ITEMID: 001-93432
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: MOLLAZEINAL v. CYPRUS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: The applicant, Mr Morteza Mollazeinal, is an Iranian national who was born in 1979. He was represented before the Court by Mr J.P. Erotocritou, a lawyer practising in Nicosia. The Cypriot Government (“the Government”) were represented by their Agent, Mr P. Clerides, Attorney-General of the Republic of Cyprus.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant arrived in Cyprus on 15 August 2001 as a visitor.
On 21 August 2001 the applicant applied to the office of the United Nations High Commissioner for Refugees in Cyprus (“UNHCR”) for asylum.
On 4 October 2001 he was granted a temporary residence permit pending the examination of his asylum application. The permit was valid from 12 September 2001 to 21 November 2001 and was continuously renewed until 26 August 2003 on the basis of the UNHCR’s instructions. He was, however, permitted to stay in Cyprus even after the latter date since his asylum application had not yet been decided.
On 23 September 2003 his application was dismissed. The UNHCR concluded that the applicant did not have “a well-founded fear of persecution” on the grounds laid down in the Geneva Convention relating to the Status of Refugees (1951).
On 30 September 2003 the applicant appealed against that decision.
His appeal was dismissed on 7 October 2003. The UNHCR considered that the reasons put forward by the applicant in his appeal did not warrant a departure from the first decision. The grounds for reconsidering the application did not contain any new elements that could alter their decision and he was not therefore a person of concern to the UNHCR. His file was thereupon closed, no further review being possible. The UNHCR informed the Civil Registry and Migration Department of their decision.
In the meantime, on 24 September 2003, the applicant applied for the renewal of his residence permit.
By a letter dated 18 December 2003 the immigration authorities informed the applicant that he had to leave Cyprus within fourteen days from receipt of the letter.
On 27 May 2004 the applicant submitted a new asylum application to the Asylum Service (see “Relevant domestic law and practice” below). On 3 August 2004 the Asylum Service decided to dismiss the application on the ground that the applicant did not fulfil the requirements of the Refugee Law of 2000-2004, namely, he had not shown “a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular group or political opinion or a well-founded fear of serious and unjustified harm for other reasons”. However, the authorities were not able to serve the applicant with the letter of dismissal as he could not be found at the address he had given them. As a result, further steps in the applicant’s file were discontinued.
On 23 November 2004, at about 9 p.m., the applicant was stopped for a police check while driving his car in Nicosia. The applicant, who had committed certain traffic offences, had no papers on him proving his identity. He was therefore taken to the police station where it was ascertained that he had been staying in Cyprus illegally.
On 24 November 2004 the applicant was arrested and taken to Nicosia Central Prisons.
On the same day detention and deportation orders were issued by the Director of the Civil Registry and Migration Department under section 6(1)(k) of the Aliens and Immigration Law (Cap. 105 as amended) on the ground that the applicant was a prohibited immigrant. The applicant was served with a letter informing him of these orders. However, he refused to sign the letter.
By a letter dated 24 November 2004, the Director of the Aliens and Immigration Service informed the Ministry of Justice that the applicant did not have a return ticket and that his passport had not been found. Furthermore, by a letter dated 13 December 2004, the Director informed the Ministry that the applicant had been taken to the Iranian Embassy but had refused to give the necessary information allowing the Embassy to issue travel documents. The Director requested the Ministry to contact the Iranian Embassy for the purpose of ensuring the prompt issuance of the required travel documents.
The applicant submitted that the authorities had taken him to the Iranian Embassy upon his arrest for the purpose of issuing him with travel documents and had unlawfully informed that Embassy about his asylum application.
According to the documents submitted by the Government, on 18 March 2005 the applicant was taken by two police officers to the Iranian Embassy for an interview for the purpose of securing travel documents. The applicant, however, refused to give the information required and the Embassy could not as a result issue travel documents.
In the meantime, by a letter dated 14 December 2004 the applicant’s lawyer informed the authorities that his client’s asylum application was still pending and requested the applicant’s release.
On 12 January 2005 the Asylum Service informed the applicant’s lawyer that the examination of the applicant’s file had been discontinued since the applicant, without good reason, had not informed the authorities, as required, that he had changed address and had not notified them of his new one. Therefore they had been unable to serve the letter concerning his application.
On 31 January 2005 the applicant lodged an appeal with the Reviewing Authority of Refugees against the Asylum Service’s decision. This was dismissed on 4 July 2005.
On 4 February 2005 the applicant brought a recourse before the Supreme Court (first-instance revisional jurisdiction) under Article 146 of the Constitution challenging the decision of the Asylum Service to close his asylum file.
This was dismissed on 3 July 2006 as in the meantime the applicant had lodged his appeal with the Reviewing Authority of Refugees (see above) and then a recourse against the dismissal of that appeal (no. 995/05; see below). The Supreme Court added that, in any event, the applicant’s recourse was out of time and that it was completely unsubstantiated.
On 29 August 2005 the applicant brought a recourse before the Supreme Court (first-instance revisional jurisdiction) under Article 146 of the Constitution challenging the decision of the Reviewing Authority of Refugees of 4 July 2005. He also challenged the lawfulness of the detention and deportation orders issued against him pursuant to that decision.
On 7 September 2007 the Supreme Court dismissed the recourse. First it upheld the Refugee Reviewing Authority’s decision to close the applicant’s file. It observed that it had been for the applicant to inform the Asylum Service of any change of address and not for the authority to try to find him for the purpose of serving any relevant documents. Second, the court noted that it could not examine the lawfulness of the detention and deportation orders of 3 August 2005 (see below) as the recourse had only been filed against the Reviewing Authority of Refugees which was not the authority that had issued the orders.
The applicant did not appeal.
On 4 February 2005 the applicant had also brought a recourse before the Supreme Court (first-instance revisional jurisdiction) under Article 146 of the Constitution challenging the detention and deportation orders of 24 November 2004. He claimed, inter alia, that the orders had been issued unlawfully and contrary to the Constitution and the Geneva Convention as the right facts had not been taken into account. He further maintained that if deported to Iran he would be tortured and killed due to his past involvement in student meetings condemning the Iranian Government for human rights violations.
In his affidavit the applicant stated that he had been a student in Iran at the Sahib Bethesda University in the city of Khorramabad. In July 2000 he had participated in a meeting held by students, concerning human rights violations, which the authorities had violently dissolved. Many students had been arrested and some had disappeared. The applicant had been injured but had managed to get away and had gone into hiding in Teheran since the secret police were looking for him. Subsequently the applicant had learned that he had been dismissed from University. The applicant also claimed that he had been on the Iranian authorities’ “stop list” but had managed, after secretly bribing an official, to have his name taken off and get a passport.
Finally, in his affidavit, the applicant stated that since the Iranian Government did not allow Iranian nationals to apply for asylum, he was in even more danger, the Iranian authorities now being aware, after being informed by the immigration authorities, that he was in Cyprus. This was disputed by the respondents. In his affidavit one of the officers stated, on behalf of the respondents, that the police had not mentioned anything about the applicant’s asylum application to the personnel of the Iranian Embassy.
On 13 February 2005 the applicant filed an application seeking an interim order to suspend the decision taken concerning his detention and deportation.
On 17 February 2005 the Director of the Civil Registry and Migration Department suspended the execution of the deportation order pending the examination of the above application.
On 10 June 2005 the Supreme Court dismissed the application for an interim order. As the execution of the deportation order had already been suspended, the court focused on the applicant’s request concerning his detention. In this connection, the court found that the applicant had not established “manifest illegality” in his detention or shown that it had caused him irreparable damage. It therefore held that his application had been unsubstantiated. It also observed that the applicant had not shown that his allegation that the authorities had informed the Iranian Embassy about his asylum application was connected with the lawfulness of the orders that had already been issued by that time.
On 27 July 2005 the Supreme Court upheld the applicant’s recourse and annulled the detention and deportation orders. It held that these orders had been issued on the basis of an inadequate inquiry and misconception about the facts. In this respect, the court noted, amongst other things, that the applicant had not received the letter from the asylum authorities rejecting his application and that the authorities had not conducted an effective investigation in this connection. It further observed that the applicant was refusing to cooperate with the authorities for the issuance of travel documents.
The applicant was released on the same day.
Following the Supreme Court’s judgment of 27 July 2005 the applicant, on 14 October 2005, brought civil proceedings against the Attorney-General before the District Court of Nicosia, claiming damages in respect of unlawful arrest and detention from 14 November 2004 until 27 July 2005.
These proceedings are still pending.
In the meantime, on 29 June 2005, the applicant filed a habeas corpus application before the Supreme Court (first instance). This was dismissed on 20 July 2005. The court held that it did not have jurisdiction to examine the lawfulness of the detention and deportation orders; as decided by the court in numerous cases, this could only be examined in the context of an administrative recourse brought under Article 146 of the Constitution and not a habeas corpus application. The court noted that such a recourse was actually pending and that the judgment had been reserved (namely, recourse 123/05, see above). In these circumstances the court held that the application constituted an abuse of judicial procedure. Further, the court observed that the continuing detention of the applicant was due to the fact that there was a pending recourse against the deportation order and that he did not have the necessary travel documents.
