules (see paragraphs 61-62 below) was to require the Home Secretary to weigh the threat to Mr Chahal's life or freedom if he were deported against the danger to national security if he were permitted to stay. In the words of Lord Justice Nolan:
"The proposition that, in deciding whether the deportation of an individual would be in the public good, the Secretary of State should wholly ignore the fact that the individual has established a well-founded fear of persecution in the country to which he is to be sent seems to me to be surprising and unacceptable. Of course there may very well be occasions when the individual poses such a threat to this country and its inhabitants that considerations of his personal safety and well-being become virtually irrelevant. Nonetheless one would expect that the Secretary of State would balance the risks to this country against the risks to the individual, albeit that the scales might properly be weighted in favour of the former."
The Home Secretary appeared to have taken into account the evidence that the applicant might be persecuted and it was not possible for the court to judge whether his decision to deport was irrational or perverse because it did not have access to the evidence relating to the national security risk posed by Mr Chahal. As Lord Justice Neill remarked:
"The court has the right to scrutinise a claim that a person should be deported in the interests of national security but in practice this scrutiny may be defective or incomplete if all the relevant facts are not before the court."
In the absence of evidence of irrationality or perversity, it was impossible under English law to set aside the Home Secretary's decision (see paragraph 66 below).
42. The Court of Appeal refused leave to appeal to the House of Lords, and this was also refused by the House of Lords on 3 March 1994.
43. Following the report of the Commission, the applicant applied for temporary release pending the decision of the European Court of Human Rights, by way of habeas corpus and judicial review proceedings in the Divisional Court (see paragraph 65 below). The Secretary of State opposed the application on the following grounds:
"The applicant was detained in August 1990 and served with notice of intention to deport because the then Secretary of State was satisfied that he represented a substantial threat to national security. The Secretary of State remains satisfied that such a threat persists ... Given the reasons for the applicant's deportation, the Secretary of State remains satisfied that his temporary release from detention would not be justified. He has concluded the applicant could not be safely released, subject to restrictions, in view of the nature of the threat posed by him."
Judgment was given on 10 November 1995
(R. v. Secretary of State for the Home Department, ex parte Chahal, unreported). Mr Justice MacPherson in the Divisional Court rejected the application for habeas corpus, on the ground that "the detention per se was plainly lawful because the Secretary of State [had] the power to detain an individual who [was] the subject of a decision to make a deportation order". In connection with the application for judicial review of the Secretary of State's decision to detain Mr Chahal, the Judge remarked:
"I have to look at the decision of the Secretary of State and judge whether, in all the circumstances, upon the information available, he has acted unlawfully, or with procedural impropriety, or perversely to the point of irrationality. I am wholly unable to say that there is a case for such a decision, particularly bearing in mind that I do not know the full material on which the decisions have been made ... [I]t is obvious and right that in certain circumstances the Executive must be able to keep secret matters which they deem to be necessary to keep secret ... There are no grounds, in my judgment, for saying or even suspecting that there are not matters which are present in the Secretary of State's mind of that kind upon which he was entitled to act ..."
44. The current position with regard to the protection of human rights in India generally and in Punjab more specifically was a matter of dispute between the parties. A substantial amount of evidence was presented to the Court on this issue, some of which is summarised below.
45. The Government submitted that it appeared from Indian press reports collated by the Foreign and Commonwealth Office that the number of lives lost in Punjab from terrorism had decreased dramatically. In 1992 the figure was 4,000, in 1993 it was 394, and in 1994 it was 51. The former Chief Minister of Punjab, Mr Beant Singh, was assassinated in August 1995; that aside, there was little terrorist activity and only four terrorist-related deaths in the region in 1995.
46. Furthermore, democracy had returned to the State: almost all factions of the Akali Dal, the main Sikh political party, had united and were set to contest the next general election as one entity and the Gidderbaha by-election passed off peacefully, with a turn-out of 88%.
47. The United Kingdom High Commission continued to receive complaints about the Punjab police. However, in recent months these had related mainly to extortion rather than to politically-motivated abuses and they were consistently told that there was now little or no politically-motivated police action in Punjab.
48. Steps had been taken by the Indian authorities to deal with the remaining corruption and misuse of power in Punjab; for example, there had been a number of court judgments against police officers, a "Lok Pal" (ombudsman) had been appointed and the new Chief Minister had promised to "ensure transparency and accountability". The Indian National Human Rights Commission ("NHRC"), which had reported on Punjab (see below) continued to strengthen and develop.
49. The NHRC visited Punjab in April 1994 and reported as follows:
"The complaints of human rights violations made to the Commission fall broadly into three categories. Firstly, there were complaints against the police, of arbitrary arrests, disappearances, custodial deaths and fake encounters resulting in killings ...
There was near unanimity in the views expressed by the public at large that terrorism has been contained ... [A] feeling was now growing that it was time for the police to cease operating under the cover of special laws. There were very strong demands for normalising the role and functioning of the police and for re-establishing the authority of the District Magistrates over the police. The impression that the Commission has gathered is that ... the Magistracy at District level is not at present in a position to inquire into complaints of human rights violations by the police. In the public mind there is a prevailing feeling of the police being above the law, working on its own steam and answerable to none ... The Commission recommends that the Government examine this matter seriously and ensure that normalcy is restored ..."
50. In addition, in its annual report for 1994/1995, the NHRC recommended, as a matter of priority, a systematic reform, retraining and reorganisation of the police throughout India, having commented: "The issue of custodial death and rape, already high in the priorities of the Commission, was set in the wider context of the widespread mistreatment of prisoners resulting from practices that can only be described as cruel, inhuman or degrading."
51. The reports to the United Nations in 1994 and 1995 of the Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment and in 1994 of the Special Rapporteur on extrajudicial, summary or arbitrary executions and the Working Group on enforced and involuntary disappearances recounted that human rights violations on the part of the security forces were widespread in India.
