ITEMID: 001-22527
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: WOONBRON VOLKSHUISVESTINGSGROEP & OTHERS v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicants are eleven housing associations. Their names are set in the appendix to this decision. They are represented before the Court by Mr N. Koeman and Mr T. Barkhuysen, both lawyers practising in Amsterdam.
The facts of the case, as submitted by the applicant associations, may be summarised as follows.
The aim of the applicant associations is to construct and renovate housing for renting purposes on a non-profit-making basis. Their profits are used for financing the construction of new housing or for the renovation of existing housing. In the field of public housing in the Netherlands, associations like the applicants hold a prominent place in that they provide good standard housing at a relatively low cost on a large scale. The Netherlands State provides financial support to housing associations by, inter alia, subsidising their public housing construction projects.
On 1 July 1975, the Order on Financial Support for Rented Housing (Beschikking geldelijke steun huurwoningen – the “BGSH”), as published in the Bulletin of Acts and Decrees (Staatsblad) 1975, 134, entered into force. In the BGSH, the State Secretary for Housing, Town and Country Planning and Environment (Staatssecretaris van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer – “the State Secretary”) introduced a financing system for subsidised public housing, i.e. the so-called “dynamic cost price” (“DCP”) method, in combination with a scheme where financing takes place by way of loans geared to the subsidies granted.
Under the BGSH, the State Secretary may, in a decision granting a subsidy for a total duration of 50 years for a housing construction project, stipulate that such a loan is a State loan (rijkslening) or direct the housing association concerned to the private capital market for a loan. Both the State and capital market loans were endowment loans (klimleningen), i.e. loans in which the loaned capital sum initially increases by adding part of the interest to the loaned sum, whereas actual repayment only starts after a long period. The idea is that the repayment of the loan is financed in part by presumed rent increases. The calculation of the DCP was based on the principle that during the total exploitation period of a dwelling, which was set at 50 years, the revenues would cover the standardised costs. To this end a “cost price rent” was determined, indicating what amount would be required – given the interest on and repayment of the loan – to meet this objective, as well as a hypothetical development of rent payments and exploitation costs during the entire period of exploitation. The DCP rent was not annually determined, but calculated on the basis of the total standardised costs over the entire period of exploitation. On the assumption that rents would increase in the future, the annual rent would be low during the initial exploitation period. As a consequence of this form of calculation, during the first 20-30 years of exploitation, the annual exploitation costs exceeded the revenue, thus creating a liquidity and exploitation deficit which required the house owners to contract a loan. Hence, endowment loans were developed. The initial liquidity deficit would be added annually to the balance sheet value of the dwelling concerned. In the later years of exploitation, the rents would have increased to such a level that the accrued debt could be repaid rapidly. In comparison to previous subsidy methods, the advantage of this system was that at a constant rent level, a lower State contribution to the costs sufficed. The characteristic feature of the system under the BGSH was that the initial subsidy would be low, subsidy costs in principle being projected to the future by anticipating future rent increases. The DCP rent was calculated in principle for the entire 50 year period and a subsidy was awarded for the whole period with a review of the cost price rent every 10 years, following a possible adjustment of the set parameter values.
The construction of public housing was initially solely financed by State loans but, for budgetary reasons, the State Secretary directed housing associations as from 1977 more and more often towards the private market. The housing associations considered that their aims would be put in jeopardy with this tendency towards private loans unless the conditions for capital market loans were eased.
On the basis of assurances given by the State Secretary to the Lower House (Tweede Kamer) of Parliament that this method of financing would not have negative financial consequences for the tenants concerned, if necessary with extra State subsidies being provided, the housing associations started to make investments with capital market loans. A situation thus developed in which public housing building projects were financed by both private and State loans, and were subsidised for a total duration of 50 years in accordance with the DCP method. During the first ten year period of exploitation, the subsidy for all public housing was calculated in the same manner. As a result of the application of the DCP method, the State could limit itself to relatively low subsidies during the first years of exploitation.
In 1987, the then Government felt that it was no longer desirable that subsidy costs be projected in the future and decided to neutralise this feature by removing the dynamic character of the cost price rent. This implied that the rent parameter was set at 0%, which would result in an increase in the subsidy level. This proved to be easier in cases concerning State loans than in those concerning capital market loans. As to the latter category, the removal of the dynamic character was still not fully implemented by 1993. The State Secretary blamed this on the uncooperative attitude of the private lenders who refused to amend the terms of the housing association loans in accordance with the terms unilaterally prescribed by the State Secretary.
The housing associations considered that the State Secretary had failed to appreciate that the private lenders had no objection to increased State subsidies, thereby implementing the removal of the DCP element for this form of rented accommodation.
The State Secretary eventually decided, as regards the second 10 year subsidy period, to remove the dynamic character of the cost price rent for all public housing, with the exception of such housing financed by the private market. To this end, the State Secretary issued the Transitory Regulation on Financial Support for Rented Housing (Overgangsregeling geldelijke steun huurwoningen – the “OR”), as published in the Bulletin of Acts and Decrees 1989, 145, which entered into force on 1 January 1989.
Under the OR, the rent parameter for dwellings financed by State loans was set at 0%, whereas the dynamic parameter for dwellings financed by the private market was set at 5.5%. As regards the latter housing category, the State Secretary could limit himself to a considerably lower subsidy level, as it was assumed that the rent revenues would increase with the passage of time. In practice, however, the 5.5% rent increase was not attained, which created considerable financial difficulties for some of the housing associations. In addition and contrary to previous assurances given by the State Secretary – upon which the housing associations had based their investment policies – the level of subsidies in respect of social housing financed by the private market was considerably lower than that financed by State loans.
In unsuccessful administrative proceedings instituted on 30 June 1994, the tenth applicant association (see Annex) argued inter alia that the rules set out in the OR as to this financing system were contrary to the principle of equal treatment. On appeal, the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State held, on 24 February 1997, that it had not been established that the State Secretary had given any undertakings about the removal of the dynamic factor concerning privately financed public housing. Insofar as the State Secretary had undertaken to compensate the higher costs of private financing, the Administrative Jurisdiction Division considered that this undertaking had been respected as the housing associations, including the tenth applicant, had been compensated by extra subsidies. It further rejected the argument that the principle of equal treatment had been violated. It held that State and private financing systems were not comparable and that all mixed stock housing associations had met with the same treatment.
In the meantime, on 1 July 1995, the Act of 31 May 1995 on the Removal from the Balance Sheet of Financial Support for Public Housing (Wet Balansverkorting geldelijke steun volkshuisvesting – “the Act”) had entered into force. The aim of this Act was to redeem the long term subsidy commitments for public housing in one go by offsetting in the balance sheet of housing associations the net cash value of the State’s outstanding subsidy commitments to housing associations against unpaid State loans. For the determination of the net cash value amount for public housing financed by private loans, a dynamic rent parameter was to be applied. This was not the case for public housing financed by State loans. According to the applicant associations, a disadvantageous and unequal treatment under the OR was thereby perpetuated in respect of housing financed by the private sector for the remaining 10 year subsidy periods (three in all).
Prior to the adoption of the Act, the applicant associations attempted to challenge these matters by way of a petition (rekest) on 9 May 1994 to the Council of State for an advisory opinion on the then draft legislation. In their petition, the applicant associations argued inter alia that the redemption arrangement set out in the Draft Bill was in violation of property rights and constituted unjustified unequal treatment. The Council of State acknowledged receipt of the petition but, in its advice to the Government on the Draft Bill, it did not explicitly address the issues raised by the applicant associations. According to the applicant associations, the negative consequences of the redemption arrangement were also insufficiently understood in the subsequent discussions in Parliament.
Between July and September 1995, the Minister of Housing, Town and Country Planning and Environment (Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer – “the Minister”) issued the first decisions within the meaning of Article 3 § 1 of the Act to all the applicant associations. With the exception of the eleventh applicant association (see Annex), the applicant associations filed a joint objection against these decisions with the Minister. The Minister rejected their objection on 29 January 1996. The applicant associations then appealed to the Administrative Jurisdiction Division on 11 March 1997.
In its decision of 10 September 1998, the Administrative Jurisdiction Division dismissed the appeal. This decision, insofar as relevant, states:
“The Administrative Jurisdiction Division considers that it appears from the drafting history of the Act that it intends to set off existing subsidy commitments of the State towards <housing associations> against outstanding State loans held by these institutions. These commitments encompass annual financial contributions still to be paid and lump sums for the construction of new housing and for <housing> improvement on the basis of subsidy arrangements prior to 1992. The setting off of commitments against payment claims is being described as ‘the removal from the balance sheet’ (balansverkorting). The aim of this is to attain further independence for the leasehold sector, control over public expenses and sound rent development. In the calculation of the present annual contribution, account is being taken of the starting-points of variable exploitation costs, rent development and interest. The Act sets parameters on the basis of which this series of annual contributions is calculated beforehand. It appears from Article 4 § 3 (c) of the Act that the parameter for the annual rent increase is dependent on the form of financing the housing. This implies that, as regards housing financed by capital market loans, the dynamic cost price method remains in force, whereas for housing financed by State loans the rent parameter is set at zero. This difference has in any event already come about with the entry into force of the Transitory Regulation on financial support for rented housing.
