ITEMID: 001-23472
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: TRUKH v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Ivan Stepanovych Trukh, is a Ukrainian national, who was born on 20 October 1950 in the city of Zhovti Vody, Dniepropetrovsk Region, and currently resides in Armiansk, the Crimea. The respondent Government are represented by Mrs Valeria Lutkovska, the Agent of the Government of Ukraine before the Court.
The facts of the case, as submitted by the parties, may be summarised as follows.
From 23 November 1990 until 23 June 1993 the applicant worked as the head of the technical department of the Perekopkhimstroy company (hereafter “the company”). He was also allegedly required to perform the functions of a building engineer.
In September 1993 the applicant instituted proceedings in the Krasnoperekopsk City Court against the company, seeking the recovery of the building engineer’s salary that was allegedly due to him. On 27 October 1993 the Krasnoperekopsk City Court ordered the commencement of proceedings. A hearing was held on 11 November 1993. On 25 April 1994 the Krasnoperekopsk City Court ordered the seizure of documents relating to the salary paid to the applicant by the company. By a judgment on 18 May 1994, the Krasnoperekopsk City Court partly allowed the applicant’s claims, and ordered the company to pay the applicant 1,879,557 karbovantsi (hereafter “krb”; 27,962.5 ukrayinski hryvni - the present currency - hereafter “UAH”).
On 14 September 1994 the Supreme Court of the Crimea quashed this decision and remitted the case for further consideration.
On 12 September 1995 the Krasnoperekopsk City Court ordered an economic-accounting expertise (бухгалтерсько-економічна експертиза) in the case. By a judgment of 24 June 1996, the Krasnoperekopsk City Court partly allowed the applicant’s claims and ordered the company to pay the applicant the sum of 2,796,250,000 krb. On 26 November 1997 the applicant was paid UAH 701 in execution of the decision.
On 24 July 1997 the President of the Supreme Court of the Crimea lodged a protest against the decision of 24 June 1996, seeking its annulment. On 20 March 1998 the Supreme Court of the Crimea allowed the protest of the President of the Supreme Court of the Crimea and remitted the case for further consideration to the Krasnoperekopsk City Court.
In July 1998 the applicant lodged complaints with the President of the Supreme Court of the Crimea against the decision of 20 March 1998, seeking to initiate supervisory review proceedings (перегляд рішення в порядку нагляду). On 20 August 1998 the Deputy President of the Supreme Court of the Crimea, by letter, rejected his claims as unsubstantiated.
On 20 August 1998 the Krasnoperekopsk City Court rejected the applicant’s claims for the recovery of salary and compensation.
On 21 August 1998 the applicant lodged a cassation appeal with the Supreme Court of the Crimea, seeking to quash the judgment of the Kransnoperekopsk City Court of 20 August 1998.
On 23 August 1998 the applicant informed the President of the Krasnoperekopsk City Court that he had no intention of lodging the cassation appeal through the first instance court.
On 14 September 1998 the Krasnoperekopsk City Court suspended the referral of the cassation appeal to the Supreme Court of the Crimea on the ground that it had not been lodged in compliance with Article 292 of the Code of Civil Procedure. In particular, the applicant had not supplied enough copies of the cassation appeal and had failed to pay the State tax. The applicant was allowed one month (until 14 October 1998) to rectify the mistakes. He was also informed that, unless he rectified them, his cassation appeal would be returned to him without consideration.
On 14 December 1998 the Krasnoperekopsk City Court refused the applicant leave to lodge a cassation appeal against its judgment of 20 August 1998 due to the applicant’s failure to comply with its ruling of 14 September 1998.
The applicant complained about the Supreme Court decision of 20 March 1998 to the President of the Supreme Court of the Crimea, seeking to initiate supervisory proceedings. The complaint was rejected by the President of the Supreme Court of the Crimea on 11 February 1999 as being unsubstantiated.
In April 1999 the applicant lodged his complaint with the President of the Supreme Court of Ukraine against the decision of the Krasnoperekopsk City Court of 20 August 1998, seeking its annulment. He also complained that he was not provided with a copy of the protest itself or a copy of the ensuing decision. On 21 May 1999 the Supreme Court of Ukraine refused to initiate supervisory review proceedings (перегляд рішення в порядку нагляду) since the impugned decision was not appended to the complaints. It also recommended that the applicant address the Main Department of Justice of the Ministry of Justice of Ukraine in the Crimea with a view to receiving a copy of the decision of 20 March 1998 by the Supreme Court of the Crimea.
On 28 April 1999 the Main Department of Justice of the Ministry of Justice of Ukraine in the Crimea rejected the applicant’s request for a copy of the decision, as he should have applied directly to the court which had given it.
In February 2001 the applicant lodged a complaint with the President of the Supreme Court of the Crimea requesting the initiation of supervisory review proceedings against the decision of 20 August 1998 of the Krasnoperekopsk City Court. On 10 March 2001 the Registry of the Supreme Court of the Crimea informed the applicant of the need to rectify mistakes in his complaint (the need to pay the State tax for the introduction of the complaint, and the need to provide copies of the relevant judicial decisions). The applicant complained to the President of the Supreme Court of the Crimea about the Registry’s response. On 29 June 2001 the President of the Supreme Court of the Crimea rejected the applicant’s complaints as being unsubstantiated and refused to initiate supervisory review proceedings in the case (перегляд рішення в порядку нагляду).


ITEMID: 001-69661
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: MARINKOVIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Petar Marinković, is a Croatian national who was born in 1944 and lives in Rijeka, Croatia. The respondent Government were represented by their Agent, L. Lukina-Karajković, and subsequently their Co-Agent, Mr D. Maričić.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 5 April 1992 the applicant's house in Poljica, Croatia, was blown up for the first time by unknown perpetrators. The applicant allegedly reconstructed the house at his own expense.
On 7 August 1995 the house in issue was blown up for the second time. The perpetrators again remained unknown.
On 3 February the Civil Obligations (Amendments) Act 1996 (Zakon o izmjeni Zakona o obveznim odnosima) entered into force. It provided that proceedings which were instituted under section 180 of the Civil Obligations Act (Zakon o obveznim odnosima) would be stayed.
On 8 February 1996 the applicant instituted civil proceedings before the Zadar Municipal Court (Općinski sud u Zadru) seeking damages from the State for his damaged property (under section 180 of the Civil Obligations Act).
At the hearing of 27 August 1998 the respondent submitted that the applicant's claim was unsubstantiated.
At the hearing of 6 April 2000 the respondent challenged the applicant's ownership of the house in issue. The court requested the applicant to provide evidence of his ownership.
On 11 May 2000 the applicant submitted the requested evidence.
It would appear that the proceedings in issue are still pending.
The relevant part of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 53/1991, 73/1991, 3/1994, 7/1996 and 112/1999) read as follows:
“Liability for loss caused by death or bodily injury or by damage or destruction of another's property, when it results from violent acts or terror or from public demonstrations or manifestations, lies with the ... authority whose officers were under a duty, according to the laws in force, to prevent such loss.”
The Civil Obligations (Amendments) Act 1996 (Zakon o izmjeni Zakona o obveznim odnosima, Official Gazette no. 7/1996, hereinafter “the 1996 Act”) entered into force on 3 February 1996. The relevant part of that Act read as follows:
“Section 180 of the Civil Obligations Act ... shall be repealed.”
“Proceedings for damages instituted under section 180 of the Civil Obligations Act shall be stayed.
The proceedings referred to in sub-section 1 of this section shall resume after the enactment of special legislation governing responsibility for damage resulting from terrorist acts.”
The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/1991, 91/1992, 112/1999 and 117/2003) provides:
“Proceedings shall be stayed:
...
(6) where another statute so prescribes.”
The “Damage from Terrorist Acts and Public Demonstrations Act 2003” (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija, Official Gazette no. 117/2003, hereinafter “the 2003 Act”) entered into force on 31 July 2003. It provides that proceedings which were stayed pursuant to the 1996 Act will resume and defines circumstances in which the State is liable for damage resulting from terrorist acts and public demonstrations.
The relevant part of section 63 of the Constitutional Court Act 1999 (Ustavni zakon o Ustavnom sudu Republike Hrvatske, its consolidated text was published in the Official Gazette no. 49/2002), as amended on 15 March 2002, reads as follows:
“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the court with jurisdiction fails to decide a claim concerning the applicant's rights and obligations or a criminal charge against him or her within a reasonable time ...