For example, in his 1995 report, the Special Rapporteur on torture commented on the practice of torture in police custody:
"It is apparent that few incidents, in what is credibly alleged to be a widespread, if not endemic, phenomenon are prosecuted and even fewer lead to conviction of the perpetrators. It is to be noted that very many cases that come to the attention of the Special Rapporteur are those that result in death, in other words, those where torture may have been applied with the most extreme results. This must be a minority of cases of torture in the country [India]."
52. The 1995 United States' Department of State report on India told of human rights abuses perpetrated by the Punjab police acting outside their home State: "Punjab police hit teams again in 1994 pursued Sikh militants into other parts of India. On June 24, Punjab police shot and killed Karnail Singh Kaili, a man they identified as a Sikh terrorist ... in West Bengal. The Government of West Bengal claimed that it had not been informed of the presence of Punjab police in West Bengal, seized Kaili's body and weapons and barred the departure of the police team until the Punjab Chief Minister apologised."
53. In contrast, the most recent Department of State report (March 1996) declared that insurgent violence had largely disappeared in Punjab and that there was visible progress in correcting patterns of abuse by the police. It continued:
"Killings of Sikh militants by police in armed encounters appear to be virtually at an end. During the first eight months of [1995], only two persons were killed in police encounters. Attention was focused on past abuses in Punjab by press reports that hundreds of bodies, many allegedly those of persons who died in unacknowledged police custody, were cremated as 'unclaimed' during 1991-1993 or discovered at the bottom of recently drained canals."
54. The United Kingdom Immigration Appeal Tribunal took account of allegations of the extra-territorial activities of the Punjab police in the case of Charan Singh Gill v. Secretary of State for the Home Department (14 November 1994, unreported), which related to an appeal by a politically active Sikh against the Secretary of State's refusal to grant him political asylum. The appellant drew the attention of the tribunal to a story in the Punjab Times of 10 May 1994, which reported the killing by the Punjab police of two Sikh fighters in West Bengal. The chairman of the tribunal remarked:
"We should say that we do not accept [the representative of the Home Office's] view of this document, that it was more probably based on imaginative journalism than on fact. In our view, it affords valuable retrospective corroboration of the material set out above, demonstrating that the Punjab police are very much a law unto themselves, and are ready to track down anyone they regard as subversive, as and when the mood takes them, anywhere in India."
55. In its report of May 1995, "Punjab police: beyond the bounds of the law", Amnesty International similarly alleged that the Punjab police were known to have carried out abductions and executions of suspected Sikh militants in other Indian States outside their jurisdiction. The Supreme Court in New Delhi had reportedly taken serious note of the illegal conduct of the Punjab police, publicly accusing them of "highhandedness and tyranny" and had on several occasions between 1993 and 1994 ordered investigations into their activities. Following the killing of a Sikh in Calcutta in May 1994, which provoked an angry reaction from the West Bengal State Government, the Union Home Secretary had convened a meeting of all director generals of police on 5 July 1994 to discuss concerns expressed by certain States following the intrusion by the Punjab police into their territories. One of the stated aims of the meeting was to try to work out a formula whereby the Punjab police would conduct their operations in cooperation with the respective State governments.
56. In its October 1995 report, "India: Determining the fate of the 'disappeared' in Punjab", Amnesty International claimed that high-profile individuals continued to "disappear" in police custody. Among the examples cited were the general secretary of the human rights wing of the Sikh political party, the Akali Dal, who was reportedly arrested on 6 September 1995 and had not been seen since.
57. By section 3 (5) (b) of the Immigration Act 1971 ("the 1971 Act"), a person who is not a British citizen is liable to deportation inter alia if the Secretary of State deems this to be "conducive to the public good".
58. There is a right of appeal to an adjudicator, and ultimately to an appeal tribunal, against a decision to make a deportation order (section 15 (1) of the 1971 Act) except in cases where the ground of the decision to deport was that the deportation would be conducive to the public good as being in the interests of national security or of the relations between the United Kingdom and any other country or for other reasons of a political nature (section 15(3) of the 1971 Act).
59. This exception was maintained in the Asylum and Immigration Appeals Act 1993, which came into force in July 1993.
60. Cases in which a deportation order has been made on national security or political grounds are subject to a non-statutory advisory procedure, set out in paragraph 157 of the Statement of Changes in Immigration Rules (House of Commons Paper 251 of 1990).
The person concerned is given an opportunity to make written and/or oral representations to an advisory panel, to call witnesses on his behalf, and to be assisted by a friend, but he is not permitted to have legal representation before the panel. The Home Secretary decides how much information about the case against him may be communicated to the person concerned. The panel's advice to the Home Secretary is not disclosed, and the latter is not obliged to follow it.
61. The United Kingdom is a party to the United Nations 1951 Convention on the Status of Refugees ("the 1951 Convention"). A "refugee" is defined by Article 1 of the Convention as a person who is outside the country of his nationality due to "a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion".
Article 32 of the 1951 Convention provides:
"1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order. 2. The expulsion of such a refugee shall only be in pursuance of a decision reached in accordance with due process of law ..."
Article 33 provides:
"1. No Contracting State shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."
62. Rule 161 of the Immigration Rules (House of Commons Paper 251 of 1990) provides that:
"Where a person is a refugee full account is to be taken of the provisions of the Convention and Protocol relating to the Status of Refugees ..."
63. In a case where a person to be deported for national security reasons claims asylum, the Secretary of State must balance the interest of the individual as a refugee against the risk to national security (R. v. Secretary of State for the Home Department, ex parte Chahal [1994] Immigration Appeal Reports, p. 107 - see paragraph 41 above).
64. A person may be detained under the authority of the Secretary of State after the service upon him of a notice of intention to deport and pending the making of a deportation order, and also after the making of an order, pending his removal or departure from the country (paragraphs 2 (2) and (3) of Schedule III to the 1971 Act).