As from 1 January 1995 (the reference date), the series of annual contributions and <other financial> contributions for the construction of new housing and for <housing> improvement, on the basis of subsidy arrangements prior to 1992 that were still to be paid, were rendered payable in cash at once. Furthermore, on the reference date the outstanding loans were rendered redeemable.
As regards the appellants’ objections against the difference made in the Act in the calculation of the cash value ... between the parameters for housing financed by State loans and for housing financed by capital market loans, the Administrative Jurisdiction Division finds that these objections are primarily aimed against the Act as such, which is a statute (wet in formele zin).
Pursuant to Article 120 of the Constitution (Grondwet), the judge cannot examine the constitutionality of statutes and treaties. Having regard to Article 8:1 of the General Administrative Law Act, no appeal lies against the Act, it being a general, binding rule. The reasonableness and equity of the Act cannot, therefore, be examined by the judge. This is not altered by the fact that the Act is a continuation of the policy already set out in the Transitory Regulation on financial support for rented housing. Neither can the compatibility of the Act with the general principles of proper administration (algemene beginselen van behoorlijk bestuur) be examined.
In this connection, the appellants have argued that the lack of a possibility to subject the lawfulness of a statute to judicial review is contrary to Article 6 of the Convention. ... As to this argument, the Administrative Jurisdiction Division considers that it follows from this provision <of the Convention> that Contracting States, for cases referred to in this provision, must guarantee access to an independent and impartial tribunal without, however, setting criteria on the basis of which the matter in dispute must be examined. Already for this reason it cannot be deduced from this provision that the absence of a possibility to examine the lawfulness of the Act, as such, is incompatible with the right set forth in <Article 6 § 1 of the Convention>. Since the law provides for the possibility to submit disputes like the present one to the Administrative Jurisdiction Division of the Council of State, no violation of Article 6 § 1 of the Convention arises.
Insofar as the appellants have submitted that the Act is contrary to <Article 1 of Protocol No. 1>, the Administrative Jurisdiction Division considers as follows. ...
In the opinion of the Administrative Jurisdiction Division it cannot be successfully maintained that the change in payment of <financial> contributions to be provided by the State in connection with the financing of housing owned by the appellants entails a violation of Article 1 of Protocol No. 1 to the Convention. In reaching this conclusion, account has been taken of the fact that, with the introduction of the Act, the ownership rights in the housing and the entitlement to State contributions have not, as such, been affected or limited. The Act merely brought about a change in the payment of State contributions, namely, instead of annual contributions to the appellants, the cash value of those contributions is paid after these have been set off against the obligations <arising out of loans contracted>. In the calculation of the value of the annual contributions, an annual rent increase of 5% is assumed, whereas under the system of annual payment of the contributions, in force until 1 January 1995, those increases for the appellants’ housing stock at issue were set at 5.5%.
There is also no violation of the prohibition on discrimination as set forth in ... Article 14 of the Convention. The Act is applicable to various sorts of housing belonging to those institutions indicated in Article 70 of the Housing Act prior to 1 January 1995, including housing associations. It is true that in Article 4 of the Act different parameters are used for different housing complexes, but this difference is linked to the difference between the regulations under which, at that time, the financial contributions have been awarded for these houses and with the form of their financing. The difference made by the Act is not an aspect connected to a difference in the nature, trait or characteristic of the beneficiary of the contributions. All <housing associations> are treated equally as regards housing created under the same regulation and financed in the same manner.
Insofar as the appellants have argued that the Act should not be applied in their <particular> cases as it violates the general principles of proper administration ...<or> general principles of law (algemene rechtsbeginselen), the Administrative Jurisdiction Division considers as follows:
Even assuming that in very exceptional cases the Act, at least in part, should not be applied on the ground of being contrary to the general principles of law, this does not arise in the present case. In reaching this finding account has been taken of the fact that it does not concern a situation that was not foreseen in the establishment of the Act. Having regard to the parliamentary consideration of the Bill which resulted in the Act, it cannot be maintained that Parliament was not aware and did not take into consideration the problems now advanced by the appellants. It has moreover not been shown that the – unforeseen – concrete financial situation of the appellants as a consequence of the application of the Act is so serious that measures should be taken. It follows from the above that a (subsidiary) obligation to <award> administrative compensation (bestuurscompensatie) <on the basis of equity for negative consequences stemming from acts of the Administration>, as contended by the appellants, does not arise either.”
Since 10 September 1998, an unspecified number of applicant associations have received a final decision, within the meaning of Article 3 § 3 of the Act, and some of them have filed an objection with the Minister against these decisions, requesting an adjournment pending the outcome of the present application to the Court.
The eleventh applicant association received such a final decision on 23 July 1997. In its objection filed with the Minister, it requested an adjournment pending the outcome of the present application to the Court. The Minister granted this request on 12 September 1997.
Under Article 60 of the Housing Act 1962 (Woningwet – “the 1962 Act”), a municipal council (gemeenteraad) may grant recognised institutions, within the meaning of Article 59 of the 1962 Act, financial support in order to meet costs incurred or to be incurred by such institutions in the interests of public housing. Costs recognised as such include the exploitation costs of dwellings and their annexes (Article 60 § 2e of the 1962 Act). This financial support can be provided by way of awarding annual contributions (Article 60 § 3d of the 1962 Act). Institutions within the meaning of Article 59 of the 1962 Act are associations and foundations whose sole aim is to work in the field of public housing without making any payments other than in the interests of public housing.
The practical implementation of these provisions of the 1962 Act were set out in the Decision on Financial Support for Public Housing (Besluit geldelijke steun volkshuisvesting – the “BGSV), as published in the Bulletin of Acts and Decrees (Staatsblad) 1965, 589.
Under Article 16 § 1 of the BGSV, loans may be granted to municipalities for the purposes set out in Article 60 § 1 of the 1962 Act by a decision of the Minister of Housing, Town and Country Planning and Environment (Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer – “the Minister”). Under Article 16 § 2 of the BGSV, municipalities may be awarded annual grants for the purposes set out in Article 60 § 2e of the 1962 Act. Pursuant to Article 19 of the BGSV, the Minister is to set further rules on the amounts of those grants.
These further rules were issued in the 1975 Order on Financial Support for Rented Housing (Beschikking geldelijke steun huurwoningen – the “BGSH”), as published in the Bulletin of Acts and Decrees 1975, 134. According to Article 19 § 1 of the BGSH, the annual grant for the first year of exploitation of the first term of ten years is the difference between the amount of the dynamic cost price rent at the beginning of that ten year term and the amount of the annual rent, as calculated in accordance with a table set out in Annex I to the BGSH. The dynamic cost price rent is the rent calculated at the beginning of the exploitation and after each term of ten years that is necessary – under the assumption set out in Article 15 of the BGSH as to the development of both rents and exploitation costs – to attain with the exploitation, annually and as a minimum, the revenues envisaged in Article 17 of the BGSH over the capital invested in the beginning of that year (Article 10 § 1 of the BGSH). The calculation of the dynamic cost price rent at the beginning of the second ten year term and any subsequent term is based on the assumption that, at the beginning of that term, rents are increased each year by the percentage set out in Article 18 of the House Rent Control Act (Huurprijzenwet woonruimte). The system for the calculation of the annual contributions after the first year of exploitation were set out in Articles 20-22 of the BGSH.
According to Article 22 § 1 of the State Secretary’s Order of 3 October 1998 (Bulletin of Acts and Decrees 1988, 211), the 1975 BGSH was withdrawn as of 1 January 1989. It was replaced by the Transitory Regulation on Financial Support for Rented Housing (Overgangsregeling geldelijke steun huurwoningen – the “OR”). Under the OR, the calculation of the dynamic cost price rent at the beginning of the second ten year term is to be based on an assumed rent increase of 0% per year (Article 3).
In a Circular (Circulaire), published in the Bulletin of Acts and Decrees 1989, 124, the State Secretary set out the policy for subsidising rented housing. This policy entailed the removal of the dynamic character of the exploitation of existing housing. To this end, the determination of the dynamic cost price rent for the second and subsequent ten year terms for housing financed by State loans was to be based on an assumed 0% increase of both the rent and exploitation costs. The scheme for the payment of the interest and the State loan was to be adapted accordingly.
The aim of this new policy was to attain a situation in which the remaining debt for the new housing would no longer be increased by the passage of time so that – given limited inflationary developments – a better balance would be achieved between the balance sheet value and the real value of housing. This also applied for already existing housing. By setting the relevant parameters at zero, the postponement of costs to the future could be prevented. The State Secretary considered it desirable that these costs be covered directly, thus mitigating the long-term autonomous increase of housing project subsidies as a result of previously undertaken commitments. In respect of housing projects that were financed by capital market loans, it had appeared that a mid-term change of agreed loan conditions as to scheduled repayment met with problems from the capital providers, whereas this situation did not arise in the case of housing financed by State loans. In these circumstances, it was decided to differentiate between housing financed by State loans and other housing.