The applicant did not appeal against this judgment.
On 3 August 2005, following the dismissal of the applicant’s appeal by the Reviewing Authority of Refugees, the Director of the Civil Registry and Migration Department issued new detention and deportation orders against the applicant under section 6(1)(k) of the Aliens and Immigration Law, on the ground that he was a prohibited immigrant.
The applicant was arrested on 3 August 2005 while at the Civil Registry and Migration Department. The applicant has submitted that he had gone there in order to collect his new residence permit.
On an unspecified date the applicant filed a habeas corpus application before the Supreme Court (first instance). The applicant claimed, inter alia, that his protracted detention without deportation was unlawful, arbitrary and contrary to his fundamental human rights. He relied on the Supreme Court’s judgment in the case of Essa Murad Khlaief (habeas corpus application 91/2003, judgment of 14 October 2003).
The application was dismissed on 17 July 2006. The Supreme Court held that it did not have jurisdiction to examine the lawfulness of the detention and deportation orders against him: these could only be examined in the context of an administrative recourse and not a habeas corpus application. The applicant would have the right to apply for a habeas corpus order in the event of his being successful in such a recourse but not released.
As to the length of the applicant’s detention, the court found that on the basis of the evidence before it the delay in the applicant’s deportation was solely due to the applicant himself, as he was deliberately refusing to cooperate with the authorities of his own country for the issuance of travel documents. Although the applicant had been taken to the Iranian Embassy he refused to apply for travel documents without giving any explanation in this regard. Noting that in her affidavit to the court the Director of the Civil Registry and Migration Department had suggested that the applicant’s aim was that without travel documents his detention would be extended and at one point he would be released, the Supreme Court found that the respondents were doing everything possible to execute the applicant’s deportation and did not bear any responsibility for the delay. It therefore concluded that it could not be said that the applicant’s length of detention had exceeded what was reasonable.
The applicant did not appeal against this judgment.
On 3 August 2005 the applicant complained to the police that he had been ill-treated by police officers.
According to the relevant police report dated 11 August 2005 the applicant was arrested on 3 August 2005. On arrival at the central prisons, the applicant managed to run away and climb onto a metallic water-tower in the prison courtyard. The police officers succeeded in immobilising him on the tower’s ladder and, eventually, the applicant climbed down.
On the same day the applicant was taken to Omorfita police station where he was visited by his lawyer. In the presence of the officer in charge he showed his lawyer some scratches he had on his body and informed him that these had been inflicted on him at the immigration department and at the Police Detention Facilities at the Central Prisons.
The applicant was immediately taken to the first aid unit of the General Hospital of Nicosia where he was examined by a doctor, a forensic surgeon and, further, a private doctor who had been sent by the applicant’s lawyer. According to the reports of the first two doctors, the applicant had some scratches on the chest and back, weals on the right arm and a scratch on the left arm, weals on the chest and in the area in front of the neck and also swelling in the right part of the cheek-bone area.
On the same day the police took statements from the applicant and some of the police officers who had been involved.
Following an ill-treatment complaint by the applicant, through his lawyer, to the Attorney-General, the Ombudsman and the Chief of Police, an investigation was carried out by the police.
In their report of 11 August 2005 the police concluded that the applicant’s complaint was unfounded and suggested that the file be closed.
In the meantime, on 11 August 2005, the applicant was transferred to the Lycavitos detention facilities in Nicosia.
On 12 August 2005 the file was transmitted to the Attorney-General, who instructed the police to close it.
The file was returned to the police and was closed.
In a letter dated 16 November 2005 the Ombudsman informed the applicant that she had been informed by the police that on the instructions of the Attorney-General the police had carried out the investigation. This had concluded that the applicant’s allegations had been unsubstantiated and as a result the Attorney-General had closed the file. Consequently, the Ombudsman observed that she did not have the competence to intervene.
On 16 February 2006 the applicant was transferred to Nicosia Central Prisons.
On the night of 5 to 6 of June 2006 the police authorities of Nicosia carried out the transfer of certain detained aliens to various detention facilities in other districts.
On 6 June 2006, at about 5.30 a.m., police officers went to Nicosia Central Prisons in order to transfer the applicant to the detention facilities in Larnaca. At the time, the applicant had been on hunger strike from 1 June 2006.
In a statement given to the police on the same day the applicant claimed that he had been sleeping on a table in “an open space used by all the prisoners” when a group of police “commandos” had woken him up and asked him to follow them as they were going to take him to another detention centre. The applicant refused to be transferred and resisted. They then took him to an office and asked him to sign a document which was in Greek. When he refused, one of the officers attacked him and then the officers handcuffed him by using force and put him in a police car.
The applicant was transferred to the Larnaca detention facilities.
In his statement he alleged that when he arrived at the detention centre he spoke to another prisoner who told him that no force had been used against him as he had consented to his transfer. He also complained about his transfer and the force used against him by the police.
At 9.30 a.m. the applicant was taken to the first-aid unit of the Larnaca General Hospital where he was examined by a doctor. According to the entry in the hospital record the applicant had complained to the doctor who examined him for blows. The doctor noted that the applicant had superficial scratches on the “upper limbs and shoulder blade”.
The applicant gave his statement to the police between 4 p.m. and 5.40 p.m. the same day.
On 8 June 2006 the applicant filed a complaint with the Independent Authority for Investigation of Allegations and Complaints against the Police (“IAIACAP”) concerning the use of force by the officers in carrying out his transfer (complaint 27/06).
The Vice-President of the IAIACAP took over the investigation.
The applicant gave a supplementary statement to the police on 20 June 2006. In this the applicant stated that on 6 June 2006 he had been attacked by ten immigration and police officers because he wanted to stay in Nicosia and continue his hunger strike and had therefore resisted his transfer to Larnaca. He stated that the officers had insisted that he go with them and as he resisted they had resorted to violence and thus managed to transfer him to Larnaca.
On 12 January 2007 the Vice-President of the IAIACAP visited the applicant in the Central Prisons and took a statement from him.
In this statement the applicant stated that on 6 June 2006, at about 5.30 a.m. while he was sleeping in his “room”, two police “commandos” had entered and asked him to get out of the “room”. They took him downstairs to the common office on the ground floor where there were another 4 police officers and 12 “commandos”. He was the only detainee in that office. They showed him a letter in Greek and asked him to sign it. When he refused one of the officers grabbed him by the hair and hit his head on a table. The officer then threw him to the ground and with another five to six persons started beating him on the back with their knees. While he was on the ground they handcuffed his hands behind his back. They pulled him up but then threw him down onto the ground again. They then put him into a police van and transferred him to Larnaca. He complained there to the officer in charge and was then taken to hospital. The applicant also noted that he had asked to be taken back to hospital on 13 June 2006. The entry of 13 June 2006 in the hospital record reports weakness caused by a hunger strike.
While detained in Larnaca the applicant complained every day about his detention there and threatened to harm himself if he was not transferred.
He was eventually transferred back to Nicosia Central Prisons on 31 July 2006.
Following the appointment of the Vice-President of IAIACAP to a Ministerial post, on 12 October 2007 the IAIACAP appointed two criminal investigators and an observer member. Between 18 October and 22 October 2007 statements were taken from the four police officers who were in charge of guarding and transferring the applicant and from the police officer in charge at the Larnaca Detention Centre. Upon conclusion of the investigation, the investigators submitted their report to the IAIACAP on 26 October 2007. A report was then also prepared by the member who acted as an observer.
The following account was given to the investigators by four police officers who had been responsible for guarding the applicant and transferring him to Larnaca:
On 6 June 2006, at about 5.30 a.m., police officers went to the Central Prisons in order to carry out the applicant’s transfer to Larnaca. The applicant refused to be moved and would not get out of his bed. The officers lifted him out of his bed and took him from the first floor, where his cell was, to the ground floor. The applicant resisted and was violent. The officers tried to handcuff him but he was resisting, kicking and pushing the officers away. In the end they managed to handcuff him but he refused to go to the police car and fell onto the ground in resistance. The police officers pulled him and took him to the car. At 7.25 a.m. the officers put the applicant inside a police van and transferred him to the Larnaca Detention Facilities.
The applicant refused to take his personal belongings with him.
The officer who was in charge at the Larnaca detention centre mentioned in his statement that, upon receiving the applicant at the centre and after removing the applicant’s clothes, in a special room, in order to carry out a body search, he found minor scratches on the applicant’s hands and shoulder blade which he recorded on the centre’s personal detainee sheet. When he asked the applicant how these scratches had been caused, the applicant replied that they had been caused by the police officers in Nicosia Central Prisons when he resisted his transfer to Larnaca. He did not complain at the time.
In their report the investigators concluded that from the evidence given the applicant’s claims had been unfounded. In particular:
(a) According to the medical report the applicant had superficial scratches on the “upper limbs and shoulder blade”. If the police officers had, as the applicant claimed, thrown the applicant onto the ground and then kicked him in the back while he was handcuffed, and then lifted him up and thrown him down again, he would have had more serious injuries.