65. Any person in detention is entitled to challenge the lawfulness of his detention by way of a writ of habeas corpus. This is issued by the High Court to procure the production of a person in order that the circumstances of his detention may be inquired into. The detainee must be released if unlawfully detained (Habeas Corpus Act 1679 and Habeas Corpus Act 1816, section 1). Only one application for habeas corpus on the same grounds may be made by an individual in detention, unless fresh evidence is adduced in support (Administration of Justice Act 1960, section 14 (2)).
In addition, a detainee may apply for judicial review of the decision to detain him (see paragraphs 43 above and 66-67 below).
In conjunction with either an application for habeas corpus or judicial review, it is possible to apply for bail (that is, temporary release) pending the decision of the court.
66. Decisions of the Home Secretary to refuse asylum, to make a deportation order or to detain pending deportation are liable to challenge by way of judicial review and may be quashed by reference to the ordinary principles of English public law.
These principles do not permit the court to make findings of fact on matters within the province of the Secretary of State or to substitute its discretion for the Minister's. The court may quash his decision only if he failed to interpret or apply English law correctly, if he failed to take account of issues which he was required by law to address, or if his decision was so irrational or perverse that no reasonable Secretary of State could have made it (Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 King's Bench Reports, p. 223).
67. Where national security issues are involved, the courts retain a power of review, but it is a limited one because:
"the decision on whether the requirements of national security outweigh the duty of fairness in a particular case is a matter for the Government to decide, not for the courts; the Government alone has access to the necessary information and in any event the judicial process is unsuitable for reaching decisions on national security"
(Council of Civil Service Unions v. Minister for the Civil Service [1985] Appeal Cases, p. 374, at p. 402).
See also R. v. Secretary of State for the Home Department, ex parte Cheblak [1991] 2 All England Reports, p. 9, where a similar approach was taken by the Court of Appeal.
VIOLATED_ARTICLES: 13
3
5
VIOLATED_PARAGRAPHS: 5-4
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-79036
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF WARSICKA v. POLAND
IMPORTANCE: 3
CONCLUSION: No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Civil proceedings;Article 6-1 - Fair hearing;Impartial tribunal)
JUDGES: Nicolas Bratza
TEXT: 4. The applicant, the owner of real property which she had been renting, filed a civil action for damages against the tenant. On 4 September 2000 her action was dismissed by a judgment of the Zielona Góra Regional Court. The applicant appealed against the judgment. On 19 June 2001 her appeal was dismissed by a judgment of the Poznań Court of Appeal. Judge S. G. was the judge rapporteur in the case.
5. The applicant lodged a cassation appeal against the judgment through a panel of the Poznań Court of Appeal. On 22 October 2001 her cassation appeal was rejected by a decision of that panel. In its written grounds for the decision, the panel stated that the cassation appeal did not comply with a procedural requirement set out in Article 393 3 § 1 (3) of the Code of Civil Procedure in that it did not include “arguments showing that its examination [by the Supreme Court] would be justified” within the meaning of this provision (see paragraphs 14-16 below). The mere fact that the cassation appeal contained arguments to show the grounds on which it had been lodged was insufficient for the appeal to be declared admissible. The panel further stated that this shortcoming was serious and as such could not be remedied.
Judge S.G. presided over the panel which gave this decision and also acted as the judge rapporteur on the admissibility issue.
6. The applicant lodged an appeal with the Supreme Court against the decision of 22 October 2001, challenging inter alia the composition of the court. She submitted that the fact that the same judge had sat on a panel giving a second-instance judgment on the merits and subsequently on a panel rejecting a cassation appeal against that judgment rendered the proceedings unfair.
7. On 7 March 2002 her appeal was dismissed by a decision of the Supreme Court. The court first noted the case-law of the Supreme Court on the interpretation of Article 393 3 § 1 (3) of the Code. It referred to its numerous judgments to the effect that a shortcoming in a cassation appeal which took the form of a failure to enumerate the circumstances justifying its examination was of a serious and irreparable character, which could not be remedied by requesting the appellant to rectify it. It further noted that this requirement was closely linked to the examination of the grounds on which the Supreme Court could refuse to entertain a cassation appeal, as listed in Article 393 of the Code (see paragraph 18 below), namely if it considered that no significant legal issue arose in the case or where there were no legal issues involved which would give rise to serious doubts or to discrepancies in the case-law.
8. It referred to the applicant’s objection in one sentence only:
“The fact that the judge, who took part in the judgment against which the cassation appeal was subsequently lodged, participated in a decision by which this appeal was found inadmissible is of no significance”.
9. Article 45 of the Constitution, insofar as relevant, reads:
“Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court. ...”
10. Article 48 reads in its relevant part:
“§ 1. A judge is ex lege excluded from dealing with the case: (...)
5) in cases where he participated in a contested decision of a lower instance.”
11. The Supreme Court decision of 22 August 1974 (II CZ 160/74) reads in its relevant part:
“A judge who participated in a judgment is not excluded from giving subsequent decisions in the course of so-called “inter-instance proceedings”.
12. The Supreme Court decision of 3 October 2001 (V CZ 162/01) states, inter alia, that Article 3933 of the Code of Civil Procedure sets out formal requirements which a cassation appeal has to satisfy. It is for the second-instance court to examine whether these requirements have been met.
The provisions of the Code determine when a judge is ex lege excluded from dealing with the case. It does not follow from these provisions that a judge who has given a second-instance judgment is to be excluded from participation in a subsequent examination of whether a cassation appeal complies with the formal requirements provided for by the Code.
13. The Supreme Court reached the same conclusion in its decision of 22 April 2002 (IPZ 21/01). It considered that the examination of the admissibility of the cassation appeal could not be said to have anything in common with the examination of the merits of the case, because the former has a purely formal character.
14. A party to civil proceedings could, at the material time, lodge a cassation appeal with the Supreme Court against a final judicial decision of a second-instance court which has terminated the proceedings.
15. Article 393 1 of the Code as applicable at the material time listed the grounds on which a cassation appeal could be lodged. It read as follows:
“The cassation appeal may be based on the following grounds:
1) a breach of substantive law as a result of its erroneous interpretation or wrongful application;
2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.”
