ITEMID: 001-107569
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: ADZI-SPIRKOSKA AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: The applicants, Ms Gordana Adži-Spirkoska (“the first applicant”), Mr Straso Gorgieski (“the second applicant”), Ms Ilinka Ivanoska (“the third applicant”), Mr Risto Goreski (“the fourth applicant”) and Mr Ilčo Topuzovski (“the fifth applicant”), are Macedonian nationals who were born in 1952, 1956, 1949, 1929 and 1964 respectively and live in Prilep and Skopje. The third and fourth applicants died on 22 April 2006 and 23 August 2010 respectively. Ms Vera Ivanoska, the daughter of the third applicant, and Ms Pandora Trenkovska and Ms Verka Petkovska, the daughters of the fourth applicant, have applied to continue the application in the name of their predecessors and designated the same counsel to represent them. For the sake of convenience, they will be referred to as “the successors of the third and fourth applicants”. The first applicant, a qualified lawyer from Prilep, was granted leave to represent the second, third and fourth applicants. The fifth applicant was represented by Mr Z. Gavriloski, a practising lawyer from Skopje. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1956 the confiscation commission of the city of Bitola, the body with authority at the time, confiscated two plots of undeveloped building land from the applicants’ late predecessors in order to construct residential buildings.
On 12 September 2000 the first, second, third and fourth applicants instituted restitution proceedings in which they sought restoration of title to the land that remained undeveloped and compensation in return for the remainder. Ten decisions have been given so far, including two decisions by the Supreme and Administrative Courts on appeals on points of law (тужба за управен спор) by the applicants. The most recent decision was given on 31 August 2011, when the restitution commission accepted the applicants’ claim and awarded compensation in return for the confiscated land. The applicants challenged this decision before the Administrative Court. The proceedings are still pending.
In July 2001 the fifth applicant brought a civil action against his former employer, seeking compensation for injuries sustained while at work. In 2008 the Supreme Court, deciding upon appeals on points of law, ruled partly in favour of the applicant and awarded him compensation for the non-pecuniary loss sustained. The proceedings are still pending before the Skopje Court of First Instance in respect of the applicant’s claim for pecuniary damage (“the compensation proceedings”).
On 17 December 2010 the fifth applicant requested the Supreme Court to find a violation of the “reasonable time” requirement in respect of the compensation proceedings and to award just satisfaction. On 15 February 2011 the Supreme Court found that the compensation proceedings had lasted too long and that they had not yet ended. It set a six-month time-limit for the Skopje Court of First Instance to decide on the applicant’s claim on the merits. It also awarded him compensation in the amount of 120,000 Macedonian denars (MKD – equivalent to about 2,000 euros (EUR)) as just satisfaction for the violation found. It further reimbursed the costs and expenses incurred in the course of these proceedings. The fifth applicant did not appeal against the decision. It became final on 9 March 2011. The amount awarded was paid to the fifth applicant.
Under section 35(1)(1) of the 2006 Act, the Supreme Court is competent to decide on appeals against decisions of its panels when so specified by law. Under section 35(6), the Supreme Court is competent to decide on length complaints in proceedings specified by law.
Section 36 of the 2006 Act provided that an interested party could apply to the immediately higher court (непосредно повисокиот суд) if he or she considered that there had been a breach by a competent court of the right to a hearing within a reasonable time. The immediately higher court was to deal with the length complaint (постапува по барањето) within six months after the application had been lodged and to decide whether the court below had breached the right in question. The higher court would award just satisfaction to the claimant if it found a violation of the right to a hearing within a reasonable time. The just satisfaction was payable from the court’s budget.
The 2006 Act became applicable on 1 January 2007 (section 128).
Section 3 of the 2008 Act supplements section 35(6) of the 2006 Act, and provides that the Supreme Court is to decide in accordance with the rules and principles specified in the European Convention and the Court’s case-law.
Section 4 of the 2008 Act amends section 36 of the 2006 Act, providing for the exclusive competence of the Supreme Court to determine length-of-proceedings cases. The relevant part of this section reads as follows:
“An interested party can use the length remedy while proceedings are pending, but not later than six months after the decision becomes final.
The length complaint shall contain:
- information about the claimant and his or her representative,
- information about the case and proceedings complained of,
- an indication of the reasons for the alleged violation of the right to a hearing within a reasonable time,
- any claim for just satisfaction and
- the signature of the claimant.
The Supreme Court shall consider a length complaint meeting the criteria specified in subsections (2) and (3) within six months after it has been lodged and shall decide whether the court below breached the right to a hearing within a reasonable time. In so doing, it shall take into consideration the rules and principles set forth in the European Convention, in particular the complexity of the case, the parties’ behaviour and the conduct of the court in question.
If the Supreme Court finds a violation of the right to a hearing within a reasonable time, it may set a time-limit for the court before which the impugned proceedings are pending to determine the right, obligation or criminal responsibility of the claimant and award just satisfaction for the violation found.
Just satisfaction is to be paid within three months after the Supreme Court’s decision becomes final.”
Section 5 of the 2008 Act adds a new section 36-a, which reads as follows:
“After receiving the length complaint, the Supreme Court shall immediately, or within 15 days at the latest, request the first-instance court to forward the case file to it, and if need be, request the higher court to indicate the reasons for the length of the proceedings pending before it.
A three-judge panel of the Supreme Court, sitting in private, shall decide on the length remedy. In exceptional cases, the Supreme Court may hear representations from the claimant and from the representative of the court concerned.
Within 8 days after receipt, the party concerned may appeal against the panel’s decision before the Supreme Court, which shall decide in accordance with section 35(1)(1).”
The 2008 Act entered into force eight days after being published in the Official Gazette (section 9).
Section 10 of this Act adds a new section 36-b, by which the Supreme Court must forward a copy of its decision, eight days after its adoption, to the Judicial Budget Council. The latter must request the claimant, within fifteen days at the latest, to submit personal bank account details with a view to receiving payment of the just satisfaction awarded by the Supreme Court. If the claimant does not submit the required information within five days, the amount awarded is to be deposited in a special account of the Judicial Budget Council. It is to be transferred to the claimant’s bank account once the latter has submitted the required information. If the claimant does not submit the relevant account details within a year after the amount was deposited with the Judicial Budget Council, the money is to be returned to the State’s budget.