(b) A number of police officers had taken part in the transfer of detainees to other districts under the supervision of the Deputy Director of the Police of Nicosia. It could not reasonably be maintained that certain police officers would single out the applicant to attack and beat him during such an operation
(c) According to the evidence, the applicant persistently refused to cooperate with the police. In his statement to the police he admitted that the officers had used force in order to carry out his transfer. It appears therefore that the minor injuries were caused when the officers tried to handcuff him and carry out his transfer.
Furthermore, the investigation carried out by the police authorities themselves did not find anything to reproach in the conduct of the officers involved.
The investigators therefore concluded that the force used by the officers had been necessary in the circumstances to achieve the applicant’s secure transfer and suggested that the case be closed.
The observer member examined the facts and findings of the investigators as set out in their report. In her report she agreed with the conclusions and suggestions. She noted that despite delays in the initial stage of the investigation, the criminal investigators, following their appointment, had speedily concluded the investigation.
By two letters dated 19 November 2007 the IAIACAP informed the applicant’s lawyer and the Attorney-General respectively about the conclusions of the investigation.
On 11 January 2006 the applicant filed a complaint through his sister with the Ombudsman concerning his continuing detention.
In three letters to the Minister of the Interior, dated 17 January, 24 May and 12 October 2007, the Ombudsman addressed the question of the extended length of detention of aliens in detention facilities on the basis of detention and deportation orders issued under the Aliens and Immigration Law of 1959 (Cap. 105, as amended), in response to a number of complaints received on the matter, including the one from the applicant. In sum the Ombudsman expressed, inter alia, the opinion that the period of detention of a person for the purposes of deportation should be limited by law.
On 30 November 2007 the applicant was transferred to the Paphos detention facilities.
On 18 December 2007 the Minister of the Interior offered to revoke the deportation and detention orders and allow the applicant to remain in the Republic for eighteen months during which he would be entitled to seek employment and work in the Republic, provided he consented and cooperated with the Iranian Diplomatic Mission in Cyprus for the issuance of a passport valid for a minimum of five years. The applicant would be released upon delivery of his passport to the Director of the Civil Registry and Migration Department. The applicant was given the Minister’s assurance that during this period he would not be deported or detained for deportation, unless he breached the conditions of his residence/employment permit. Furthermore, at the end of this period the possibility of a further extension of his leave to remain would be considered.
The applicant did not accept this offer.
In May 2008 the authorities decided to revoke the deportation and detention orders and release the applicant, allowing him to stay and work for twelve months in the Republic with the possibility of subsequently renewing his permit, without requiring the issuance of a passport. The applicant was informed by a letter dated 8 March 2008 from the Permanent Secretary of the Minister of the Interior about the Minister’s order for his immediate release and the relevant conditions.
According to the Government, the applicant was consequently released.
The entry, residence and expulsion of aliens are regulated by the Aliens and Immigration Law of 1959 (Cap. 105, as amended).
Under section 6(1) of the above Law a person is not permitted to enter the Republic if he or she is a “prohibited immigrant”. This category includes any person who enters or resides in the country contrary to any prohibition, condition, restriction or limitation contained in the Law or in any permit granted under the Law (section 6(1)(k) and any alien who does not have in his possession an immigration permit granted by the Director of the Civil Registry and Migration Department in accordance with the relevant regulations. A “prohibited immigrant” can be ordered to leave the Republic under section 13 of the same Law.
The Director of the Civil Registry and Migration Department has the power under the Law to order the deportation and, in the meantime, the detention, of any alien who is a “prohibited immigrant” under the Law (section 14).
Deportation and detention orders can be challenged before the Supreme Court by way of administrative recourse under Article 146 § 1 of the Constitution of the Republic of Cyprus. This provision provides as follows:
“The Supreme Constitutional Court shall have exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision, an act or omission of any organ, authority or person, exercising any executive or administrative authority is contrary to any of the provisions of this Constitution or of any law or is made in excess or in abuse of powers vested in such organ or authority or person.”
Such recourse must be made within 75 days of the date when the decision or act was published or, if not published and in the case of an omission, when it came to the knowledge of the person making the recourse (Article 146 § 3). Upon such a recourse, the Supreme Court may (a) confirm, either in whole or in part, such decision or act or omission; or (b) declare, either in whole or in part, such decision or act to be null and void and of no effect whatsoever, or (c) declare that such omission, either in whole or in part, ought not to have been made and that whatever has been omitted should have been performed (Article 146 § 4).
Article 146 (6) provides for compensation as follows:
“Any person aggrieved by any decision or act declared to be void under paragraph 4 of this Article or by any omission declared thereunder that it ought not to have been made shall be entitled, if his claim is not met to his satisfaction by the organ, authority or person concerned, to institute legal proceedings in a court for the recovery of damages or for being granted other remedy and to recover just and equitable damages to be assessed by the court or to be granted such other just and equitable remedy as such court is empowered to grant”.
The Supreme Court has held in a number of cases that the lawfulness of deportation and detention orders can only be examined in the context of a recourse brought under Article 146 of the Constitution and not in the context of a habeas corpus application (see, among many authorities, Civil Appeal no. 12166 concerning the application of Elena Bondar for Habeas Corpus, judgment of 30 December 2004 – full bench; Sarkisasvili Kaha, application 180/2004, judgment of 6 December 2004; and Asad Mohammed Rahal, application 169/2004, judgment of 26 October 2004).
A detainee can, however, challenge the lawfulness of his/her protracted detention for the purpose of deportation through a habeas corpus application. In such an application, the Supreme Court will not examine the lawfulness of the decisions ordering deportation and detention but whether the detention which was initially lawful subsequently became unlawful by exceeding a reasonably permissible length. In deciding whether the detention has been excessively long the specific facts of the case will be taken into account (Essa Murad Khlaief, application 91/2003, judgment of 14 October 2003). In the case of Essa Murad Khlaief, the Supreme Court held that detention under Article 11 (2) of the Constitution for the purpose of deportation could not possibly be unlimited but was restricted to a reasonable period, taking into account all the circumstances of the deportation execution process. If deportation was not completed within a reasonable time, the grounds for detention would cease to exist.
Res judicata obtains from successive habeas corpus applications which are based on the same facts without new intervening factors. This also applies to questions that could have been raised in the first habeas corpus claim but were not (Refaat Barquwi, application 131/2003, judgment of 12 January 2004).
The Cypriot Government assumed responsibility for assessing asylum claims from 1 January 2002 through the establishment of an Asylum Service within the Migration Department of the Ministry of Interior. Prior to that, the UNHCR dealt with such claims. Asylum seekers can appeal against the decision of the Asylum Service to the Reviewing Authority for Refugees, which was established by the Refugee Law of 2000 (Law 6 (I) of 2000, as amended).
The decision of the Reviewing Authority of Refugees can be challenged before the Supreme Court by way of administrative recourse under Article 146 (1) of the Constitution of the Republic of Cyprus (see above).
Part II of the Constitution contains provisions safeguarding fundamental human rights and liberties. Article 11 protects the right to liberty and security. It reads as follows, in so far as relevant:
Article 11
“1. Every person has the right to liberty and security of person.
2. No person shall be deprived of his liberty save in the following cases when and as provided by law:
...
(f) the arrest or detention of a person to prevent him effecting an unauthorised entry into the territory of the Republic or of an alien against whom action is being taken with a view to deportation or extradition.
...
4. Every person arrested shall be informed at the time of his arrest in a language which he understands of the reasons for his arrest and shall be allowed to have the services of a lawyer of his own choosing.
..
7. Every person who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
8. Every person who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation”.
Article 8 of the Constitution prohibits torture, inhuman or degrading treatment or punishment. Moreover, under Article 35 the legislative, executive and judicial authorities are required to secure, within the limits of their respective competences, the efficient application of the provisions of the Constitution. Finally Article 32 of the Constitution states that the provisions of Part II of the Constitution do not preclude the Republic from regulating by law any matter relating to aliens in accordance with international law.
The law of tort provides, inter alia, for actions for damages in respect of false imprisonment, unlawful detention and assault (sections 26, 27, 29, 30 and 44 of the Civil Wrongs Law).
The Independent Authority for Investigation of Allegations and Complaints against the Police (“IAIACAP”) was established in 2006 by Law 9(I)/2006 (as amended). The Law came into force on 17 February 2006.
The IAIACAP comprises five members, including the President, who are all appointed by the Council of Ministers. It started operating on 2 May 2006.
The IAIACAP can investigate complaints against the police in a number of areas, including those concerning violations of human rights (section 5(5) of Law 9(I)/2006). It can receive complaints directly from individuals, from the Attorney-General of the Republic, the Minister of Justice and Public Order or even the police authorities themselves when a complaint has been drawn to their attention.
In the event that the IAIACAP considers that a criminal offence has been committed, the complaint is sent on to the Attorney-General who has the authority to decide whether or not to instigate criminal proceedings against the police officers in question. In the event that the IAIACAP considers that a disciplinary offence has been committed, the complaint is sent to the Chief of Police. Following an amendment to Law 9(I)/2006 by Law 100(1)/2007 the IAIACAP can appoint external investigators from a list prepared by the Attorney-General. These investigators, who are not members of the police, remain under the constant supervision, control and guidance of the IAIACAP.