16. Article 393 3, as applicable at the material time, specified the requirements of a cassation appeal. It read in its relevant part:
“§ 1. A cassation appeal should include:
1) an indication of the decision under appeal together with information as to whether the appeal is lodged against this decision in its entirety or in part only;
2) an indication of the grounds for the cassation appeal;
3) arguments showing that its examination would be justified;
4) a motion to have the decision under appeal quashed or amended, specifying also the scope of the motion.”
17. Article 393 4, as applicable at the material time, read as follows:
“A second-instance court rejects in a hearing held in camera a cassation appeal lodged after a prescribed time-limit or which is inadmissible on other grounds (...).”
18. The reasons justifying the examination of a cassation appeal by the Supreme Court can be inferred a contrario from Article 393 of the Civil Code of Procedure which, as applicable at that time, read, in its relevant part:
“1. The Supreme Court may refuse to entertain the cassation appeal, if:
i) there is no appearance of any significant legal issue in the case;
ii) there is no need for the interpretation of provisions raising serious doubts or giving rise to discrepancies in the courts’ case-law;
iii) the appeal is manifestly ill-founded.
2. Paragraph 1 shall not apply if the judicial decision challenged manifestly breached the law or where the proceedings are invalid in law.”
19. Pursuant to Article 39318 of the Code, an appeal to the Supreme Court was available against a decision of the appellate court rejecting a cassation appeal.
20. Under the provisions of the Act on Procedure before Administrative Courts 2002 a cassation appeal is available against judgments of Regional Administrative Courts to the Supreme Administrative Court. As an appeal on points of law, it has the same character as a cassation appeal in civil proceedings.
21. On 23 May 2005 the Supreme Administrative Court, in reply to a legal question put to it by its .President, adopted an explanatory resolution. It observed that serious difficulties had arisen in the judicial practice of the administrative courts as to whether a judge who had given a second-instance judgment had to be excluded from participation in a subsequent examination of the compliance of a cassation appeal with the formal requirements provided for by the Act of 2002.
The court referred to the fair hearing standard established by Article 6 of the Convention. It noted that the case-law of the European Court of Human Rights emphasised the importance of judicial impartiality. However, the examination of whether a given court satisfied this requirement should always be carried out with reference to the facts of an individual case and the modalities of a given type of judicial procedure.
The court observed that under the applicable laws an appeal on points of law to the Supreme Administrative Court was available against a judgment of a regional administrative court. Hence, it was obvious that the parties had a right to have their administrative case heard by two impartial judicial instances. The need to secure such impartiality served as a ratio legis for the exclusion of a judge from the examination of the same case in two judicial instances. However, the court stressed that the requirement of impartiality was complied with if the same judge was prevented from examining twice the merits of the same case.
The court further observed that the examination of the admissibility of a cassation appeal in administrative proceedings could be identified neither with the examination of the merits of such an appeal, nor with the examination of whether the impugned first-instance judgment was well-founded. A distinction had to be made between the examination of the admissibility and the latter two types of examination which essentially related to the substance of the first-instance judgment. It held that there were no grounds on which to consider that a judge involved in the examination of the merits of the case should not be allowed to sit on a panel examining the admissibility of the cassation appeal.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-115737
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: MAGOMADOVA AND OTHERS v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 1. The applicants, Ms Mariyat Magomadova, Ms Bilkis Magomadova, Mr Andarbek Magomadov and Mr Abdul-Vagap Magomadov, are Russian nationals who were born in 1938, 1965, 1959 and 1957 respectively and live in Moscow. They were represented before the Court by lawyers of the NGO EHRAC/Memorial Human Rights Centre, based in London and Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicants (a mother, daughter and two sons) are former residents of Chechnya. Prior to 1994, the family lived in a flat and a house in Grozny. They submitted that the first applicant had owned a flat at 1-27 Vosmogo Marta Street. The second applicant (the first applicant’s daughter) had been the registered owner of a house situated at 40/21 Vozrozhdeniya/Fontannaya Street. In 1993 the first applicant had purchased two further houses adjacent to her daughter’s house (40/25 Volnaya/Fontannaya Street and 42 Volnaya Street).
4. On 15 February 1996 the Oktyabrskiy District Court of Grozny confirmed that the second applicant owned a share of the property situated at 40/21 Vozrozhdeniya/Fontannaya Street. On 29 February 1996 the court confirmed that the four applicants (and eight other individuals) had lived at the said property prior to 1994.
5. In July 2007 the Federal Registration Service (“BTI”) in Chechnya issued certificates of title to the first and second applicants relating to three land plots of the above-mentioned addresses.
6. In July 2009 the BTI informed the first applicant by letter that its archives had been destroyed. The register maintained by the BTI contained four relevant entries showing that the first applicant owned the properties at 42 Volnaya Street, 40/25 Volnaya/Fontannaya Street and 1-27 Vosmogo Marta Street. The second applicant owned the house at 40/21 Vozrozhdeniya/Fontannaya Street. No corresponding certificates of title were submitted to the Court by the applicants.
7. From 1994 to 1996 and in 1999 the Russian Government carried out counterterrorist operations in Chechnya. Fearing hostilities, the applicants moved to Moscow on an unspecified date.
8. The applicants submitted that during the two campaigns, missile strikes by the Russian air force in 1995 and 1999 had resulted in the destruction of their properties and all their possessions. They submitted a complaint about both incidents to the prosecutor’s office in August 2001.
9. On 24 December 2001 a prosecutor of military unit no. 20102 refused the applicants’ request to open a criminal investigation. The applicants were given the option to appeal, commence a civil claim for damages or to seek compensation under Government Decree no. 510 of 30 April 1997.
10. It appears that the applicants made a further application to the prosecutor’s office for a criminal investigation to be opened into the complaint relating to the 1999 attack; however, this was dismissed on 26 April 2002. The applicants were again given the option to appeal or to commence a civil claim for damages.