The courts’ budget is an annual assessment of the assets and liabilities of the judiciary and the Academy for training of judges and public prosecutors (“the Academy” – section 2). The courts’ budget is managed by the Judicial Budget Council (section 6). The latter is chaired by the President of the Judicial Council. It is further composed of the Minister of Justice, the Presidents of the Supreme Court, Appeal Courts and two courts of first instance and the Director of the Academy (section 7).
In view of the Court’s decision in Šurbanoska and Others v. the former Yugoslav Republic of Macedonia ((dec.), no. 36665/03, 31 August 2010), the “length-of-proceedings” department of the Supreme Court adopted the following recommendations:
a) expedite proceedings before the Supreme Court in length-of-proceedings cases and keep their length under six months, as specified in the 2006 Act;
b) award just satisfaction in an amount corresponding to the violation found, so that the claimant loses victim status;
c) organise the Supreme Court in such a way that it fully applies the Court’s case-law;
d) comply fully with the Court’s case-law as regards the amounts awarded by way of just satisfaction in length cases; in this connection the Supreme Court established that the award should not be lower than 66% of the sum awarded by the Court in similar cases; and
e) comply fully with the orders issued by the Supreme Court in cases in which it finds a violation of the “reasonable time” requirement, namely payment of just satisfaction and observance of the time-limit that it sets for the courts in question to determine the case on the merits.
According to statistics produced by the Supreme Court in April 2011, 828 length-of-proceedings cases have been brought before that court since the 2006 Act entered into force. The court has examined 657 cases, including 10 in 2008, 166 in 2009, 350 in 2010 and 131 until mid-March 2011.
A violation of the “reasonable time” requirement has been found in 218 cases, including 33 cases in 2009, 137 cases in 2010 and 48 in 2011. Since September 2010, 119 cases have been decided to the claimants’ significant advantage. These cases have concerned the length of civil, criminal, minor-offence, administrative, insolvency and enforcement proceedings. Decisions on the merits dismissing length complaints have been rendered in 170 cases. The Supreme Court has further rejected 266 length cases as failing to comply with the admissibility requirements.
Appeal proceedings have been instituted in 188 cases. The second-instance panel of the Supreme Court has given a decision in nearly all those cases. It has allowed the appeals and awarded compensation in a higher amount than that awarded at first instance in 23 cases; it has dismissed appeals in 78 cases and rejected them in 64 cases.
In 480 cases the length of proceedings before the Supreme Court relating to the length remedy has been less than six months; in 130 cases, the proceedings have lasted a year; in 33 cases, they have lasted eighteen months, in 12 cases two years and in only 2 cases more than two years. In 113 of the 131 cases decided so far in 2011, the proceedings before the Supreme Court have lasted less than six months and in 18 cases they have lasted not more than a year.
The Supreme Court has awarded just satisfaction in 202 cases. The total amount awarded in these cases is equivalent to EUR 159,100. Since September 2010, the court has awarded compensation in 115 cases, the total amount of which is approximately EUR 99,000. Of the total amount awarded, EUR 105,500 has so far been paid to the claimants. In 152 cases the compensation was paid within three months from the date on which the Supreme Court’s decision awarding compensation had become final; in 36 cases the award was paid with a delay of up to thirty days (in 32 cases the delay was attributable to the State); in 6 cases the payment was made with a delay of between thirty and sixty days; in 8 cases there was a three-month delay; in 9 cases the payment was made with a seven-month delay and lastly, in 7 cases the award was paid with a delay of over a year. In 15 cases the delay was attributable to the claimants.
Finally, in 87 cases, 20 of which were decided in 2011, the Supreme Court has also set a deadline of between one and six months for the courts in question to determine the parties’ claims in the substantive proceedings. In 36 cases the courts concerned have complied with the Supreme Court’s order.


ITEMID: 001-105104
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF ZOLTÁN NÉMETH v. HUNGARY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 8;Non-pecuniary damage - award
JUDGES: András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque
TEXT: 4. The applicant was born in 1958 and lives in Szigetszentmárton.
5. On 23 June 1998, following the pronouncement of the divorce of the applicant and his wife, the Budapest IV/XV District Court placed the applicant’s child – born in July 1993 – with the mother.
6. The applicant was thereafter not able to see his son due to the mother’s reluctance to hand over the child.
7. The parents managed to reach a settlement about the father’s access rights concerning visits until the summer of 1999, which was approved by the Budapest Regional Court on 8 January 1999. According to the arrangement, the applicant was allowed to see his son every second Saturday from 9 am until 6 pm, the day after Easter at the same hours and during the summer holidays from 7 until 14 July and from 1 until 14 August.
8. Until 26 May 2000 the applicant managed to see his son only rarely, since the mother refused to comply with the arrangement on most occasions. From this date onwards he was fully denied access to the child by his former wife.
9. The applicant repeatedly complained to the local guardianship authority as from that date and requested it to take effective measures in order for him to be able to exercise his access rights.
10. On 16 June and 18 July 2000 the competent Budapest XV District Guardianship Authority heard both parents, warned the mother to allow the applicant to see his son and imposed fines on her. However, these fines were later cancelled.
11. In January 2001 the case was transferred to the Budapest XIII District Guardianship Authority. Since a warning issued in July 2001 was to no avail, it fined the mother 10,000 Hungarian forints (HUF) (approximately 37 euros (EUR)) on 13 August 2001 and a further HUF 30,000 (EUR 110) on 18 October 2001.
12. Furthermore, in December 2001 the Budapest XV District Guardianship Authority discontinued the proceedings, initiated ex officio by the Budapest XIII District Guardianship Authority, to place the child under protection (“védelembe vétel”), finding no reason for it. The child welfare service contacted the parents in an attempt to find a solution to the situation. It prepared an environment study at the mother’s home, establishing that it was ideal for the upbringing of the child, who was in a loving relationship with his mother. However, it emphasised the importance of and need for a balanced contact between the child and his father.
13. As the applicant had had no contact with his child since May 2000, he lodged complaints with various authorities, but to no avail.
14. The Guardianship Authority then contacted a child upbringing counsellor (“nevelési tanácsadó”) who recommended the assistance of a foundation specialised in facilitating visits. It therefore ordered that the regular visits scheduled for the period between 16 February and 11 May 2002 be held at the foundation’s premises. It appears that there was therefore some contact between the applicant and his son in this period. The applicant’s relationship with his son was examined and found to be harmonious. Subsequently, the Guardianship Authority invited both parents to a reconciliatory meeting on 10 June 2002. This, however, proved to be unsuccessful. The father’s environment was also examined, and it was established that the conditions were appropriate to hold the visits there. The authority recommended a gradual extension of the duration of the contact between the father and the child.