(2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the court with jurisdiction must decide the case on the merits...
(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.”


ITEMID: 001-100362
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: BOYLE v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 1. The first applicant, Mr Christopher Boyle, is a British national who was born in 1971 and is currently detained at HM Prison Full Sutton. He is represented before the Court by Stephensons Solicitors, a firm of lawyers practising in Wigan. The second applicant, Mr David Ford, is a British national who was born in 1970 and is currently detained at HM Prison Frankland. He is represented before the Court by Russell and Russell, a firm of lawyers practising in Bolton.
2. s, may be summarised as follows.
3. On 1 July 1998, firemen attended a fire at a house in Darlington and discovered the body of D.G., a heroin addict and dealer. He had been shot in the throat and stabbed with at least two different knives a minimum of twenty times. The fire had been started deliberately and burns to D.G.’s body occurred after his death.
4. The applicants were acquaintances of D.G. There was evidence that they had access to a shotgun on the night in question and the second applicant was seen with a shotgun wound to his finger and a burn to his abdomen the morning after the murder. Both applicants lied to their acquaintances about how the second applicant had injured himself.
5. The applicants were subsequently arrested in connection with the murder.
6. The first applicant was interviewed twice by the police under caution in connection with the murder of D.G. on 3 July 1998 and six times, again under caution, on 23 July 1998. In the course of the interviews, he was asked to account for his movements in the early hours of 1 July 1998, to explain the items found in his car and to account for gun damage to, and D.G.’s blood found in, the car. He made no reply to the questions asked, except to say that he did not know what the police officers were “going on about” and “it’s nowt [nothing] to do with me”. His solicitor made it clear in the interview that he had advised the first applicant to exercise his right to silence. The second applicant was similarly interviewed, under caution, ten times in July 1998 and also made no comment, again on legal advice.
7. Both men were charged with murder. The prosecution case against the applicants was that D.G. had been given heroin prior to his death in order to pacify him. Heroin was found in the car used by the applicants on the night of the murder. The second applicant’s blood was found in the same room as D.G.’s body and D.G.’s blood was found on a pair of glasses belonging to the first applicant which were recovered from the first applicant’s car. A stain on the ceiling of the car was composed of a mixture of material including the first applicant’s DNA and DNA allegedly from D.G.
8. On 14 September 1998, both applicants were interviewed again under caution. The purpose of the interviews was to give them the opportunity to comment on forensic evidence regarding the blood staining which had only recently become available and was therefore not put to them in the July interviews and to comment on the blood found on the glasses. Both applicants instructed different solicitors from those representing them in the July interviews. Both applicants answered questions in relation to the blood staining. They gave the same explanation for how D.G.’s blood came to be on his glasses and the ceiling of the car, namely that on the Friday preceding the murder D.G. had injected himself with amphetamines while in the car and had subsequently tried on the first applicant’s glasses. The second applicant explained that he had visited D.G.’s house a week or two before the murder with the first applicant and that he had, while there, injected himself with amphetamines. He assumed that any trace of his blood at the house came from that injection.
9. At trial, both applicants gave evidence in accordance with the account given to the police during the September interviews. They both explained that their silence in the July interview was based on legal advice. Both gave evidence that they had been together at the time of the murder on an aborted expedition to catch a badger and denied any knowledge of or involvement in the murder.
10. In addition to the evidence outlined above, the prosecution also relied on a witness, A.I., who claimed that the first applicant had confessed to the murder when they had been in adjoining cells in July 1998. The evidence of A.I. had not been put to the applicants during either of the interviews as he did not come forward until January 1999, after the interviews had been conducted.
11. In his summing up, the judge began by emphasising to the jury that the burden lay on the prosecution to prove the charge against the applicants:
“... It is a basic principle of any criminal trial that the Prosecution brings the charge and the Prosecution must prove it. It is for the Prosecution to establish each defendant’s guilt. The Defence do not have to prove anything ...”
12. As regards the silence of the applicants in the July interviews, the judge gave the following direction:
“... [W]hen the defendants were interviewed during July last year they refused to answer any questions put to them. Consequently, they did not mention any of the matters now relied upon in their Defence during those interviews. The defendants say that this refusal to answer questions was because of legal advice which they were receiving. It appears from the transcripts of the interviews that they were, indeed, receiving legal advice to that effect.
In September 1998, as I shall remind you when I come to review the factual evidence, the defendants’ stance changed. The defendants say that this was because their new solicitors were giving them different legal advice. It certainly appears from the transcripts in September the defendants’ legal advice became that they should answer questions. Indeed the answers which the defendants gave in and after September were consistent with their evidence in court. It is for you to decide whether the facts which the defendants failed to mention during the early interviews were facts which, in the circumstances, they could reasonably have been expected to mention. If they were then the law is that you may draw such inferences as appear proper from the defendants’ failure to mention these matters at the time. In considering whether the defendants could, reasonably, have been expected to mention during the early interviews the facts upon which they now rely in their defence you must consider all the circumstances. These circumstances include the legal advice which the defendants were receiving. If you are sure that the defendants could reasonably have been expected to mention those matters then what inferences can you draw? Failure to mention a fact cannot, on its own, prove guilt. But depending on the circumstances you may hold it against a defendant when deciding whether he is guilty. That is take it into account as some additional support for the Prosecution’s case. You are not bound to do so. It is for you to decide whether it is fair to do so.”
13. Subsequently, in summarising the evidence against the applicants and their own explanations regarding the evidence, the judge reminded the jury of the applicants’ answers to the questions put to them in the September interviews. He further reminded them that the first applicant had explained that he had refused to answer questions in the July interviews because his solicitors had advised him to remain silent. His explanation for his responses in the September interview was that he had changed solicitors and his new solicitors had advised him to answer questions. He had accordingly done so.
14. On 28 May 1999, the applicants were convicted of murder and were sentenced to life imprisonment.
15. The applicants appealed to the Court of Appeal for leave to appeal against conviction. The grounds of appeal made no reference to any alleged deficiencies in the adverse inferences direction. Instead, the grounds complained of, inter alia, reliance by the prosecution on the confession of A.I., alleged deficiencies in the conduct of the police and alleged inadequate prosecution disclosure. Leave to appeal was refused on 8 February 2000.
16. On 6 April 2001, the first applicant applied to the Criminal Cases Review Commission (“CCRC”) for a referral of his case back to the Court of Appeal. It is not clear whether the second applicant also made an application to the CCRC at this time. No complaint about the adverse inferences direction was raised in the CCRC application. On 2 January 2002, the CCRC decided not to refer the convictions back to the Court of Appeal.
17. On 19 December 2003, the first applicant re-applied to the CCRC alleging that the trial judge’s adverse inferences direction was deficient. On 10 August 2004, his conviction was referred to the Court of Appeal by the CCRC. The second applicant applied to the CCRC on 22 August 2004. On 21 October 2004, his conviction was also referred back to the Court of Appeal.
18. Before the Court of Appeal, the applicants argued that the directions to the jury were defective in that the jury was not directed that adverse inferences could only be drawn if the jury was satisfied that the real reason for the applicants’ silence was that they had no answer at the time or none that would stand up to scrutiny. They further argued that the trial judge had erred in not identifying the precise facts to which the adverse inferences direction related and leaving it open to the jury to draw adverse inferences in relation to some facts relied upon in respect of which adverse inferences should not have been drawn. The Crown accepted that there had been a material misdirection on both grounds but argued that the convictions were safe and that any appeal should therefore be dismissed.
19. On 25 August 2006, the Court of Appeal handed down its judgment. Waller LJ noted (at paragraphs 3 and 4):
“It is even at this stage worth putting that direction into context. First, it was a direction discussed between the judge and counsel before the summing up commenced. Prosecuting counsel approved the same and leading counsel acting for each of the appellants also approved the same. Following the conviction there was an application for leave to appeal against conviction to the Court of Appeal. In the grounds no reliance was placed on the inadequacy of the s.34 direction, and the application was refused on 8th February 2000. The appellant Boyle applied to the CCRC for a review of his conviction on 6th April 2001. We assume the appellant Ford did likewise. It would seem that in those applications there was no suggestion that the s.34 direction was inadequate and on 2nd January 2002 the CCRC decided not to refer either conviction to the Court of Appeal.
It was only on 19th December 2003 that there was a re-application to the CCRC, based on the direction under s.34 and an assertion that it was insufficient and called into question the safety of the convictions.”
