ITEMID: 001-105081
LANGUAGEISOCODE: ENG
RESPONDENT: IRL
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: IZEVBEKHAI AND OTHERS v. IRELAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Angelika Nußberger;Dean Spielmann;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger
TEXT: 1. The first applicant, Ms Enitan Pamela Izevbekhai, is a Nigerian national who was born in 1969 and currently lives in Sligo. The second and third applicants, Naomi Alero Izevbekhai and Jemima Temisanre Izevbekhai, are daughters of the first applicant and they were born in Nigeria in 2000 and 2002, respectively. These children live with their mother in Sligo and they are Nigerian nationals. The applicants were represented before the Court by successive firms of solicitors and, latterly, by Ceemex and Co., a law firm practising in Dublin. The Irish Government (“the Government”) were represented by their Agent, Mr P. White, of the Department of Foreign Affairs, Dublin.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. In 1993 the first applicant and her husband lived with their son (born in 1991) in Lagos, Nigeria. The first applicant is a Yoruba Christian from Lagos. After second level education, she attended secretarial courses, before working for years in a travel agency and in an international bank. She gave up working in or around 2004 as her husband travelled a lot on business. Her husband is a businessman in Lagos and was born in the Edo State of Nigeria. In later proceedings (her affidavit of 4 November 1999, paragraph 24 below), the first applicant underlined that they had a comfortable life in Nigeria: they were financially secure, she was happily married, they had a five bedroom villa, the use of three cars and they employed a maid. The first applicant has four brothers living in Nigeria.
4. The applicants arrived in Ireland on 20 January 2005 and the next day the first applicant applied for asylum on her own behalf and on behalf of her daughters claiming that she could not protect the second and third applicants from female genital mutilation (“FGM”) if they were returned to Nigeria. The first applicant submitted as follows. Her first daughter, Elizabeth, was born on 11 February 1993. On 14 July 1994 this child was subjected to FGM carried out by an elder in the first applicant’s mother-in-law’s house. Neither the first applicant nor her husband had agreed to this procedure but they ultimately succumbed to it in view of alleged pressure from the latter’s family. The first applicant’s mother also strongly disagreed with FGM. On 15 July 1994 the child was rushed to hospital and died on 16 July 1994 as a result of complications from the FGM procedure. The first applicant did not report this death to the police because, allegedly, the Nigerian police would not interfere with a family tradition. Following the births of the second and third applicants, her husband’s family wished FGM to be carried out on them and threatened to do so, including by attempting to abduct them to that end. She and her husband were opposed to the procedure, not least because of what had happened to their first daughter. Pressure from the family-in-law became so strong that the first applicant and her husband considered that the only way to protect their daughters was for the applicants to leave Nigeria. The first applicant stressed that she had not left Nigeria to improve their economic circumstances as she and her husband enjoyed good lives there. They left the country using an agent and on false passports. The first applicant’s husband and their son remained in Nigeria. The applicants travelled via Amsterdam to Dublin.
5. Documents later supplied by United Kingdom (“UK”) immigration authorities to the Irish Minister for Justice, Equality and Law Reform (“the Minister”) showed that the first applicant, her husband as well as the second and third applicants (not the son) had been granted various visas to visit the UK but that those visas had been revoked following the applicants’ claim for asylum in Ireland. The applicants did not travel to the UK, the first applicant maintaining in the asylum application in Ireland that she could not protect her daughters from her family-in-law even in the UK.
6. The applicants were legally represented throughout the domestic proceedings outlined below, apart from certain short periods during the appeal to the Supreme Court in the “subsidiary protection” proceedings, when the applicants changed solicitors.
7. By Report dated 21 February 2005 an officer of the RAC opined that the applicants had submitted neither credible evidence of a well-founded fear of persecution in Nigeria nor sufficient evidence that they would encounter persecution should they return or that state protection would be withheld (section 2 of the Refugee Act 1996, as amended, “the 1996 Act”). Considering the country of origin information from various international and State reports to be “contrasting”, an assessment of the first applicant’s credibility was necessary and was done on “the balance of probabilities”. The Report found that her fears were not credible given, inter alia, the passing of the federal Bill banning FGM through the lower house of the Nigerian national assembly, the banning of FGM in a third of Nigerian States including the Edo State from where the first applicant’s husband originated, that FGM was declining in large urban areas (including therefore Lagos), that the first applicant had reported neither her first daughter’s death nor any threats from her family-in-law to the police whereas research showed that the police were alive to their duties and responsibilities and, given that she was in a privileged position, socially, enabling her to afford protection to her children. Finally, the report concluded that internal flight was a material possibility in Nigeria. On 3 March 2005 the applicants were notified of the RAC recommendation to refuse refugee status.
8. The applicants appealed to the RAT. The RAT allowed them time to furnish additional documents (“the applicants’ RAT documents”) which the applicants had sought to submit. These included:
(a) a “Medical Certificate of Cause of Death” dated 17 July 1994 signed by Dr Unokanjo of Isioma Hospital. He was the Surgeon-Gynaecologist who, according to the applicants, had delivered Elisabeth and who had previously refused the mother-in-law’s request to carry out FGM on Elizabeth and who had treated her upon admission to hospital on 15 July 1994. The Certificate recorded the primary cause of Elizabeth’s death as being “cardio-pulmonary collapse” and the secondary cause as “profuse bleeding”;
(b) a Doctor’s Report, also signed by Dr Unokanjo and dated 17 July 1994, which recorded Elizabeth’s normal birth, urgent admission to hospital with a “history of weakness and pallor which possibly resulted from profuse bleeding after patient had undergone the traditional female circumcision” and death from “circulatory collapse”;
(c) a Death Certificate of the National Population Commission (“NPC”) dated 29 July 1994; and
(d) a Certificate for Burial stamped by the “Public Health Department- Births and Deaths Registry”.
9. Following an oral hearing before the RAT the applicants’ appeal was rejected by decision of 22 June 2005. The RAT was satisfied that they had not demonstrated to a reasonable degree of likelihood a well-founded fear of persecution. There was no concrete foundation for the concern which had induced the applicants to seek refugee status. The first applicant had failed to seek the assistance of Dr Unokanjo, her parents (her father was a civil servant opposed to FGM) or of any family member including her siblings. Despite the experience with the first child, the real question was whether there was a prospect of serious harm upon return for which the receiving State could be accountable. The RAT considered similar country of origin information as before the RAC and found that State protection and/or State supported protection would have been available to the applicants in Nigeria. It also found that the first applicant’s credibility was undermined by a partial account of how she had travelled to and arrived in Ireland, by a lack of a reasonable explanation as to why she had not claimed asylum immediately on arrival and by her failure to furnish formal identity documents or “reliable documentation in support of her claim”.
10. The applicants did not seek leave to apply for judicial review of the RAC or RAT decisions.
11. In August 2005 the first applicant’s husband was stopped by the Irish police travelling from Belfast to Dublin without an entry visa for Ireland. He had documentation in his name showing an address in the UK (bank cards, a store card, a library card and a gas payment card). He was removed to the UK and, from there, to Nigeria on 22 August 2005. He returned the following year to the UK on a visitor’s visa.
12. On 2 September 2005, relying on the RAT decision, the Minister refused the applicants a declaration of refugee status. On 13 September 2005 he notified them of his proposal to make deportation orders and of their entitlement to apply, within 15 days, for leave to remain within the State (section 3(4)(a) of the Immigration Act 1999, “the 1999 Act”). The applicants so applied. The Repatriation Unit reviewed their submissions and, thereafter, recommended that the Minister sign the deportation orders. That Unit considered that their deportation would not breach the prohibition of refoulement. The Unit relied on country of origin information including a Report on a Joint British-Danish Fact-finding Mission to Nigeria 2005 which Report recorded the view of BAOBAB (a Nigerian Women’s rights’ non-governmental organisation – “NGO”) that FGM was not a genuine ground for seeking asylum given State and non-State protection for women and the re-location option. The Unit also considered that no issue arose under section 4 of the Criminal Justice (UN Convention Against Torture) Act 2000 (“the UN Act”) or in respect of the humanitarian factors listed in section 3(6) of the 1999 Act or under section 3(1) of the European Convention on Human Rights Act 2003 (“2003 Act”). The Minister signed the deportation orders on 23 November 2005. The applicants were served with those orders and with the Repatriation Unit’s reasons and were directed to attend the police immigration bureau on 5 December 2005 to facilitate their deportation.