According to the Government, Cyprus has to deal with numerous Iranians who enter Cyprus, largely as illegal immigrants through the “Turkish Republic of Northern Cyprus”, and claim asylum. In 2004 the Cypriot Government put forward a proposal to the Iranian Government for a Readmission agreement in order to facilitate the readmission of Iranian nationals residing without authorisation in Cyprus into their own country. A draft agreement was also submitted to the Iranian Government. The need for concluding such an agreement was put to the Iranian Government several times. The two Governments have not reached such an agreement to date.
It is common practice, upon entering Cyprus, for Iranian nationals to destroy or hide their identity documents (passport, identity cards, travel documents) in order to avoid their deportation. The Iranian authorities do not issue travel documents to any Iranian national without the latter’s consent to repatriation.
According to the UK Home Office’s Country of Origin Information Report on Iran, dated August 2008, in respect of returned asylum seekers, it is reported by observers that they had seen no evidence that failed claimants, persons who had left Iran illegally, or deportees faced any significant problem upon return to Iran, although individuals in cases that gained a high profile could face difficulties (Section 28.12 of the Report).


ITEMID: 001-58536
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF ACADEMY TRADING LTD AND OTHERS v. GREECE
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1 with regard to impartiality;Violation of Art. 6-1 with regard to the length of the proceedings;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Elisabeth Palm
TEXT: 5. In 1977 Citibank, a major provider of loan capital to the Greek shipping community, granted a $ 14.8 million loan to a group of companies under the ownership of G.T., a Greek-American shipowner. The applicants, also under the ownership of G.T., were among the guarantors of the loan.
6. On 21 January 1982 the applicants brought an action for damages against Citibank and three Greek members of its senior management before the Athens First Instance Civil Court (Πoλυμελές Πρωτoδικείo). The applicants argued that because of a shipping crisis they had been unable to meet repayment instalments on the loan and that in 1979 they had been obliged to sell two ships at below their insured and actual value to another client of the bank, who had been given generous financing terms in order to take over the vessels. Eventually other vessels in the fleet were put under the same management prior to their being sold to the management company. The applicants alleged therefore that Citibank had acted contrary to business morality under the Greek Civil Code.
7. On 1 November 1982, by decision no. 14803/1982, the First Instance Civil Court ordered the parties to submit further evidence.
8. On 20 November 1987, by decision no. 8027/1987, the First Instance Civil Court dismissed the applicants' action as being ill-founded.
9. On 29 January 1988 the applicants lodged an appeal with the Athens Court of Appeal (Εφετείo).
10. On 31 January 1989 the Court of Appeal declared the appeal admissible without prejudging the merits and ordered a new hearing in order to submit further questions to the parties. The new hearing was held on 15 February 1990.
11. By decision no. 5025/1990, the Court of Appeal unanimously overturned the decision of the First Instance Civil Court and granted the applicants' claim. In particular, the Court established that Citibank, at a time of shipping crisis, had rejected a request by G.T. for an extension of time to pay off his debt and for a small amount of capital which would have enabled him to tackle urgent cash problems, despite the fact that he had already repaid 63.25% of the loan granted to him and that he had never been late in making payments. As a result, G.T.'s business went bankrupt and the bank took over the management of his ships. The vessels were subsequently sold and the bank provided the new owner with the credit facilities it had previously refused to G.T.
12. Therefore, the Court considered that it was “against morality for a bank to exploit its dominant position vis-à-vis its counterpart during a period of financial crisis by cruelly prosecuting it instead of extending financial facilities which are customary in banking transactions during such periods”. The Court awarded the applicants $ 7.75 million plus interest at 25 % per year back-dated from 20 February 1982.
13. The above judgment created a stir in the local shipping community. Several publications appeared in the local and international shipping press, stressing the impact that the judgment would have on future ship credits. A number of cases started to be prepared against banks. Citibank, which had already appealed in cassation (αvαίρεση) on 21 May 1990, threatened to withdraw from the Greek market altogether if the Court of Cassation (Αρειoς Πάγoς) upheld the judgment of the Court of Appeal.
14. On 29 May 1991, by decision no. 925/1991, the First Chamber of the Court of Cassation overturned the judgment of the Court of Appeal on the ground that the bank had not acted contrary to business morality and that the impugned judgment did not give sufficient reasons. The case was then referred to the Fourth Chamber for further examination.
15. Following deliberations on 14 February 1992, the Fourth Chamber, by decision no. 1154/1992, ordered the parties to appear in person before it and to give further explanations about the case. The hearing was held on 11 December 1992. With the exception of one judge who had also participated in the deliberations of 14 February 1992 and was the rapporteur in the case, the Fourth Chamber sat in a different composition.
16. On 30 June 1993, i.e. six months after the hearing of 11 December 1992, one of the judges participating in that hearing retired. Under Greek law this meant that if the Chamber had not reached a decision by that date it could no longer deliberate but should hear the case again in a different composition. However, no actions were taken at that stage, which led the applicants to believe that the decision had already been taken before the retirement of the judge and that they had to await the delivery of the judgment.
17. 198 cases were heard after the hearing on the applicants' case and before the retirement of the judge on 30 June 1993. In 74 of these cases the judgments were delivered before 30 June 1993. In the course of the judicial vacations (i.e. from 1 July to 15 September 1993), the President of the Fourth Chamber delivered 95 more judgments. The judgments in the remaining 29 cases were delivered in the course of autumn 1993.
18. On 7 November 1993 the applicants inserted an open letter in a Greek newspaper. In their publication, entitled “Open letter to the Fourth Chamber of the Court of Cassation”, the applicants questioned the reasons for the delay taken by the Chamber in delivering its judgment. Having received no answer, the applicants sent a similar letter on 12 December 1993 to the Minister of Justice and the President and Public Prosecutor of the Court of Cassation. They again received no answer.
19. On 26 January 1994, the President of the Third Chamber (who had until summer 1993 been President of the Fourth Chamber) returned the file of the case to the Secretariat of the Fourth Chamber, accompanied by a hand-written note which read as follows: “To be further discussed, in accordance with Article 307 of the Code of Civil Procedure (since it was ascertained, after the last report, that there is a need for further deliberation, which is not feasible due to the retirement of one of the members of the Court).”
20. On 20 May 1994 the new hearing was held. The Fourth Chamber was composed of five judges. The first had participated in the deliberations of 14 February 1992 and the second in both previous compositions as rapporteur. The other three members heard the case for the first time. One of them, a junior judge, was designated as the new rapporteur.
21. On 30 June 1995, by decision No. 1198/1995, the Court of Cassation dismissed the appeal, lodged by the applicants against decision no. 8027/1987 of the Athens First Instance Civil Court, on the ground that it was ill-founded. In his dissenting opinion, the judge who was initially the rapporteur in the case expressed the view that Citibank had not acted in good faith and that the applicants' appeal should therefore be upheld.
22. Under Article 300 of the Code of Civil Procedure a decision is taken by the same judges who participated in the hearing of the case.
23. Under Article 307 of the Code of Civil Procedure if, after the hearing of a case, a decision cannot be taken for any reason (namely the death, resignation or removal from office of a judge who has participated in the hearing) the case must be reheard.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-5624
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 1998
DOCNAME: BENRACHID v. FRANCE
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant [Mr Ahcène Benrachid] is an Algerian national, born in Constantine (Algeria) in 1963. He lives in Constantine. He was represented before the Court by Mr J.-L. Cacheux, of the Lyons Bar.
The facts, as submitted by the applicant, may be summarised as follows.
The applicant came to France with his family in 1970, when he was 7 years old. He lived in France continuously until he was deported to Algeria in 1993.
In a judgment of 9 November 1989 the Assize Court for the Rhône département convicted the applicant of a number of offences of armed robbery, and of hostage-taking. It sentenced him to seven years’ imprisonment.
Following that conviction, the Minister of the Interior made an order for his deportation on 19 March 1993 under section 26 of the Aliens (Conditions of Entry and Residence) Ordinance of 2 November 1945, as amended.
On 16 August 1993 the applicant, relying, inter alia, on Article 8 of the Convention, applied to the Lyons Administrative Court to quash the deportation order. His application was dismissed on 14 June 1994.
The applicant appealed to the Conseil d’Etat. In a judgment of 30 July 1997 the Conseil d’Etat upheld the Administrative Court’s judgment. In respect of the applicant’s allegation that there had been a violation of Article 8 of the Convention, the Conseil d’Etat ruled as follows:
“Despite the applicant’s claim that the order in question interfered with his private and family life, the documents in the case file show that Mr Benrachid, aged 30 on the date of the order in question, unmarried and with no dependants, was not entirely without links with his country of origin, that country being, moreover, the one in which he had chosen to perform his military service; under the circumstances, and having regard to the seriousness of the offences committed by the appellant, the measure in question did not exceed what was necessary to preserve public order and did not breach the provisions of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms;”


ITEMID: 001-139055
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: APETRII AND OLTEANU v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
TEXT: 1. The first applicant, Ms Lucia Apetrii, is a Romanian national who was born in 1946 and lives in Vatra Dornei. The second applicant, Mr Traian Olteanu, is a Romanian national who was born in 1948 and lives in Şaru Dornei. The applicants are siblings.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. As part of the general restitution process by which confiscated land is returned to its previous owners (or their heirs in title), the applicants became the owners of 48.47 hectares (ha) of forestry land. A title deed for 9 ha was issued on 23 October 2003 and one for 39 ha and 4.7 sq. m was issued on 30 May 2006. These areas of land were included within the boundaries of the Călimani National Park (“the national park”) by virtue of a governmental decision of 2003.