20. As to the appropriate approach to its review of the convictions, he commented (at paragraph 13):
“We are troubled as to what should be the right approach of the Court of Appeal in a case such as the present. We follow the argument based on the absolutist approach. But if an absolutist approach must be adopted in all cases where a misdirection is now identified in respect of cases where it has never previously been suggested that a trial was unfair, or a conviction unsafe, that would seem to leave it open to appellants on the advice of lawyers to bring before the CCRC cases where permission to appeal out of time might not have been given. It is relevant, as it seems to us, in considering a s.34 case, and indeed this case, to recognise that all the points taken as to the inadequacy of the direction, are points taken in other cases. In other words it is important to recognise that it was open to the appellants in this case to take the points now taken, if anyone had thought of them at the trial or immediately after the trial, if it were thought that there was force in any argument that the trial had been unfair.”
21. Waller LJ concluded (at paragraph 14):
“We believe that an absolutist approach, particularly to a reference, is not called for. The essential question is whether any misdirection identified has caused an injustice and whether the Court of Appeal is satisfied that the verdict was safe. In reaching a decision as to the safety of the verdict it may assist to analyse first how the case was left to the jury by virtue of the direction given and then second to analyse how it would have been left to the jury if a proper direction had been given. The court should then assess, whether having regard to the jury’s verdict on the direction as given, the jury would have been bound to convict if a proper direction had been given. Only, of course, if the court is sure that the jury would have been bound to convict can the verdict be said to be safe.”
22. As to the adverse inferences direction given by the trial judge, Waller LJ noted (at paragraphs 33-34):
“As we previously indicated that direction was discussed between counsel and the judge. A transcript of that discussion was placed before us, demonstrating that counsel for the appellants, Mr Bethel QC for Ford and Mr Worsley QC for Boyle, were content with a direction on those lines and they had no submission to make.
23. He continued:
The direction is on any view defective in certain significant respects. First it does not give the direction that:—
1. An adverse direction could only be drawn if the jury were satisfied that the real reason for silence was that the appellants had no answer at the time, or none that would stand up to scrutiny.
2. It was deficient in that the judge did not identify the precise facts to which the direction related.”
24. He commented (at paragraphs 37-38):
“[Counsel for the prosecution]’s submission was that so far as legal advice was concerned, the appellants received a favourable direction. He submits that the inference to be drawn from the judge’s direction that the transcripts indicated that they did receive legal advice that they should not answer questions, and his drawing attention to the fact that that advice changed and that once they had advice to the contrary in September they gave evidence in accordance with that advice, are all directions which would have steered the jury to the view that reliance on the advice in July 1998 was reasonable.
We accept that the [trial judge’s] steer was in the appellants’ favour, but the direction still left it open to the jury to draw adverse inferences, and the submission is not a complete answer to [counsel for the appellants’] submissions.”
25. As to the second criticism concerning the failure of the trial judge to specify the facts to which his adverse inferences direction referred, he noted (at paragraphs 39-41)
“So far as the second criticism is concerned, i.e. the failure to specify the facts to which the direction applied, [counsel for the prosecution] had to accept the criticism made. But would a direction setting out all the facts with which the appellants failed to deal in July have assisted the appellants? In the respondent’s skeleton first produced for the Court of Appeal the argument was that if the judge had highlighted all the facts which the appellants might have referred to in their first interviews that would have been enormously damaging to the appellants ... There is, as we would see it, force in that submission and the fact that all facts which might have been referred to were not set out seems to us to have been of benefit to the appellants. However, in considering what direction to give and, on the basis that key facts in relation to which an adverse inference might be drawn should be specified, the judge would have been likely to concentrate on one, or possibly two, of the facts. The key fact of which the appellants gave no explanation until they came to give evidence was that they were innocently going on a badger hunt between the hours of 2am and 3am on 1st July and that that accounted for the gun and other items they had in the car and accounted for their movements that morning.
It was also put to the appellants that the deceased’s blood had been found on the ceiling of the Saab and, again, no explanation was given as to how that had happened.
Therefore the direction should have contained words to the following effect:-
‘As part of their defence the defendants have relied upon the fact that they were going on a badger hunt in the early hours of 1st July and on the fact that there was an explanation for the deceased’s blood being in the Saab, i.e. that the deceased had injected himself in that motorcar. The prosecution say and indeed the appellants admit that they did not mention those facts when they were interviewed about the offences in July 1998. This failure may count against them. This is because you may draw the conclusion from that failure that they have since invented those matters and had no answer to the case being put to them by the police, or no answer that would stand up to scrutiny. If you do draw that conclusion you must not convict them wholly or mainly on the strength of it, but you may take it into account as some additional support for the prosecution’s case, when deciding whether the appellants’ evidence about these facts is true. However, you may draw that conclusion only if you think it is a fair and proper conclusion and you are satisfied about three things: first, that when they were interviewed they could have reasonably been expected to mention the facts on which they now rely; second, that the only sensible explanation for their failure to do so is that they had no answer at the time or none that would stand up to scrutiny; third, that apart from their failure to mention those facts the prosecution’s case against them was so strong that it clearly called for an answer by them.’”
26. He continued (at paragraph 42):
“It seems to us clear from the jury’s finding that they must have been sure that the explanation given by the appellants for their whereabouts was a lie, and that the explanation given for the blood of the deceased in the [car] was a lie. The argument for the appellants has to be that the jury may have been ‘tipped’ to forming that conclusion by their failure to answer questions in July 1998.”
27. Waller LJ concluded (at paragraphs 43-44):
“In our view the position is as follows. First, on the direction that the jury were given it is most unlikely that they held the silence in July 1998 against the appellants, the judge stressing their reliance on the advice of a solicitor at that time. If, however, because, as we must accept, the possibility of drawing an adverse inference was left open to the jury, then, in this case, there is absolutely no basis on which it can legitimately be said there was good reason, even relying on solicitors’ advice, for not saying where they were on that evening or giving the explanation for how the deceased’s blood came to be in the [car]. Thus to have drawn an adverse inference from the failure in the July interviews to mention where they were and how blood got on the ceiling of the [car] could not, in the circumstances of this case, in any way be unfair. Furthermore, in our view, the jury would inevitably have been sure that the explanation given in the witness box was made up and not produced at the July interviews because it was an explanation that would not stand up to scrutiny.
Our overall view is that the s.34 direction given was not in fact unfair to the appellants, indeed, if anything, it steered the jury away from drawing any adverse inference. If a fuller direction had been given it would have emphasised that which the appellants could have disclosed in the July 1998 interviews and it would have emphasised that reliance on the advice of the solicitor was not necessarily good enough. It would indeed have made it more likely that the jury would have drawn an adverse inference than the direction that was in fact given. Furthermore, it seems to us that one can be sure that in rejecting the evidence of the appellants, the jury were in fact sure that the appellants did not have an explanation which they could have given in July 1998 which would have stood up to scrutiny.”
28. Section 34 of the Criminal Justice and Public Order Act 1994 provides that:
“(1) Where in any proceedings against a person for an offence, evidence is given that the accused–
(a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings;
...
being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies.
(2) Where this subsection applies
...
(d) the court or jury, in determining whether the accused is guilty of the offence charged,
may draw such inferences from the failure as appear proper.
(3) Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention.
...”
29. Section 38(3) provides that:
“A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 34(2) ...”
30. A number of domestic cases have considered the application of section 34 in practice. In R. v Cowan ([1996] 1 Criminal Appeal Reports 1), Lord Taylor CJ set out five “essentials” when making a direction on adverse inferences:
“We consider that the specimen direction is in general terms a sound guide. It may be necessary to adapt it to the particular circumstances of an individual case. But there are certain essentials which we would highlight:
1. The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the standard required is.
2. It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent. That is his right and his choice.
3. An inference from failure to give evidence cannot on its own prove guilt. That is expressly stated in section 38(3) of the Act.
4. Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence. Of course, the judge must have thought so or the question whether the defendant was to give evidence would not have arisen. But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case. It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant’s silence.
5. If despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury conclude the silence can only sensibly be attributed to the defendant’s having no answer or none that would stand up to cross-examination, they may draw an adverse inference.”