15. The Guardianship Authority drew up a new access schedule on 16 August 2002 and warned the parents once again to respect these arrangements. However, the mother continued to deny access to the child.
16. Following the applicant’s repeated complaints to various authorities about the failure to take adequate action to enforce his rights, on 30 March 2004 the Budapest XI District Guardianship Authority again warned the mother and took nine separate decisions concerning the visits not ensured in 2003, imposing a series of fines on her in the total amount of HUF 260,000 (EUR 975). On 23 June 2004 it initiated the child’s placement under protection. Subsequently, on 15 September 2004 the Guardianship Authority imposed a further fine of HUF 100,000 (EUR 375) for the overdue visits from 1999 until 2003.
17. The Guardianship Authority also ordered police assistance twice in 2004. Afterwards, the applicant managed to see his son until the following year.
18. Meanwhile, the applicant initiated an action before the Budapest IV/XIV District Court in February 2002, seeking a change of custody and requesting the temporary placement of the child with him as an interim measure. Since no measures were taken thereafter, he submitted a petition to the ombudsman, asking for his assistance.
19. Eventually, the Budapest Regional Court, acting as a second-instance court, rejected the maintenance of contact with the child via the foundation mentioned in paragraph 14 above, and dismissed the applicant’s action on 23 March 2005.
20. In April 2005 the Ministry of Youth, Family and Social Matters quashed the decisions of the Budapest XI District Guardianship Authority described in paragraph 16 above, thereby withdrawing the fines imposed and the order to initiate the child’s placement under protection, without the possibility to appeal against the decision. The Ministry established that the decisions of the guardianship authority had been unlawful and it discontinued the administrative proceedings concerning the exercise of the applicant’s access rights prior to 1 March 2004. It nevertheless ordered the Guardianship Authority to take effective measures to ensure the applicant’s rights by using the range of measures at its disposal and not only through the imposition of fines. The Ministry pointed out, inter alia, that:
“... [t]he fact that the administration of minor A.N.’s case concerning access got to a guardianship authority that instantly sanctions the mother for the overdue visits is good, but other measures would be required as well, as it seems that the fines do not lead to any result, the goal being to enable Zoltán Németh to exercise his visiting rights regarding his son. That is why the guardianship authority should initiate the placement of the child under protection and consider intervening in the custody proceedings on the side of the father. This should have been done already by the previous guardianship authority. The placement of the child under protection was initiated once by the Budapest XIII District Guardianship Authority, but the proceedings were discontinued by the Budapest XV District Guardianship Authority on the ground that the child’s care may be provided through basic service. The guardianship authority did not request the review of the decision despite the fact that the failure of care in basic service had been fully manifest. ...
Overall, it can be established that the first-instance guardianship authorities were not controlling the situation, revoking the fines imposed on formal grounds. ... The Budapest Guardianship Authority was a “spectator” to the situation, hindered the enforcement proceedings several times; on the basis of the appeal even it could have clarified whether the visits took place, or could have requested the first-instance guardianship authority to hear the parties, once they made the mistake of transferring the case file to the court without having made copies of at least the proceedings pending preceding the transfer. ...
The second-instance guardianship authority also omitted [to fulfil its obligations] in that when the father had not received his son for months and the competent guardianship authority did not assist the enforcement, it did not take over the case. It is not an acceptable solution to settle cases that, instead of solving the professional problems, the second-instance guardianship authority repeatedly assigns new acting organ. This practice is unlawful ...
It is indisputable that the first instance guardianship authority and the second instance guardianship authority made omissions between 1999 and 2004 by not effectively promoting the enforcement of the contacts ...”
21. The applicant initiated the review of the Ministry’s decision before the Chief Prosecutor’s Office. On 25 August 2005 this Office established that the decision in question had been unlawful and informed the Ministry about its findings.
22. However, the applicant was not able to exercise his access rights after the Ministry’s decision had been adopted. He initiated several enforcement proceedings, following which a few penalties in the sum of the statutory maximum were imposed on the mother.
23. It appears that the applicant has been unable to have any contact with his son since then.
24. Meanwhile, as it had become impossible for the applicant to meet his child, he lodged a criminal complaint against the mother for endangering a minor, on 10 January 2004. The Pest Central District Court found the mother guilty and imposed a criminal fine on her on 5 September 2007. In its reasoning, the court emphasised that:
“[a] child’s moral development can be endangered not only by so-called immoral conduct ... but also by depriving the child of the opportunity of healthy moral development. Thus, by the conduct of the mother, who, having knowledge of the fact – of which the child also had knowledge – that the father was to exercise his access rights at a given date, knowingly violated this right by organising for that date an attractive programme for the child in the countryside, at a location far from the father ... The mother involved the child in her conflict with the father, informed him of the court actions brought against or by him and made disparaging remarks about the father, thereby exerting emotionally negative influence on the child living under a common roof with her and thus being to an increased degree dependent on her.”
However, it also noted that the applicant:
“... [h]imself did not dispute that on certain occasions contact with the child became frustrated because of his own omission.”
25. No further information was provided by the parties as to the development of the criminal case before the appellate court.
26. The relevant rules concerning the enforcement of contact orders can be found in Government Decree no. 149/1997 (IX. 10.) on Guardianship Authorities, Child Protection Procedure and Guardianship Procedure, which provides as follows:
“(1) The development of the child is endangered if the parent ... wilfully and repeatedly fails to comply with a final contact order.
(2) If non-compliance with the contact order on the part of the parent ... is a fault of his/her own, the guardianship authority shall warn him/her about the consequences of such conduct. The decision shall contain an injunction ordering the parent ... to terminate the unlawful conduct and a warning about the legal consequences of continuing the unlawful conduct.
(3) If the measures provided for under subsection (2) are of no effect and one year has not elapsed from the receipt of the warning, the guardianship authority shall apply the rules governing enforcement of the Act on Public Administration Procedure with the exceptions set forth in this Decree.
...
(5) If the maintenance of contact entails conflicts, is continuously frustrated by obstacles, or there are disturbances in the communication between the parents [in force since 15 February 2003], the guardianship authority may initiate the involvement of the child welfare service’s contact centre, the ordering of taking the child into protection, or the institution of the child protection mediation procedure.