4. The applicants lodged an application with the forestry inspectorate to be granted approval for the exploitation of 1,300 cubic meters of timber, using the clear-cutting method (“metoda tăierii rase”). Their request was approved on 10 September 2006. Subsequently they lodged a similar request with the management authorities of the national park. By letter of 21 September 2006 their request was denied, with the reasoning that clearcutting was contrary to the legislation governing the management of protected areas.
5. The applicants lodged a complaint with the Suceava County Court relying on the provisions of a ministerial order. The order provided that, until the adoption of a management plan for each protected area, some forms of felling were allowed in national parks.
6. By a judgment of 12 June 2008 the Suceava County Court dismissed their action as unsubstantiated. Their appeal on points of law was dismissed by the Suceava Court of Appeal on 15 January 2009. The appellate court noted that, up to that date, no management plan had been adopted for the national park. Nevertheless, even if the authorities were at fault for not having adopted the said plan, which should have set conditions for the exploitation of forest applicable to that national park, the applicants could still seek compensation for the restrictions imposed on the use of their land, either on the basis of Government Emergency Ordinance 57/2007 on the protection of natural areas and the conservation of natural habitats and wild flora and fauna (“the Ordinance”) or on the basis of common law.
7. By letter of 24 May 2010 the Suceava Inspectorate for Forestry and Hunting of the Romanian Ministry of Environment and Forests informed the applicants that only 0.5 ha of their land was in a special protection area. The remaining surface of 47.97 ha was in a buffer zone and no compensation was provided by law for this type of land. In seeking to exploit the forest resource on their land, the applicants were advised to follow the same procedure as the one they had already used: asking for approval from the forestry inspectorate and then from the management authorities of the national park.
8. The Forestry Code (Codul Silvic) was adopted on 27 March 2008. It forbids in its Article 28 § 5 the use of the clear-cutting method in the national parks.
9. Government Emergency Ordinance no. 57/2007 sets out in its Article 22 the different protected areas in natural parks and the different activities that are allowed in each of these areas. In the special protection areas, only scientific and educational activities and ecological tourism are allowed, provided that the latter does not require any facilities to be built. Tree felling is prohibited in these areas but the owners can collect the wood and other resources that derive from ecological reconstruction and rehabilitation of the forest or from natural accidents. In the buffer zones, any tree cutting needs to be carried out in accordance with the restrictions set by the park’s management plan and by the guidelines for forest management within protected areas. In addition, several other activities are allowed, such as ecological tourism or traditional use of renewable sources.
10. Article 26 of the Ordinance provides the following:
“(1) For forestry land located within a protected natural area which is owned by private individuals [...], the owners [...] shall receive compensation for complying with the restrictive provisions of the management plan for the relevant protected area. The mechanisms for submitting a request [for compensation] and for calculating and granting compensation shall be established by a government decision.
(2) Until the adoption of a management plan [for their area...], the managers of the relevant protected area have a duty to draw up a set of conservation measures, which may necessitate the granting of compensation, and to submit this information to the National Agency for Protected Areas within six months from the date of taking over the management of the protected area...”
11. Ministerial Order 552/2003 of the Ministry of Agriculture, Forests, Water and the Environment allows some forms of tree felling in the buffer zones of the national parks, even before the adoption of a management plan for the park.
12. The Romanian Minister of Agriculture, Forestry and Rural Development and the Minister of Finance jointly adopted a ministerial order establishing the methodology for calculating the compensation to be paid to legal persons who own forest land subject to special protective measures. The order provides for compensation for restrictions on the use of forest land included in the special protection areas.
13. The management plan for the Călimani National Park was adopted on an unspecified date, in 2010 at the earliest.


ITEMID: 001-57769
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1992
DOCNAME: CASE OF BRINCAT v. ITALY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: C. Russo;John Freeland
TEXT: 6. Mr Joseph Brincat, a Maltese lawyer residing at Marsa (Malta), is a member of the Maltese Parliament and the Assembly of the Council of Europe.
7. On 19 November 1987 one of his clients was seriously injured in a road accident near Maratea (Italy).
The applicant was instructed by an insurance company to report on the circumstances of the accident, and on 5 December 1987, accompanied by the victim’s wife, he went to a scrapyard at Tortora (province of Cosenza) where the damaged vehicle had been taken. The client’s wife having attempted to recover personal property concealed in the petrol tank, the owner of the scrapyard alerted the police, who discovered in her possession inter alia a banknote which formed part of the ransom paid for the release of a person who had been kidnapped. The police thereupon took them to Maratea police station, where they were both questioned, and then put them under arrest, at the disposal of the public prosecutor (procuratore della Repubblica). The police also confiscated the items which had been taken from the car.
8. On the following day, at 3.00 a.m., Mr Brincat was transferred to Lagonegro Prison (province of Potenza) and imprisoned in an isolation cell which he shared with another detainee. On the same day the Lagonegro public prosecutor informed Mr Brincat’s lawyer that he would hear the applicant on Monday 7 December, within the period of forty-eight hours laid down by Article 238 of the Code of Criminal Procedure in force at the time.
Mr Brincat appeared on that date, assisted by two lawyers. After questioning him, the deputy public prosecutor confirmed his detention (convalidó l’arresto). He was returned to Lagonegro Prison; he was no longer held in the isolation section, however, but associated with the other prisoners.
9. The Lagonegro public prosecutor conducted the preliminary investigation (istruzione sommaria). On 9 December he heard Mr Brincat again, at the latter’s request, and checked his statements with Interpol. On 10 December he received a telex from the Palermo public prosecutor confirming the provenance of one of the banknotes which had been seized. On that and the following day he sent telegrams to the Ministry of Foreign Affairs and the Ministry of Justice in order to obtain information on the applicant’s parliamentary immunity.
Finally, after hearing the Maratea chief of police and another witness on 14 December, the Lagonegro public prosecutor declared that he did not have territorial jurisdiction. He sent the file by post to the public prosecutor’s office which did have jurisdiction, that of Paola, which received it on 18 December. He also revoked the permission which Mr Brincat had been given to consult his lawyers, communicate with other persons and receive visits in prison, in particular from his sister who had travelled from Malta for this purpose.
The applicant’s lawyers had in the meantime attempted to challenge his continued detention, but in vain: as the public prosecutor’s office at Lagonegro had declined jurisdiction and that at Paola was not yet in possession of the necessary documents, the Cosenza District Court was not empowered to deal with the matter (Article 76 of the Code of Criminal Procedure).
10. On 18 December the Paola public prosecutor issued a warrant for Mr Brincat’s arrest (ordine de cattura) for possession of property and money originating from a ransom. He ordered him to be transferred to Cosenza Prison.
11. The applicant was informed of this decision on the same day, and was taken there in a prison van in the early morning of Saturday 19 December, in handcuffs.
On his arrival he was informed that the deputy public prosecutor at Paola had lifted the prohibitions relating to his correspondence, visits and telephone contacts with his family. He applied at once to the Cosenza District Court for the arrest warrant to be examined in accordance with Article 5 para. 4 (art. 5-4) of the Convention and the relevant provisions of the Code of Criminal Procedure; he also complained, relying on Article 5 para. 3 (art. 5-3), that he had not been "brought promptly before a judge or other officer authorised by law to exercise judicial power".
The Paola public prosecutor questioned him on Tuesday 22 December.
12. On Monday 28 December 1987 the Cosenza District Court vacated the arrest warrant of 18 December and ordered the applicant’s immediate release, as there was insufficient evidence against him.
The public prosecutor appealed. According to the information available to the Court, these proceedings and the main proceedings, in which the charge was reduced to smuggling, are still pending.
13. The Code of Criminal Procedure in force at the time included the following provisions:
"...
A police officer who arrests a person or receives an arrested person must inform the public prosecutor ... thereof immediately, and in any event within forty-eight hours ...
He must also notify him of the results of his inquiries within forty-eight hours.
The public prosecutor ... must immediately question the arrested person and, if he considers the arrest to be well-founded, confirm the arrest (convalida) by a reasoned decision, at the latest within forty-eight hours following the above-mentioned notification. This order shall be notified to the arrested person.
..."
"In the cases specified in Articles 235 and 236 (flagrante delicto) the public prosecutor ... may order the arrest. If the arrest warrant is oral, it must be confirmed as soon as possible in writing in the usual form."