11. The applicants sued the Government, the Ministry of Finance and the Ministry of Defence, with a view to obtaining compensation for the destruction of their property and possessions as a result of the events of 1995 and 1999.
12. On 8 April 2003 the Basmannyy District Court of Moscow delivered its judgment. It held that under Article 1069 of the Civil Code, the State was only liable for damage caused by the unlawful conduct of its agents. The District Court noted that the military operation in Chechnya had been authorised by Presidential Decree no. 2166 dated 30 November 1994 and Government decree no. 1360 of 9 December 1994. Both decrees had been considered compatible with the Constitution by the Constitutional Court on 31 July 1995. The court thus found that no unlawful conduct by a State body had taken place which could justify payment of compensation. The court further dismissed the applicants’ claim that the damage had been caused by a particularly hazardous State-owned object, since the applicants had not submitted any conclusive evidence to substantiate their allegations about the manner in which their property had been destroyed.
13. On 2 October 2003 the Moscow City Court upheld the first-instance court’s judgment.


ITEMID: 001-58291
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF PAPACHELAS v. GREECE
IMPORTANCE: 1
CONCLUSION: Preliminary objection rejected (six month period);No violation of Art. 6-1;No violation of P1-1 (amount of compensation);Violation of P1-1 (presumption);Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings;Just satisfaction reserved
JUDGES: Gaukur Jörundsson;Luzius Wildhaber;N. Valticos
TEXT: 8. On 9 January 1989 the Greek State, in a decision of the Minister for the Environment, Regional Development and Public Works and pursuant to Legislative Decree no. 797/1971 on expropriations and Law no. 653/1977 on the obligations of adjoining owners where major roads are built, expropriated more than 150 properties, some of which belonged to the applicants, in order to build a new major road between Stavros and Elefsina. The property expropriated from the applicants included an area of 8,402 sq. m that was part of a larger piece of land.
Law no. 653/1977 creates a presumption that, on the building of a new major road, adjoining owners whose properties front the road derive benefit.
It accordingly provides that on the expropriation of such properties the owners must contribute towards the costs thereof (see paragraphs 23-24 below).
Applying that presumption, the authorities considered in the instant case that the applicants had derived an economic benefit from the building of the major road which offset their right to compensation for 1,440 sq. m of the expropriated land. Consequently, the applicants were compensated for only 6,962 sq. m.
9. On 5 June 1991 the Greek State brought an action in the Athens Court of First Instance for the assessment of a provisional unit amount for compensation per square metre.
10. On 20 November 1991 the Court of First Instance assessed the provisional unit amount for compensation at 52,000 drachmas (GRD) per square metre (judgment no. 696/1991).
11. On 5 March 1992 the applicants brought an action in the Athens Court of Appeal for the assessment of the final unit amount for compensation.
12. The hearing before the Court of Appeal took place on 9 March 1993. The applicants maintained that the real value of the land was GRD 100,000 per square metre and produced before the Greek courts two expert reports in which it was valued at between GRD 70,000 and 100,000 and at GRD 130,000 per square metre respectively. They also relied in support of their estimation on an official report of the Association of Sworn Valuers (Σώμα Ορκωτώv Εκτιμητώv), in which the land was valued at GRD 53,621 per square metre.
13. In a judgment of 24 June 1993 (no. 4055/1993) the Athens Court of Appeal assessed the final unit amount for compensation at GRD 52,000 per square metre.
14. On 20 December 1993 the applicants appealed to the Court of Cassation on points of law; however, they did not lodge their submissions with that court until 15 June 1994. In their submissions, they maintained that the Court of Appeal had not given sufficient reasons for its decision and had assessed the final amount for compensation without taking into account the special features of their properties. The hearing took place on 31 May 1995.
15. On 20 June 1995 the Court of Cassation dismissed the applicants’ appeal (in judgment no. 1060/1995). Its judgment was “finalised” (καθαρoγραφή) on 28 September 1995 and the applicants obtained a copy on 9 October 1995. The Court of Cassation does not serve its judgments.
16. The relevant Article of the 1975 Constitution reads as follows:
“1. Property shall be protected by the State; rights deriving therefrom, however, may not be exercised contrary to the public interest.
2. No one may be deprived of his property unless it is for the public benefit, which must be duly proved, in the circumstances and manner laid down by law and only after full compensation corresponding to the value of the expropriated property at the time of the court hearing on the provisional assessment of compensation. In cases in which an application is made for immediate final assessment of compensation, regard shall be had to the value of the expropriated property at the time of the court hearing of the application.
3. Any change in the value of the expropriated property occurring after and solely as a result of publication of the decision to expropriate shall not be taken into account.
4. Compensation shall in all cases be assessed by the civil courts. A court may even make a provisional assessment of compensation after the person entitled has been heard or his attendance requested and, at its discretion, require such person to furnish an appropriate guarantee before receiving the compensation, in accordance with law.
Until either final or provisional compensation has been paid, all the rights of the owner shall remain intact, occupation of the property being prohibited.
Compensation as assessed shall be paid within a year and a half of publication of the provisional assessment order or, if immediate final assessment is sought, of publication of the final assessment by the court, failing which the expropriation shall automatically lapse.
...”
“1. Η ιδιοκτησία τελεί υπό την προστασία του Κράτους, τα δικαιώματα όμως που απορρέουν από αυτή δεν μπορούν να ασκούνται σε βάρος του γενικού συμφέροντος.
2. Κανένας δεν στερείται την ιδιοκτησία του, παρά μόνο για δημόσια ωφέλεια που έχει αποδειχθεί με τον προσήκοντα τρόπο, όταν και όπως ο νόμος ορίζει, και πάντοτε αφού προηγηθεί πλήρης αποζημίωση, που να ανταποκρίνεται στην αξία την οποία είχε το απαλλοτριούμενο κατά το χρόνο της συζήτησης στο δικαστήριο για τον προσωρινό προσδιορισμό της αποζημίωσης. Αν ζητηθεί απευθείας ο οριστικός προσδιορισμός της αποζημίωσης, λαμβάνεται υπόψη η αξία κατά το χρόνο της σχετικής συζήτησης στο δικαστήριο.