13. The applicants made further submissions about, inter alia, FGM in Nigeria and they queried the credentials of BAOBAB. Having analysed those submissions, the Repatriation Unit recommended confirmation of the deportation orders. The Minister accepted that recommendation. On 3 December 2005 the law firm representing the applicants received the deportation orders and requested further time to consider the position. The applicants did not report to the police immigration bureau. On 8 December 2005 the first applicant absconded from her accommodation to avoid arrest and the second and third applicants were taken into care. On 12 January 2006 the first applicant was arrested by the police and placed in prison to facilitate deportation.
14. By e-mail dated 8 December 2005 to the applicants, BAOBAB denied the stance which had been attributed to them and relied upon by the Repatriation Unit (paragraph 12 above).
15. On 13 January 2006 the applicants applied for an extension of time and for leave to apply for judicial review. On 23 January 2006 the Minister gave an undertaking not to expel the applicants pending that application and the applicant was released from detention. On 10 November 2006 the High Court granted the extension of time and leave because the applicants had established “substantial grounds” for challenging the deportation orders.
16. The High Court hearing on the substantive application took place on 28-30 November 2007. The applicants argued that the Minister should have identified the principal reasons why he had concluded that none of the applicants was at risk of torture on return and, further, that the High Court should take into account, in determining the risk alleged, four new affidavits including one of Dr Unokanjo dated 9 March 2006, which confirmed in detail the matters covered by the same doctor’s documents of July 1994.
17. Judgment was delivered on 30 January 2008. As to the applicants’ first argument, the High Court found that, while section 5 of the 1996 Act required the Minister to consider representations made, including satisfying himself on the refoulement issue, there was no obligation to give reasons for his decision in that respect since the Minister was not carrying out an inquisitorial process (already completed by the ORAC and the RAT) but rather exercising Ministerial discretion. As to the request for a re-assessment of risk by the High Court based on the new affidavit evidence, the High Court held that the breadth of its review of an exercise of a Ministerial discretion (as opposed to its review of decisions of the RAC and RAT) was more limited as was, accordingly, any re-assessment of risk. Applying this level of review, the High Court noted that a deportation order could be challenged in at least four special circumstances: if the Minister had not considered whether section 5 of the 1996 Act applied (principle of refoulement); if the Minister could not reasonably have come to the view which he did; if an applicant had not been afforded a statutory entitlement to make representations on “humanitarian grounds”; and if the Minister had failed to consider such representations within the terms of the statute or the factors set out in section 3(6) of the 1999 Act. However, none of those circumstances applied in the present case. Leave to appeal to the Supreme Court was refused.
18. On 4 March 2008 the applicants applied to the Minister to exercise his discretion to allow them to apply for “subsidiary protection” under the European Communities (Eligibility for Protection) Regulations 2006 (“the 2006 Regulations”). The applicants’ grounds were substantially the same as their judicial review application. By letter of 19 March 2008 the applicants were notified of the rejection of their application. Since the deportation orders were issued before the 2006 Regulations came into effect (10 October 2006), the applicants were not automatically entitled to apply for subsidiary protection. While the Minister had a discretion to consider their application if they had “identified new facts or circumstances” demonstrating a change of position from the date of the deportation orders (N.H. & T.D. v. Minister for Justice, Equality and Law Reform ([2007] IEHC 277), they had not demonstrated grounds enabling him to exercise that discretion. Attached to the Ministerial letter was an analysis of the applicants’ submissions by the Repatriation Unit: new documents submitted concerning the birth and death of Elizabeth were not a material change since the Minister had not challenged the cause of her death.
19. In March 2008 the applicants were granted leave to apply for judicial review of the Minister’s refusal of subsidiary protection.
20. By judgment dated 18 November 2008 the High Court refused to grant an interlocutory injunction stopping the applicants’ deportation finding, inter alia, that there was no “fair question” to be tried: the Minister reasonably found that there were no new facts and circumstances since the applicants had raised, on subsidiary protection, the very same fear of FGM and the very same set of circumstances that had been previously raised, examined and rejected.
21. Further to the applicants’ request, on 18 November 2008 the President of the Third Chamber of this Court applied Rule 39, which application was later extended by the Chamber until further notice.
22. On 16 December 2008 the substantive judicial review application came on for hearing before the same High Court judge who had heard the injunction application. That judge acceded to the applicants’ request to recuse himself and a different High Court judge then heard and rejected the substantive judicial review application by judgment of 27 January 2009. The application for subsidiary protection was found not to disclose a significant change to the material circumstances pertaining on the date of the deportation orders, so that there was nothing irrational about the Minister’s decision that there were no grounds for him to exercise his discretion under the 2006 Regulations. The applicants appealed to the Supreme Court.
23. Meanwhile, towards the end of 2008, and given substantial domestic publicity surrounding the applicants’ case, the Minister re-opened previous investigations in Nigeria into the applicants’ claims about the birth and death of Elizabeth, the results of which were received after the delivery of the High Court judgment of January 2009. On 25 March 2009 the Minister filed four affidavits with the Supreme Court which testified to the fact that the applicants’ RAT documents (paragraph 8 above), as well as Dr Unokanjo’s affidavit of March 2006 (paragraph 16 above), concerning he birth and death of Elizabeth were forgeries. Disputing the applicants’ claims about a child known as Elizabeth, the Minister requested the dismissal of the appeal as an abuse of process. Those affidavits were from:
(a) an official of the Irish Embassy in Lagos who described his visit to an National Population Commission (“NPC”) registration office, an official of which had produced the register, had confirmed that the registration number on the alleged NPC Death Certificate of 29 July 1994 did not exist and had certified that that Certificate was not authentic. The Irish Embassy official also met Dr Unokanjo who attested to the matters included in his affidavit noted below;
(b) a Detective Inspector of the Irish police who described how he had met Dr Unokamjo and requested him to give his evidence by way of a sworn affidavit, which he did as noted immediately below;
(c) Dr Unokanjo (dated 6 March 2009). He testified to the fact that he was a Consultant Gynaecologist in Isioma Hospial; that he had not signed any documents concerning Elizabeth (neither a Medical Certificate of Cause of Death/Medical Report dated July 1994 nor an affidavit of March 2006); that no other Dr Unokanjo worked or had ever worked at the hospital; that he recognised the first applicant from photographs shown to him; that the hospital records (also exhibited) indicated that he had treated the first applicant when she delivered her first child in 2000 (those records of 2000 note “0” after the title “Living Children” and the title “Dead Children” is left blank); and that he had not delivered or subsequently treated a child called Elizabeth Izevbekhai. He further testified to the fact that the first applicant had telephoned him some years previously requesting him to issue a death certificate in respect of a deceased child of hers to enable her to be given asylum in Ireland and that he had refused so to do since she had neither had any baby before 1999 nor had she lost one; and
(d) an official of the Department of Justice who outlined the history of the applicants’ immigration applications and claims.
24. The first applicant responded to the Government’s affidavits of March 2009 by her affidavit dated 4 November 2009. She maintained her position as regards Elizabeth’s birth and death. She admitted that the documents purportedly signed by Dr Unokanjo were forgeries but she claimed that her husband who obtained them had not told her. It had never been her wish to abuse the Irish legal process.
25. In the same affidavit, the first applicant furnished a second set of documents purporting to certify Elizabeth’s birth and death following FGM, which had been recently obtained by her brother and by Nigerian solicitors. She also claimed to be in fear for her own safety on return given the attention her case in Ireland had received and the critical comments reported on Irish television and radio about her by the Nigerian Ambassador to Ireland and the Nigerian Attorney General: if she was harmed, she could not protect her children in Nigeria.
26. In December 2009 the Minister engaged two law firms in Lagos to verify the authenticity of this second set of documents of the applicants. Both firms reported that three of those documents were not authentic:
(a) The affidavit of the first applicant’s brother dated 8 April 2009 was considered not authentic because the name of the Commissioner for Oaths appearing on it had been confirmed to be a fabrication by the Assistant Chief Registrar of the High Court of Lagos State; and
(b) A “Medical Certificate of Cause of Death” of Elizabeth Izevbekhai purportedly completed by a Dr Oni as well as a letter entitled “Verification of Death Certificate” both purportedly of Lagos State University Teaching Hospital were considered not authentic because the Chief Medical Director of the same hospital confirmed that Dr Oni was not on the staff and that neither document was from the hospital.
One firm also found that certain documents could not be relied upon and the other firm qualified its authentication of those documents as they were not given sight of the relevant Death Register. While another document of the second set of documents (an NPC document) was certified as authentic by the two firms retained by the Minister, they both pointed out that the information contained in that document was based on other documents which had not been certified as authentic. In January 2010 this material was filed in the Supreme Court by the Minister.