"Police officers who have without an order or warrant from the judicial authorities arrested a person or received a person who has been arrested ... must within twenty-four hours place him at the disposal of the public prosecutor or magistrate ... unless the prosecutor and magistrate have been informed of the arrest and consider an extension of the aforesaid time-limit to be necessary. The record of the arrest shall also be notified to the public prosecutor or magistrate.
..."
"...
If he does not have to order the accused’s release ... the public prosecutor or magistrate shall by a reasoned decision order the accused to be kept in detention at the disposal of the competent authorities ...
..."
14. The new Code of Criminal Procedure, which came into force on 24 October 1989, no longer authorises the public prosecutor to order detention.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-58166
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF GAUTRIN AND OTHERS v. FRANCE
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 35-1 - Effective domestic remedy);Violation of Article 6 - Right to a fair trial (Article 6 - Disciplinary proceedings;Article 6-1 - Public hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Disciplinary proceedings;Article 6-1 - Impartial tribunal);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: C. Russo
TEXT: 7. Associations called “SOS Médecins”, whose object is to provide emergency medical services on call to patients, have been set up in each département; they have formed regional associations which in turn are part of a national association known as “SOS Médecins, France”. The applicants, who are medical practitioners in the Ile-de-France region, are all members of this organisation.
8. A number of doctors’ unions and département councils of the ordre des médecins (Medical Association) lodged complaints with the professional disciplinary bodies against the members of those associations. They maintained, inter alia, that by using a flashing blue light without permission from the authorities and displaying the name “SOS Médecins” on their vehicles, in telephone directories and in advertising brochures, the members of the associations were contravening Article 23 of the Code of Professional Conduct, which prohibited advertising.
9. On 2 March 1989 the National Union of Duty Doctors lodged a complaint against each of the applicants with the regional council of the Ile-de-France ordre des médecins. The French Federation of Paris General Practitioners did likewise on 20 March 1989.
It was alleged that the applicants had contravened Article 23 of the Code of Professional Conduct by displaying the name “SOS Médecins” on their vehicles and prescriptions.
10. On 28 January 1990 the regional council, composed of Dr Fenoll, chairman, and Dr Barkatz, Dr Bernard, Dr Boissin, Dr Castello, Dr Delamarche, Dr Gasch, Dr Groene-Richert, Dr Manheulle, Dr Pommey and Dr Sorrel-Dejerine, members, held that there had been a breach of Article 23 of the Code of Professional Conduct and suspended Dr Gautrin and Dr Mynard from practising medicine for two months and Dr Fillion and ninety-six other doctors for one month; the remaining six applicants received a reprimand.
11. The applicants appealed against those decisions to the disciplinary section of the National Council of the ordre des médecins.
12. On 25 March 1992 that section, chaired by Mr Coudurier, honorary member of the Conseil d’Etat, and composed of Dr Dusserre, Dr Jung, Dr Klepping, Dr Vergeylen, Dr Gatel and Dr Gilbert, members, upheld the decisions of the regional council as to the finding that there had been a breach of the Code of Professional Conduct, but reduced the penalties: Dr Gautrin and Dr Mynard were suspended from practising medicine for fifteen days, the doctors who had received a month’s suspension were given a reprimand and those who had been reprimanded were given a warning only. The applicants were informed of the decision on 7 July 1992. They did not appeal to the Conseil d’Etat.
13. Article 23 of the Code of Professional Conduct provided:
“Medicine must not be practised as if it were a trade. Doctors shall not use any form of advertising or publicity, whether direct or indirect.
No medical exhibition shall be held or demonstration performed unless their purpose is exclusively scientific or educational.”
14. The Code of Professional Conduct was reformed by Decree no. 951000 of 6 September 1995. It now provides that any doctor participating in a duty, emergency or on-call doctor scheme “... shall be permitted, when carrying out his task, to affix a removable badge to his vehicle bearing the words ‘doctor on emergency call’, but no others...” and that the badge must be removed “... as soon as his role in the emergency is over...” (Article 78). The code also now sets out, among other things, the information which doctors are allowed to reproduce on their prescriptions and in directories available to the public (Articles 79–80).
15. It is compulsory for all doctors entitled to practise their profession in France to belong to the ordre national des médecins. This body ensures, among other things, that the principles of morality, probity and dedication essential to the practice of medicine are upheld and that all its members fulfil their professional duties and comply with the rules laid down in the Code of Professional Conduct. It discharges this function through département councils, regional councils and the National Council of the ordre (Articles 381 and 382 of the Public Health Code).
16. The regional councils exercise disciplinary jurisdiction at first instance within the ordre des médecins. Cases may be brought before them by, among others, the département councils, and doctors’ unions and individual registered medical practitioners within their territorial jurisdiction (Article L. 417 of the Public Health Code).
Regional councils may only deliberate validly if at least five of their members are present. Decisions are taken on a majority vote and must be reasoned (Articles 15 and 16 of Decree no. 48-1671 of 26 October 1948, as amended).
17. The regional council of the ordre des médecins for the Paris area is made up of twenty-six full members divided into two chambers and of thirteen substitute members; they are all elected by members of the département councils (Articles L. 398 et seq.). Each chamber elects a chairman from among its members (Article L. 401).
18. The National Council of the ordre des médecins is composed of thirty-eight members, thirty-two of whom are directly elected by the département councils.
19. After each election of a proportion of its members (every two years) the National Council elects eight of its thirty-eight members to constitute a disciplinary section – chaired by a senior member of the Conseil d'Etat – with jurisdiction to hear appeals (Articles L. 404 to 408 and L. 411 of the Public Health Code). Substitute members are elected in the same way as full members (Article 21 of Decree no. 48-1671 of 26 October 1948, as amended, concerning, inter alia, the functioning of the disciplinary section).
The disciplinary section may only deliberate validly if, in addition to its chairman, at least four of its members are present. Where the number of members present is an even number, the youngest practitioner must withdraw (Article 24, first paragraph, of the Decree of 26 October 1948, as amended).
Appeals have, in principle, suspensive effect (Article L. 411 of the Public Health Code).
20. An appeal on points of law against decisions of the disciplinary section lies to the Conseil d'Etat (Article 22 of the Decree of 26 October 1948, as amended, and Article L. 411 of the Public Health Code) “as provided in ordinary administrative law” (Article L. 411 in fine of the Public Heath Code).
Section 11 – which came into force on 1 January 1989 – of Law no. 871127 of 31 December 1987 reforming administrative proceedings provides:
“...
If it quashes a decision by an administrative tribunal of last instance, the Conseil d'Etat may either remit the case to the same tribunal, which shall, unless the nature of the tribunal makes it impossible, be differently constituted, or remit the case to another tribunal of the same type, or determine the merits of the case itself where the interests of proper administration of justice warrant it.
Where a second appeal on points of law is brought in a case, the Conseil d'Etat shall give a final ruling on it.”
21. At the time the events in the instant case occurred, the Conseil d’Etat held, following its settled case-law (extracts from its judgment of 29 October 1990 in the case of Diennet):
“...the provisions of Article 6 § 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms are not applicable to disciplinary tribunals, which do not hear criminal proceedings and do not determine civil rights and obligations. Mr Diennet accordingly cannot challenge the decision appealed against on the grounds that it contravened the provisions of Article 6 § 1 of the aforementioned Convention relating to the holding of hearings in public and the impartiality of tribunals.
... although section 11 of the Law of 31 December 1987 provides that a tribunal to which a case has been remitted by the Conseil d'Etat must, unless the nature of the tribunal makes it impossible, be differently constituted from the one that gave the original decision, the disciplinary section of the ordre des médecins was, having regard to its nature, entitled, for the purpose of hearing the case remitted to it by the Conseil d'Etat acting in its judicial capacity in a decision of 15 January 1988, to be constituted as it had been on 30 January 1985, when it had given its first ruling. The grounds of appeal based on an infringement of the principle of the impartiality of tribunals and on the statutory provisions previously cited must therefore fail.
...”
22. The following penalties may be imposed on doctors found guilty of disciplinary offences: a warning; a reprimand; temporary or permanent disqualification from performing some or all of the medical duties carried out for or remunerated by the State, départements, municipalities, public corporations or private corporations promoting the public interest, or the medical duties carried out pursuant to welfare legislation; temporary disqualification from practising medicine (for a maximum of three years); and striking off the register of the ordre.
The first two penalties also entail loss of the right to be a member of a département council, a regional council or the National Council of the ordre for three years; the other penalties entail permanent loss of that right. A doctor who has been struck off cannot have his name entered in another register (Article L. 423 of the Public Health Code).
23. A doctor against whom proceedings are brought may exercise a right of challenge before a regional council or the National Council, as laid down in Articles 341 to 355 of the New Code of Civil Procedure (Article L. 421 of the Public Health Code).
Article 341 of the New Code of Civil Procedure provides that a judge may be challenged:
“...