(6) If it is proved that the parent ... brings up the child by continuously turning him/her against the person entitled to contact, and despite enforcement measures fails to comply with the contact order, an action to change custody may be brought before the court.”
27. Moreover, section 72 of Act no. 31 of 1997 on the Protection of Children and Child Welfare Administration provides for the possibility temporarily to place the child with the other parent living apart, if the child’s emotional development is seriously threatened by his or her family environment and his or her immediate placement is necessary. Such serious threat may be established in case of risk of substantial and irreversible damage to the emotional development of the child.
28. Other measures at the authorities’ disposal are listed in the Act on Public Administration Procedure, providing for police assistance for the enforcement of administrative decisions and the imposition of procedural fines.
VIOLATED_ARTICLES: 8


ITEMID: 001-109577
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: GRANDCHAMBER
DATE: 2012
DOCNAME: CASE OF AKSU v. TURKEY
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed (Article 34 - Victim);No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life)
JUDGES: Alvina Gyulumyan;Anatoly Kovler;Angelika Nußberger;Dean Spielmann;Elisabet Fura;Françoise Tulkens;Giovanni Bonello;Ireneu Cabral Barreto;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Kristina Pardalos;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nicolas Bratza;Nona Tsotsoria;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: 9. The applicant, who is of Roma origin, was born in 1931 and lives in Ankara.
10. In 2000 the Ministry of Culture published 3,000 copies of a book entitled The Gypsies of Turkey, written by Associate Professor Ali Rafet Özkan. Before its publication, a publications advisory board approved the content of the book. The preface to the book states as follows:
“...
Gypsies live in peace on Turkish territory today, just as they have throughout history, but now they are left entirely to their own devices, without regulation, supervision or attention. Their unregulated way of life, in which they are abandoned entirely to their own fate, is a failing on Turkey’s part. The Gypsies’ current unordered way of life, and the fact that it is considered quite unnecessary to venture into their closed world in any way despite the long history we share, is a further shortcoming. Associated with this is the fact that while Gypsies have indeed lived for many years among us, they have been ostracised by local people and targeted by vilifying remarks which have, for the most part, been unenlightened and prejudiced. The negative response and distressing accusations which they encounter wherever they go have driven Gypsies, who already have a societal structure which is closed off from the outside world, to live in still narrower confines.
We felt that there was a need to step into the unknown world of these people who have lived among us for centuries and have now become part of contemporary Turkish culture. My aim was thus to get to know them closely using an empirical approach, and to present the Gypsies of Turkey as they are, in all their aspects, on the basis of the principles of scientific objectivity.
This study comprises an introduction and two sections.
The introduction provides information about the Gypsy as a concept and the origins of the Gypsies, as well as detailed information about their migration, and considers their history in Turkey in the light of various archive documents and scholarly sources. In the first section, the socio-cultural characteristics of Gypsies are considered in broad terms. This section examines in particular the home life and travels of Gypsies, their music, dance, language, traditions and customs. The second section deals with the beliefs and practices of the Gypsies.
This study – which I present without any pretensions, but merely in a bid to fill a significant gap (it being the first study of its kind), and to provide guidance to others working on the Gypsies in the future – was prepared using descriptive, comparative and phenomenological methods, in addition to participant observation and interview techniques.
...”
11. In the introduction, the author went on to state:
“...
Gypsies have spread throughout the world but they have been unable to escape their status as a marginal group which is excluded and despised everywhere. Apart from the differences in their way of life, the characteristic which most obviously distinguishes Gypsies from others is the colour of their skin, which is darker, swarthier. In typological terms, most Gypsies are of medium height, of agile build, with large dark black (occasionally hazel or blue) eyes and long thick eyelashes; the men have long moustaches. The mouth is slender and elegant, the teeth white and even, with a round jaw. They have a narrow forehead and temples and a small cranium. Their hair is curly, black, long and thick. Beyond middle age, the women are broad and corpulent. The younger people are slim, with firm and powerful muscles (see Carmen by Prosper Mérimée, Gypsy Stories of our own and from around the world by Tahir Alangu and The sieve-making of the Gypsies of Posalar by Esat Uras).
...
This research is intended to present the identity of the Gypsies, these people who have lived among us for centuries and have become an integral part of contemporary Turkish culture, but about whom no comprehensive scientific study has as yet been conducted because their cultural identity has been largely ignored as a result of the difficulties in identifying and defining them. This study will give an account of their socio-cultural characteristics, beliefs, mythologies, festivals and celebrations in all their aspects.
For the purpose of this study, an initial survey was conducted of information, documentation and materials concerning Gypsies, from Turkey and elsewhere. The information and documents thus identified were then classified on the basis of their scientific reliability, using validity criteria. Next, an empirical study involving observation of the participants was carried out by going among the Gypsy population and living with them. Visits were made to all the areas of Turkey with a Gypsy population – both nomadic and settled – and in this way an effort was made to establish the facts about their way of life, traditions, beliefs, forms of worship and practices, not only by gathering data and documentary and other material, but also by the empirical method of living among them.”
12. In the book, the author devoted a chapter to the “Gypsies of Contemporary Turkey”. In this chapter he stated:
“Today’s Gypsies are scattered all over Turkey. They are principally located in the Marmara, Aegean and Mediterranean regions, with a lower concentration in the Black Sea, central Anatolia and south-east Anatolia regions. The distribution of Gypsies in Turkey will be dealt with here.
...
So far no general population census has included separate records for Gypsies; hence, the size of the Gypsy population in Turkey is not known with certainty. Rather than using estimated figures, we obtained information from Gypsies themselves, from local people living nearby and from local administrators. We attempted to clarify this information by making a comparison with the overall district population figures which we received from the district chiefs [muhtar].
...
Istanbul
...
Gypsies living within the provincial borders of Istanbul generally make their living from music, flower-selling, scrap-metal dealing, rubbish and paper collection, blacksmithing and ironworking, portering, fortune-telling, cleaning, working with a horse and cart, coppersmithing, slug-collecting and door-to-door selling. There are also some, albeit few in number, who make a living from pickpocketing, stealing and selling narcotics.
Tekirdağ
...
The Roma (Gypsies) of Tekirdağ make their livelihood from playing music, portering and shoe-shining. Women work as domestic cleaners and handle bricks at the brick factory. Those in Çorlu and Lüleburgaz earn their living from music, portering, horse trading (livestock dealing), construction work and running lotteries, and the women earn their living from cleaning.