31. Subsequently, in R. v. Argent ([1997] Criminal Appeal Reports 27), Lord Bingham CJ added a sixth condition that had to be met before section 34 of the 1994 Act would allow inferences to be drawn:
“The sixth condition is that the appellant failed to mention a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when questioned. The time referred to is the time of questioning, and account must be taken of all the relevant circumstances existing at the time. The courts should not construe the expression ‘in the circumstances’ restrictively: matters such as the time of day, the defendant’s age, experience, mental capacity, state of health, sobriety, tiredness, knowledge, personality and legal advice are all part of the relevant circumstances; and those are only examples of things which may be relevant ...
Like so many other questions in criminal trials this is a question to be resolved by the jury in the exercise of their collective common-sense, experience and understanding of human nature. Sometimes they may conclude that it was reasonable for the defendant to have held his peace for a host of reasons, such as he was ... worried at committing himself without legal advice, acting on legal advice, or some other reason accepted by the jury.”
32. The Court of Appeal has considered a number of cases in which the defendant’s alleged that the adverse inferences direction was deficient on one the basis that it failed to include a direction to the effect that adverse inferences could only be drawn where the jury was satisfied that the real reason for the defendant’s silence was that they he no answer to the questions asked, or no answer that would hold up to scrutiny, including R v. Condron and Condron ([1996] EWCA Crim 1129); R v. Gill ([2000] EWCA Crim 49); R v. Milford (2000] EWCA Crim 84); and R v. Betts and Hall ([2001] EWCA Crim 224). In all these cases, with the exception of Condron, the court granted the appeals on the basis of this Court’s judgment in Condron, cited above.
33. Guidance as to the direction which the judge should give the jury in respect of section 34 of the Criminal Justice and Public Order Act 1994 are provided by the Judicial Studies Board, which provides specimen directions. At the time of the applicants’ trial, the relevant part of the specimen direction read as follows:
“If he failed to mention [a fact] ... when he was questioned, decide whether in the circumstances which existed at the time, it was a fact which he could reasonably have been expected then to mention. The law is that you may draw such inferences as appear proper from his failure to mention it at that time. You do not have to hold it against him. It is for you to decide whether it is proper to do so. Failure to mention such a fact at that time cannot, on its won, prove guilt, but depending on the circumstances, you may hold that failure against him when deciding whether he is guilty, that is, take into account as some additional support for the prosecution’s case. It is for you to decide whether it is fair to do so.”
34. The specimen direction was updated and revised in May 1999 but it is not clear whether the amended direction was available to the judge at the time of the applicants’ trial. It included the following section:
“...[if] you are sure that the real reason for his failure to mention this fact was that he then had no innocent explanation to offer in relation to this aspect of the case, you may hold it against him.”
35. The present specimen direction, last updated in December 2004, further amended the previous version. It reflects the domestic case-law on jury directions as well as the judgments of this Court in John Murray v. the United Kingdom, 8 February 1996, Reports of Judgments and Decisions 1996I and Condron v. the United Kingdom, no. 35718/97, ECHR 2000V). It provides as follows:
“1. Before his interview(s) the defendant was cautioned ... He was first told that he need not say anything. It was therefore his right to remain silent. However, he was also told that it might harm his defence if he did not mention when questioned something which he later relied on in court; and that anything he did say might be given in evidence.
2. As part of his defence, the defendant has relied upon (here specify the facts to which this direction applies ...). But [the prosecution say][he admits] that he failed to mention these facts when he was interviewed about the offence(s). [If you are sure that is so, this/This] failure may count against him. This is because you may draw the conclusion ... from his failure that he [had no answer then/had no answer that he then believed would stand up to scrutiny/has since invented his account/has since tailored his account to fit the prosecution’s case/(here refer to any other reasonable inferences contended for ... )]. If you do draw that conclusion, you must not convict him wholly or mainly on the strength of it ...; but you may take it into account as some additional support for the prosecution’s case ... and when deciding whether his [evidence/case] about these facts is true.
3. However, you may draw such a conclusion against him only if you think it is a fair and proper conclusion, and you are satisfied about three things: first, that when he was interviewed he could reasonably have been expected to mention the facts on which he now relies; second, that the only sensible explanation for his failure to do so is that he had no answer at the time or none that would stand up to scrutiny ... ; third, that apart from his failure to mention those facts, the prosecution’s case against him is so strong that it clearly calls for an answer by him ...
4. (Add, if appropriate:) The defence invite you not to draw any conclusion from the defendant’s silence, on the basis of the following evidence (here set out the evidence ... ). If you [accept this evidence and] think this amounts to a reason why you should not draw any conclusion from his silence, do not do so. Otherwise, subject to what I have said, you may do so.
5. (Where legal advice to remain silent is relied upon, add the following instead of paragraph 4:) The defendant has given evidence that he did not answer questions on the advice of his solicitor/legal representative. If you accept the evidence that he was so advised, this is obviously an important consideration: but it does not automatically prevent you from drawing any conclusion from his silence. Bear in mind that a person given legal advice has the choice whether to accept or reject it; and that the defendant was warned that any failure to mention facts which he relied on at his trial might harm his defence. Take into account also (here set out the circumstances relevant to the particular case, which may include the age of the defendant, the nature of and/or reasons for the advice given, and the complexity or otherwise of the facts on which he relied at trial). Having done so, decide whether the defendant could reasonably have been expected to mention the facts on which he now relies. If, for example, you considered that he had or may have had an answer to give, but reasonably relied on the legal advice to remain silent, you should not draw any conclusion against him. But if, for example, you were sure that the defendant had no answer and merely latched onto the legal advice as a convenient shield behind which to hide, you would be entitled to draw a conclusion against him, subject to the direction I have given you. ”


ITEMID: 001-70440
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: BONGER v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson
TEXT: The applicant, Mr Teshome Goraga Bonger, is an Ethiopian national, who was born in 1963 and currently lives in the Netherlands. He was represented before the Court by Ms I.J.M. Oomen, a lawyer practising in Amsterdam. The respondent Government were represented by their Agent, Mr R.A.A. Böcker, of the Netherlands Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 21 January 1995 the applicant entered the Netherlands, where he applied for asylum. He stated that, during the former (“DERG”) regime of Mengistu Haile Mariam in Ethiopia, he had been a member of the Workers’ Party of Ethiopia (WPE) and had been a pilot in the Ethiopian air force. He further stated that, between 1982 and 1985, he had stayed in Russia for military training purposes. After having returned to Ethiopia in 1985, he had participated between April 1987 and September 1988 in military operations in Asmara, Tigra and Gojan and had carried out bombings. Between September 1988 and July 1992, he had stayed for a second period in Russia for further military training. When the Mengistu regime had been overthrown in 1991, he had remained in Russia and had returned to Ethiopia in July 1992. Shortly after his return, he had reported to the new authorities in Ethiopia and had subsequently been sent to a political re-education camp. He had stayed in that camp from July 1992 until 15 or 16 January 1993, when he had been released with an obligation to report regularly to the authorities. He had complied with this obligation until March 1993 when – after having heard that pilots had been arrested on accusations of murder and plundering, and after members of the military had come to his aunt’s house with whom he had then lived and who had asked for him – he had gone into hiding for fear of being arrested again. He had left Ethiopia for Sudan in April 1993. In the course of the same month, he had travelled from Sudan to Russia where, holding forged residence permits, he had stayed until 19 January 1995 when he had travelled on his own Ethiopian passport via Berlin to the Netherlands.
On 15 March 1995, the applicant’s asylum request was rejected by the Deputy Minister of Justice (Staatssecretaris van Justitie), who did not find it established that the applicant had a well-founded fear of persecution.
On 20 March 1995, the applicant filed an objection (bezwaar) against this decision with the Deputy Minister. On the same day he filed a request with the President of the Regional Court (arrondissementsrechtbank) of The Hague for an interim measure to the effect that he would be allowed to remain in the Netherlands pending the proceedings on his objection.
On 1 June 1995, following a hearing held on 18 May 1995, the Acting President of the Regional Court rejected the applicant’s request for an interim measure. The Acting President considered, inter alia, that there were no concrete indications that the applicant would be arrested if he returned to Ethiopia, that the applicant’s claims were only based on assumptions and hearsay information, and that the fact that his passport had been prolonged on 22 November 1994 by the Ethiopian consular authorities in Moscow indicated that the applicant was not sought by the Ethiopian authorities. The Acting President concluded that it had not been established that the applicant had a well-founded fear of persecution or that his expulsion to Ethiopia would be contrary to the applicant’s rights under Article 3 of the Convention. Further considering that the proceedings on the applicant’s objection would not result in a different finding, the Acting President also rejected the applicant’s objection, in accordance with Article 33b of the Aliens Act (Vreemdelingenwet) as in force at the material time.