27. On 9 February 2010 the first applicant responded with a brief affidavit. She had requested a firm of solicitors in Nigeria and her brother to obtain the second set of documents attesting to the birth and death of Elizabeth. Those documents were obtained by her in “good faith” and “in the belief that they were genuine”. She underlined that, in seeking to obtain documentation through legitimate channels in Nigeria, one could unknowingly fall victim to touts issuing forged documents. If any of the documents filed were forged, the applicants apologised for that.
28. Following a hearing on the preliminary issue of whether the Minister had jurisdiction to entertain an application for subsidiary protection from persons in respect of whom deportation orders had been made before the 2006 Regulations came into force, on 9 July 2010 the Supreme Court (by a majority) found that the Minister had no discretion to do so. Consequently, the substantive application did not proceed and thus no factual findings were made as regards the Minister’s allegations of forgery.
29. By letter dated 21 November 2008 the OHCHR wrote to the Irish Government expressing grave concern. Whilst not wishing to prejudge the applicants’ case, the OHCHR drew the Government’s attention to a number of international instruments and requested them to outline the initial steps taken to guarantee the applicants’ right under those instruments and to clarify a number of matters. On 3 March 2009 the Government replied detailing the various procedures and protections available to the applicants and the history of the applicants’ proceedings as well as noting the present application before this Court. In her Report of May 2009, the Special Rapporteur on Violence Against Women responded to the Irish Government by expressing her thanks for their reply. Nothing further issued from the OHCHR.
30. Section 2 of the 1996 Act provides that a “refugee” includes a person who, owing to a well founded fear of being persecuted, is outside the country of his or her nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. Section 5 contains the prohibition of refoulement:
“(1) A person shall not be expelled from the State or returned in any manner whatsoever to the frontiers of territories where, in the opinion of the Minister, the life or freedom of that person would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion.”
31. The reasons prohibiting the Minister from making a deportation order under section 5 of the 1996 Act are virtually identical to the qualification for refugee status under section 2 of that Act (Kouaype v. the Minister for Justice, Equality and Law Reform and Another, unreported, High Court, Clark J., 9 November 2005).
32. Persons seeking asylum may apply to the Minister for a declaration recognising their status as refugees. The matter is referred, for investigation, to the RAC, who may interview the candidates and prepare a report on those interviews and on the investigations carried out. The RAC delivers a recommendation which may be appealed by an unsuccessful applicant to the RAT. The RAT shall affirm the RAC’s recommendation unless it is satisfied, having considered relevant matters, that the applicant is a refugee. Applicants are notified of the RAT’s decision. The Minister is then notified of the RAT’s decision. If the RAT’s decision upholds a RAC’s recommendation to refuse refugee status, the Minister may refuse to give the applicant a declaration of refugee status. A person can challenge the above series of decisions, including the Minister’s decision, through a request for leave to apply for judicial review, the scope of, and procedure for, which is set down in section 5 of the Illegal Immigrants (Trafficking) Act, 2000.
33. Section 3 of the 1999 Act confers on the Minister the power to make a deportation order but only once he has considered and rejected the “humanitarian” factors listed in Article 3(6) of the 1999 Act and satisfied himself that the deportation would not breach the prohibition of refoulement (contained in section 5 of the 1996 Act). In Baby O v. the Minister for Justice, Equality and Law Reform ([2002] 2 I.R. 169) the Supreme Court found, per Murray CJ, that section 5 of the 1996 Act simply required the Minister to satisfy himself as to the refoulement issue before making a deportation order and that there was no obligation on the Minister to set out detailed reasons for so satisfying himself.
34. FGM comprises all procedures that involve partial or total removal of the external female genitalia or other injury to the female genital organs for non-medical reasons. The World Health Organisation (“WHO”) noted the following key facts about FGM in its Fact Sheet No. 241 (2010): an estimated 100-140 million girls and women worldwide live with the consequences of FGM. It is mostly carried out on young girls some time between infancy and 15 years of age and in Africa an estimated 92 million girls from 10 years of age and above have undergone FGM.
35. There are different forms of FGM (see Eliminating Female Genital Mutilation: An Interagency Statement 2008 of various international organisations including the WHO, the UN High Commissioner for Refugees (“UNHCR”), the UN Children’s Fund (“UNICEF”) and the UN Development Fund for Women (“UNIFEM”)). These include Clitoridectomy, Excision and Infibulation.
36. The same Interagency statement described FGM as a violation of, inter alia, the right to freedom from torture, inhuman and degrading treatment so that protection from FGM was provided for by various international treaties (Convention on the Rights of the Child and Convention on the Elimination of All Forms of Discrimination Against Women), by regional treaties (Protocol to the African Charter on Human and People’s Rights Relating to the Rights of Women in Africa, “Maputo Protocol”) as well as by consensus documents of several international organisations. The UN Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment considers that FGM amounts to torture even if it is legal and/or medicalised (Report to the UN General Assembly, 14 January 2008. See also joint Global strategy to stop health-care providers from performing female genital mutilation 2010 of, inter alia, the WHO, UNHCR, UNICEF and UNIFEM).
37. Nigeria is a federal republic of 36 states with a population of approximately 150 million. English is one of its official languages.
38. In 1995 Nigeria ratified the Maputo Protocol, Article 5 of which requires State Parties to legislate to prohibit FGM. Article 34(1)(a) of the 1999 Federal Constitution prohibits “torture or inhuman or degrading treatment”. A Bill banning FGM was introduced at federal level in Nigeria and it was withdrawn when the National Assembly stepped down in 2003. Since this Bill has not been re-introduced, there is currently no general federal law against the practice of FGM in Nigeria. However, approximately 12 of the 36 States in Nigeria have adopted laws specifically prohibiting FGM, including the south-south States (one of which is the Edo State) and almost the whole of the south-west. The federal Child Rights Act 2003 provides that causing FGM is a punishable offence and that federal Act has been enacted in 18 of the 36 States of Nigeria.
39. Having recommended to Nigeria to adopt federal legislation prohibiting FGM as well as measures to support girls who refused to undergo FGM, on 11 June 2010 the Committee on the Rights of the Child commented as follows on the report submitted by Nigeria under Article 44 of the Convention on the Rights of the Child:
“While noting the multidisciplinary approach adopted by the State party to raise awareness and promote attitudinal change with respect to ... (FGM), and that cutting tattoos or marks and female genital mutilation are made punishable offences in the Child Rights Act, the Committee is concerned about the high percentage of women who have undergone female genital mutilation. The Committee regrets the lack of up-to-date information on measures taken by the State party to prevent and eliminate harmful traditional practices, including progress in the implementation of its earlier recommendations ... .
66. The Committee urges the State party, as a matter of priority, to: ...
(d) Eliminate FGM and other harmful traditional practices, including by enacting legislation to prohibit FGM and to conduct awareness raising programmes for, and involving, parents, women and girls, heads of families, religious leaders and traditional dignitaries.”
40. A report, signed jointly by the WHO and the Nigerian Ministry of Health, dated December 2007 and entitled Elimination of Female Genital Circumcision in Nigeria noted that the practice of FGM was widespread in Nigeria, covered practically every State and was still deeply entrenched in Nigerian society. However, since the 47th WHO Assembly to resolve to eliminate FGM in 1994 which Nigeria joined, various steps had been taken by the Nigerian Government: the establishment of multi-sectoral Technical Working Group on Harmful Traditional Practices (HTPs), the conduct of various studies and national surveys on HTPs, the launching of a regional Plan of Action, the formulation of a national policy and plan of action approved by the Federal Executive Council for the elimination of FGM.
41. The Interagency Statement of 2008 (described at paragraphs 35-36 above) estimated the prevalence of FGM in Nigeria amongst women aged 1549 at 19%, whereas the daughters of such women had undergone FGM at the lower rate of 10%.
42. The WHO website (accessed in January 2010) indicated a national average of FGM for Nigeria at 29.6% as of 2008. It also noted a number of trends across Africa including the medicalisation of the FGM procedure and the lowering of the average age for FGM (possibly to escape anti-FGM legislation) in certain countries (not mentioning Nigeria). Data from at least 2 surveys indicated, as regards most African countries including Nigeria, that women of 15-19 years of age were less likely to have been submitted to FGM than are women in older age groups, the latter trend indicating greater support for the discontinuation of FGM amongst younger women.
43. The Nigerian Demographic and Health Survey 2008 (“NDHS 2008”) of the NPC and a US research company of November 2009 noted that 29.6% of women in Nigeria had been subjected to FGM.