Following an agreement reached between the State Secretary and representative organisations of housing associations, a Bill was prepared enabling the setting off of outstanding subsidy commitments against unpaid State loans. In this manner, housing associations would have greater possibilities for an independent financial policy, whereas the total housing budget of the Ministry of Housing, Town and Country Planning and Environment would be almost halved.
On 10 May 1994, the resulting Draft Bill on the removal from the balance sheet of financial support for public housing was submitted to the Council of State for an advisory opinion. The Council of State issued its advice on 20 July 1994. On the basis of its recommendations, certain amendments to the Explanatory Memorandum of the Draft Bill were made. The Bill was subsequently submitted to Parliament for approval.
On 31 May 1995, the Act on the Removal from the Balance Sheet of Financial Support for Public Housing (Wet Balansverkorting geldelijke steun volkshuisvesting – “the 1995 Act”) was adopted. It entered into force on 1 July 1995.
Under the provisions of the 1995 Act, the Minister is to determine for each housing association recognised by a municipality the amount of the cash value on 1 January 1995 of the still outstanding subsidy commitments for their housing stock (Article 2). The procedure for the determination of this cash value is set out in Article 3 of the Act. The Minister initially determines the cash value in a first decision taken on the basis of information already available (Article 3 § 1). The Minister subsequently requests the housing association and the municipality concerned to submit relevant data and documents required for a second and final determination of the cash value (Article 3 § 2). This final determination is to be made within five years of the first decision (Article 3 § 3).
Under the provisions of Article 4 of the 1995 Act, the dynamic cost price rent calculation is abolished for all categories of subsidised housing, including housing subsidised by State loans and by capital market loans. The calculation percentages on which previous subsidy decisions were based are to be respected whereas, for the intended annual subsidy awards made under the previous system, fixed percentages apply. Article 4 § 3 of the 1995 Act provides:
“For each 10 year period starting on or after 1 January 1995 account shall be taken, where financial support has been given in application of the 1975 Order on Financial Support for Rented Housing ..., of a dynamic cost price rent ... on the understanding that the calculation thereof starts from:
a. an annual increase of the variable exploitation costs by 0%;
b. a revenue over the invested capital of 7%; and
c. an annual rent increase of 0% for housing for which, at the time of the award of financial support, a <State> loan .... has been provided, and of 5% for other housing.”
Under Article 5 of the 1995 Act, the cash value of the outstanding housing subsidy commitments is to be offset against unpaid State loans that have been rendered immediately redeemable in full, thus resulting in a removal of outstanding subsidy commitments from the balance sheet of each housing association.


ITEMID: 001-94113
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF UYANIK AND KABADAYI v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 5 - Right to liberty and security
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky
TEXT: 5. On 16 May 1996 the applicants were arrested and taken into police custody by officers of the İstanbul security police in connection with an investigation into an illegal organisation. On 30 May 1996 the applicants were brought before the İstanbul public prosecutor and the investigating judge respectively, who remanded the applicants in custody.
6. By an indictment dated 27 June 1996, the public prosecutor at the İstanbul State Security Court initiated criminal proceedings against the applicants and a number of others, accusing them, inter alia, of membership of an illegal armed organisation and of taking part in its activities.
7. On 4 June 2003 the İstanbul State Security Court sentenced the applicants to life imprisonment, pursuant to Article 146 § 1 of the Criminal Code. On 20 January 2004 the Court of Cassation quashed the judgment of the first-instance court and remitted the case. State Security Courts were abolished by constitutional amendments introduced on 7 May 2004. Subsequently, the applicants’ case was resumed before the 12th Assize Court of İstanbul.
8. Referring to recent amendments in domestic law, on 27 December 2004 the applicants requested to be released pending trial. Relying on the accusations against the applicants, the length of their detention and the content of the case file, the 12th Assize Court of İstanbul refused the applicants’ request on 29 December 2004. The applicants appealed. On 18 January 2005 the 13th Assize Court of İstanbul dismissed their appeal without further reasoning.
9. On 1 February 2006 the applicants were released pending trial.
10. On 30 April 2008 the 12th Assize Court of İstanbul sentenced the applicants as charged. According to the information in the case file, as submitted by the parties, the proceedings are pending before the Court of Cassation.
VIOLATED_ARTICLES: 5
6


ITEMID: 001-114936
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF ŚWIĄTEK v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
JUDGES: David Thór Björgvinsson;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1954 and lives in Niwiska.
6. The applicant is married and has six children. Prior to his application for an earlyretirement pension he had been employed for twentyfive years and had paid social security contributions to the State.
7. On 5 October 2001 the applicant filed an application with the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) to be granted the right to an earlyretirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the socalled “EWK” pension.
8. Along with his application for a pension, the applicant submitted, among other documents concerning his daughter’s health condition, a medical certificate issued by a specialist medical centre on 31 August 2001. The certificate stated that the child (born in 1988) suffered from neurofibromatosis and scoliosis and that she was in need of her parent’s constant care.
9. On 8 November 2001 the Rzeszów Social Security Board (“the SSB”) issued a decision granting the applicant the right to an earlyretirement pension as of 1 October 2001 in the net amount of 1,100 Polish zlotys (PLN).
10. The Social Security Board initially suspended the payment of the pension due to the fact that the applicant was still working on the date of the decision. The payments were resumed as of 1 November 2001 after the applicant resigned from his fulltime job.
11. On an unspecified date the Rzeszów Social Security Board asked the Main Social Security Board’s doctor (Główny Lekarz Orzecznik) to inform it whether the applicant’s son required the permanent care of a parent. On 6 August 2002 the doctor stated that, on the basis of the medical documents, the child could not be considered as ever having required such care.
12. On 26 September 2002 the Rzeszów Social Security Board issued simultaneously two decisions in respect of the applicant. By virtue of one decision, the payment of the applicant’s pension was discontinued with immediate effect. By virtue of the other decision, the Board reopened the proceedings, revoked the initial decision granting a pension and eventually refused to grant the applicant the right to an earlyretirement pension under the scheme provided for by the Cabinet’s Ordinance of 15 May 1989 on the right to early retirement of employees raising children who require permanent care (Rozporządzenie Rady Ministrów z dn. 15 maja 1989 w sprawie uprawnień do wcześniejszej emerytury pracowników opiekujących się dziećmi wymagającymi stałej opieki) (“the 1989 Ordinance”).
13. The applicant appealed against the respective decisions divesting him of the right to an earlyretirement pension. He submitted that he should receive the benefit because his child required constant care, as confirmed by the medical certificate attached to the applicant’s original application for a pension. Moreover, the applicant alleged that the revocation of his retirement pension was contrary to the principle of vested rights.
14. On 1 April 2003 the Rzeszow Regional Court (Sąd Okręgowy) dismissed the appeal. The Regional Court concluded on the basis of the evidence, including a medical expert opinion, that while indeed the applicant’s child suffered from neurofibromatosis he did not require his father’s permanent care since his health condition did not significantly impair his bodily functions. The domestic court held that the applicant had been rightfully divested of his right to a pension under the scheme provided by the 1989 Ordinance as he did not satisfy the requirement of necessary permanent care.
15. The applicant further appealed against the firstinstance judgment.
16. On 29 October 2003 the Rzeszów Court of Appeal (Sąd Apelacyjny) dismissed the appeal.
17. On 17 March 2004 the Supreme Court (Sąd Najwyższy) refused to entertain the cassation appeal lodged by the applicant.
18. Following the social security proceedings the applicant was not ordered to return his earlyretirement benefits paid by the Social Security Board, despite the revocation of his right to an earlyretirement pension.
19. The applicant submitted that since the revocation of the EWK pension he remained unemployed until today. During this time he received no social or unemployment benefits. His wife was unemployed until 2007 and later found a temporary employment. Their eightyear–old daughter inherited from her grandparents a small farm from which they derived no income.
20. The Government submitted that the applicant did not take up any employment after terminating it on 31 October 2001. They submitted that his wife had been employed between January 2007 and 2009. The Government also maintained that some of their children worked and that their child born in 1992 owned a farm which could have been a source of income for the family.
21. In addition, the Government submitted information as regards the various types of social benefits available in Poland. However, they did not specify which of those benefits, if any, were available in the applicant’s situation.
22. Under the relevant laws currently in force, it appears that the applicant will qualify for a regular retirement pension in 2019.
23. Some 130 applications arising from a similar fact pattern have been brought to the Court. The majority of the applicants form the Association of Victims of the SSB (Stowarzyszenie Osób Poszkodowanych przez ZUS) (“the Association”), an organisation monitoring the practices of the Social Security Board in Poland, in particular in the Podkarpacki region.
24. Out of all applications lodged with the Court, about twentyfour applicants decided not to lodge a cassation appeal against the judgment of the Court of Appeal given in their case.