No further appeal lay against this decision.
On 28 November 1995, the applicant requested the Regional Court of The Hague for a revision (herziening) of the ruling of 1 June 1995. In its decision of 1 March 1996, following a hearing held on 16 February 1996, the Regional Court rejected the revision request.
On 7 January 1997 the applicant filed a second asylum request on the basis of new facts and circumstances, namely a copy of a letter of 24 June 1993 addressed to his aunt by the Ethiopian authorities, requesting information about the applicant’s new address. The applicant further submitted that, in the proceedings on his first asylum request, he had omitted to say that, in his function as an air force pilot, he had participated in hundreds of flights over war zones.
The Deputy Minister of Justice rejected the applicant’s second asylum request on 8 January 1997, holding that it did not appear from the letter of 24 June 1993 – from which it could only be concluded that the authorities wished to be informed of the applicant’s new address – that the applicant had a well-founded fear of persecution. The Deputy Minister further held that this finding was supported by the applicant’s statements that he had remained in contact with an aunt and his brother in Ethiopia, and that there was no evidence whatsoever of any interest being shown by the Ethiopian authorities in the applicant since June 1993. The Deputy Minister further held that the applicant’s statement about his participation in numerous flights over war zones did not constitute a relevant legal novum, as this element had already been taken into account in the proceedings on his first asylum request.
The applicant filed an objection against this decision with the Deputy Minister and requested the President of the Regional Court of The Hague to issue an injunction to stay his expulsion pending the proceedings on his objection.
On 20 January 1997, the Acting President of the Regional Court of The Hague accepted the applicant’s request for an injunction. On the basis of, inter alia, information obtained by the applicant from the Ethiopian Human Rights Council and Amnesty International, the Acting President considered that it was plausible that pilots of the former Ethiopian air force, like the applicant, who had been involved in bombings of the then freedom fighters, did in fact risk serious repercussions from the current Ethiopian authorities, and that a further investigation was required to assess whether the applicant had a well-founded fear of persecution in Ethiopia. The Acting President, having noted the applicant’s statement that the rank last held by him was that of 1st lieutenant-pilot, considered that, to this end, it was necessary to obtain an individual official report (individueel ambtsbericht) on the applicant’s personal situation from the Minister of Foreign Affairs and, after receipt of this official report, to hear the applicant before the Advisory Commission for Aliens’ Affairs (Adviescommissie voor vreemdelingenzaken).
On 19 February 1998, the Ministry of Foreign Affairs transmitted the requested individual official report to the Deputy Minister of Justice, who sent a copy to the applicant’s lawyer on 26 March 1998. It reads, in so far as relevant:
“1.a. The statement of 16 January 1997 by the Ethiopian Human Rights Council submitted by the [applicant] has been issued by this organisation and the therein-cited ranks of the air force officers are correctly mentioned.
1.b. According to the Ethiopian Human Rights Council and the Special Prosecutor’s Office, 25 air force officers from the former DERG-period are detained in the Kalti prison, which serves as a prison for authorities of the former DERG regime, on suspicion of genocide and crimes against humanity. There is no re-education regime in this prison. Some of these air force officers were arrested and detained in 1991 – after the fall of the DERG rule –, others later in 1994, [and] initially without any official charges having been brought. The[ir] detention was ordered by the Special Prosecutor, who deals with trial proceedings against members of the DERG regime who are accused of genocide and crimes against humanity.
A general unofficial accusation against the air force during the DERG-regime is that it has caused many civilian casualties during bombings and firing from the air in the fight against the Ethiopian Peoples’ Revolutionary Democratic Front (EPRDF), the Ethiopian Liberation Front (ELF) and the Ethiopian Peoples’ Liberation Front (EPLF).
2. The same rights and obligations as for any other Ethiopian [citizen] apply to former detainees of a re-education camp after their return to Ethiopian society.
3. The ... address in Debre Zeit cited by the [applicant] exists. A sister of the [applicant] and her children live there. According to the persons living at this address and neighbours, the [applicant] had been held in May 1991 in a re-education camp and, towards the end of 1992, had left Debre Zeit for reasons unknown. The [persons heard] did not know when the [applicant] had been released from the above-mentioned re-education camp. According to the same persons, the [applicant] was a lieutenant in the Ethiopian air force, but he would not have studied in Russia. Also according to information by these persons, local militia would have searched for the [applicant] after his departure, because his appointment as lieutenant in the Ethiopian air force would at the time have been a political appointment.
4. In so far as could be verified, the [applicant] has been detained in the re-education camp Tolai.
5. According to the archive of this office, the copy of a letter of 24 June 1993 of the Central Investigation Office, submitted by the [applicant], is not a copy of an authentic document.
6. It has not been possible to verify the authenticity of the identity card ..., submitted by the [applicant] .”
On 20 July 1998, the applicant was heard before the Advisory Commission for Aliens’ Affairs.
On 18 October 1999, the Ministry of Foreign Affairs informed the Deputy Minister of Justice that a further investigation had been carried out in Ethiopia, and that the applicant’s name was mentioned in the list of suspects of the DERG-tribunal in Addis Abeba.
On the basis of the information contained in the individual official report, the Deputy Minister decided to investigate whether the applicant’s situation fell within the scope of Article 1 F of the Convention Relating to the Status of Refugees of 28 July 1951 (“the 1951 Convention”), which provides as follows:
“The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.”
The applicant’s lawyer, who learned about this development on 14 January 2000, informed the Minister of Justice on 29 January 2000 that he found this approach unacceptable.
On 19 July 2000, an immigration official conducted a further interview with the applicant about his membership of the WPE, his duties as an air force pilot, his career in the air force and whether he had been involved in the bombing of civilian targets.
On 29 January 2002, the Deputy Minister of Justice rejected the applicant’s objection against the decision of 8 January 1997. The Deputy Minister found that the applicant’s acts as an air force pilot during the Mengistu regime fell within the scope of Article 1 F of the 1951 Convention, that he could be held responsible for these acts, that consequently Article 1 F applied to his situation and that the applicant was therefore ineligible for asylum. Pursuant to Article 3.107 of the Aliens Ordinance (Vreemdelingenbesluit), he was also ineligible for a residence permit on any other grounds, including a residence permit for a limited duration based on Article 3 of the Convention.
On 21 February 2002, the applicant filed an appeal against this decision with the Regional Court of The Hague and, on the same day, requested the provisional measures judge (voorzieningenrechter) of that same court to issue an injunction to stay his expulsion pending the proceedings on his appeal.
On 22 March 2002, the applicant filed his written grounds of appeal with the Regional Court of The Hague, in which he argued that Article 1 F of the 1951 Convention had been unjustly applied to his case, and that the decision of 29 January 2002 had been taken in violation of the general principles of proper administration (algemene beginselen van behoorlijk bestuur). In his appeal submissions to the Regional Court, the applicant mentioned Article 3 of the Convention without any further elaboration.
In its decision of 12 September 2003, following a hearing held on 27 August 2003, the Regional Court of The Hague rejected the applicant’s appeal. It considered that, pursuant to Article 4:6 of the General Administrative Law Act (Algemene Wet Bestuursrecht), a person filing a repeat asylum request – i.e. after a negative decision had been taken on an original asylum request – should adduce newly emerged facts or altered circumstances (nieuw gebleken feiten of veranderde omstandigheden) that were not known when the initial negative decision was taken and of such a nature that it could lead to a different decision. It further noted that, under Article 4:6 § 2, such a repeat request could be rejected with reference to the initial negative decision if no such new facts or circumstances had been adduced. Referring to the case-law of the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State), the Regional Court considered that it was for the courts to assess whether there was a novum within the meaning of Article 4:6 and that this included facts or circumstances that had occurred after the negative decision on the original request had been taken or facts or circumstances that could not have been adduced earlier, as well as evidence in support of already submitted facts or circumstances which evidence could not have been submitted prior to the negative decision on the original request. However, even in case these requirements were met, such new facts and circumstances could nevertheless be regarded as not amounting to a novum if it was clear beforehand that they would not affect the decision taken on an original request or the reasons on which this decision was based.