Kırklareli
...
The Roma of Kırklareli generally make their living from music, working with a horse and cart, street vending, portering, cleaning and scrap-metal dealing.
Edirne
...
Those who live in Edirne city centre generally earn their living from working with a horse and cart, scrap-metal dealing and street vending, while the women contribute to the family economy with cleaning work. Nearly all of the inhabitants of the Yukarı Zaferiye district of Keşan earn their livelihood from music. The rest of them work in various sectors such as labouring in the rice fields, concrete-pouring on construction sites, portering, working with a horse and cart, collecting frogs and slugs, scrap-metal dealing, paper collection, house painting and selling simit [a type of bread roll]. Those in Uzunköprü live from scrap-metal dealing, tinsmithing and basket-making.
...
Ankara
...
The Gypsies of the central district of Ankara earn their living from stealing, begging, door-to-door selling, fortune-telling, zercilik [robbing jewellery stores] and making magical charms. A small number are also involved in tinsmithing, working with leather harnesses, sieve-making and basket-making. There are also many who work as musicians in nightclubs. It is reported that most of those who trade in ironmongery around Altındağ and Hamamönü are Gypsies from Çankırı.
...
We attempted to visit every province and district where Gypsies were located. The figures which we have given for each province were obtained by comparing information, noting the exaggerated figures given by the Gypsies and then talking to the district chiefs [muhtar], and where necessary the district police. ...”
Similar remarks to the ones quoted above were made in respect of the Roma population living in other parts of Turkey such as İzmir, Manisa, Konya, Adana and Antalya.
13. The closing paragraphs of the conclusion to The Gypsies of Turkey read as follows:
“The most important links connecting the Gypsies to each other are their family and social structures as well as their traditions. Despite the fact that they have led a nomadic life for more than a thousand years, they have managed to protect their traditional way of living thanks to the practice of marrying within the group. Their attachment to these traditions begins at birth and continues till death. Doubtless, tradition is the most significant factor in the Gypsy way of life. The elderly members of Gypsy society bear the heaviest responsibility for protecting and sustaining the traditions. However, due to ever-changing circumstances and needs, the social structure of the Gypsies has become difficult to preserve. In particular “Natia”, one of these social structures, can no longer be sustained in today’s Turkey.
The most striking characteristic of Gypsies is their way of living. Hence, all branches of socio-cultural activity, consisting of migration and settlement, dance, music, language, eating and drinking, fortune-telling, sorcery and occupations, constitute the true nature of Gypsy life. That is to say, these elements form the visible part of the iceberg. Other persons usually recognise Gypsies through these phenomena. Nevertheless, the way to truly know Gypsies is to mingle with their society and fully analyse their traditions and beliefs. The secret world of the Gypsies reveals itself through their beliefs, in particular through their superstitions and taboos.
Gypsies, like everyone, feel the need to have faith and to worship. In addition to adopting the religion of the country they live in, they also perpetuate the traditional beliefs specific to their culture. Consequently, it is observed that Gypsies have genuine feasts and celebrations stemming from their beliefs, which can be partly traced to Hinduism.
In our opinion these people, who suffer from humiliation and rejection everywhere, could be transformed into citizens who are an asset to our State and our nation once their educational, social, cultural and medical problems are addressed. This simply entails focusing on this issue with patience and determination.”
14. On 15 June 2001 the applicant filed a petition with the Ministry of Culture on behalf of the Turkish Roma/Gypsy associations. In his petition he submitted that in the book the author had stated that Gypsies were engaged in illegal activities, lived as “thieves, pickpockets, swindlers, robbers, usurers, beggars, drug dealers, prostitutes and brothel keepers” and were polygamist and aggressive. The applicant also submitted that the book contained several other remarks that humiliated and debased Gypsies. Claiming that these remarks constituted a criminal offence, he requested that the sale of the book be stopped and all copies seized.
15. On the same day the Head of the publications unit at the Ministry of Culture ordered that the remaining 299 copies of the book be returned to the publications unit.
16. On 11 October 2001 the applicant wrote a letter to the Ministry of Culture enquiring whether the copies of the book had been seized.
17. On 17 October 2001 the Head of the publications unit at the Ministry of Culture informed the applicant that the publications advisory board of the Ministry, composed of seven professors, had decided that the book was a piece of scientific research and did not contain any insults or similar remarks. The applicant was also informed that the author of the book would not permit any amendments to the text and that, at the author’s request, the Ministry had transferred copyright of the book to him.
18. On 4 February 2002 the applicant sent letters to the Ministry of Culture and to Associate Professor Ali Rafet Özkan, repeating his initial request. He received no reply.
19. Subsequently, on 30 April 2002 the applicant brought proceedings in his own name against the Ministry of Culture and the author of the book before the Ankara Civil Court of General Jurisdiction, claiming compensation for the non-pecuniary damage he had sustained on account of the remarks contained in the book. He alleged that these remarks constituted an attack on his identity as a Roma/Gypsy and were insulting. The applicant also asked for the copies of the book to be confiscated and for its publication and distribution to be banned.
20. The author of the book submitted, in reply, that his reference materials had been the records of the Adana police headquarters and books written by other authors on Gypsies, and that he had not intended to insult or humiliate Gypsies. The author further stated that the passages referred to by the applicant should not be considered in isolation, but in the context of the whole book.
21. On 24 September 2002 the Ankara Civil Court dismissed the applicant’s requests in so far as they concerned the author of the book. It considered that the book was the result of academic research, was based on scientific data and examined the social structures of Roma/Gypsies in Turkey. The first-instance court therefore held that the remarks in question did not insult the applicant. As to the applicant’s case against the Ministry, the Civil Court decided that it lacked jurisdiction and that the administrative courts were competent to decide on the applicant’s claim.
22. On 25 October 2002 the applicant appealed. In his petition, he submitted that the book could not be considered as scientific research and that therefore the Ministry of Culture should not have published it.
23. On 21 April 2003 the Court of Cassation upheld the judgment of the first-instance court. It noted that the remarks objected to by the applicant were of a general nature. It therefore found no grounds for concluding that they concerned all Roma/Gypsies or that they constituted an attack on the applicant’s identity.