25. One hundredandfour applicants lodged cassation appeals against the final judgments given in their cases. The Supreme Court entertained and dismissed on the merits fifteen appeals. In eightyone applications the Supreme Court refused to entertain cassation appeals on the ground that they did not raise any important legal issues or require the Supreme Court to give a new interpretation to legal provisions which raised serious doubts or gave rise to ambiguity in the jurisprudence of the domestic courts. In the remaining eight cases cassation appeals were rejected for failure to comply with various procedural requirements.
26. The legal provisions applicable at the material time and questions of practice are set out in the judgment in the case of Moskal v. Poland, no. 10373/05, § 3134, 15 September 2009.
27. The social security scheme for farmers is regulated by the Farmers’ Social Security Act of 20 December 1990 (“the 1990 Act”; ustawa o ubezpieczeniu społecznym rolników).
28. The reopening of the proceedings concerning the earlyretirement pension is regulated in section 114 (1) of the Law of 17 December 1998 on retirement and disability pensions paid from the Social Insurance Fund (Ustawa o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych) (“the 1998 Law”), which at the relevant time read as follows:
“The right to benefits or the amount of benefits will be reassessed upon application by the person concerned or, ex officio, if, after the validation of the decision concerning benefits, new evidence is submitted or circumstances which had existed before issuing the decision and which have an impact on the right to benefits or on their amount are discovered.”
On 1 July 2004 a new subparagraph 114 (1) (a) was added, which reads as follows:
“Section 1 shall apply respectively, if, after the validation of the decision it is discovered that the evidence that had been submitted did not give the right to a pension, disability pension or its amount.”
29. A party to civil proceedings could, at the material time, lodge a cassation appeal with the Supreme Court against a judicial decision of a secondinstance court. A party had to be represented by an advocate or a legal adviser.
30. Article 3931 of the Code of Civil Procedure 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.”
31. Pursuant to Article 393¹³ the Supreme Court, having allowed a cassation appeal, could quash the challenged judgment in its entirety or in part and remit the case for reexamination. Where the Supreme Court failed to find nonconformity with the law, it dismissed the cassation appeal. According to Article 39315 if the cassation appeal was wellfounded the Supreme Court could also amend the impugned judgment and adjudicate on the merits.
32. On 22 June 1999 the Ombudsman made an application to the Constitutional Court, asking for section 186 § 3 of the Law of 17 December 1998 on retirement and disability pensions paid from the Social Insurance Fund (Ustawa o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych) (“the 1998 Law”) to be declared unconstitutional in so far as it restricted the application of the 1989 Ordinance to persons born before 1 January 1949. More specifically, the Ombudsman submitted that the introduction of an agelimit in respect of persons taking care of a child, which in essence amounted to a deprivation of the right to a benefit, constituted a violation of the principle of equality set forth in Article 32 § 1 of the Constitution.
33. On 4 January 2000 the Constitutional Court (K18/99) declared the impugned section 186 § 3 of the 1998 Law unconstitutional in so far as it restricted the application of the 1989 Ordinance to persons born before 1 January 1949. The Constitutional Court reiterated among other things the constitutional principle of acquired rights which guarantees particularly strong protection for the right to receive social welfare benefits.
34. On 10 February 2011 the Ombudsman made an application to the Constitutional Court, asking for section 114 (1)(a) of the 1998 Law to be declared unconstitutional in so far as it allowed the SSB to reopen ex officio proceedings relating to the grant of a pension or a disability pension on the basis of a new assessment of evidence which had already been submitted.
35. On 28 February 2012 the Constitutional Court (K5/11) declared the impugned section 114 (1)(a) of the 1998 Law unconstitutional in so far as it allowed the SSB to reopen such proceedings following a new assessment of evidence which had already been submitted.
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-93286
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: VIHRA NIKOLOVA AND OTHERS v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Mark Villiger;Mirjana Lazarova Trajkovska;Pavlina Panova;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: The applicants, Ms Vihra Nikolova and her children, Ms Maglena Gorchilova and Mr Danko Nikolov, are Bulgarian nationals who were born in 1923, 1943 and 1950 respectively and live in Sofia. They were represented before the Court by Ms S. Margaritova-Vuchkova, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agents, Mrs N. Nikolova and Mrs S. Atanasova, of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1975 the first applicant and her husband purchased from the Sofia municipality a three-room flat covering 106 square metres.
The property had belonged to a private person until the nationalisations carried out by the communist regime in Bulgaria in 1947 and the following several years.
In February 1993 the heirs of the former pre-nationalisation owners brought proceedings against the first applicant and her husband under section 7 of the Restitution Law.
In 1997 the first applicant’s husband passed away. The second and third applicants, being his heirs, became parties to the proceedings.
By judgment of 12 June 2001 of the Supreme Court of Cassation the applicants’ title was declared null and void with final effect on the ground that the 1975 contract had not been signed by the mayor personally. It had been signed by another official of the municipality.
The proceedings continued as regards other alleged grounds for nullity but were eventually terminated on 8 November 2001 as the plaintiffs did not maintain their claim in this respect.
The applicants vacated the flat in October 2001. In April 2003 they were granted the tenancy of a two-room municipal flat which needed renovation. In 2004 the applicants purchased the flat at regulated prices below market value, as applicable for the sale of municipal flats to their tenants. They paid 20,000 Bulgarian levs (approximately EUR 10,200).
On 21 December 2001 the applicants filed a request for compensation bonds.
In July 2007 the applicants inquired about the examination of their request. On 29 August 2007 the regional governor refused to grant it stating that it had been submitted outside the relevant two-month time-limit. The governor considered that the time-limit ran from 12 June 2001, the date of the final judgment of the Supreme Court of Cassation.
Upon the applicant’s appeal, on 14 February 2008 the Sofia Administrative Court quashed the governor’s refusal, accepting that the time-limit had run from 8 November 2001. In May 2008 a court-appointed expert submitted her report according to which the value of the applicants’ former flat, assessed in accordance with the applicable rules, was BGN 81,983 (the equivalent of approximately EUR 42,050). By a judgment of 26 June 2008 the Sofia Administrative Court, noting, inter alia, that the parties had not contested the expert’s assessment, ordered that the applicants should receive compensation bonds for this amount.
The relevant background facts and domestic law and practice have been summarised in the Court’s judgment in the case of Velikovi and Others v. Bulgaria, nos. 43278/98, 45437/99, 48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01, and 194/02, 15 March 2007.
In May 2007 the Government published regulations implementing section 7 (3) of the Restitution Law (State Gazette no. 37 of May 2007). The regulations enabled persons currently in possession of housing compensation bonds to obtain payment at face value from the Ministry of Finance.


ITEMID: 001-68734
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF ROKHLINA v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-3;No violation of Art. 5-4;Violation of Art. 6-1;Non-pecuniary damage - financial award
JUDGES: Christos Rozakis
TEXT: 9. The applicant was born in 1949 and lives in Moscow.
10. On 3 July 1998 the applicant was arrested on the suspicion of shooting her husband, Lieutenant-General Lev Rokhlin, a member of the Russian Parliament. An investigator of the Moscow Region prosecutor's office authorised her detention on remand. The applicant was placed in detention facility no. IZ-49/9 in the Moscow Region.
11. On 8 July 1998 the applicant was charged with murder under Article 105 § 1 of the Criminal Code and questioned as an accused in the presence of Mr Vankovich, a lawyer retained by her. She chose to remain silent on the merits of the charge against her and requested that the investigator be replaced because he had allegedly intimidated her and showed lack of respect for her and her family. On an unspecified date the applicant's request was rejected as unsubstantiated.
12. On 16 July 1998 the State Duma of the Russian Federation (the lower chamber of the Russian Parliament) established a special commission to monitor the progress of the investigation into the circumstances of Lieutenant-General Rokhlin's death (“the Duma commission”).
13. On 21 August 1998 the applicant's detention on remand was extended until 3 December 1998. The applicant did not appeal against the extension order.
14. On 1 December 1998 the applicant's detention was extended until 3 April 1999, that is for a total of nine months starting from the day of her arrest. On 9 December 1998 the applicant's lawyers appealed to a court against the extension order. They complained, in particular, about unreasonable delays in the investigation of the charge against their client and pointed to her frail health. The applicant submitted a supplementary complaint against the extension order; she indicated that her prolonged separation from her mentally disturbed son was detrimental to his health.
15. On 21 December 1998 the Lyublinskiy District Court of Moscow rejected the appeals against the extension order. It held that the detention on remand had been imposed and extended “without any substantial violations of the law of criminal procedure” and that the detention was justified “because [the applicant] was charged with an especially serious criminal offence”. The court found no grounds to release the applicant on bail. On 21 December 1998 and 10 and 13 January 1999 the applicant's lawyers appealed against the decision of the district court. They submitted that the court had not taken into account the applicant's deteriorating health, long periods of inactivity of the team of eight investigators, discrepancies in the applicant's confessions. They also alleged that the court had failed in its duty to give relevant and sufficient reasons for the continued detention. On 13 January 1999 the Moscow City Court heard the appeal and ruled that the suspicion against the applicant that she had committed an especially serious criminal offence was, pursuant to Article 96 of the RSFSR Code of Criminal Procedure, a sufficient ground for her detention on remand.