1. if he or his spouse has a personal interest in the dispute;
2. if he or his spouse is a creditor, debtor, heir presumptive or donee of one of the parties;
3. if he or his spouse is a blood relative or a relative by marriage of one of the parties or of the spouse of one of the parties up to the fourth degree inclusive;
4. if there have been or are still legal proceedings pending between him or his spouse and one of the parties or the spouse of one of the parties;
5. if the case has earlier come before him as a judge or arbitrator or if he has advised one of the parties;
6. if the judge or his spouse is responsible for administering the property of one of the parties;
7. if there is a relationship of subordination between the judge or his spouse and one of the parties or the spouse of one of the parties;
8. if it is common knowledge that friendship or enmity subsists between the judge and one of the parties;
...”
A party wishing to challenge a judge will be estopped from doing so unless he makes his challenge as soon as he becomes aware that a ground exists. “Under no circumstances” may a challenge be made after the hearing (Article 342 of the New Code of Civil Procedure). The challenge must “clearly set out the grounds and be accompanied by supporting evidence” (Article 344).
On receipt of a challenge, the judge concerned shall “withdraw” until the question has been decided (Article 346). He has eight days in which to inform the court in writing whether he accedes to the request that he stand down – in which eventuality he shall be replaced immediately – or, if he does not propose to stand down, of the reasons for his resisting the challenge (Articles 347 and 348); in the latter eventuality, or if he does not reply, the challenge is “decided as soon as possible by a court of appeal or, if made against a member of a lay tribunal, by the president of the court of appeal, from whose decision no appeal shall lie” (Article 349). If the challenge is upheld, the judge is replaced (Article 352); if it is rejected, the challenger may be ordered to pay a civil fine of between 100 and 10,000 French francs without prejudice to any claim for damages that may be made (Article 353).
To prevent an estoppel arising, challenges against more than one judge shall be made together unless a ground for challenge subsequently comes to light (Article 355).
A challenge against all the judges of a chamber or a court of appeal is equivalent to an application for transfer of the case to another tribunal of the same type on grounds of bias (Rouen Court of Appeal, 12 July 1973, Gazette du Palais 1974, 43). No such application may be made in respect of the disciplinary section of the National Council of the ordre des médecins as there is no other body of that type to whom the case can be transferred (Conseil d’Etat, 3 May 1957, Sieur Nemegyei, Recueil, pp. 279–80).
24. Article 18 of Decree no. 48-1671 of 26 October 1948, as amended, provides, inter alia:
“Members of regional councils may be challenged for the reasons set out in Article [L.731-1 of the Judicature Code]. Challenges shall be made at least three days before the hearing starts. Members of the council who are related by blood or marriage up to the fourth degree inclusive to another member of the council or to the doctor ... concerned, members of regional councils who individually or as part of a group have occupational interests in common with each other or with the practitioner concerned, and any member who initiated the complaint that led to the disciplinary proceedings shall be precluded from hearing the challenge.”
The grounds for challenge set out in Article L. 731-1 of the Judicature Code are the same as those set out in Article 341 of the New Code of Civil Procedure.
25. Article 15, second paragraph, and Article 26, seventh paragraph, of Decree no. 48-1671 of 26 October 1948, as amended, provided:
“Hearings shall not be held in public and the deliberations shall remain secret.”
While the decisions of the disciplinary bodies of the ordre des médecins contained the names of the members who were present, they were recorded in a special register to which third parties did not have access and were not published. They were notified to certain individuals and institutions only (Articles 17 and 28 of the decree).
26. Those rules were amended by Decree no. 93-181 of 5 February 1993.
Hearings before a body of the ordre sitting to determine disciplinary charges are now held in public. However, the chairman of the body in question may, of his own motion or on an application by one of the parties or by the person whose complaint has led to the case being brought before a regional council, exclude the public from all or part of the hearing in the interests of public order or where respect for private life or medical confidentiality so justifies (Articles 13, 15 and 26 of the Decree of 26 October 1948, as amended by the Decree of 5 February 1993).
Decisions are now made public, but the bodies in question may decide not to include in the certified copies any details – such as surnames – which might be incompatible with respect for private life or medical confidentiality (Articles 13 and 28 of the Decree of 26 October 1948, as amended by the Decree of 5 February 1993).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-78929
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF MIHALACHI v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1
JUDGES: Nicolas Bratza
TEXT: 6. The applicant was born in 1962 and lives in Chişinău.
7. The applicant worked as a prosecutor. On 15 January 1998 he was charged with bribe-taking and on 14 May 1999 the Court of Appeal found him guilty and sentenced him to five years’ imprisonment. By a final judgment of 3 August 1999 the Supreme Court of Justice acquitted him and ordered his immediate release: he claimed to have been released two days later. The overall period of his detention amounted to 567 days.
8. The applicant brought an action against the Ministry of Finance and his employer seeking payment of compensation for pecuniary and non-pecuniary damage arising from his unlawful prosecution and detention.
9. On 25 July 2001 the Rîşcani District Court ruled in his favour and stated that there had been a violation of his right to liberty. The court awarded him 78,055 Moldovan lei (MDL, the equivalent of 6,945 euros (EUR) at the time) in compensation for pecuniary damage and MDL 500,000 (EUR 44,490 at the time) in compensation for non-pecuniary damage. The defendants appealed.
10. On 6 February 2002 the Chişinău Regional Court partially upheld the appeal, reduced the award of compensation for pecuniary damage to MDL 27,354.77 (EUR 2,401 at the time) and awarded another 87,000 Russian roubles (RUR, the equivalent of EUR 3,251.92 at the time) and 230 American dollars (USD) in respect of costs and expenses incurred during the proceedings. The Regional Court upheld the award of compensation for non-pecuniary damage. The defendants lodged an appeal in cassation.
11. By a final judgment of 26 March 2002 the Court of Appeal partially upheld the appeal in cassation and reduced the award of compensation for non-pecuniary damage to MDL 75,000 (EUR 6,341 at the time).
12. On 25 December 2002 the Prosecutor General lodged with the Supreme Court of Justice a request for annulment of the above-mentioned judgments and for a reduction in the amount of damages.
13. On 5 February 2003 the Supreme Court of Justice upheld the Prosecutor General’s request for annulment and quashed the above-mentioned judgments. The Supreme Court adopted a new judgment and reduced the award of compensation for non-pecuniary damage to MDL 50,000 (EUR 3,261 at the time). It also ordered the re-opening of the proceedings in respect of the amount of compensation for pecuniary damage. On 19 February 2003 the applicant received MDL 50,000.
14. Following the re-opening of the proceedings, on 24 June 2003 the Rîşcani District Court ruled in favour of the applicant and awarded him MDL 27,446.09 (EUR 1,679.69 at the time) in respect of pecuniary damage. The remainder of the judgment provided the same as the judgment of the Chişinău Regional Court of 6 February 2002. On 22 July 2003 the judgment was enforced.
15. The relevant domestic law was set out in Roşca v. Moldova, no. 6267/02, § 16, 22 March 2005.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-117629
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF LUKOVIĆ v. SERBIA
IMPORTANCE: 4
CONCLUSION: No violation of Article 5 - Right to liberty and security (Article 5-3 - Trial within a reasonable time)
JUDGES: András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen
TEXT: 5. The applicant was born in 1973 and lives in Kraljevo. He was employed in the Customs Department’s Anti-Smuggling Team.
6. On 28 November 2006 he was arrested and detained on suspicion of organising a criminal group and corruption.
7. On 1 December 2006 an investigating judge of the Belgrade District Court (“the District Court”) reviewed and extended the applicant’s detention and that of eighteen other co-accused. The reasons given for detention were as follows:
“After having examined the prosecutor’s request [for the extension of detention], the investigating judge finds the request well-founded and orders the extension of the accused Velibor Luković’s detention ...in accordance with Article 142 § 2 (1) of the Code of Criminal Procedure. The accused Velibor Luković ... [is] employed by the Customs Department [and] has through his work undoubtedly made contact with other customs officers and has also made numerous international contacts which could enable [the group] to cross the State border without the necessary documents. That and the fact that they have gained significant profit through illegal activities which they could use in order to avoid criminal prosecution, justifies the fear that if released they would abscond.
...
As regards the accused Velibor Luković ... his detention is also ordered in accordance with Article 142 § 2 (2) of the Code of Criminal Procedure. Given that the accused Velibor Luković ... is a team leader in the Customs Department’s Anti-Smuggling Team, he is the superior of other customs officers who are to be heard as witnesses ... [this] indicates that, if released, he would obstruct the course of justice by influencing the witnesses...
Taking into account that the accused Velibor Luković ... committed several criminal acts within a short period of time ... the investigating judge considers that these facts represent special circumstances which justify the fear that, if released, he would reoffend, so his detention is also ordered under Article 142 § 2 (3) of the Code of Criminal Procedure.
Taking into account that the accused Velibor Luković ... has been charged with serious criminal offences which are punishable by imprisonment for more than ten years, and in view of the manner in which the offences were committed, in particular, that he is employed in the Customs Department’s Anti-Smuggling Team, which was established precisely with a view to preventing the very same offences which he enabled [others] to commit ... his detention is also ordered under Article 142 § 2 (5) of the Code of Criminal Procedure [on the basis of the nature of the offences alleged and the severity of the penalty that could be imposed].
...”.
8. On 13 December 2006 the applicant was suspended from work with effect from 28 November 2006, the date on which he was arrested.