24. On 8 December 2003 a request by the applicant for rectification of the decision was dismissed.
25. Subsequently, on an unspecified date the applicant initiated proceedings against the Ministry of Culture before the Ankara Administrative Court. He requested non-pecuniary compensation, alleging that the content of the book published by the Ministry of Culture had been offensive and insulting towards the Roma/Gypsy community. On 7 April 2004 the Administrative Court dismissed the applicant’s case. It held that before its publication the book in question had been examined by a rapporteur appointed by the publications advisory board. Following his approval, the advisory board had agreed to publish the book. In the wake of the applicant’s allegations the advisory board, composed of seven professors, had examined the book again on 25 September 2001 and had decided that it was an academic study based on scientific research and that no inconvenience would be caused by continuing its distribution and sale. The Administrative Court therefore concluded that the applicant’s allegations were unsubstantiated. The applicant did not appeal against this decision.
26. In 1991 and 1998 respectively the Language Association, a non-governmental organisation, published two dictionaries entitled Turkish Dictionary for Pupils (Öğrenciler için Türkçe Sözlük) and Turkish Dictionary (Türkçe Sözlük). Apart from their titles, both dictionaries had exactly the same content. The publication of these dictionaries was part-financed by the Ministry of Culture.
27. On 30 April 2002 the applicant sent a letter to the Executive Board of the Language Association on behalf of the Confederation of Roma/Gypsy Cultural Associations. In his letter, the applicant submitted that certain entries in the dictionaries were insulting to and discriminatory against Roma/Gypsies.
28. On page 279 of both dictionaries, the following entries were made regarding the word “Gypsy” (çingene):
“‘Gypsy’ (Çingene): 1. an ethnic group or person belonging to an ethnic group originating from India, whose members lead a nomadic way of life and are widely dispersed in the world. 2. (metaphorically) miserly.
‘Gypsy debt’ (Çingene borcu): an unimportant debt which consists of several small debts.
‘Gypsy plays Kurd dances’ (Çingene çalar Kürt oynar): a place where there is a lot of commotion and noise.
‘Gypsy tent’ (Çingene çergesi) (metaphorically): a dirty and poor place.
‘Gypsy wedding’ (Çingene düğünü): a crowded and noisy meeting.
‘Gypsy fight’ (Çingene kavgası): a verbal fight in which vulgar language is used.
‘Gypsy money’ (Çingene parası): coins.
‘Gypsy pink’ (Çingene pembesi): pink.
‘Gypsy language’ (Çingenece): language used by Gypsies.
‘Gypsiness’ (Çingenelik): 1. being a Gypsy 2. (metaphorically) being miserly or greedy.
‘Becoming a Gypsy’ (Çingeneleşmek): displaying miserly behaviour.”
29. In the applicant’s opinion, the entries regarding the Gypsy community had negative, discriminatory and prejudiced connotations. The applicant further submitted that the Ministry of Education and the Turkish Language Society had amended their dictionaries at his request, and likewise asked the Language Association to correct the above-mentioned definitions and to remove any discriminatory expressions from the dictionaries. He received no reply to his letter.
30. Subsequently, on 15 July 2002 the applicant sent a further letter to the Language Association, repeating his request. He added that he would bring a case against the Association if his request was not granted by 20 August 2002.
31. On 16 April 2003 the applicant brought proceedings in the Ankara Civil Court of General Jurisdiction against the Language Association, requesting that the above-mentioned definitions and expressions be removed from the dictionaries. The applicant also requested compensation for the non-pecuniary damage he had sustained on account of the expressions contained in the dictionaries. In that connection he alleged that the dictionary definitions constituted an attack on his identity as a Roma/Gypsy and an insult to him personally.
32. In its submissions in reply, the Language Association maintained, inter alia, that the definitions and expressions contained in the dictionaries were based on historical and sociological reality and that there had been no intention to humiliate or debase an ethnic group. It further submitted that the dictionaries contained expressions and definitions that were commonly used in society and that there were other similar expressions in Turkish which concerned Albanians, Jews and Turks.
33. On 16 July 2003 the Ankara Civil Court dismissed the applicant’s case. It held that the definitions and expressions in the dictionaries were based on historical and sociological reality and that there had been no intention to humiliate or debase an ethnic group. It further noted that there were similar expressions in Turkish concerning other ethnic groups, which appeared in dictionaries and encyclopaedias.
34. The applicant appealed. On 15 March 2004 the Court of Cassation upheld the judgment of 16 July 2003.
35. Article 24 of the Civil Code reads as follows:
“Any person whose personal rights are unlawfully infringed may apply to a judge for protection against all those causing the infringement.
An infringement is unlawful unless it is justified by the consent of the person whose rights have been infringed or is made necessary by an overriding private or public interest or by law.”
Furthermore, according to Article 25 of the Civil Code:
“A claimant may ask a judge to prevent a threat of infringement, to order the cessation of an ongoing infringement or to establish the unlawfulness of such an infringement even where it has already ceased.
In addition to such action the claimant may also request that the rectification or the judgment be published or served on third parties.
...”
36. Article 312 § 2 of the former Criminal Code provided as follows:
“Any person who incites others to hatred or hostility on the basis of a distinction between social class, race, religion, denomination or region shall, on conviction, be liable to between one and three years’ imprisonment and to a fine of between nine thousand and thirty-six thousand liras. If this incitement endangers public safety, the sentence shall be increased by between one third and one half.”
37. On 1 June 2005 a new Criminal Code (Law no. 5237) came into force. Article 216 of the new Code provides as follows:
“1. Any person who publicly provokes hatred or hostility in one section of the public against another section with different characteristics based on social class, race, religion, sect or regional differences, such as to create a clear and close danger to public safety, shall be sentenced to a term of imprisonment of one to three years.
2. Any person who publicly denigrates a section of the public on grounds of social class, race, religion, sect, gender or regional differences shall be sentenced to a term of imprisonment of six months to one year.
...”
38. In its fourth report on Turkey (CRI(2011)5), published on 8 February 2011, ECRI welcomed the fact that in order to discourage negative stereotyping, connotations which might have been perceived as discriminatory in the dictionary definition of the term “Gypsy” had been removed. It further encouraged the Turkish authorities to pursue and strengthen their efforts to combat negative stereotyping of the Roma and to build a constructive dialogue with the Roma community.
39. In its General Policy Recommendation No. 10 on combating racism and racial discrimination in and through school education, adopted on 15 December 2006, ECRI also recommended that member States ensure that school education played a key role in the fight against racism and racial discrimination in society “by promoting critical thinking among pupils and equipping them with the necessary skills to become aware of and react to stereotypes or intolerant elements contained in [the] material they [used]”.