44. The prevalence in the States of Nigeria varied considerably: 11.4% (North Central); 2.7% (North east), 19.6 (North West), 52.8% (South East), 34.2% (South South) and 63.4% (South West). Moreover, differentials in the prevalence of FGM by age indicated “that the practice has become less common over time”: women aged 25-49 were nearly twice as likely as women aged 18-19 to have been circumcised.
45. While the average prevalence of FGM reported in the NDHS of 2003 was reported as 19% (as against 29.6% in 2008), it was unlikely that this was indicative of an increase in FGM nationally given the overall decreasing prevalence among younger age groups. Much of that increase was explained by a sharp increase in one State of the north-west zone in which zone certain practices had been included in the definition of FGM in 2008 that had not been previously included.
46. The USSD report on Human Rights Practices in Nigeria of 2009 (dated 11 March 2010) stated as follows:
“The 2008 NDHS reported that 30 percent of females in the country had been subjected to FGM. While practiced in all parts of the country, FGM was most prevalent in the southern region among the Yoruba and Igbo. Infibulation, the most severe form of FGM, was infrequently practiced in northern states but common in the south. The age at which women and girls were subjected to the practice varied from the first week of life until after a woman delivered her first child; however, most women were subjected to FGM before their first birthday.
The law criminalizes the removal of any part of a sexual organ from a woman or girl, except for medical reasons approved by a doctor. According to the provisions of the law, an offender is any female who offers herself for FGM; any person who coerces, entices, or induces any female to undergo FGM; or any person who, for other than for medical reasons, performs an operation removing part of a woman or girl’s sexual organs. The law provides for a fine of 50,000 naira (approximately $332), one year’s imprisonment, or both for a first offense and doubled penalties for a second conviction.
The federal government publicly opposed FGM but took no legal action to curb the practice. Because of the considerable impediments that anti-FGM groups faced at the federal level, most refocused their energies on combating the practice at the state and local levels. Twelve states banned FGM. However, once a state legislature criminalized FGM, NGOs found that they had to convince the local government authorities that state laws were applicable in their districts. The Ministry of Health, women’s groups, and many NGOs sponsored public awareness projects to educate communities about the health hazards of FGM; however, underfunding and logistical obstacles limited their contact with health care workers.”
47. The UK Country of Origin Information Report on Nigeria of 9 July 2010 cites directly from the above-cited USSD Report, as regards FGM and women. As regards FGM and children, the UK report cites from the report of the World Organisation Against Torture submitted to the 38th session of the UN Committee on the Rights of the Child in 2005 as follows:
“The age of [FGM] varies from 3 months to 17 years or just about the first pregnancy. Any state interference into the practice of FGM is considered as a violation of the rights to privacy. Yet, many girls face several health risks through this, including of HIV infection due to unhygienic methods that accompany the practice.
“The State Report [Second Periodic Report by Nigeria to the [Committee] mentions that ‘the Bill on Female Genital Mutilation has gone through the lower house, and will go through the upper house before the president can sign it into law.’ But to date, the law has not been adopted ... however, some states passed laws prohibiting female circumcision and genital mutilation. In the report of the Nigerian government to the [Committee], the ongoing existence of FGM and other harmful traditional practices is recognised and efforts to combat it are reportedly undertaken. Due to public enlightenment and mobilization efforts by groups of civil society, as well as increased enrolment of girls in schools, reported cases of FGM are diminishing. Nonetheless, the practice remains widespread in Nigeria and the proportion of the female population having undergone genital mutilation [is] high.”
48. This joint team interviewed in Nigeria various representatives of UN organisations (including UNHCR, UNICEF and UNIFEM), of the WHO and of the International Committee of the Red Cross (“ICRC”), of certain NGOs as well as of the Nigerian Ministry of Women’s Affairs and Social Development. Their report (of October 2008) discussed internal relocation possibilities in Nigeria for women who wished to escape FGM.
49. The report described the NGOs assisting women seeking such protection including the Women’s Aid Collective (“WACOL”), the Project Alert on Violence Against Women and Women’s Rights Advancement and Protection Alternative (“WRAPA”, which had over 15,000 members covering all of Nigeria’s 36 states and which was supported by the Federal Capital Territory) and the Legislative Advocacy Coalition on Violence Against Women (“LACVAW”). The views of relevant UN bodies and of those NGOs on internal relocation were set out:
“1.10 Representatives of a UN organisation emphasized that it is mainly a matter of empowerment and enlightenment for a girl or a woman to relocate and seek protection. The protection structures are in place and functioning in Nigeria. However, these structures need to be strengthened, as the capacity is still weak.
1.11 WACOL stated that internal relocation for adult victims of domestic violence, FGM and forced marriage is an option for women in Nigeria [and] added that internal relocation is a common phenomenon in Nigeria for women who are victims of domestic violence. ...
1.14 WACOL explained that internal relocation is possible for any adult woman irrespective of whether the case is about FGM, domestic violence or forced marriage. It is possible for adult women to relocate and look for jobs to sustain themselves, however, FGM and forced marriage cases very often involve underage girls. ...
1.15 WRAPA explained that ... women who wish to avoid their daughters undergoing FGM may not be aware of their rights and the possibilities to be assisted and protected. WRAPA emphasised that raising awareness is still an important issue in order to make women aware of the options they have. ...
1.16 The United Nations Development Fund for Women (UNIFEM) found that in theory, it is not difficult for a woman to relocate within Nigeria and in this way find physical safety. As regards crime rates, Nigeria is a relatively safe country. ...
1.19 BAOBAB stated that from a legal point of view, internal relocation is an option for any woman in Nigeria because there is full freedom of movement in the country. However, ... a woman will need relatives in her new location who are ready to accommodate her. ...
1.20 It was emphasized by BAOBAB that a woman can obtain physical protection by relocating to another area in Nigeria. Women who are economically independent, in particular, would stand a much better chance of sustaining themselves than women who are not. ....”
50. As regards shelter facilities, the UN representatives and many NGOs outlined how women, while fleeing FGM preferring to seek shelter amongst friends/family, could successfully seek protection when necessary in NGO and in State run shelters.
51. As to support by Governmental bodies, UN officials considered the protection of women to be weak but progressing, noting that the federal government was making efforts to protect women fleeing FGM. Not only was Federal Ministry of Women’s Affairs and Social Development providing shelter to female victims of violence, but the police was developing more gender awareness (the presence of Police Gender as well as Human Rights Desk Officers) and the National Human Rights Commission facilitated the necessary physical protection of women who were victims of, inter alia, FGM. Certain NGOs (WACOL and WRAPA) were positive about support by the Government for women seeking to escape from FGM. One NGO (BAOBAB) was more critical: while Police Gender Desks did cooperate somewhat with NGOs including referring women to BAOBAB, they underlined and criticised the lack of federal law and the enforcement State laws.
52. As to the risk of being tracked down by relatives following relocation, UNIFEM noted that the sheer size of the country and its large population meant that it would be very difficult for family members to locate a woman who has escaped FGM, although, should a husband know where his wife has fled to, there was a high risk that he would try to contact her or force her to return home.
53. The Report of the International Organization for Migration (Migration, Human Smuggling and Trafficking from Nigeria to Europe, 2006) and of the British-Danish Fact-Finding Mission, 2008 (paragraphs 48-52 above) also confirmed widespread corruption in Nigeria and the consequent ease with which forged official documents (including birth and death certificates as well as passports) could be obtained, which reports were cited by the UK Country of Origin Information Report on Nigeria of 2010 (paragraph 47 above).
54. The latter report confirmed that the process of authenticating such documents was often difficult, time-consuming and in some cases, not possible, not least given the absence of relevant central registries.


ITEMID: 001-86621
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: GÖZEN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall
TEXT: The applicant, Mr Beşir Gözen, is a Turkish national who was born in 1960 and lives in Istanbul. He was represented before the Court by Ms A. Bingöl, Ms G. Kartal and Mr A. Timur, lawyers practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 23 August 1983 the applicant was arrested.
On 16 September 1983 the Diyarbakır Martial Law Court remanded him in custody.
On 19 October 1983 the public prosecutor attached to the Diyarbakır Martial Law Court filed a bill of indictment against the applicant, along with other persons, and charged him with membership of the PKK (Workers’ Party of Kurdistan) under Article 168 § 1 of the former Criminal Code.
On 19 February 1985 the Diyarbakır Martial Law Court convicted the applicant as charged.