In the instant case, the Regional Court held inter alia that the differences in the respective statements given by the applicant in the two subsequent asylum proceedings about the scope of his involvement in war events did raise questions, but could not be regarded as a novum because it concerned information which the applicant already held when he had filed his first asylum request and his participation in flights over war zones had in fact already been addressed in the decision of 1 June 1995 on his first asylum request. It therefore concluded that the applicant’s second asylum was not based on new facts or changed circumstances within the meaning of Article 4:6 of the General Administrative Law Act (Algemene Wet Bestuursrecht). In accordance with Article 8:79 of the General Administrative Law Act, this decision was notified to the applicant on 26 September 2003. No further appeal lay against this decision.
On 15 September 2003, the provisional measures judge declared inadmissible the applicant’s request of 21 February 2002 for an injunction staying his expulsion, as his appeal on the merits had been rejected by the Regional Court of The Hague in the meantime. This decision was also notified to the applicant on 26 September 2003.
Until 1 April 2001, the admission, residence and expulsion of aliens were regulated by the Aliens Act 1965 (Vreemdelingenwet; “the 1965 Aliens Act”). Further rules were set out in the Aliens Decree 1966 (Vreemdelingenbesluit), the Regulation on Aliens (Voorschrift Vreemdelingen) and the Aliens Act Implementation Guidelines 1994 (Vreemdelingencirculaire). The General Administrative Law Act (Algemene Wet Bestuursrecht) applied to proceedings under the 1965 Aliens Act, unless indicates otherwise in this Act.
On 1 April 2001, the 1965 Aliens Act and the pertaining regulations were replaced by the Aliens Act 2000, the Aliens Decree 2000, the Regulation on Aliens 2000 and the Aliens Act Implementation Guidelines 2000. Unless indicated otherwise in the Aliens Act 2000, the General Administrative Law Act continued to apply to proceedings on requests by aliens for admission and residence.
The applicant’s first asylum request was examined under the 1965 Aliens Act. Although his second asylum request had been introduced under the 1965 Aliens Act, the applicant’s objection against the decision of 8 January 1997 was determined on the basis of the Aliens Act 2000.
Under Article 15 § 1 of the 1965 Aliens Act 1965, aliens coming from a country where they have a well-founded reason to fear persecution on account of their religious or political convictions, or of belonging to a particular race or a particular social group, could be admitted as refugees. The expression “refugee” in this provision was construed to have the same meaning as in Article 1 of the 1951 Convention, as amended by the Protocol of 31 January 1967 (decision of the Judicial Division of Council of State of 16 October 1980, Rechtspraak Vreemdelingenrecht [Immigration Law Reports] 1981, no. 1).
Under Article 29 § 1 of the Aliens Act 2000, an alien may be eligible for a residence permit for the purposes of asylum if inter alia:
he or she is a refugee within the meaning of Article 1 of the 1951 Convention, or
he or she has established well-founded reasons to assume that he/she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment if expelled to the country of origin.
However, if the exclusion clause under Article 1 F of the 1951 Convention applies, the alien concerned loses any protection which would have been available under the 1951 Convention and, consequently, becomes ineligible for a residence permit for asylum under Article 29 § 1 of the Aliens Act 2000. In such a situation and pursuant to Article 3.107 of the Aliens Decree 2000 and Chapter C1/4.6.4 of the Aliens Act Implementation Guidelines 2000, the alien concerned can neither be granted a residence permit on any of the other grounds referred to in Article 29 § 1 of the Aliens Act 2000.
However, a refusal to grant a residence permit on the basis of Article 1 F of the 1951 Convention does not necessarily imply that the alien concerned will be effectively removed to his or her country of origin if that would be in breach of Article 3 of the Convention. In two rulings handed down on, respectively, 2 and 9 June 2004’ examination of these cases had been incomplete.
These rulings resulted in an amendment to the relevant rules. Where it has been established that a person, for reasons based on Article 3 of the Convention, cannot be expelled to his or her country of origin but, pursuant to Article 1 F of the 1951 Convention, is ineligible for a residence permit, no expulsion order will be issued, at least for as long as these reasons exist. However, no residence title will be issued to the alien concerned who remains under the obligation to leave the Netherlands at his or her own motion. It further remains possible to issue an order for his or her expulsion as soon as his or her removal will no longer entail a risk of treatment contrary to Article 3 in the country of origin or an order for removal to a third State willing to accept the person concerned (Chapter C1/5.13.3.1 of the Aliens Act Implementation Guidelines 2000, as amended on 23 September 2004).
Article 4:6 of the General Administrative Law Act provides that a petitioner must adduce newly emerged facts or altered circumstances if a new request is filed following a decision in which the original request is, either totally or partially, rejected. When no such facts or altered circumstances have been adduced, the administrative authority may reject the new request with reference to the decision on the original request. Article 4:6 thus embodies the ne bis in idem principle for the administrative law.
Nevertheless, an exception has been made in this particular area of the law, in that an alien may adduce exceptional facts and circumstances relating to him or her personally, on the basis of which the new request may be assessed outside the framework of Article 4:6. In the case of a repeat asylum application which also invokes the risk of treatment contrary to Article 3 of the Convention, an assessment by the court outside the framework of Article 4:6 is therefore possible. The Administrative Jurisdiction Division of the Council of State has on one occasion quashed the dismissal of a repeat application for a residence permit for the purposes of asylum despite the absence of new facts or altered circumstances (judgment of 24 April 2003, no. 220300506/1, Nieuwsbrief Asiel- en Vluchtelingenrecht [Newsletter on Asylum and Refugee law] 2003/160). It did so on the basis of the exceptional circumstance that there was no dispute between the parties, that on his return to his country of origin, the alien would run a real risk of being subjected to treatment or punishment proscribed by Article 3 of the Convention.
According to Article 72 § 3 of the Aliens Act 2000, any act of a public body in respect of an alien is to be equated with a formal decision within the meaning of the General Administrative Law Act, entailing that such an act may be challenged in administrative appeal proceedings. If the act concerns an act aimed at the expulsion of an alien who has been denied admission, the lawfulness of this act will already have been judicially determined in the ruling dismissing the appeal brought against a negative decision on an admission request. However, this is not the case when the situation at the time of expulsion differs from the situation at the time of the judgment rejecting the appeal in such a way that it can no longer be said that the lawfulness of the expulsion has been established (Parliamentary Papers, Lower House (Tweede Kamer) of Parliament, 1999/2000, 26,732, no.7, p. 206).
Policy is based on official country reports (ambtsberichten), periodically drawn up by the Netherlands’ Ministry of Foreign Affairs. At the material time, the Netherlands policy was based on the official country report on Ethiopia issued in July 2000. According to this report, the observance of civil and political rights in Ethiopia had, in comparison with earlier years, generally improved. However, despite statutory guarantees, there were in practice breaches of certain fundamental rights, including freedom of expression and freedom of assembly. The victims were journalists, union members and others who were highly critical of the Government, as well as members of the banned opposition parties. The situation was, however, not such that every asylum seeker from Ethiopia automatically qualified for asylum. Any asylum seeker from Ethiopia should demonstrate that his or her personal circumstances – viewed objectively – justified his or her fear of persecution as defined in refugee law or constituted grounds for granting a residence permit on grounds of compelling humanitarian reasons, e.g. because he or she would be subjected to treatment in violation of Article 3 of the Convention if he or she were to return.
The most recent official country report on Ethiopia was issued by the Ministry of Foreign Affairs on 14 February 2005. This report, in its relevant part, reads:
“3.3.6. The situation in prisons in Ethiopia is wanting, in particular overcrowding is a problem. The food provided in prison is insufficient. Many detainees depend on food brought to them by family and friends. Access to medical facilities is not reliable. The prison conditions are considered to correspond to the general living conditions in Ethiopia. ... The International Red Cross has access to most places of detention. ... Unlike the situation in the past, diplomats were given access to prisons. In addition, they were given permission to visit prominent detainees who are suspected by the ‘Special Prosecutor’s Office’ of war crimes and terrorist activities....
3.3.7. ... [despite statutory guarantees ] ill-treatment and torture occur in Ethiopia in particular during the first weeks after arrest. It occurs more often in police stations, remands centres and military barracks than in federal prisons. ... The aim of torture is generally to obtain information and to deter. Torture occurs in particular in cases of detention for alleged political activities or acts of civil disobedience. ... Torture and ill-treatment occur more often in rural areas than in the city, and in general is applied more frequently on persons who probably will never come into contact with members of the international community. ...