9. On 27 December 2006 and 23 February 2007 the applicant’s detention was further extended on the same grounds as given in the above order by a chamber of three judges of the District Court and by the Supreme Court of Serbia (“the Supreme Court”), respectively.
10. On 28 May 2007 the public prosecutor issued an indictment – which was 247 pages long – against the applicant and twenty-seven other individuals and delivered it to the District Court on the same day. The applicant was charged with organising a criminal group and eight counts of large-scale corruption. The District Court extended his detention on the same date for the same reasons as before. In particular, as regards influencing the witnesses, the court concluded that it was still justified to extend the applicant’s detention on that ground because, in view of the complexity of the case and the number of the accused, there were eighty-one witnesses to be examined. The applicant was served with a copy of that order on 31 May 2007 and subsequently appealed against it.
11. In parallel to the appeal, on 31 May 2007 the applicant’s representative submitted an application for his release to the District Court, on the grounds that he had not been served with the indictment within the twenty-four-hour time-limit prescribed by Article 270 § 1 of the Code of Criminal Procedure (see paragraph 28 below) and that therefore the six-month time-limit set by Article 144 of that Code had not been respected (see paragraph 27 below). On 11 June 2007 the District Court rejected the application. That decision was not subject to an appeal.
12. On 13 June 2007 the applicant was served with a copy of the indictment.
13. On 22 June 2007 the Supreme Court upheld the order extending the applicant’s detention of 28 May 2007 (see paragraph 10 above). It held that, pursuant to the Code of Criminal Procedure, the date on which an indictment is delivered to the court – and not the date on which it is served on the accused – is the date to be taken in determining whether an indictment has been issued within the six-month maximum pre-trial detention period.
14. On the same date the president of the District Court informed the applicant’s representative that the indictment had not been served on the applicant in time due to the complexity of the case and the heavy workload of the judge sitting in the case.
15. On 16 August 2007 the public prosecutor decided not to lodge an application for judicial review on behalf of the applicant in connection with the orders of 28 May 2007 and 22 June 2007 (paragraphs 10 and 13 above).
16. The applicant’s detention was regularly examined and extended every two months by the District Court and the Supreme Court, and, following a reform of the domestic judicial system, by the Belgrade High Court (“the High Court”) and the Belgrade Court of Appeal (“the Court of Appeal”).
17. The applicant repeatedly challenged his detention. He argued, in particular, that there was no reason to extend his detention on the basis of a risk of him influencing the witnesses, because the court had failed to specify the witnesses who remained to be examined and in which circumstances, and that, therefore, it was not possible to establish which witnesses he could potentially influence. Furthemore, as regards the risk of him absconding, he claimed that he had not been working as the team leader in the Anti-Smuggling Team at the time of the alleged criminal activity, but rather that he had been occupying a different post in the Customs Department. The applicant also argued that there was no risk of him reoffending, because he had been suspended from his position at the Customs Department. Finally, he argued that there was no legal basis for the extension of his detention based on the severity of the sentence that could be imposed and the special aggravating circumstances of the criminal offences imputed to him.
18. Until 19 November 2007 his detention was based on the same grounds as before. In particular, as regards the risk of him influencing the witnesses, the courts reiterated their previous argument that eighty-one witnesses were yet to be examined at trial, because it had not been possible to examine them during the investigation due to the complexity of the case.
19. On 19 November 2007, although it rejected the applicant’s appeal, the Supreme Court accepted the argument concerning the fourth ground for detention (severity of the sentence that could be imposed, the manner in which the criminal offence had been committed or other aggravating circumstances) and decided that it did not exist. The court held in particular:
“... for this legal ground [for detention to be satisfied] the cumulative existence of two conditions is necessary: that the criminal offence in question is punishable by a sentence of more than ten years’ imprisonment and [that there are] particularly aggravating circumstances. In the present case, only one condition has been fulfilled, because there is a reasonable suspicion that the accused committed criminal offences for which a sentence of more than ten years’ imprisonment can be imposed, but the reasons given in the contested order do not justify the existence of the second condition... [Neither] the fact that the accused were employed at the Customs Department, [nor] the specific characteristics of their positions, nor the fact that they gained a large illegal profit could be considered as particularly aggravating circumstances, because these facts are contained in the factual description of the criminal acts in question and represent the [constituent] elements of those criminal acts.
Therefore, the Supreme Court holds that the reasons given in the contested order do not justify the extension of detention under Article 142 § 2 (5) of the Code of Criminal Procedure ...”
Further reasoning for the applicant’s detention based on the risk of him reoffending was also provided:
“... there is a reasonable suspicion that the accused, Velibor Luković ... as [a member of] an organised criminal group committed a series of criminal offences over a long period of time ... [the group’s] criminal activity had been planned for an indefinite period of time and with a view to gaining a vast illegal profit ... [T]hese circumstances justify the fear that, if released, he would reoffend ...”
20. In issuing subsequent orders extending the applicant’s detention, the courts held, in particular, as regards the risk of the applicant influencing the witnesses, that he could influence two other accused, F.P. and M.M., who were at large; and that there was a risk that he would influence witness N.Š., who was expected to testify about the customs clearance of a motor vehicle which the applicant had received as a gift from F.P.
21. From 13 April 2009 onwards the applicant’s detention was extended only on the grounds that he might abscond and reoffend. The courts held that the third ground, the risk of him influencing the witnesses, had ceased to exist, as there was no reasonable suspicion to believe that at that stage of the proceedings the applicant could contact or influence M.M., who had been at large for a long period of time.
22. From 4 December 2009 onwards the applicant’s detention was based only on the risk of him absconding. The court held that the risk of him reoffending had ceased to exist in view of: the time that had passed since the alleged criminal activity; the fact that the applicant had been suspended from his post; the fact that he had no previous criminal record; the time he had spent in detention; and the fact that the criminal group had been disbanded. The court further held that the reasons which had previously justified his detention on this ground could not exist throughout the proceedings, and therefore their existence automatically had to be assessed by the court upon each review.
23. Throughout his detention, the applicant made applications for release on bail. Until December 2009 they were rejected as inadmissible (see paragraph 31 below). From December 2009 onwards, when the applicant’s detention was based solely on the risk of him absconding, four applications for bail were rejected because the value of the proposed bail (a mortgage over the applicant’s family’s immovable property) was considered insufficient to guarantee his appearance at trial. The courts also noted that no evidence concerning the financial situation of the applicant and his family had been submitted in support of the application, and that an exact value of the immovable property had not been obtained.
24. On 9 July 2010 the High Court accepted bail in the value of 388,416.50 euros (EUR). On 20 July 2010 the Court of Appeal quashed that decision and ordered that the application for bail be reconsidered. The court noted that the applicant’s assets had been the subject of a financial investigation and that it was necessary to establish whether those assets were included in the bail that had been offered.
25. On 16 August 2010 the High Court again accepted bail in the value of EUR 388,416.50. On 23 August 2010 the Court of Appeal upheld that decision.
26. The applicant was released on 27 August 2010.
27. Article 144 of the Code of Criminal Procedure 2001, in so far as relevant, provides that a defendant should be released from detention if an indictment has not been issued within six months of his or her arrest. In accordance with domestic jurisprudence, an indictment is considered to be issued when the indictment is delivered to the competent court (see decision of the Constitutional Court of Serbia no. Už-1503/2009 of 3 December 2009 confirming the long-standing jurisprudence).
28. Article 270 § 1 provides that an indictment should be delivered to a defendant who is in detention within twenty-four hours of the delivery of the indictment to the court.
29. Article 269 § 2 provides that the court should decide whether to extend the individual’s detention within three days of the delivery of the indictment.
30. Reasons for detention are outlined in Article 142. Detention will be ordered if there is a reasonable suspicion that the accused has committed the criminal offence in question and if, inter alia, there is a possibility that the accused would abscond (Article 142 § 2 (1)), obstruct the course of justice (destroy the evidence or influence the witnesses or obstruct the course of justice in some other way) (Article 142 § 2 (2)), reoffend (Article 142 § 2 (3)), or if the criminal offence in question is punishable by a sentence of more than ten years’ imprisonment and the manner in which the offence was committed, or other special aggravating circumstances, justify the accused’s detention (Article 142 § 2 (5)).
31. Bail can be accepted only in respect of an accused who is detained on the grounds of the risk of him or her absconding (Article 137 § 1). The monetary amount set is always determined with regard to the gravity of the offence(s), the personal and family circumstances of the accused and the financial situation of the person offering to post bail (Article 138 § 1).
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-88550
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: OWEN v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr William Owen, is a British national who was born in 1943 and lives in Cheshire. He was represented before the Court by Mr Richard Atkinson, a welfare rights worker in Birkenhead. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 20 March 2001. He claimed widows’ benefits on 4 February 2002 and again on 31 January 2002. His claim was rejected on 13 February 2002 on the ground that he was not entitled to widows’ benefits because he was not a woman. On 8 August 2002 the applicant appealed and the decision was confirmed on 27 March 2003 and again on 27 August 2003. Leave to appeal out of time was rejected on 3 October 2003. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.