On 10 April 1990 the Military Court of Cassation quashed the judgment of the first-instance court in respect of some of the accused, including the applicant, and remitted the case to the Diyarbakır Martial Law Court.
Subsequent to the promulgation of Law no. 3953 on 27 December 1993, which abolished the jurisdiction of the Martial Law Courts, in 1994 the Diyarbakır Assize Court acquired jurisdiction over the case.
On 13 July 1998 the Diyarbakır Assize Court acquitted the applicant, holding that there was insufficient evidence to convict him.
The applicant claimed that the judgment of 13 July 1998 was never served on him.
According to the documents submitted by the respondent Government to the Court, on 31 July 1998 the authorities attempted to notify the applicant of the judgment of 13 July 1998. The applicant could not be found at the address he had given and the authorities were not able to locate his new address despite all efforts.
On 13 September 2002 the applicant applied to the registry of the Diyarbakır Assize Court and obtained a copy of the judgment of 13 July 1998.


ITEMID: 001-57778
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1992
DOCNAME: CASE OF DE GEOUFFRE DE LA PRADELLE v. FRANCE
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: John Freeland
TEXT: 7. Mr Raymond de Geouffre de la Pradelle is a French national and practises as a lawyer (avocat). He lives in Paris, where he has his chambers.
He owns an estate of about 250 hectares in the département of Corrèze. The River Montane crosses the property, which lies within the administrative districts (communes) of Saint-Priest-de-Gimel and Gimel. In order to provide an electricity supply for the château of Saint-Priest, which was on his land, he envisaged converting a long-disused hydroelectric dam into a self-contained miniature power-station. On 9 January 1976 Électricité de France gave its approval. On 21 January 1977 and 10 April 1979 the Council of the département of Corrèze consented in principle.
8. On 3 April 1980 the Minister for the Environment and the Quality of Life decided to set in motion proceedings to designate the land in the Montane valley as an area of outstanding beauty and of public interest; an area of 80 hectares was affected, most of it belonging to the applicant.
The Prefect of Corrèze informed the applicant of this in a letter of 12 May 1980; pursuant to section 9 of the Law of 2 May 1930 on the conservation of natural monuments and places of interest (see paragraph 18 below), which prohibits for a period of twelve months any alteration of the state of a site that is in the process of being designated, he also refused the application for permission to undertake hydroelectric works.
9. Together with the seven other property owners affected, the applicant was invited to submit any comments he might have on the designation proposal (section 5-1 of the Law of 2 May 1930 - see paragraph 18 below), and he indicated his objections in a letter of 22 May 1980 to the Prefect of Corrèze.
10. A public inquiry was opened by a prefectoral decision of 7 October 1980, which was notified personally to the parties concerned (Article 4 of Decree no. 69-607 of 13 June 1969 - see paragraph 19 below). Mr de Geouffre de la Pradelle sent the Prefect a statement of his objections in which he challenged the point of designating the land in the first place and suggested organising an inspection of the site by all the parties concerned.
11. On 4 July 1983, following a favourable report by the National Places of Interest Commission, the Prime Minister, after consulting the Conseil d’État, issued a decree (section 6 of the Law of 2 May 1930 -see paragraph 18 below) designating the Montane valley. On 12 July the Official Gazette (Journal officiel) published the following extract:
"By a decree dated 4 July 1983, the area formed by that part of the Montane valley situated within the administrative districts of Gimel and Saint-Priest-de-Gimel is designated as one of the areas of outstanding beauty in the département of Corrèze."
The present decree shall be notified to the Prefect, Commissioner of the Republic for the département of Corrèze, and to the mayors of the districts concerned.
12. On 13 September 1983 the Prefect of Corrèze served the full text of the decree at the applicant’s Paris home, together with a letter that read:
"...
I have the honour to notify to you by this letter the decree of 4 July 1983 designating the area formed by the Montane valley at Gimel and St-Priest-de-Gimel, which is partly situated on your property, as a conservation area.
I should perhaps remind you that in the conservation area you are required to comply with the obligations laid down in the amended Law of 2 May 1930 on the conservation of places of interest, and in particular in sections 11, 12 and 13, which deal with transfers, alterations and the creation by agreement of any easements which might affect a designated place of interest.
..."
13. On 27 October 1983 the applicant, acting through his lawyer, applied to the Conseil d’État for judicial review of the decree of 4 July 1983.
14. As his main submission, the Minister for Town Planning, Housing and Transport argued that the application was "apparently made out of time"; as the designation decree did not contain any "special directions", the time within which any appeal had to be brought ran from its publication in the Official Gazette.
15. In his reply the applicant began by challenging the administrative authorities’ interprétation of Articles 6 and 7 of the decree of 13 June 1969 (see paragraph 19 below), according to which, in the absence of any special directions, the time within which any appeal had to be brought ran from the publication of the designation decision in the Official Gazette. He regarded the approach adopted by the administrative authorities as being a likely source of difficulties for members of the public. Could it reasonably be asked of people, he continued, to envisage exceptions being made to the normal rule, namely that the time allowed for appealing should begin to run from publication in the case of general regulatory decisions and from notification in the case of individual decisions? Where appeals and the procedures for bringing them were concerned, things should be simple. And if, as in the instant case, there was no good reason for making an exception, it was only right to retain a practice consistent with ordinary law.
He added that, at all events, if the authorities’ interprÉtation were to prevail, Articles 6 and 7 would have to be considered unlawful as being contrary to the principle of equality in that an owner of property covered by such a decision would be less favourably treated than other persons affected by individual measures.
In the alternative, he complained of the incompleteness and irregularity of the publication of 12 July 1983 (see paragraph 11 above), which did not enable the persons concerned to acquaint themselves with the exact scope of the designation. In his submission, the time allowed for appealing had begun to run only when the full text of the decree was made available to the public at the Corrèze prefecture; and the administrative authorities had not shown that the application registered on 27 October 1983 had been registered more than two months after the full text had been made available. Mr de Geouffre de la Pradelle alleged, lastly, that the impugned measure was a naked misuse of power designed to frustrate his modernisation scheme (see paragraph 7 above) and the exercise of the water rights associated with his status as a former producer of electricity.
16. On 7 November 1986 the Conseil d’État, accepting the submissions of the Government Commissioner (commissaire du gouvernement), declared the application inadmissible for the following reasons:
"...
By Article 49 of the Ordinance of 31 July 1945, ‘unless otherwise provided by legislation, an application to the Conseil d’État against a decision by an authority, court or tribunal within its jurisdiction shall be admissible only within a period of two months; this period shall run from the date of publication of the disputed decision unless it has to be notified or served, in which case the period shall run from the date of notification or service’.
By the provisions of Article 6 of the decree of 13 June 1969, decisions whereby a natural monument or a place of interest is designated are published in the Official Gazette. Although, under Article 7 of the same decree, these decisions are notified to the property owners concerned where they contain special directions designed to alter the state or change the use of the site, and although the time within which any appeal to the courts must be brought runs in that case only from the notification of the designation decree or order, this latter provision applies only where it is necessary to give notice to the property owner to alter the state or change the use of the site. In other cases, however, the time in which any appeal to the courts has to be brought runs from the publication of the designation decision in the Official Gazette, even if after that publication the decision was notified to the property owner.
It appears from the evidence that the impugned decree designating the area formed by the Montane valley in the département of Corrèze did not include any notice to the property owners to alter the state or change the use of the site. It follows that, in accordance with the provisions referred to above, the time within which any appeal to the courts against the said decree had to be brought ran from the date of its publication in the Official Gazette.
An extract from the decree was published in the Official Gazette of 12 July 1983, together with the information that the full text could be consulted at the Corrèze prefecture. That being so, the applicant is not justified in contending that the publication was incomplete or irregular and consequently not such as to make time begin to run for the purposes of bringing an appeal. The application for review of the impugned decree was registered only on 27 October 1983, that is to say after the expiry of the time allowed for appealing under the provisions of the decree of 13 June 1969 that have been examined above.
In order to overcome the fact that his application was out of time, Mr de Geouffre de la Pradelle maintained that these provisions were unlawful because they gave rise to discrimination to the detriment of the property owners of designated places of interest, seeing that these property owners did not have the same time-limits for appealing against designation decisions as other recipients of individual decisions.
But a decision to designate an area of outstanding beauty is not in the nature of an individual decision. Accordingly, the ground based on the argument that the impugned decree infringed the rules on the notification of individual acts and decisions fails.
It follows from all the foregoing considerations that the application is out of time and therefore inadmissible.
..."