NON_VIOLATED_ARTICLES: 8
NON_VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-4908
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: STACEY v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant is a British citizen born in 1958 and currently residing on the Isle of Wight.
The facts of the case, as they have been submitted by the applicant, may be summarised as follows :
A.
The applicant is a single parent, with a child or children residing with him, and between October 1996 to August 1997 he was in receipt of Income Support. It is not clear from the materials submitted by him how many children the applicant has living with him nor whether he is still in receipt of Income Support.
In October 1996, the applicant received a letter from the Child Support Agency asking him to indicate on a specific form whether he authorised the Secretary of State to contact the absent parent to arrange and collect child maintenance (Declaration A) or else to declare any reasons why there would be a risk of harm or undue distress if the Secretary of State did so (Declaration B). It appears that the applicant returned Declaration A. He then failed to complete the maintenance application form which was sent to him on 4 November 1996. A meeting followed with the Child Support Agency and the applicant explained that he was unable to give the information about the mother of the children because he did not have her consent. He said to do so would be in breach of Article 8 of the European Convention on Human Rights, namely an interference in private life.
On 20 January 1997, the applicant was informed that he still had to complete the application form. On 3 February 1997, the applicant repeated that he could not do so as he would be in breach of Article 8 of the Convention.
On 7 February 1997, the applicant was notified that, since he had insufficient grounds for not complying with the requests for information, the Child Support Agency would consider reducing his benefits. A reduced benefit direction was subsequently imposed.
In April 1997, the applicant applied for leave to apply for judicial review. Leave was refused on or around 25 June 1997 by Mr Justice Tuckey because :
"The Secretary of State has acted under clear statutory powers given to him under the Child Support Act 1991. I can see no arguable grounds for judicial review of his decision in the material < the applicant has> provided."
B. Relevant domestic law and procedure
The Child Support Act 1991 ("the Act") provides for the assessment, collection and enforcement of periodical maintenance payable by parents in respect of children not in their care. The Act was designed to improve the position of children whose parents live apart. Research commissioned for the Government White Paper ("Children come First", 1990 Cmnd 1264) had indicated that 30% of lone mothers and 3% of lone Fathers received regular child maintenance and that the average payment was very low. It was considered that the burden of supporting lone parents fell largely on the State.
Section 6 of the Act provides :
"(1) Where income support...is claimed by or...paid to ..the parent of a qualifying child (s)he shall if-
(a) (s)he is a person with care of the child; and
(b) (s)he is required to do so by the Secretary of State,
authorise the Secretary of State to take action under this Act to recover child support maintenance from the absent parent.
(2) The Secretary of State shall not require a person ("the parent") to give him the authorisation mentioned in subsection (1) if he considers that there are reasonable grounds for believing that -
(a) if the parent were to be required to give that authorisation; or
(b) if (s)he were to give it,
there would be a risk of her, or of any child living with her, suffering harm or undue distress as a result..... "


ITEMID: 001-107990
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: BERG v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska
TEXT: The applicant, Mr Einar Berg, is a Swedish national who was born in 1945 and lives in Järna. He was represented before the Court by Mr B. Gärde, a lawyer practising in Nacka. The Swedish Government (“the Government”) were represented by their Agent, Mr B. Sjöberg, of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant obtained his medical licence in 1977 and, since 1998, he has had his own private practice.
On 3 June 2005 the National Board of Health and Welfare, unit for regional supervision (Socialstyrelsen, Regionala tillsynsenheten – hereafter “the Supervisory Unit”) in Stockholm reported the applicant to the Medical Responsibility Board (Hälso- och sjukvårdens ansvarsnämnd – hereafter “the Board”) and requested that his medical licence should be revoked or, in the alternative, that he should be subjected to a disciplinary sanction. It claimed that the documentation of his contact with patients was incomplete and that he had written medical certificates on uncertain medical bases and without having carried out thorough examinations. It had examined 36 of the applicant’s patient records and had found reason to criticise the procedure in 11 of these. It therefore considered that he had not provided his patients with such professional and thorough care as was required by the Act on Professional Activity in Health and Medical Services (Lag om yrkesverksamhet på hälso- och sjukvårdens område, 1998:531).
The applicant contested the revocation of his medical licence, as he did not consider that he had been negligent in the exercise of his profession. However, he recognised that there was cause to criticise his documentation of contact with patients. Thus, in this respect, he left it to the Board to decide whether he should be given a disciplinary sanction.
On 15 December 2005 the Medical Responsibility Board decided to revoke the applicant’s medical licence. It first noted that, on three previous occasions in 1996, 1997 and 1998, the Supervisory Unit had criticised the applicant’s treatment methods as it had found that he did not follow recognised, conventional methods (“vetenskap och beprövad erfarenhet”). As concerned the current 11 cases where the Supervisory Unit had found cause for criticism, the Board considered them one at a time and found that each of them justified disciplinary sanctions. Moreover, in the Board’s view, the applicant’s medical records of patients were very deficient and both the diagnoses and treatment of the patients had been made on the basis of insufficient examinations and tests. It further noted that in one of the cases the applicant had repeatedly prescribed medication which was addictive (sleeping pills) to a man who clearly abused medication. Therefore, in conclusion, the Board found that it was evident that the applicant’s working methods were in sharp contrast to recognised, conventional methods and treatment within medicine and that his patient records were very deficient. Since he had shown such serious incompetence as a doctor, his medical licence had to be revoked.
The Board’s decision was immediately enforceable. Thus, since the applicant was no longer authorised to work at his private practice, he appealed against the decision to the County Administrative Court (länsrätten) of the County of Stockholm and also requested that it should not be enforceable until the court had examined his case. As from this stage of the proceedings, the applicant was represented by legal counsel.
On 16 January 2006 the County Administrative Court rejected the request. It considered that, on the basis of what had appeared from the case so far, there was no reason to stay the enforcement of the Board’s decision while the case was pending before it.
The applicant appealed against the decision to the Administrative Court of Appeal (kammarrätten) in Stockholm, maintaining his request for interim measures. On 27 January 2006 the court refused leave to appeal as did the Supreme Administrative Court (Regeringsrätten), on 23 March 2006, upon further appeal.
As the applicant was deprived of his livelihood, he renewed his request for interim measures to retain his medical licence while the appeal was pending before the County Administrative Court. On 10 April 2006 the court rejected the request and, upon appeal, the Administrative Court of Appeal and the Supreme Administrative Court refused leave to appeal on 8 May 2006 and 16 June 2006, respectively.