3. Η ενδεχόμενη μεταβολή της αξίας του απαλλοτριουμένου μετά την δημοσίευση της πράξης απαλλοτρίωσης, και μόνο εξαιτίας της, δεν λαμβάνεται υπόψη.
4. Η αποζημίωση ορίζεται πάντοτε από τα πολιτικά δικαστήρια. Μπορεί να οριστεί και προσωρινά δικαστικώς, ύστερα από ακρόαση ή πρόσκληση του δικαιούχου, που μπορεί να υποχρεωθεί κατά την κρίση του δικαστηρίου να παράσχει για την είσπραξή της ανάλογη εγγύηση, σύμφωνα με τον τρόπο που νόμος ορίζει.
Πριν καταβληθεί η οριστική ή προσωρινή αποζημίωση διατηρούνται ακέραια όλα τα δικαιώματα του ιδιοκτήτη και δεν επιτρέπεται η κατάληψη.
Η αποζημίωση που ορίστηκε καταβάλλεται υποχρεωτικά το αργότερο μέσα σε ενάμισι έτος από την δημοσίευση της απόφασης για τον προσωρινό προσδιορισμό της αποζημίωσης και, σε περίπτωση απευθείας αίτησης για οριστικό προσδιορισμό της αποζημίωσης, από τη δημοσίευση της σχετικής απόφασης του δικαστηρίου, διαφορετικά η απαλλοτρίωση αίρεται αυτοδικαίως.
...”
17. Legislative Decree no. 797/1971 of 30 December 1970 and 1 January 1971 is the main legislative provision governing expropriations. It applies the principles set out in the constitutional provisions.
18. Chapter A of the legislative decree lays down the procedures and prerequisites for announcing expropriations.
Article 1 § 1 (a) provides that expropriations of urban or rural properties and claims to rights in rem over them, if authorised by law in the public interest, are made known by a joint decision of the Minister having authority in the sphere concerned by the intended expropriation and the Minister of Finance.
Article 2 § 1 sets out the prerequisites for a decision announcing an expropriation: in particular, (a) a cadastral plan showing the area to be expropriated, and (b) a list of the owners of the land, its surface area, its boundaries and the main characteristics of the buildings on it.
19. Chapter B of the legislative decree specifies the procedures for carrying out an expropriation.
Compensation must be paid to the person concerned in accordance with precisely worded conditions. The acquisition of ownership by the person for whose benefit the expropriation was ordered (Articles 7 § 1 and 8 § 1) starts on the date of payment or (in cases where the identification of the beneficiaries has not yet been completed, or where the property is charged or where the identity of the true beneficiary is in issue) on the date of publication of notice in the Official Gazette that compensation has been deposited with the Bank for Official Deposits.
If the expropriation does not take place in accordance with the foregoing conditions within a period of one and a half years from the date of the judgment determining the compensation, it automatically lapses (Article 11 § 1).
20. Chapter D sets out in detail the procedure for assessing compensation.
Article 14 provides that the parties to the proceedings are (a) any party required to pay compensation; (b) any party for whose benefit the expropriation is ordered; (c) any party who claims ownership of, or other rights in rem over, the property.
Article 17 § 1 lays down that compensation is to be assessed by the courts. It expressly provides that the court determines only the unit amount of compensation and not who is entitled to compensation or who is obliged to pay it.
By Article 13 § 1, compensation is calculated by reference to the real value of the expropriated property on the date of publication of the decision giving notice of the expropriation.
Paragraph 4 of that Article provides:
“Where part of a property is expropriated and the part remaining in the owner's possession suffers substantial depreciation in value or is rendered unusable, the judgment in which compensation is assessed shall also include a determination of the special compensation for that part. This special compensation shall be paid to the owner together with the compensation for the expropriated part.”
“Εν περιπτώσει αναγκαστικής απαλλοτριώσεως τμήματος ακινήτου, ως εκ της οποίας το απομένον εις τον ιδιοκτήτην τμήμα υφίσταται σημαντικήν υποτίμησιν της αξίας αυτού, ή καθίσταται άχρηστον δια την δι’ην προορίζεται χρήσιν, δια της αυτής περί καθορισμού της αποζημιώσεως αποφάσεως προσδιορίζεται και παρέχεται ιδιαιτέρα δι’αυτήν αποζημίωσις εις τον ιδιοκτήτην. Η ιδιαιτέρα αυτή αποζημίωσις καταβάλλεται εις τον ιδιοκτήτην ομού μετά της καταβαλλομένης δια το απαλλοτριούμενον τμήμα.”
21. The procedure for assessing compensation may comprise two phases.
Firstly, the provisional assessment phase, in respect of which a single judge of the court of first instance for the area in which the expropriated property is situated has jurisdiction once a party concerned has lodged an application (Article 18).
Secondly, the final assessment phase, in respect of which the court of appeal for the area in which the expropriated property is situated has jurisdiction on application by the parties concerned within thirty days from the date on which the provisional assessment decision was served, or six months from the date of its publication if it is not served (Article 19 §§ 1 and 2).
Paragraph 6 of that Article provides that only a person who has lodged such an application with a view to an increase or decrease in the provisionally assessed amount may benefit from it.
The provisionally assessed amount becomes final for any person not filing an application expeditiously.
Further, an application may be lodged directly with the court of appeal in order that a final decision may be obtained against which no appeal will lie (Article 20).
22. Chapter E of the legislative decree provides a special procedure for obtaining a court order identifying persons entitled to compensation.
A single judge of the court of first instance for the area in which the expropriated property is situated has jurisdiction to make such an order (Article 26).
Article 27 § 1 provides that entitlement is determined on the basis of information on the cadastral plan and on the list of landowners drawn up by a qualified engineer duly approved by the Ministry of Public Works, and any other information supplied by the parties or considered by the court of its own motion.