17. In November and December 1986 Mr de Geouffre de la Pradelle approached the Architect’s Department of the département of Corrèze to seek help with restoration of the site, which had been devastated by the exceptionally high winds of November 1982. His application was unsuccessful.
18. In their current form the relevant provisions of the Law of 2 May 1930 provide:
PART II - LISTING AND DESIGNATION OF NATURAL MONUMENTS AND PLACES OF INTEREST
"In each département there shall be drawn up a list of the natural monuments and places of interest whose conservation or preservation is in the public interest from the artistic, historic, scientific, legendary or scenic point of view.
...
Listing shall be effected by means of an order made by the Minister for Cultural Affairs. A decree issued after consultation of the Conseil d’État shall lay down the procedure for notifying the listing to the property owners or for publishing it. Publication may replace notification only in cases in which the latter is made impossible by the large number of owners of one and the same place of interest or natural monument, or if it is impossible for the authorities to ascertain the identity or address of the owner.
On the land within the boundaries laid down in the order, listing shall entail an obligation on those affected not to undertake any works other than those relating to day-to-day agricultural use as regards rural land and to normal upkeep as regards buildings without having given the authorities four months’ notice of their intention."
"Where it is proposed to designate a natural monument or place of interest belonging wholly or in part to persons other than those listed in sections 6 and 7, those affected shall be invited to submit their comments according to a procedure which shall be laid down in a decree issued after consultation of the Conseil d’État."
"A natural monument or place of interest forming part of the public or private property of the State shall be designated by means of an order made by the Minister for the Arts if there is agreement with the minister within whose field of responsibility the natural monument or place of interest lies and with the Minister of Finance.
...
If there is no such agreement, designation shall be effected by means of a decree issued after consultation of the Conseil d’État."
"A natural monument or place of interest forming part of the public or private property of a département or an administrative district (commune) or belonging to a public institution shall be designated by means of an order made by the Minister for the Arts if the public authority that owns it has consented.
Otherwise designation shall be effected, after the opinion of the National Commission on Natural Monuments and Places of Interest has been sought, by means of a decree issued after consultation of the Conseil d’État."
"A natural monument or place of interest belonging to any person other than those listed in sections 6 and 7 shall be designated by means of an order made by the Minister for Cultural Affairs, after the opinion of the département’s Committee on Places of Interest, Views and Landscapes has been sought, if the owner consents. The order shall lay down the designation conditions.
Failing the owner’s consent, the designation shall be effected after the opinion of the National Commission has been sought, by means of a decree issued after consultation of the Conseil d’État. Designation may confer on the owner the right to compensation if it entails any alteration of the state or change in the use of the site causing direct, pecuniary and certain damage.
..."
"From the day on which the Department of Cultural Affairs notifies the owner of a natural monument or place of interest of its intention to have it designated, no alteration may be made to the state or appearance of the site for a period of twelve months unless special permission has been granted by the Minister for Cultural Affairs, except for the day-to-day agricultural use of rural land and the normal upkeep of buildings.
..."
"Designated natural monuments and places of interest may not be demolished nor may their state or appearance be altered `unless special permission has been granted’."
19. The decree of 13 June 1969 provides, inter alia:
"Listing orders shall be notified by the Prefect to the owners of natural monuments or places of interest.
However, where the number of owners affected by the listing of one and the same place of interest or natural monument is greater than a hundred, the procedure of individual notification may be replaced by a general public announcement as provided for in Article 3.
Recourse shall likewise be had to a public announcement where the authorities are unable to ascertain the identity or the number of the property owners."
"The public announcements provided for in Article 2 ... shall be made at the instance of the Prefect, who shall have the listing order published in two newspapers, at least one of which shall be a daily newspaper that is distributed in the administrative districts concerned. This notice must be republished at the latest on the last day of the month following the initial publication.
The listing order shall further be published in the relevant administrative districts, for a period of not less than one month, by being displayed at the town hall and in all other places customarily used for posting up public notices; ...
..."
"The inquiry provided for in section 5-1 of the Law of 2 May 1930 before any designation decision is taken shall be organised by means of a prefectoral order ...
This order shall specify the times and places at which the public may inspect the designation proposal, which shall contain:
1. an explanatory notice indicating the purpose of the conservation measure, together with any special designation directions; and
2. a plan showing the boundaries of the conservation area.
The order shall be published in two newspapers, at least one of which shall be a daily newspaper that is distributed in the administrative districts concerned. It shall further be published in these districts by being displayed on notice- boards; the mayor shall certify that such publication has taken place."
"For a period running from the first day of the inquiry to the twentieth day following its close, any person affected may, by means of a registered letter with recorded delivery, send comments to the Prefect, who shall inform the département’s Committee on Places of Interest ...
During the same period and by the same means the property owners concerned shall make known to the Prefect, who shall inform the département’s Committee on Places of Interest..., their objections or their consent to the designation proposal.
At the end of this period any property owner who has remained silent shall be deemed to have withheld consent. Where, however, the order that is the subject of the inquiry has been notified to the property owner in person, his silence at the end of the period shall be deemed to imply consent."
"The designation decision shall be published in the Official Gazette."
"Where a designation decision contains special directions that would alter the state or change the use of the site, it must be notified to the property owner.
This notification shall be accompanied by a formal notice to the effect that the site must be brought into conformity with the special directions in accordance with the provisions of section 8 (third paragraph) of the Law of 2 May 1930."
20. The relevant provisions of the circular of 19 November 1969 are as follows:
"...
Law of 28 December 1967 made amendments to the Law of 2 May 1930 regarding the procedure for listing and designating places of interest, the rights and obligations of those affected as a result of listing or designation decisions and the penalties for infringement of conservation measures.
Decree no. 69-607 of 13 June 1969 laid down the conditions for implementing some of the new provisions introduced by that Law.
The purpose of the present circular is to define the scope of the Law of 28 December 1967 and the means of implementing it.
I. Listing procedure and effects of listing
...
Another innovation introduced by the Law of 28 December 1967 and the decree of 13 June 1969 is general publication as a method of informing property owners that a place of interest has been listed.
There are now two possible procedures:
- either individual notification, in accordance with the arrangements currently in force in all cases; or
- general publication (public display and publication in two newspapers), to which the Prefect resorts when the number of property owners concerned is greater than a hundred - as with places of interest covering a large area - or when one or more property owners have not been identified.
This general publication will simplify the formalities that were necessary hitherto for the listing of a place of interest to have its full effect, and this will be particularly appreciable in the case of very large areas. It will have the advantage of ensuring that the public are well informed before the listing order is implemented.
...
II. Designation procedure and effects of designation
Because designation imposes substantial obligations on property owners, it will henceforth be preceded by an administrative inquiry open not only to the property owner or owners but to any interested member of the public.
...
This public-inquiry procedure shall be set in motion whenever a designation proposal is being prepared. It is still desirable that the designation proposal should be notified to property owners in person where they are known and are few in number or where they will have to be subject to special directions; but it is not compulsory.
...
Lastly, it is important to note that individual notification of the designation decision continues to be compulsory
(1) in order that special directions designed to alter the state or change the use of sites may be enforceable; and
(2) generally, in order that the penalties provided for in section 21 may apply.
..."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-93589
LANGUAGEISOCODE: ENG
RESPONDENT: GEO
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: KHVICHIA AND OTHERS v. GEORGIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: The first applicant, Mrs Eter Khvichia, was born in 1953 and lives in Khelvatchauri. The second and third applicants, Mrs Darejan Skhireli and Mrs Gulnara Vatsadze, were born in 1953 and 1954 respectively and live in Kutaisi. The fourth applicant, Mrs Maia Kuparashvili, was born in 1976 and lives in Khobi. All the applicants are Georgian nationals and were represented before the Court by Mr Mitrophane Sturua, a lawyer practising in Tbilisi. The respondent Government were represented by their Agent, Mr David Tomadze of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
By virtue of a binding judgment of the Kutaisi Regional Court dated 17 January 2001, the Ministry of Transport and Communications of Georgia, the Georgian Maritime Department and several private persons were ordered to pay the applicants pecuniary and non-pecuniary damages for the harm caused by the deaths of their husbands, who had drowned in a shipwreck on 14 February 1998.
The judgment debt consisted of payments in the form of a lump sum and monthly allowances, the latter obligation arising with effect from 15 February 1998. The practical arrangements for payment of the judgment debt were not specified.
On 6 April and 15 May 2006 the applicants complained to the Enforcement Department of the Ministry of Justice that they had not received their allowance for the past forty-eight months; the corresponding arrears amounted to some 61,000 United States dollars (USD) (44,708 euros (EUR)).