3.3.10. The Constitution and criminal law allow the death penalty for a considerable number of crimes. Also the amended criminal law has retained the death penalty. Condition for execution of the death penalty is a ratification of the sentence by the President. The Government has for some time already been working on a revision of the criminal law. EHRCO [Ethiopian Human Rights Council; a legal non-governmental organisation] has exerted pressure on the authorities to remove the section relating to the death penalty from the criminal code in the revision process.
Since the change of government in 1991, the death penalty has been carried out only once. It concerned the murderer of a popular general, in 1998. During the reporting period, several persons have been sentenced to death, exact numbers are unknown. A number of these cases form a part of the so-called ‘DERG’ court cases. .... It is not known whether these sentences will be carried out. ...
3.4.5. According to the Special Prosecutor’s Office (SPO), the body dealing with the prosecuting of perpetrators of crimes under the Mengistu regime (1977-1991), at least 6,426 persons have been indicted for their role in this regime. Prosecution is brought on the basis of Article 281 (genocide) and Article 282 (war crimes) of the Ethiopian Criminal Code. These provisions have been in force since 1957 and thus applied during the DERG period. Charges brought by the SPO are determined by a specialised tribunal, the ‘Sixth Criminal Bench’ of the ‘Federal High Court’. An appeal and appeal in cassation lies with the ‘Supreme Court’ and the ‘Cassation Court’, respectively. If an accused is found guilty of genocide or murder, the death penalty may be imposed. Whether such a sentence will be effectively carried out is not known. In any event, to date, no death sentence has been carried out (see also § 3.3.10 Death penalty).
In particular, higher-ranked army officers and civil servants have been indicted. About half of them are being held, whereas the others are either free in Ethiopia or abroad, or are no longer alive. The first judgments were handed down in November 1999. The sentences that have been imposed to date vary from 10 to 20 years’ imprisonment. The SPO does not give information about the progress of the court proceedings. For this reason, it is not known how many cases are still pending nor what sentences have been imposed during the reporting period.”
In the absence of any reasons for change, the Netherlands policy on admitting Ethiopian nationals has remained the same as in 2000. Every asylum seeker from Ethiopia must still demonstrate that the personal facts and circumstances of his or her case – viewed objectively – justify a fear of persecution as defined in refugee law or might lead to the conclusion that he or she would be subjected to treatment contrary to Article 3 of the Convention if returned.


ITEMID: 001-77385
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: KERIMOV v. AZERBAIJAN
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Eyyub Zakir oglu Kerimov (Eyyub Zakir oğlu Kərimov), is an Azerbaijani national who was born in 1958 and lives in Baku. He was represented before the Court by Mr I. Aliyev, a lawyer practising in Baku. The respondent Government was represented by Mr C. Asgarov, Agent of the Republic of Azerbaijan before the Court.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 28 July 2001 an article called “The Nasimi District Deputy Prosecutor – A KGB Agent” was published in a local newspaper Femida, of which the applicant was the chief editor. The article depicted the prosecutor, T.K., as an incompetent and unprofessional prosecutor who was able to hold high-ranking posts in the prosecution authorities only due to his good personal contacts with top-level officials. The article stated, inter alia, that T.K. “had no idea of the working methods of the prosecutor’s office, and his work was limited to wandering around corridors”.
On 5 September 2001 T.K. filed a lawsuit against the newspaper, claiming that the article was defamatory and damaging his reputation. He asked the court to close the newspaper, order it to pay compensation and institute criminal proceedings against the persons responsible for the article’s publication.
The newspaper, represented by the applicant, filed a counterclaim, contending that T.K., by filing an allegedly abusive and frivolous lawsuit against the newspaper, damaged the newspaper’s professional reputation.
On 1 October 2001 the Yasamal District Court partially upheld T.K.’s claim and dismissed the newspaper’s counterclaim. The court held that the article contained defamatory material and that the newspaper had been unable to prove its truthfulness. It ordered the newspaper to pay compensation to T.K. and to “terminate the publication and distribution” of the newspaper in accordance with the Law On Mass Media.
The applicant, on behalf of the newspaper, filed an appeal. He claimed that the termination of the newspaper’s publication in fact amounted to a liquidation of the newspaper as a legal entity. He further claimed that such closure of the newspaper was unlawful, because the court could not order a liquidation of a legal entity based on a defamation complaint made by an individual. Instead, in accordance with Article 59.3 of the Civil Code, the court could order such liquidation only upon an application by the relevant government or local authority.
By a judgment of 6 December 2001, the Court of Appeal dismissed the applicant’s appeal and upheld the first-instance judgment as lawful. At this point, in accordance with the domestic civil procedure law, the judgment entered into legal force and the enforcement proceedings were instituted. On 26 December 2001 the Head of the Yasamal District Bailiff’s Office (Yasamal Rayon Məhkəmə Nəzarətçiləri və Məhkəmə İcraçıları Şöbəsi) sent a letter to the applicant, requesting the newspaper to comply with the judgment voluntarily within a five-day period. It appears that the newspaper’s management complied with this request in a timely manner. Accordingly, the production and distribution of the newspaper was terminated and the moral compensation was paid to T.K. by the end of 2001.
On 8 May 2002 the applicant, on behalf of the newspaper’s editorial board, filed a cassation appeal with the Supreme Court. He claimed that the Court of Appeal had committed the same errors of fact and law as the district court. On 31 July 2002 the Supreme Court dismissed the applicant’s appeal and upheld the Court of Appeal’s judgment.
According to the Government, although the production and distribution of the Femida newspaper had been terminated, the newspaper’s editorial staff continued their activities through Femida’s legal successor, a newspaper called Femida 007. The applicant noted that Femida 007 was simply an addendum to the newspaper and not its legal successor.
“233.1. A [first-instance] judgment enters into legal force after one month from the date of its delivery, unless an appeal has been filed against it [with the appellate court].
233.2. A judgment, which [has been appealed but] has not been quashed on appeal, enters into legal force upon the delivery of the appellate court’s judgment [upholding the first-instance judgment]. ...
“A judgment is subject to execution after its entry into legal force ...”
“A judgment of the appellate-instance court enters into legal force from the moment of its delivery.”
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ITEMID: 001-5384
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: M.C. v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant is a Polish national, born in 1962. He is presently detained in the Racibórz prison. The applicant is represented before the Court by Mr Wieńczysław Grzyb, a lawyer practising in Żywiec (Poland).
A.
1.
On 29 February 1996 the applicant, who was at that time detained in the Wadowice prison, complained to the Wadowice District Prosecutor (Prokurator Rejonowy) that the prison authorities had distributed pornography on the prison cable television and requested that criminal proceedings be instituted against the Governor of Wadowice Prison. Subsequently, the prosecution service investigated the applicant’s complaint.
On 19 March 1996 the prison officers seized a television set and a video cassette player belonging to the applicant. They informed him that he would soon be transferred to another cell in which there was already a television set and that therefore he would not need his own.
On 23 March 1996 the applicant was transferred to a cell in which a certain Mr J.B. was detained. In the meantime, the prison officers had allegedly informed other prisoners that he had been convicted of sexual offences against children and that his complaint to the Wadowice District Prosecutor about distribution of pornography had resulted in restrictions on the other prisoners’ access to films and television programmes. This led to a hostile attitude of inmates to the applicant. As from 23 March 1996 the applicant’s inmate beat, kicked and insulted him. On 8 April 1996 a fight broke out between the two of them. It resulted in injuries to the applicant’s head, a broken nose and bruises on his body. During the incident, three or four warders opened the cell door and laughed but they did not intervene. On 9 April 1996 the applicant was examined by a prison doctor.
The applicant was subjected to regular body searches, the so-called "nude checks", before and after all of his frequent visits to the prison infirmary, any exercise in the open air and any contact with his family.
On 23 April 1996 two prison officers, i.e. lieutenants P.C. and M.B., searched the applicant's cell in the presence of the applicant and his inmate, Mr W.L. The officers seized three of the applicant's letters containing his complaints addressed to the Wadowice District Prosecutor, the Helsinki Committee of Human Rights and the Bielsko-Biała Regional Court. They also took away photographs of the applicant's family and his diary.
On 24 April 1996 the Governor of Wadowice Prison punished the applicant under the disciplinary rules with a deprivation of contacts with his family for a period of three months.
On 23 June 1996 the applicant was beaten.
On 26 June 1996 the applicant was manhandled during the roll-call by the prison officers W.J. and S.B. In particular, he was beaten up, kicked and dragged to a cell where he was kept in solitary confinement. Subsequently, the applicant was examined by a prison doctor and X-ray photographs were taken on three occasions since he was suffering from head injuries.