No appeal lies against the decision taken at the end of this special procedure (Article 27 § 6).
By paragraph 4 of Article 27, the court shall not give a decision if
(a) it is established at the hearing or by means of a declaration by the State that a person can claim full ownership of the expropriated property or some other right in rem;
(b) there is any dispute between one or more persons allegedly entitled to compensation as to ownership or any other right in rem such that an inquiry has to be made into the claims put forward, which inquiry must include a hearing for each party concerned who has brought an action;
(c) it is established at the hearing that a party claiming to be entitled to compensation is unable to show that he has any right in rem.
By paragraph 2 of Article 8 of Legislative Decree no. 797/1971, a final decision as to a given person’s entitlement is necessary before the Bank for Official Deposits can pay out a sum deposited as compensation following assessment by the courts.
23. The relevant provisions of section 1 of Law no. 653/1977 of 25 July and 5 August 1977 provide:
“(1) Where a major road up to thirty metres wide is built in an area not covered by a town development plan, adjoining owners who derive a benefit shall be required to pay for an area fifteen metres wide, thus contributing to the cost of expropriating the properties bordering the road. However, the area to which this obligation applies shall not exceed half the surface area of the property concerned.
...
(3) For the purposes of this section, adjoining owners whose properties front the roads that have been built shall be deemed to have derived benefit.
(4) Where those entitled to compensation on account of an expropriation are themselves liable for payment of part of that expropriation, there shall be a set-off between rights and obligations.
(5) The method and procedure for apportioning the compensation between the State and the adjoining owners shall be laid down in a decree to be published on a proposal by the Minister of Public Works.
...”
“(1) Προκειμένου περί διανοίξεως, εκτός Σχεδίου πόλεων Εθνικών οδών πλάτους καταλήψεως μέχρι τριάκοντα μέτρων, οι ωφελούμενοι παρόδιοι ιδιοκτήται εκάστης πλευράς, υποχρεούνται εις αποζημίωσιν ζώνης πλάτους δεκαπέντε μέτρων, δια συμμετοχής των εις τας δαπάνας απαλλοτριώσεως των καταλαμβανομένων υπό των οδών τούτων ακινήτων. Η επιβάρυνσις αύτη δεν δύναται να υπερβαίνει το ήμισυ του εμβαδού του βαρυνομένου ακινήτου.
...
(3) Ωφελούμενοι παρόδιοι ιδιοκτήται δια την εφαρμογήν του παρόντος άρθρου θεωρούνται εκείνοι των οποίων τα ακίνητα αποκτούν πρόσωπον επί των διανοιγομένων οδών.
(4) Οσάκις οι δικαιούχοι αποζημιώσεως δια την απαλλοτρίωσιν είναι και υπόχρεοι δια την πληρωμήν αυτής, επέρχεται συμψηφισμός δικαιωμάτων και υποχρεώσεων.
(5) Ο τρόπος και η διαδικασία καταμερισμού της αποζημιώσεως μεταξύ Δημοσίου και παροδίων ιδιοκτητών κανονίζονται δια Διαταγμάτων εκδιδομένων προτάσει του Υπουργού Δημοσίων Έργων ...”
24. Under the case-law, the presumption created by Law no. 653/1977 is irrebuttable.
25. The so-called “objective” value of property is calculated by reference to actual prices and indices, regard being had to the characteristic features of the property, and is determined periodically by the Ministry of Finance. This method of assessment must be used for calculating any taxes levied in connection with the purchase, possession or transfer of property.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-76639
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF ESKELINEN AND OTHERS v. FINLAND
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1
JUDGES: Nicolas Bratza
TEXT: 7. The applicants were born in 1943, 1956, 1958 and 1944 respectively and live in Lappeenranta.
8. A Finnish company called Hackmann Sisustus Oy (hereinafter “HCS”) and an Estonian company called Viisnurkka A/S (hereinafter “VIS”) agreed that they would gradually switch production of coated decorative panels known as “Halltex-panels” from Finland to the VIS factory in Estonia, so that HCS would eventually become responsible for their marketing only. HCS had a monopoly over Halltex-panels in Finland.
At the beginning of 1993 HCS and VIS signed another contract, according to which HCS would buy wind-block panels from VIS. The cooperation between the two companies covered, as a result, all the marketing rights of VIS products in Finland, Sweden and west-European countries.
HCS, which was still producing Halltex-panels of its own, later allegedly ignored the above-mentioned cooperation contracts, causing VIS financial difficulties. VIS considered that the agreements had been terminated and decided to build its own production line to make coated decorative panels. The production line was ordered through Oy Finnhallex Ltd, a Finnish company apparently owned by the first, second and fourth applicants, from a company called Lappeenrannan Konemetalli Oy, owned by the third applicant.
9. On 10 August 1994 the managing director of HCS, Mr H.H., requested the police to investigate whether there had been a disclosure of their business secrets, alleging that their exclusive rights to the design of a production line to make coated decorative panels had been used without their permission to build the VIS production line in Estonia.
10. The investigations were carried out by the National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen), which appointed Mr L.T., a mechanical engineer, as their expert in the case. He had worked for a company called Hackman Wood Oy, which belonged to the same consolidated group as HCS. The National Bureau of Investigation also requested expert statements from Professor H.K. in respect of technical questions, and from Professor M.C. in respect of the legal aspects of the protection of business secrets. Professor M.C. was asked to address in particular whether the first and second applicants had provided Oy Finnhallex Ltd with information covered by business secrecy. Further, he was asked to give an opinion on the third applicant’s activities in the planning of the production line, whether he had possessed information covered by business secrecy and whether he had availed himself of such information. Professor M.C. was provided with the pre-trial statements of the applicants and six others. On 9 November he submitted his opinion comprising 25 pages of which some 15 pages concerned his assessment of the nature of the applicants’ alleged actions.