In a reply of 29 May 2006 the Enforcement Department, officially classifying the applicants’ case as of high importance, pledged to undertake specific enforcement measures with the aim of paying the above-mentioned arrears without delay.


ITEMID: 001-96271
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: SHAPOVAL v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: The applicant, Mr Volodymyr Sergiyovych Shapoval, is a Ukrainian national who was born in 1962 and currently lives in Hannover, Germany. The respondent Government were represented by their Agent, Mr Y. Zaytsev.
The applicant signed a sales contract with Mr K. on behalf of the open joint stock company, Servis. According to the contract, the company transferred title to its premises to Mr K. On 31 October 1997 Mr K. died.
On 4 August 1998 the company instituted civil proceedings against Mr K.’s successors seeking to have the contract declared null and void.
By a ruling of 12 November 1998 the judge of the Velykomykhaylivsky Court ordered that the claim and the relevant documents from the case file be transferred to the Velykomykhaylivsky District Prosecutor (“the Prosecutor”) in order to establish whether criminal proceedings should be instituted against the applicant. On 31 August 1999 the Odessa Regional Court upheld the ruling of the first-instance court.
On 28 July 2001 the applicant lodged a cassation appeal with the Supreme Court of Ukraine in accordance with the procedure prescribed by the Law of 21 June 2001 on the Introduction of Changes to the Code of Civil Procedure. On 14 September 2001 a panel of three judges of the Supreme Court of Ukraine refused to transfer the applicant’s appeal to a chamber of the Supreme Court of Ukraine for consideration on its merits.
The applicant alleges that he received the final decision of the Supreme Court on 7 August 2003.
Following the above events, on 28 April 1999 the Prosecutor instituted criminal proceedings against the applicant on charges of fraud, abuse of power and embezzlement of collective property.
On 2, 10 and 21 June 1999 the applicant failed to appear before the investigator.
On 21 June 1999 a pre-trial investigation was suspended in order to establish the applicant’s whereabouts. On 13 July 1999 it was resumed.
On 15 July 1999 the Prosecutor’s Assistant issued an arrest warrant against the applicant.
On 30 July 1999 the applicant was arrested. He was released on 4 November 1999 having given a written undertaking not to abscond.
On 8 November 1999 the case was transferred to the Velykomykhaylivsky Court.
On 20 January 2000 the case was transferred to the Frunzivsky Court.
On 10 February 2000 the applicant challenged the judge sitting in his case. On 29 February 2000 the case was transferred to the Rozdilyansky Court.
On 31 July 2000 the Rozdilyansky Court remitted the case to the Prosecutor for an additional pre-trial investigation on the ground that it had not been completed.
On 18 and 29 September 2000 the applicant failed to appear before the investigator.
On 30 September 2000 the pre-trial investigation was suspended in order to establish the applicant’s whereabouts.
On 8 November 2000 the proceedings were resumed. The applicant challenged the investigator.
On 15 November 2000 the applicant failed to appear before the investigator. The proceedings were suspended.
On 12 January 2001 the Frunzivsky Court rejected an appeal by the applicant against the Prosecutor’s resolution of 28 April 1999. On 27 February 2001 the Odessa Regional Court of Appeal quashed that ruling and terminated the proceedings in that respect since the first-instance court had no jurisdiction to consider the applicant’s complaint. On 27 September 2001 the Supreme Court upheld the ruling of the Court of Appeal.
Between 6 and 23 March 2001 the applicant acquainted himself with his case file.
On 3 May 2001 the Prosecutor issued an indictment. On 8 May 2001 the case was transferred to the Velykomykhaylivsky Court.
On 24 May 2001 the case was transferred to the Shyryayevsky Court.
On 31 July 2001 the Shyryayevsky Court remitted the case to the Prosecutor for an additional pre-trial investigation on the ground that it had not been completed and there had been some procedural omissions.
On 17 August 2001 the applicant went to Germany, where he currently resides.
On 19 October 2001 the Prosecutor put the applicant on the list of wanted persons.
Following the above events, the criminal proceedings against the applicant were suspended.
In the period prior to 29 October 2007 the proceedings in the applicant’s case were resumed in order to perform certain investigative actions and then, on several further occasions they were suspended again. The applicant, on his own or with the assistance of his counsel, challenged the suspension of the criminal proceedings, the resolution of 28 April 1999 and the regular inactivity of the domestic authorities throughout the investigations of his criminal case. Some of his complaints and appeals were successful. In particular, on 17 July 2002, the investigator of the Velykomykhaylivsky Prosecutor’s Office ordered that the head of the local police office seize the original of the notary’s documents concerning the sale of the company’s premises. On 13 April 2004 the Velykomykhaylivsky Court, following the applicant’s complaint, found that the above action had not been performed. The court ordered it to be performed. By the same ruling the court ordered that the value of the company’s premises also be established.
On 30 October 2007 the Odessa Regional Prosecutor’s Service quashed the ruling of 2 August 2004 of the investigator of the Velykomykhaylivsky Prosecutor’s Service, under which the criminal proceedings had been again suspended, and ordered that the pre-trial investigation be resumed.
On 21 March 2008 the Frunzivsky Court ordered the applicant’s pre-trial detention. On 26 March 2008 the Odessa Regional Court of Appeal quashed that ruling.
The pre-trial investigation is still pending.
On 22 February 2005 the applicant challenged his arrest of 30 July 1999 and his pre-trial detention. On 20 May 2005 the applicant challenged the resolution of 28 April 1999 before the same court.
On 8 July 2005 the Prymorsky District Court of Odessa quashed the resolution of 28 April 1999 and found the applicant’s arrest and pre-trial detention to be unlawful. On 24 November 2005 the Odessa Regional Court of Appeal, following an appeal by the Prosecutor, quashed the ruling of 8 July 2005 and terminated the proceedings in that respect on the ground that the Prymorsky Court had no competence to consider the applicant’s complaints. On 12 May 2006 the Supreme Court rejected a request by the applicant for leave to appeal in cassation.


ITEMID: 001-58177
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF M.S. v. SWEDEN
IMPORTANCE: 2
CONCLUSION: No violation of Art. 8;No violation of Art. 6-1;No violation of Art. 13
JUDGES: John Freeland;R. Pekkanen
TEXT: 8. Ms M.S. is a Swedish citizen born in 1951 and resident in Sweden. Prior to the events in question she was employed as a nursery-school teacher.
9. When she was 14 years old she was diagnosed as having spondylolisthesis, a condition affecting the spine which can cause chronic back pain.
10. On 9 October 1981 she slipped and fell at work, injuring her back. She was pregnant at the time, and had been seeing a doctor at the women's clinic at the hospital. On the afternoon of the accident she went to the same clinic.
Following this incident, Ms M.S. was unable to return to work for any sustained period of time because of severe back pain. After she had been on the sick-list for some time, she was granted a temporary disability pension (sjukbidrag) and, from October 1994, a disability pension (förtidspension).
11. On 13 March 1991 she made a claim for compensation under the Industrial Injury Insurance Act (Lagen om arbetsskadeförsäkring, 1976:380 – hereafter “the Insurance Act”) from the Social Insurance Office (Försäkringskassan; hereafter “the Office”).
12. Some time thereafter, as a matter of routine, her lawyer requested a copy of the file which had been compiled by the Office for the purposes of her claim. From the documents on the file she learnt that the Office had written to the women's clinic on 25 March 1992 as follows:
“[The applicant] has reported an industrial injury which occurred on 9 October 1981. She contacted your clinic as she was pregnant at the time. The Office requests copies of medical records from that time. We hope you will assist us as soon as possible as the matter has been pending for some time and we need the records in order to determine it.”
It was also apparent from the file that, on 30 March 1992, the head of the clinic had submitted copies of her medical records containing information on treatment she had received in October 1981, March 1982 and between October 1985 and February 1986. Ms M.S. had not been consulted prior to the disclosure of these documents.
13. The medical records from October 1985 stated, inter alia, that Ms M.S. had complained of pain in her hips and back, but there was no indication that she had alleged that she had injured herself at work. The records from this period contained details of an abortion which she had requested because her pregnancy exacerbated her back complaint. The abortion had been performed in October 1985. In this regard, an entry of 22 October 1985 stated:
“The reason for the termination is above all that she had an incredibly bad back, especially during her last pregnancy.”