16. On 13 January 1999 the State Duma of the Russian Federation adopted a special address to the Prosecutor General of the Russian Federation. Members of Parliament noted that the investigation was lingering, while the applicant remained in custody. On 15 December 1998 the Duma commission members had met the applicant in prison and found her health unsatisfactory. In view of the applicant's poor health and adverse effects of her long separation from her mentally disturbed son and given that she was not a public danger, the Duma requested the Prosecutor General to consider the applicant's release from custody on humanitarian grounds.
17. On 18 March 1999 the applicant's detention on remand was extended until 3 July 1999, i.e. for a total of twelve months. The applicant's lawyers appealed against the extension. They requested that the applicant be released, citing her poor health and excessive delays in the investigation.
18. On 6 April 1999 the Lyublinskiy District Court of Moscow found that the applicant's detention had been extended lawfully and no substantial violations of the laws of criminal procedure had occurred. The court held that, pursuant to Article 96 of the RSFSR Code of Criminal Procedure, the suspicion of an especially serious criminal offence was a sufficient ground for the holding in custody and that there were no exceptional grounds warranting the applicant's release. The court also noted that the applicant's state of health permitted her holding in custody.
19. On 11 May 1999 the Moscow City Court dismissed the applicant's lawyers' appeal against the district court's decision. It upheld the district court's interpretation that the existence of a suspicion of involvement in an especially serious criminal offence had been a sufficient ground for the continued detention on remand. The court examined the medical certificates submitted by the applicant's defence and held that in the absence of any life-threatening medical condition and given that the applicant's adult daughter was taking care of her brother, the applicant should remain in custody.
20. On 23 June 1999 an extension of the detention on remand was authorised until 3 November 1999. The applicant did not appeal against the extension order.
21. On 8 October 1999 the acting Prosecutor General of the Russian Federation authorised the applicant's detention until 3 January 2000, i.e. for a total of eighteen months.
22. On 15 October 1999 the applicant's counsel, Mr Burmistrov, introduced an appeal against the detention order of 8 October 1999, under Article 2201 of the RSFSR Code of Criminal Procedure. According to the stamp on the first page, the registry of the Lefortovskiy District Court received the statement of appeal on the same date.
23. On 18 or 19 October 1999 [the date is unreadable] the applicant filed a handwritten statement of appeal against the order of 8 October 1999. On the same date the head of the Lefortovo detention centre forwarded it, along with the applicant's medical certificate, to the Lefortovskiy District Court. According to the stamp on the forwarding letter, the court received the document on 25 October 1999.
24. The applicant and her lawyer complained about unjustified delays in the investigation and submitted that the applicant's health and that of her son were steadily deteriorating.
25. By an interim decision of 25 October 1999, the Lefortovskiy District Court scheduled the examination of the appeal by Mr Burmistrov, for 27 October 1999, at 3 p.m., with the participation of a prosecutor, the applicant and her counsel.
26. According to the covering note produced by the Government, on 26 October 1999 the Prosecutor General's office sent certain materials relating to the lawfulness of the applicant's detention to the Lefortovskiy District Court.
27. On 27 October 1999 the applicant was not brought to the court because she had fallen ill. The prosecutor and her counsel objected to holding the hearing in her absence. The hearing was adjourned until 1 November 1999.
28. On 1 November 1999 the Lefortovskiy District Court of Moscow heard the appeals against the extension order and dismissed them. The court held that “the imposition of a preventive measure in the form of placement in custody and [subsequent] extension of the detention in respect of the applicant were lawful and justified”. As to the defence's arguments about the applicant's medical condition and adverse effects of her separation from her son, the court found that these arguments were not “the grounds that would render the preventive measure applied to [the applicant] unlawful or unjustified”. The court also added that it was not competent to impose a different “preventive measure” on the applicant, such decision being in the exclusive competence of investigators and prosecutors.
29. On 1, 7 and 25 November 1999 the applicant's lawyers appealed against the decision of 1 November. They submitted that the court did not take into account significant changes in the applicant's situation after fifteen months of detention, including the worsening health of her son, and that it did not give any relevant reasons for the continued detention.
30. On 25 November 1999 by the Moscow City Court upheld the decision of 1 November 1999. The court confirmed the conclusions of the first instance court to the effect that “the placement in custody as a preventive measure could be imposed on the sole ground of gravity of the [committed] offence”. On the basis of a medical certificate issued by the detention facility on 4 November 1999 the court determined that the applicant could remain in custody.
31. On 23 December 1999 the acting Prosecutor General of the Russian Federation applied to the Moscow City Court for an extension of the applicant's detention until 3 July 2000.
32. On 29 December 1999 the Moscow City Court refused the Prosecutor General's application. It established that on 28 December 1999 the applicant and her lawyers had finished studying the case-file and there were therefore no lawful grounds to extend her detention beyond the maximum eighteen-month period.
33. On 30 December 1999 the prosecutor ordered the applicant's release from custody on the condition that she sign an undertaking not to leave the city.
34. On 16 November 2000 the Naro-Fominsk Town Court of the Moscow Region convicted the applicant of premeditated murder and sentenced her to eight years' imprisonment in a correctional colony. The court excluded the record of the interview made on the day following the arrest as inadmissible evidence because the applicant had been interviewed in the absence of a counsel, her rights had not been explained to her, she had not been informed of video-recording and because there were substantial discrepancies between the videotaped statements and the printed record.
35. On 21 December 2000 the Moscow Regional Court upheld the conviction. It established, however, mitigating circumstances in the applicant's case and reduced her sentence to four years' imprisonment.
36. On 7 June 2001 the Supreme Court of the Russian Federation, by way of supervisory review proceedings, quashed the judgments of 16 November and 21 December 2000 and remitted the case to the Naro-Fominsk Town Court of the Moscow Region for a new examination.
37. Since 11 October 2001 the criminal case against the applicant has been pending before the Naro-Fominsk Town Court of the Moscow Region.
38. On 25 March 2002 the proceeding were stayed because of the applicant's illness. They were resumed on an unspecified date.
39. On 22 April 2003 the applicant was taken to a hospital after she had a heart attack in the courtroom.
40. On 20 August 2003 the proceedings were stayed again because of the applicant's illness. They were resumed on an unspecified date.
41. On 15 April 2004 the proceedings were adjourned until 13 May 2004 at the applicant's daughter's request.
42. On 13 May 2004 the hearing was adjourned because one lay assessor had fallen ill.
43. On 28 May 2004 the applicant did not appear at the hearing because she had to attend to her son.
44. On 20 July 2004 the hearing was adjourned owing to the applicant's counsel's absence. On 8 September 2004 another counsel for the applicant did not appear.
45. On 25 October 2004 the court decided to hold a new directions hearing because, by virtue of recently amended Article 30 of the Code of Criminal Procedure, the applicant's case could be tried either by a single judge or by a three-judge bench. On 1 November 2004 the applicant applied for trial by a single judge.
46. The case is still pending before the trial court.
47. The Code of Criminal Procedure of the Russian Soviet Federalist Socialist Republic (“the CCrP”) of 27 October 1960 (effective until 30 June 2002) listed as “preventive measures” or “measures of restraint”, inter alia, an undertaking not to leave a specified place and placement in custody (Article 89).
48. A decision to order detention on remand could only be taken by a prosecutor or a court (Articles 11, 89 and 96). In making this decision the relevant authority was to consider whether there were “sufficient grounds to believe” that the accused would flee from investigation or trial or obstruct the establishment of the truth or re-offend (Article 89), as well as to take into account the gravity of the charge, information on the personality of the accused, his (her) profession, age, state of health, family situation and other circumstances (Article 91).
49. At the material time the accused could be placed in custody if he or she was charged with a criminal offence carrying a sentence of at least one year's imprisonment or in exceptional circumstances (Article 96 § 1). If the accused was charged with any of the serious intentional offences listed in Article 96 § 2, including manslaughter, the detention on remand could be imposed on the sole ground of the dangerousness of that offence. The Plenary Session of the Supreme Court specifically directed the courts to avoid making any assessment of collected evidence or drawing conclusions as to the accused's guilt or innocence in the decisions concerning the lawfulness and justification of the placement in custody (Resolution of the Plenary Session of the Supreme Court of the Russian Federation, no. 6 of 29 September 1994, paragraph 9).
50. A prosecutor's order, or a court decision, ordering detention on remand was to be reasoned and justified (Article 92). The accused was to be informed of the detention order and to have explained the procedure for lodging an appeal against it (Article 92).
51. The Code distinguished between two types of detention on remand: one was “during the investigation”, that is when an authorised agency – the police or a prosecutor's office – undertook investigative measures, and the other was “before the court” (or “during the trial”), that is when the trial court examined the case. Although there was no difference in practice between them (the detainee was normally held in the same detention facility), the calculation of time-limits was different.