On an unspecified date the applicant requested the Wadowice District Prosecutor to institute criminal proceedings against the persons who had beaten him up on 26 June 1996. On 27 September 1996 the Wadowice District Prosecutor dismissed his request. On 25 November 1996 the Bielsko-Biała Regional Prosecutor rejected the applicant’s appeal against the decision of the District Prosecutor.
In the meantime, on 30 August 1996 the prison officers left the applicant’s personal effects, including his correspondence, unattended in his cell when he was placed in solitary confinement, and as a result his inmates destroyed and stole them. On 31 August 1996 the warders incited other prisoners to assault the applicant.
2. The facts of the case, as submitted by the Government.
The applicant was detained in the Wadowice prison between 13 December 1995 and 12 December 1996.
On 18 March 1996 the applicant filed with the Wadowice District Prosecutor a complaint about a violation of his right to respect for his correspondence by the prison officers who on 13 March 1996 had searched his cell and had seized his correspondence. Subsequently, he extended his complaint to another seizure of his correspondence at the end of March 1996.
On 19 March 1996 the applicant was transferred from a three-person cell to a cell which he shared with seven other inmates. The transfer was necessary for organisational and educational reasons. In this connection, the Government refer to the prison records concerning the transfer. A report written on 19 March 1996 by a prison officer Mr J.K. specifies that the applicant dominated other inmates in the small cell and annoyed them. The applicant’s behaviour towards an inmate Mr R. resulted in his nervous breakdown. The report concludes that a transfer would help the applicant’s social adaptation. The applicant’s television set and a video cassette player where deposited with the prison authorities at the time of his transfer. On 26 March 1996 the applicant requested the Governor that his electronic equipment be returned to him. However, his request was declined, as there was already a television set in a cell in which he stayed.
On 8 April 1996 the prison officers used physical force to place the applicant in solitary confinement. These measures were used in response to the applicant’s behaviour. In particular, he assaulted an inmate Mr J.B., destroyed furniture and television and radio sets and incited other inmates to start a riot. The Government refer to the prison records, which include detailed description of the incident. They confirm that the applicant remained in solitary confinement from 1.00 p.m. on 8 April 1996 to 9.30 a.m. on 9 April 1996. During that time his cell was inspected on twelve occasions. Furthermore, the Government refer to the applicant’s medical records and point out that he had undergone medical examinations at the time of his placement in solitary confinement and after his release. They are of the view that the results of those examinations show that the applicant’s allegations are unsubstantiated.
Subsequently, the applicant was punished with a one-month detention in solitary confinement for the disciplinary offence committed on 8 April 1996. However, the punishment was not carried out for health reasons and on 23 April 1996 the Governor changed it to the deprivation of contacts with his family for three months.
On 23 April 1996 the applicant’s cell was searched by prison officers. The search was carried out because the prison authorities suspected that the applicant illegally mailed correspondence including child pornography. The officers seized the applicant’s correspondence and certain personal effects. Subsequently, the seized property was sent to the Wadowice District Prosecutor. In addition, the prison service informed the Penitentiary Section of the Bielsko-Biała Regional Court (Sąd Wojewódzki) of the measures taken against the applicant.
On 17 May 1996 the Wadowice District Prosecutor dismissed the applicant’s complaint of 18 March 1996 concerning the alleged breach of his right to respect for his correspondence. He pointed out, inter alia, that the prison administration had been informed that the applicant had been collecting pornographic materials and had been corresponding to expand his collection. Under § 10 (4) of the Prison Rules, the prison administration had been obliged to pass to the prosecution service materials seized from the applicant which appeared to it to point towards the commission of a criminal offence. Accordingly, the correspondence taken from the applicant had been submitted to the prosecuting authorities. On an unspecified date the applicant appealed against that decision to the Bielsko-Biała Regional Prosecutor.
On 20 May 1996 the Wadowice District Prosecutor informed the Governor of the Wadowice prison that he did not intend to prosecute the applicant for the distribution of pornography and returned the belongings seized from the applicant. On the same day they were given back to him.
On 23 June 1996 there was not any beating of an inmate in the Wadowice prison. In that respect, the Government rely on the following documents: the service record of the chief duty prison officer, the service record of the ward prison officer, the applicant’s health record and the list of inmates interviewed by the Governor. In addition, the Government point out that on 26 June 1996 the applicant was subjected to a medical examination. The doctor, who examined him on that occasion, did not find any signs of physical abuse. Moreover, the applicant did not complain to him that he was beaten.
On 26 June 1996 the prison officers used physical force to place the applicant in solitary confinement. Their action resulted from the aggressive behaviour of the applicant who insulted them and assaulted the chief duty prison officer with a window frame. The applicant stayed in solitary confinement between 8.05 p.m. on 26 June 1996 and 9.30 a.m. on 27 June 1996. On 27 June 1997 he was examined by a doctor, who found lumps, contusions and abrasions. In the doctor’s opinion they were consistent with the use of physical force against the applicant and his behaviour during the incident.

On 31 July 1996 the Bielsko-Biała Regional Prosecutor rejected the applicant’s appeal against the Wadowice District Prosecutor’s decision of 17 May 1996 dismissing his complaint about the alleged violation of his right to respect for his correspondence. The Regional Prosecutor considered that prison officers had acted lawfully. The applicant’s hand written notes and correspondence seized by the officers had been transmitted to the prosecution service, as they appeared to constitute evidence pointing towards the commission of a criminal offence by the applicant. In this connection, the Government aver that the applicant sent letters addressed to several institutions in which he inserted correspondence to private individuals together with instructions how to mail it to them. He therefore abused § 31 (1) of the Prison Rules.
On 26 August 1996 the applicant requested the Wadowice District Prosecutor to prosecute the Governor of the Wadowice prison and certain other prison officers from that facility for his moral and physical ill-treatment.
On 30 August 1996 the applicant refused to submit to a search and started to destroy furniture. He also threatened that he would assault other prisoners and hurt himself with a piece of glass he held in his hand. The prison officers overpowered the applicant and escorted him to solitary confinement, where he stayed from 7.20 p.m. on 30 August 1996 to 7.10 p.m. on 31 August 1996. However, shortly after his release from solitary confinement, the applicant again started to destroy furniture and assaulted the prison officers with a chair. In addition, he was calling other inmates to start a riot. Therefore, the warders used physical force to place the applicant in solitary confinement, where he stayed between 7.50 p.m. on 31 August 1996 and 12.45 p.m. on 1 September 1996.
On 4 September 1996 the applicant complained to the prison authorities that his personal effects had been lost when he had been placed in solitary confinement. The investigation of the complaint showed that on 30 August 1996, when the applicant had been taken to solitary confinement, the chief duty prison officer had made the inventory of his personal effects, including his correspondence, and had deposited them with the prison administration. They were returned to the applicant when he was released from solitary confinement.
On 27 September 1996 the Wadowice District Prosecutor dismissed the applicant’s request of 26 August 1996 that certain prison officers be prosecuted for his alleged ill-treatment. On 25 November 1996 the Bielsko-Biała Regional Prosecutor dismissed the applicant’s appeal against that decision. The Regional Prosecutor considered that the evidence taken from the applicant’s inmates and warders showed that his allegations were unsubstantiated.
Relevant domestic law
1. Under the 1975 Resolution of the Minister of Justice, as applicable at the material time, special security measures which can be used against a prisoner include, inter alia, a placement in solitary confinement, handcuffing and the use of a chemical irritant spray. They can be used if a prisoner assaults another person or tries to hurt himself, calls other inmates to start a riot or to escape, breaches the peace or destroys the prison property.
2. The medical records concerning the treatment of a prisoner in the course of his detention are kept in the prison archives. Any injury sustained by a prisoner in prison must be recorded in his files.
3. According to § 10 of the 1989 Prison Rules, as applicable at the material time, prisoners can be subjected to a search. It may include an inspection of clothing, underwear, shoes, a cell as well as objects passed between a prisoner and other individuals. The search may take place at any time. Notes and other written material shall be submitted to a prosecutor if their content suggests that an offence has been committed.
4. Under § 31 (1) of the 1989 Prison Rules the censorship of a prisoner’s correspondence is permitted, except for correspondence with public institutions, including courts and prosecutors, the Ombudsman and the international institutions for the protection of human rights established by the treaties to which Poland is a contracting party.