11. The applicants requested that an Estonian citizen, Mr K.P., also be heard as a witness in the pre-trial investigation, but the National Bureau of Investigation made no attempt to call him as a witness. The applicants were not able to appoint their own expert as the HCS production line, with which the VIS production line was to be compared, was protected by the exclusive business secrecy of HCS. According to the applicants, their expert was therefore prevented from examining the HCS production line. The VIS production line went into operation only after the Kouvola Court of Appeal (hovioikeus, hovrätten) proceedings had come to an end.
12. The public prosecutor brought charges against the applicants for, inter alia, disclosure of a business secret. In the indictment, he alleged that the applicants had undertaken to carry out a project for the production of coated decorative panels on the basis of information they had on the production and marketing of a similar product known as Halltex-panels of HCS, in cooperation with VIS. Oy Finnhallex Ltd had been established for the purposes of the project, which was to provide VIS with the production line for the panels corresponding to Halltex-panels and otherwise to take care of the supply of equipment, training and know-how. According to the indictment, the information used for carrying out the project constituted a business secret of HCS. Although the third applicant had no association with HCS, he was allegedly aware of the fact that the project in which he had participated was to a large extent based on the business secrets of HCS.
13. On 30 May 1995 the Lappeenranta District Court (käräjäoikeus, tingsrätten) began its examination of the charges. The applicants pleaded not guilty, arguing, inter alia, that HCS had deliberately given up its allegedly exclusive right to any secrets as it had handed over all the relevant information to VIS anyway. They also argued that the design was a matter of common knowledge and was not protected in any way, as the patent for Halltex-panels had already expired at the time of the events in question and the HCS factory had been accessible to anyone. They also noted that a similar panel was produced in Lithuania. According to the applicants, HCS intended to exploit its monopoly status with the help of the court proceedings.
14. The applicants called K.P., among others, as their witness. They also requested that the former members of HCS’s board of directors, Mr H.H. and Mr J.L., called by HCS, should not be heard as witnesses as their real status was that of a complainant given their close relationship with the company. The District Court rejected their claims and took evidence from H.H. and J.L. The District Court also heard oral evidence from the applicants, from ten witnesses called by the prosecution and from seven witnesses for the defence. One witness for the complainant company was also heard.
15. In September 1995, during a three-day hearing, the fourth applicant requested that two engineers, both witnesses for the defence, should be allowed to acquaint themselves with HCS’s production line. However, he withdrew the request during the hearing. At no stage during the proceedings did anyone request that Professor M.C., who had given a written expert opinion during the pre-trial investigation, be heard as a witness before the District Court. Nor was there any objection to the inclusion of the opinion in the case file.
16. On 30 November 1995 the District Court found the applicants guilty as charged and fined them. Professor M.C.’s written expert opinion was quoted several times in the judgment.
17. The parties appealed. The applicants were each represented by different counsel and therefore lodged separate writs of appeal. The second applicant explicitly requested that Professor M.C., among others, be called as a witness before the Court of Appeal, as the applicants had not had an opportunity to put questions to him. The first and fourth applicants for their part drew the court’s attention to the fact that Professor M.C. had given his written opinion in the course of the pre-trial investigation, having had at his disposal only limited knowledge about the facts of the case. Thus, no weight should be given to his written opinion. The applicants also complained that the District Court had failed to take into account any of the statements made by the witnesses called by them. Some of these arguments were advanced by all of the applicants, others by only one of them.
18. On 16 December 1996 the Court of Appeal held an oral hearing. However it refused to hear any witnesses, finding that the allegation that the evidence had been wrongly assessed did not warrant a rehearing since the credibility of the evidence in question had not been challenged. It also considered that the taking of witness evidence would not produce any new information relevant to the case.
19. In its judgment of 5 June 1997 the Court of Appeal upheld most of the District Court’s reasoning. It did not give any reasons for its decision not to hear Professor M.C. even though the second applicant had explicitly requested that he be heard. It upheld their conviction and increased their sentences to suspended terms of imprisonment.
20. The applicants requested leave to appeal, alleging, inter alia, that the principle of equality of arms between the public prosecutor and the defence had been violated. The applicants had not been able to appoint an expert who could have examined the production line in question, nor had they been allowed to put questions to Professor M.C. at an oral hearing, even though the District Court’s judgment had essentially been based on the expert opinion he had submitted to the police during the pre-trial investigation.
On 22 January 1998 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal.
21. The rules of evidence are laid down in Chapter 17 of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken; Act no. 571/1948). In criminal proceedings, the forms of submission of evidence are 1) examination of witnesses, 2) hearing of experts, 3) hearing of parties under oath (in criminal proceedings only the injured party can be heard under oath and only about the establishment of losses suffered by him or her), 4) hearing of parties without an oath, 5) submission of documentary evidence, and 6) inspection in situ.
22. Section 3 (1) provides that a fact that is a matter of common knowledge or known to the court ex officio need not be proven. In addition, evidence need not be presented on the content of domestic law (jura novit curia). If the court does not know the foreign law applicable to the case, it is for the parties to submit evidence on it.
23. Section 44 (1) provides that if an expert witness with special professional knowledge is deemed necessary, the court can obtain an opinion on the matter from, for example, a public official or an expert in the relevant field who is known to be honest and competent. Section 49 provides that an expert who is heard before the court must take an oath.
24. Section 50 (Act no. 1052/1991) provides that an expert must give a detailed account of the findings in his or her investigation and, on the basis of the account, a substantiated opinion on the questions put to him or her. The opinion shall be compiled in writing, unless the court deems it necessary that the opinion be presented orally. An expert witness who has given a written opinion shall be heard orally in court, if a party so requests and the hearing of the expert witness is not clearly irrelevant or if the court deems the hearing of the expert witness to be necessary. If there are several expert witnesses, one or more of them may be called to be heard.
25. Section 55 (Act no. 571/1948) provides that if a party to the proceedings relies on an expert not appointed by the court, the provisions on witnesses apply. However, such an expert may be ordered to give a substantiated opinion, as mentioned in section 50.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1