52. After his or her arrest the person was placed in custody “during the investigation”. The maximum permitted term of detention “during the investigation” was two months but it could be extended for up to eighteen months in “exceptional circumstances”. Extensions were authorised by prosecutors of ascending hierarchical levels, up to the Prosecutor General of the Russian Federation. No extensions beyond eighteen months were permitted (Article 97).
53. The term of detention “during the investigation” was calculated until the day when the investigation was considered completed and the defendant was given access to the case file (Articles 97, 199, 200 and 201). The access was to be granted no later than one month before the authorised detention period expired (Article 97). If the defendant needed additional time to study the case-file, a judge acting on a request by a prosecutor could grant an extension of the defendant's detention on remand until such time as the reading of the file was completed, but for no longer than six months.
54. Once the investigation was considered to be complete and the defendant had received the bill of indictment and finished reading the case file, the file was transferred to a trial court. From that day the defendant's detention was “before the court” (or “during the trial”). At the material time the Code set no time-limit for detention “during the trial”.
55. The detainee or his (her) counsel or representative could challenge the detention order, or any subsequent extension order, to a court (Article 2201). The judge was required to review the lawfulness and justification of a detention or extension order no later than three days after receipt of the relevant materials. The review was to be conducted in camera in the presence of a prosecutor and the detainee's counsel or representative. The detainee was to be summoned and a review in his absence was only permissible in exceptional circumstances when the detainee waived his right to be present of his (her) own initiative. The judge could either dismiss the challenge or revoke the detention on remand and order the detainee's release. A judge's decision was to be reasoned (Article 2202).
56. An appeal against the judge's decision lay to a higher court. The time-limit for examination of such an appeal was the same as that established for appeals against the conviction (see below) (Article 331).
57. The case examination was required to start no later than fourteen days after the judge issued a procedural order fixing a hearing date (Articles 2231 and 239). The duration of the trial was not limited in time.
58. The appeal court was required to examine an appeal against the first-instance judgment within ten days upon its receipt. In exceptional circumstances or in complex cases or in proceedings before the Supreme Court of the Russian Federation this time-limit could be longer, up to two months (Article 333). No possibility of further extensions was provided for.
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-3
6-1
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-4


ITEMID: 001-90500
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: K.R.S. v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr K.R.S., is an Iranian national who was born in 1975 and lives in Harmondsworth. He was represented before the Court by Mr K. Murphy, a lawyer practising in Woodford Green, London, with Scudamore Solicitors. The United Kingdom Government (“the Government”) were represented by their Agent, Ms H. Upton of the Foreign and Commonwealth Office.
The applicant arrived in the United Kingdom on 11 November 2006 and claimed asylum. It was discovered that the applicant had travelled through Greece before arriving in the United Kingdom. As a consequence, a request was made to Greece for it to accept responsibility for the applicant's asylum claim. Greece accepted responsibility on 12 December 2006.
On 14 December 2006 the Secretary of State declined to give substantive consideration to the applicant's asylum claim because under the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (“the 2004 Act”: see domestic law and practice below) the applicant could be returned to Greece.
The applicant subsequently absconded and later was detained in an immigration enforcement operation. Directions were then set for the applicant's removal to Greece at 8.20 a.m. on 23 May 2008.
On 15 May 2008 the applicant's representatives wrote to the Secretary of State for the Home Department requesting that removal be deferred pending the outcome of the R (Nasseri) v Secretary of State for the Home Department [2008] EWCA Civ 464 (see domestic law and practice below). The Court of Appeal had given judgment in that case on 14 May 2008 and it appeared that the unsuccessful party, Nasseri, was to petition the House of Lords for leave to appeal.
On 15 May 2008 the Secretary of State responded that the applicant had failed to identify how Nasseri applied to his case. The Secretary of State said that the concerns that had been expressed by the United Nations High Commissioner for Refugees and others about Greek procedures related to “interrupted” cases, cases where the applicant left Greece before their asylum claim was decided and where there was a risk that an asylum applicant might not be readmitted into the asylum process in Greece. The present applicant's case did not fall into this category. He was being returned to Greece having originally entered the territory of the EU through that country. There had been no criticism regarding access to the Greek asylum system in those cases.
On the same day the applicant's solicitors responded that there was nothing in the Court of Appeal's judgment in Nasseri that suggested it had proceeded on the basis that it was merely considering “interrupted” cases. No response was received from the Secretary of State.
On 21 May 2008, the applicant brought judicial review proceedings challenging the decision to remove him to Greece. The removal directions set for 23 May 2008 were cancelled. In her acknowledgment of service contesting the judicial review proceedings, the Secretary of State relied on the Court of Appeal's judgment in Nasseri that the relevant provisions of the 2004 Act were not incompatible with the investigative obligation under Article 3 of the Convention and that, upon an examination of all of the evidence in relation to Greek practices and procedures, there was no evidence of a risk of unlawful refoulement to Greece. Furthermore there were no proceedings pending before the House of Lords in Nasseri.
On 16 June 2008, the High Court refused the applicant permission to apply for judicial review for the reasons set out in the Secretary of State's acknowledgment of service.
Removal directions to Greece were then reset for 14 July 2008. On 10 July 2008 the applicant lodged an application with this Court.
On 11 July 2008, the President of the Section to which the case had been allocated decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings that the applicant should not be expelled to Greece pending the Court's decision. In his letter informing the Agent of the Government of the United Kingdom of this decision, the Section Registrar stated:
“This indication has been made in light of the UNHCR report dated 15 April 2008 (a copy of which is attached). The parties' attention is drawn to paragraph 26 of the report that states that 'In view of EU Member States' obligation to ensure access to fair and effective asylum procedures, including in cases subject to the Dublin Regulation, UNHCR advises Governments to refrain from returning asylum seekers to Greece under the Dublin Regulation until further notice. UNHCR recommends that Governments make use of Article 3(2) of the Dublin Regulation, allowing States to examine an asylum application lodged even if such examination is not its responsibility under the criteria as laid down in this Regulation'.
The Acting President has instructed me to inform you that the Rule 39 measure will remain in force pending confirmation from your authorities that the applicant, if removed to Greece and if he so wishes, will have ample opportunity in Greece to apply to the Court for a Rule 39 measure in the event of his onward expulsion from Greece to Iran. Your authorities may wish to avail themselves of any bilateral arrangements under the Dublin Convention with a view to seeking such confirmation.”
“UK Border Agency (UKBA) has been advised by the Head of the Greek Dublin Unit that Asylum seekers returned to Greece under the Dublin Regulation [see relevant international and European Union law below] are given the opportunity to lodge an asylum claim on arrival. If they do so they are kept in a holding centre for up to 2 days while their application is registered. They are then provided with a 'pink' card which entitles them to work and to access benefits while their application is considered. Furthermore, no asylum seeker is returned by the Greek authorities to such countries as Afghanistan, Iraq, Iran, Somalia, Sudan or Eritrea, even if their asylum application is rejected by the Greek authorities. In this event they are given a letter telling them to leave Greece within a specified time but no action is then taken to enforce their removal...UKBA has written to the Greek Dublin Unit for written confirmation of the above and express confirmation that the opportunity to apply for asylum extends equally to the opportunity to make an application to the Court and a reply is expected within two weeks.
Furthermore, it is standard practice in Dublin Regulation removal cases to Greece for the United Kingdom to obtain from the Greek authorities clarification that the individual concerned will be able to submit an asylum application upon arrival in Greece should he or she wish to do so.”
“In general, no alien who submits an asylum application is put in detention for that sole reason. In any case, the expulsion procedure that regards illegal aliens or asylum applicants, who were firstly arrested for illegal entry, is going through various stages of remedy (administrative or judicial) [sic]. No asylum applicant is expelled, unless all the stages of the asylum procedure are finished and all the legal rights for review have been exhausted, according to the provisions of the Geneva Convention and the non refoulement clause. Furthermore, according to the Procedural Rules of the European Court of Human Rights, they have the right to appeal against any expulsion decision and have a Rule 39 indication on their case.”
In his reply of 6 August 2008, the Section Registrar sought confirmation that, according to the terms of the letter of 11 July 2008, the Greek authorities not only ensured the right of an asylum applicant returned to Greece to apply for a Rule 39 measure but also guarantee him ample opportunity to avail himself of that right while still on the territory of Greece. The Agent of the Government of the United Kingdom in turn sought such confirmation from the Agent of the Government of Greece. On 12 November 2008, the United Kingdom Agent forwarded a letter dated 4 November 2008 from the Greek Agent. This stated:
“We hereby advise you that it is the objective of the Greek State, though its competent bodies and in accordance with the current legal framework (Presidential Decrees 220/2007, 90/2008 and 96/2008), to ensure the unhindered submission of applications for asylum by all aliens who declare before any Greek Authority, at the entry points or on Greek territory, either verbally or in writing, that they request asylum in our country or ask in any way not to be deported to other countries from fear of persecution for reasons of race, religion, nationality, social class or political views.