14. On 19 May 1992 the Office rejected Ms M.S.'s claim for compensation under the Insurance Act, finding that her sick-leave had not been caused by an industrial injury. The applicant appealed successively to the Social Insurance Board (Socialförsäkringsnämnden), the local County Administrative Court (Länsrätten) and the competent Administrative Court of Appeal (Kammarrätten), but at each stage her appeal was rejected. On 26 February 1996 the Supreme Administrative Court (Regeringsrätten) refused her leave to appeal.
15. Under sections 1 and 2 of chapter 2 of the Freedom of the Press Act (Tryckfrihetsförordningen), which is part of the Swedish Constitution, everyone is entitled to access to public documents, subject to exceptions set out in the Secrecy Act (Sekretesslagen, 1980:100).
16. One of the exceptions to this general rule relates to confidentiality of information in the field of health and medical care and is set out in chapter 7, section 1, of the Secrecy Act, which provides as follows:
“Secrecy applies ... in the field of health and medical care to information on the individual's state of health or otherwise concerning his or her private life, unless it is clear that the information can be disclosed without any harm to the individual or persons closely related to him or her ...”
17. Notwithstanding the above rule of confidentiality, in certain circumstances health and medical-care authorities are required to submit information to another public authority. Thus, chapter 14, section 1, of the Secrecy Act provides the following:
“Secrecy does not prevent ... the disclosure of information to another authority, if an obligation to disclose the information is laid down in an act of law or a government ordinance.”
18. Such an obligation follows from chapter 8, section 7, of the Insurance Act, which reads as follows:
“A public authority ... [is] obliged to submit, on request, to the courts, the National Social Insurance Service [Riksförsäkringsverket] [or] the Social Insurance Office ... information on a named person concerning circumstances of importance to the application of this Act ...”
In this context, a doctor employed by a public hospital (as in the present case) is regarded as a representative of a public authority. In addition, the person applying for compensation under the Insurance Act is obliged to provide the Social Insurance Office with information of importance to the claim (chapter 8, section 6, of the Insurance Act).
19. The Social Insurance Office is under a corresponding duty to obtain a physician's opinion in relation to each reported industrial injury (section 13 of the Ordinance on Industrial Injury Insurance and State Injury Compensation Guarantee – Förordning om arbetsskadeförsäkring och statligt personskadeskydd, 1977:284).
20. Information which is submitted to the Office is protected by the rule of confidentiality provided by chapter 7, section 7, of the Secrecy Act:
“Secrecy applies at the Social Insurance Office, the National Social Insurance Service and the courts in matters arising under the legislation on ... industrial injury assurance ... in respect of information on an individual's state of health or otherwise concerning his or her private life, if it can be assumed that the individual concerned or persons closely related to him or her will be harmed if the information is disclosed ...”
21. Under the Freedom of the Press Act and the Secrecy Act, there is a right to appeal against a decision not to grant access to public documents. There is, however, no such right in respect of decisions to grant access to information contained in public documents. Furthermore, there is no right for the individual concerned to be consulted before such information is disclosed or to be notified of the disclosure afterwards.
22. Under chapter 20, section 3, of the Penal Code (Brottsbalken), a physician who, intentionally or through negligence, discloses information which should be kept confidential according to law is guilty of breach of professional secrecy. Proceedings may be brought in the ordinary courts by the public prosecutor or, if the public prosecutor decides not to prosecute, the aggrieved individual. Such a breach of professional secrecy may also constitute a basis for claiming damages under chapter 2, section 1, or chapter 3, section 1, of the Damage Compensation Act (Skadeståndslagen, 1972:207). Action may be taken by the individual against the physician or his or her employer.
23. Public authorities and their employees are, furthermore, subject to the supervision of the Chancellor of Justice (Justitiekanslern) and the Parliamentary Ombudsman (Justitieombudsmannen). The Chancellor and the Ombudsman investigate whether those exercising public powers abide by laws and follow applicable instructions and may prosecute a certain individual or refer the matter to disciplinary action by the relevant authority.
NON_VIOLATED_ARTICLES: 13
6
8
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-101538
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: HOTTER v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: The applicant, Mr Jakob Hotter, is an Austrian national who was born in 1955 and lives in Gerlos. He was represented before the Court by Mr E. Stöger, a lawyer practising in Innsbruck. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a part-time farmer and ski instructor residing in Gerlos, Tyrol. He is entitled to allow his livestock to feed on grass on a certain plot of land, namely plot no. 114/17 of the Gerlos land register which belongs to E. (grazing rights – Weiderecht). That land is building land.
On 16 August 2000 E. applied for a building permit for the construction of an underground car park on plot no. 114/17.
On 7 September 2000 the Mayor of Gerlos, as the building authority, conducted an oral hearing on the site of the project. The applicant had not been summoned to that hearing. In the course of the hearing the applicant, who had appeared nevertheless, claimed that as a holder of grazing rights on the proposed building site he had to be considered a party to the building permit proceedings and objected to the construction project.
By decision of 2 May 2001 the Mayor granted the building permit. He rejected the applicant's objections as inadmissible because he was not a neighbour within the meaning of section 25 of the Tyrolean Building Act (Bauordnung). He informed him that any dispute concerning the grazing rights had to be settled before the ordinary civil courts.
On 7 August 2001 the Gerlos Municipal Council (Gemeinderat) dismissed the applicant's appeal against that decision as inadmissible because the applicant was not a party to the building proceedings within the meaning of section 25 of the Building Act.
On 23 August 2001 the applicant lodged objections against the Municipal Council's decision (Vorstellung) with the regional government. The applicant submitted that the decisions, whereby he had not been accepted as a party, were wrong. He claimed that section 25 § 2 of the Building Act, which explicitly accepted persons holding a right to build (Bauberechtigte) as parties in building permit proceedings, should be interpreted as also extending the status of a party to persons who were holders of other kinds of servitudes encumbering the land of third persons.
On 25 February 2002 the regional government upheld the municipality's decision. It found that the wording of section 25 of the Building Act was clear and unambiguous and only conferred the status of a party on neighbours, namely persons who are the owners of land located at a specific distance from the proposed building project and persons who hold a right to build on the land at issue. As an obiter dictum, the regional government added that the legal situation of a person holding grazing rights was equally protected under civil law because, if a building permit infringed the civil rights of that person, a civil court could issue a prohibition on the carrying out of construction works.
On 8 April 2002 the applicant lodged a complaint with the Administrative Court, reiterating the arguments that he had raised before the regional government. He did not lodge a complaint with the Constitutional Court.
On 26 June 2002 the regional government submitted its observations.
On 27 September 2005 the Administrative Court dismissed the applicant's complaint. It found that the building authorities and the regional government had correctly found that the applicant's grazing rights did not confer on him the position of a neighbour within the meaning of section 25 of the Building Act. The building permit proceedings solely had the purpose of establishing that there were no obstacles under public law (the relevant building regulations) against a planned building project, but the building authorities had no competence to examine and decide whether a planned building project interfered with private rights of third persons. On 28 October 2005 this decision was served on the applicant's counsel.
Section 25 of the Tyrolean Building Act (Bauordnung) reads as follows:
“(1) The applicant for the building permit and the neighbours are parties to the proceedings concerning the building permit.
(2) Neighbours are the owners of plots of land that are immediately adjacent to the building site, or where at least one point of their borders is within a distance of 15 m from a point along the border of the building site. Moreover, those persons who have a right to build on such a plot of land are considered to be neighbours.
(3) Neighbours whose plots of land directly adjoin the building site, or where at least one point of their borders is at a distance of 5 m from a point along the border of the building site, are entitled to claim non-compliance with the following provisions under the Building Act and Regional Planning Act, to the extent that these provisions also serve to protect them:
a) specifications of the land development plan in relation to protection against pollution;
b) fire-protection provisions;
c) specifications of the zoning plan with regard to building lines, border lines of buildings, the type of construction and its height;
d) provisions on distances under section 6;
e) in the event that a general zoning plan and a supplementary zoning plan or a zoning plan with the specifications of the general and the supplementary zoning plan do not exist, the absence of the requirements pursuant to section 55 (1) or section 113 (1) of the 2006 Tyrolean Regional Planning Act.
(4) Other neighbours are entitled to claim non-compliance with the provisions listed in letters a) and b) of paragraph (3), to the extent that those provisions also serve to protect them.
(5) If private-law objections are raised in the hearing on the building project, the authority shall strive, as far as possible, to achieve an agreement. If an agreement can be reached, this shall be documented in the report of the hearing. If no agreement is reached, the neighbour shall be referred to the ordinary legal recourse for his objections. These objections shall be expressly stated in the building permit.”