Consequently, in Greece not only is there the right and the possibility to submit an application for asylum, but the actual application is also examined very carefully, exhaustively and as to substance...the Police Office, as the competent authority, makes much of the 'right for asylum' and the principle of non-refoulement, and they do not deport the alien from our country, if the procedure has not been completed. This also applies for the aliens transferred to Greece, pursuant to the provisions of the Dublin Regulation, provided that the requirements for the characterization of the 'applicant' as a national of a third country or a non-citizen who has submitted an application for asylum for which a final decision has not yet been made are met, as described in the Directive 2005/85/EK [Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status – see relevant European Union law below] and Presidential Decree 90/2008”
This letter enclosed another letter dated 31 October 2008 from the Directorate for Aliens Affairs to that effect. Attached to the letter of 31 October was a note which referred to the fact that many applicants resisting return to Greece had the right to submit asylum applications in Greece but had not done so because their purpose was to go to other European Union countries. The note also referred to the new legislative framework in Greece, which, inter alia, made provision for: the Public Prosecutor to oversee the implementation of the relevant domestic law in respect of aliens who are minors, without the need for an asylum application by them; training for the officials responsible; the right to immediate employment and education; the issuing of travel documents for beneficiaries of subsidiary protection and “applicants for international protection”; and the ipso jure revocation of all decisions in respect of “interrupted claims”.
The Dublin Convention (the Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities, 15 June 1990) provided for measures to ensure that applicants for asylum had their applications examined by one of the Member States and that applicants for asylum were not referred successively from one Member State to another. Articles 4 to 8 set out the criteria for determining the single Member State responsible for examining an application for asylum. Pursuant to Article 7, the responsibility for examining an application for asylum is incumbent upon the Member State responsible for controlling the entry of the alien into the territory of the Member States. The United Kingdom and Greece were both signatory States.
The Convention has been superseded by Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (“Dublin II”, hereinafter “the Dublin Regulation). The Dublin Regulation applies to all European Union Member States, Norway and Iceland. Article 3(1) of the Regulation provides for asylum applications to be examined by a single Member State, according to the criteria set out in Chapter III. The criteria for determining which Member State is responsible include where it is established that an asylum seeker has irregularly crossed the border into a Member State, having come from a third country (Article 10). If responsibility can be designated on the basis of the criteria, listed in Chapter III, Article 11 provides that the first Member State with which the application for asylum was lodged shall be responsible for examining it.
Article (3)2 of the Dublin Regulation allows a Member State to examine an asylum application even if such examination is not its responsibility. It provides:
“By way of derogation from paragraph 1, each Member State may examine an application for asylum lodged with it by a third-country national, even if such examination is not its responsibility under the criteria laid down in this Regulation. In such an event, that Member State shall become the Member State responsible within the meaning of this Regulation and shall assume the obligations associated with that responsibility. Where appropriate, it shall inform the Member State previously responsible, the Member State conducting a procedure for determining the Member State responsible or the Member State which has been requested to take charge of or take back the applicant.”
The rights and standards set out in Directive 2005/85/EC include: the right to remain in a Member State pending the examination of an asylum application (Article 7); that decisions on applications are given in writing and, where an application is rejected, that the reasons in fact and law are stated in the decision with information on how to challenge a negative decision (Article 9); that each applicant for asylum be given appropriate linguistic assistance and a personal interview (Articles 10 and 12); and, subject to a number of qualifications, that applicants shall have the right to legal assistance and representation (Article 15). Article 39 guarantees applicants the right to an effective remedy before a court or tribunal against decisions taken against them. Member States are to allow the United Nations High Commissioner for Refugees access to applicants, access to information on individual applications and the opportunity to present its views to any competent authorities (Article 21).
The above Directive requires that Member States ensure a dignified standard of living to all asylum-seekers, paying specific attention to the situation of applicants with special needs or who are detained. It regulates matters such as the provision of information, documentation, freedom of movement, healthcare, accommodation, schooling of minors, access to the labour market and to vocational training. It also covers standards for persons with special needs, minors, unaccompanied children and victims of torture.
In a judgment given on 19 April 2007 in Commission v. Greece (Case C-72/06), the Court of Justice of the European Communities (“the ECJ”) found that Greece had failed to implement the Directive. It appears from the United Nations High Commissioner for Refugees Position Paper (set out below) that it has now done so.
Pursuant to the Dublin Regulation, Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 establishes a “first list of safe countries” which covers the other twenty-four European Union Member States at the time (prior to the accession of Romania and Bulgaria), Norway and Iceland.
Paragraph 3 of Part 2 of Schedule 3 provides:
“(1) This paragraph applies for the purposes of the determination by any person, tribunal or court whether a person who has made an asylum claim or a human rights claim may be removed—
(a) from the United Kingdom, and
(b) to a State of which he is not a national or citizen.
(2) A State to which this Part applies shall be treated, in so far as relevant to the question mentioned in sub-paragraph (1), as a place—
(a) where a person's life and liberty are not threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion,
(b) from which a person will not be sent to another State in contravention of his Convention rights, and
(c) from which a person will not be sent to another State otherwise than in accordance with the Refugee Convention.”
Sections 1(4) and 3(2) of the Immigration Act 1971 provide for the making of Immigration Rules by the Secretary of State. Paragraph 345 of the Immigration Rules states:
“(1) In a case where the Secretary of State is satisfied that the conditions set out in Paragraphs 4 and 5(1), 9 and 10(1), 14 and 15(1) or 17 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 are fulfilled, he will normally decline to examine the asylum application substantively and issue a certificate under Part 2, 3, 4 or 5 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 as appropriate.
(2) The Secretary of State shall not issue a certificate under Part 2, 3, 4 or 5 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 unless:
(i) the asylum applicant has not arrived in the United Kingdom directly from the country in which he claims to fear persecution and has had an opportunity at the border or within the third country or territory to make contact with the authorities of that third country or territory in order to seek their protection; or
(ii) there is other clear evidence of his admissibility to a third country or territory.
Provided that he is satisfied that a case meets these criteria, the Secretary of State is under no obligation to consult the authorities of the third country or territory before the removal of an asylum applicant to that country or territory.”
In the above case, the High Court had concluded that paragraph 3 of Part 2 of Schedule 3 was incompatible with Article 3 because it precluded both the Secretary of State and the court from considering any question as to the law and practice on refoulement in Greece. The Secretary of State successfully appealed to the Court of Appeal. Laws LJ (who delivered the leading judgment) considered the extent to which the evidence demonstrated that removal of an asylum seeker to Greece would violate the United Kingdom's obligations under Article 3. He concluded that:
“There are clearly concerns about the conditions in which asylum-seekers may be detained in Greece. It is not however shown that they give rise to systematic violations of Article 3.
...such evidence as there is, and in particular the recent UNHCR Paper, shows that the relevant legal procedures are to say the least shaky, although there has been some improvement.
...But in truth there are currently no deportations or removals to Afghanistan, Iraq, Iran, Somalia or Sudan, and as I understand it no reports of unlawful refoulement to any destination. That seems to me to be critical. I would accordingly hold, on the evidence before us, that as matters stand Greece's continued presence on the list does not offend the United Kingdom's Convention obligations.”
In H (Iran); Zego (Eritrea); Kadir (Iraq) v. Secretary of State for the Home Department [2008] EWCA 985 the Court of Appeal affirmed its judgment in Nasseri.
Recommendation R (97) 22 (containing guidelines on the application of the safe third country concept) where relevant provides as follows:
“1. In order to assess whether a country is a safe third country to which an asylum-seeker can be sent, all the criteria indicated below should be met in each individual case:
a. observance by the third country of international human rights standards relevant to asylum as established in universal and regional instruments, including compliance with the prohibition of torture, inhuman or degrading treatment or punishment;
b. observance by the third country of international principles relating to the protection of refugees as embodied in the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, with special regard to the principle of non-refoulement;
c. the third country will provide effective protection against refoulement and the possibility to seek and enjoy asylum;
d. the asylum-seeker has already been granted effective protection in the third country or has had the opportunity, at the border or within the territory of the third country, to make contact with that country's authorities in order to seek protection there before moving on to the member state where the asylum request is lodged or, that as a result of personal circumstances of the asylum-seeker, including his or her prior relations with the third country, there is clear evidence of the admissibility of the asylum-seeker to the third country.”
In Recommendation R (98) 13 (on the right of rejected asylum seekers to an effective remedy against decisions on expulsion in the context of Article 3 of the European Convention on Human Rights) the Committee of Ministers recommended:
“[T]hat governments of member states, while applying their own procedural rules, ensure that the following guarantees are complied with in their legislation or practice:
1. An effective remedy before a national authority should be provided for any asylum seeker, whose request for refugee status is rejected and who is subject to expulsion to a country about which that person presents an arguable claim that he or she would be subjected to torture or inhuman or degrading treatment or punishment.
2. In applying paragraph 1 of this recommendation, a remedy before a national authority is considered effective when:
2.1. that authority is judicial; or, if it is a quasi-judicial or administrative authority, it is clearly identified and composed of members who are impartial and who enjoy safeguards of independence;
2.2. that authority has competence both to decide on the existence of the conditions provided for by Article 3 of the Convention and to grant appropriate relief;
2.3. the remedy is accessible for the rejected asylum seeker; and
2.4. the execution of the expulsion order is suspended until a decision under 2.2 is taken.”
The above recommendation (on measures of detention of asylum seekers) contains, inter alia, a number of recommendations on the conditions of detention of asylum seekers, which include ensuring a standard of living adequate for their health and well-being; separate accommodation within detention facilities between men and women, as well as between children and adults; a right of access to the UNHCR; legal assistance; and appropriate arrangements for minors.
In Resolution 1471 (2005) (Accelerated asylum procedures in Council of Europe member states) the Parliamentary Assembly invited the governments of the member states to ensure, inter alia, that minimum procedural safeguards were met in accelerated asylum procedures, including the right to an individual determination of one's claim and the right to an effective remedy under Article 13 of the Convention. It also called on Member States to provide adequate social and medical assistance in places of detention.
On 8 February 2008 the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) published its report on it visit to Greece from 20 to 27 February 2007. Having reviewed the conditions of detention for asylum seekers, the report recommended: The report stated:
“With respect to all the centres visited, the CPT calls upon the Greek authorities to ensure that:
- repair work is carried out immediately so that:
 all centres have functioning toilet and shower facilities with a constant supply of water, at an appropriate temperature;
 appropriate artificial lighting is installed, and access to natural light and ventilation improved.
- all detainees are allocated a bed/plinth and provided with a clean mattress and clean bedding;
- occupancy rates be revised so as to offer a minimum of 4m² of space per detainee;
- all detainees are provided with the necessary products and equipment to keep their accommodation clean, as well as with products for personal hygiene (i.e. toilet paper, soap, toothpaste, toothbrush, etc.);
- all detainees have unimpeded access to toilet facilities;
- all detainees are allowed to spend a large proportion of the day outside their cells and have at least one hour of outdoor exercise a day. (emphasis in original)”
The Committee also noted that there was no regime offering purposeful activities to detainees, that staffing arrangements in the detention facilities were totally inadequate and that proper health care services had to be provided to detainees.
IV. RELEVANT OBJECTIVE INFORMATION
On 15 April 2008, the United Nations High Commissioner for Refugees published the above paper in which it advised the European Union Member States to refrain from returning asylum seekers to Greece under the Dublin Regulation until further notice. It also recommended that they make use of Article 3(2) of the Dublin Regulation (see relevant European Union law above) and examine asylum applications themselves. The Position Paper criticised reception procedures for “Dublin returnees” at Athens airport and the Central Police Asylum Department, which was responsible for registering asylum appeals. It also expressed concerns in respect of those whose asylum claims were deemed to be “interrupted” as a result of their having left Greece before their claims had been decided:
“While a number of positive changes in the practice have been noticed in 2007, the legal framework underpinning the practice of 'interruption' continues to leave room for different interpretations and fails to guarantee that 'Dublin returnees' with 'interrupted claims' are granted access to the procedure. This situation calls into question whether 'Dublin returnees' will have access to an effective remedy as foreseen by Article 13 of the European Convention on Human Rights as well as Article 39 of the Asylum Procedures Directive [Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status – see relevant European Union law above]. Of relevance is the decision taken by the European Commission on 31 January 2008 to refer a case to the European Court of Justice against Greece for the infringement of the Dublin Regulation based on Greece's failure to enact legislative amendments to abolish the practice of 'interruption'. (footnotes omitted)”
The Position Paper also characterised the percentage of asylum seekers who were granted refugee status as “disturbingly low” and criticised the quality of asylum decisions, noting in particular their short, standardised format and the absence of legal reasoning in some decisions.
The Position Paper also noted that since the adverse finding of the ECJ in Commission v. Greece (see above), Council Directive 2003/9/EC had been transposed into Greek law on 13 November 2007. However, its implementation continued to present serious flaws. The paper stated:
“UNHCR remains concerned about the extremely limited reception facilities for asylum-seekers as this situation is seriously compromising the full implementation of the Presidential Decree on the Reception Conditions and urges the Government of Greece to promptly issue the awaited ministerial decision that should establish the criteria for the provision of a daily financial allowance. Furthermore, UNHCR calls upon the Government of Greece to ensure that the situation of children is given primary consideration and that the current reception conditions for unaccompanied minors are urgently reviewed.”
On 9 April 2008 three non-governmental organisations, the Norwegian Organisation for Asylum Seekers, the Norwegian Helsinki Committee and Greek Helsinki Monitor, published a report entitled “A gamble with the right to asylum in Europe-Greek asylum policy and the Dublin 2 Regulation”. The report called on other European countries to apply Article 3(2) of the Dublin Regulation and on the Greek authorities to review their asylum policy so that it complied with Greece's international obligations. The report stated:
“Greek asylum policy is better understood if one considers the following:
1. Keeping asylum seekers in police custody is a common practice, and we were told several stories of asylum seekers being abused while detained by the police. It is unacceptable that some of those fleeing from persecution in their home country are beaten up by the police in an EU state instead of receiving help and protection.
2. 25,113 asylum applications were submitted in 2007, but the authorities have dedicated very limited resources to handle them, which is yet another example of Greece's reluctance to deal with asylum according to its international obligations.
3. From more than 20,000 asylum cases that were given first instance examination in 2007 only 8 persons were given residence permit, 0.04 per cent of the applicants. 17,000 decisions were appealed, of which 6,448 were examined. Only 155 applications were granted, after the examination of appeals, that is 2.4 per cent. These are depressing figures.
4. Very few asylum seekers are given legal assistance in Greece, even if they are entitled to this. Access to legal assistance is all the more important given the low percentage of applications that are granted. The number of lawyers to whom NGOs mediate access, approximately 15, is not in proportion to the need.
5. Unaccompanied minors are not guaranteed a place at a reception centre, nor education, a legal guardian or other assistance they are entitled to through the UN Children's Convention.
6. Approximately 750 available places at reception centres are far from sufficient. The majority of asylum seekers are left to fend for themselves, as best they can.
It is impossible to respect the asylum seekers' legal protection and fundamental social rights with resources as limited as those made available by Greek authorities. For instance, only 10-12 police officers are assigned to interview more than 20,000 asylum seekers arriving in Greece in the course of a year. The asylum interviews are therefore very short and superficial. Most of the asylum seekers we have talked to told us that authorities used between two and five minutes to interview them, and that the grounds for seeking asylum were not the main topic. Furthermore, these were among the lucky ones who got access to the asylum procedure at all, for it is difficult for asylum seekers to even lodge an application for asylum in Greece.
...
In our opinion the deficiencies in the Greek asylum process, documented through this report, entail that there is a discord between the preconditions on which the Dublin II Regulation was founded and procedural practices followed in Greece. In our opinion the Greek system does not guarantee even minimum basic legal protection for the asylum seekers.”
In a press release dated 28 February 2008 and entitled “No place for an asylum-seeker in Greece”, Amnesty International stated:
“Greece must urgently improve the current situation for refugees and asylum-seekers in the country. We call on the Greek authorities to comply with their obligations under international human rights, refugee and European law.
We note the decision of the Norwegian Immigration Appeals Board to suspend returning refugees and asylum-seekers to Greece under the Dublin II Regulation. We consider the decision to be particularly important in light of the poor conditions in which immigration detainees are held in Greece, and the lack of legal guarantees with regard to examination of their asylum claim. We call on Member States to make use of Article 3.2 of the Dublin II Regulation allowing Member States to examine an asylum application 'even if such examination is not its responsibility under the criteria laid down in this Regulation'.
...
We recall that a procedure against Greece was launched by the European Commission at the European Court of Justice for infringing the Dublin II Regulation. It is our understanding that this is because of the lack of legal guarantees with regard to a substantive examination of the asylum claim by Greek authorities after transfer to Greece.
We have repeatedly expressed concerns to the Greek authorities about its treatment of asylum-seekers and failure to provide effective asylum procedures. The organisation is concerned to receive reports that asylum-seekers have been held in conditions amounting to arbitrary detention pending the examination of their claim. Asylum-seekers are often interviewed about their claim in the absence of an interpreter and lawyer. Lawyers report that in practice, individuals can expect to have their claim rejected at first instance. We have repeatedly called on the Greek authorities to take concrete measures to improve the conditions for asylum-seekers including by resolving the legal limbo in which they are left – without documents and without access to any social services in practice. In a letter to the Greek authorities sent on 7 February 2008, the organization expressed its concern for the well-being of an estimated 2,500 people, including unaccompanied children as young as nine years old evicted from their makeshift homes in the port area of Patras. Most of the evicted people are believed to be asylum-seekers from Afghanistan. Greece does not return people to Afghanistan and yet does not process their asylum application in a prompt, fair way, leaving them in limbo without legal status and therefore without rights.”