On 9 November 2006, after having held an oral hearing, the County Administrative Court repealed the Board’s decision to revoke the applicant’s licence but gave him a formal warning. It found that he had shown serious flaws in performing his professional duties but that, when making an overall assessment, these flaws were not of such a serious nature that his medical licence should be revoked. However, these failings were neither excusable nor negligible, for which reason he should receive a disciplinary sanction in the form of a formal warning. Consequently, the applicant’s medical licence was returned to him and he could take up his work at his private practice again.
Both the applicant and the Supervisory Unit appealed against the judgment to the Administrative Court of Appeal. The applicant requested that the formal warning should be removed whereas the Supervisory Unit demanded that the Board’s decision be upheld and the applicant’s medical licence be withdrawn.
On 17 December 2007, after having held an oral hearing, the Administrative Court of Appeal upheld the lower court’s judgment in full.
The Supervisor Unit and the applicant both appealed against the judgment to the Supreme Administrative Court, maintaining their respective claims.
On 14 May 2009 the Supreme Administrative Court repealed the lower courts’ judgments and upheld the decision of the Board to revoke the applicant’s medical licence. It noted that he had made diagnoses without sufficient medical support and without considering other potential diagnoses. His treatments had not followed recognised, conventional methods and they had not been without risk for the patients. The court found that the lack of proper diagnoses and treatment had been systematic and deliberate and had remained unchanged despite previous criticism by the Supervisory Unit. It concluded that the applicant had shown such serious incompetence as a doctor that his medical licence had to be revoked.
In the meantime, in February 2008, the applicant, represented by the same legal counsel as before the administrative courts, sued the Swedish State, through the Chancellor of Justice (Justitiekanslern), for compensation because of the immediate revocation of his medical licence by the Board. He alleged that it had caused him substantial losses not to be able to work for 11 months and he claimed compensation for pecuniary and non-pecuniary damage as well as for his costs in the national proceedings, in total SEK 1,657,535 (approximately EUR 181,500). In his submissions, he claimed that the immediate revocation of his medical licence by the Board was in violation of Article 6 of the Convention for several reasons, inter alia, that the Board could not be considered an independent court and that, consequently, he had been deprived of access to a court before his licence was revoked. Moreover, the proceedings had not been fair, there had been no equality of arms and he had not been presumed innocent.
The Chancellor of Justice contested the claim. He accepted that Article 6 of the Convention was applicable to the case but considered that the Board did fulfil the requirement of an independent court. However, he submitted that, even if this was not the case, the immediate decision by the Board had not breached Article 6. In his view, the proceedings before the national courts had been fair and impartial.
On 26 November 2009 the District Court (tingsrätten) in Stockholm rejected the applicant’s claim. In so far as concerned the applicant’s complaints relating to the Convention, the Court made the following assessment. On the issue of whether or not the Board could be considered an independent court, it noted that the Board was an impartial body, established by law, and whose work was regulated by law, inter alia, by parts of the Code on Judicial Procedure (Rättegångsbalken, 1942:740) and the Administrative Procedure Act (Förvaltningslagen, 1986:223). This ensured that the rule of law was adhered to. Moreover, its chairman had to be a permanent judge and the eight other members had to have special knowledge in medicine and health care. The District Court concluded that the Board could be considered an independent court which had had jurisdiction to decide to revoke the applicant’s medical licence. The court also observed that the applicant had had his case reviewed by a further three judicial instances, including for his request for interim measures. He had consequently had access to court. In this respect, the court noted that the provision allowing the Board to revoke immediately a medical licence was a protective measure to ensure the safety and health of patients. As concerned the fairness of the proceedings, the court treated each of the applicant’s specific complaints but concluded that he had been afforded full equality of arms during the entire proceedings and that there were no indications of a violation of Article 6 § 1 of the Convention. In relation to his complaint under Article 6 § 2 of the Convention, the court pointed out that it only related to criminal proceedings and thus was not applicable in the instant case. The court furthermore considered whether the revocation had been proportional to the aim pursued, namely to protect patients from harm and ensure the safety of their health, and found that this had indeed been a proportional measure. Lastly, the District Court examined whether the applicant could be granted compensation under the Tort Liability Act (Skadeståndslagen, 1972:207) but concluded that there were no grounds for such compensation.
The applicant did not appeal against the judgment although he could have appealed to the Court of Appeal (hovrätten) and further to the Supreme Court (Högsta domstolen). Both appellate courts required leave to appeal before considering a case on the merits.
Chapter 3 of the Tort Liability Act deals with the civil liability of the State. According to Section 2 of that chapter, acts or omissions by a public authority may give rise to an entitlement to compensation in the event of fault of negligence.
An individual who wants to claim compensation from the State may proceed in either of two different ways: He or she may either petition the Chancellor of Justice in accordance with Section 3 of the Ordinance on the Administration of Claims for Damages against the State (Förordningen om handläggning av skadeståndsanspråk mot staten, 1995:1301), or bring a civil action against the State before a district court, with the possibility to appeal to a court of appeal and the Supreme Court. No appeal lies against a decision of the Chancellor of Justice. However, if the claim is rejected, the claimant still has the possibility to institute civil proceedings before the courts. In such proceedings, the State is represented by the Chancellor of Justice (section 2 of the Ordinance with Instructions for the Chancellor of Justice [Förordning med instruktion för Justitiekanslern, 1975:1345]).
In a judgment of 9 June 2005 (NJA 2005 p. 462) the Supreme Court dealt with a claim for damages brought by an individual against the Swedish State, inter alia, on the basis of an alleged violation of Article 6 of the Convention. The case concerned the excessive length of the criminal proceedings and the Supreme Court held that the plaintiff’s right under Article 6 of the Convention to have the criminal charges against him determined within a reasonable time had been violated. Based on this finding, and with reference, inter alia, to Articles 6 and 13 of the Convention and the Court’s case-law under these provisions, in particular the case of Kudła v. Poland ([GC], no. 30210/96, ECHR 2000XI), the Supreme Court concluded that the plaintiff was entitled to compensation under Swedish law for both pecuniary and non-pecuniary damage. With respect to the level of compensation for non-pecuniary damage, the Supreme Court took note of the criteria established in the Court’s case-law stating that the Court’s practice constituted a natural point of departure in this regard.
In a decision of 4 May 2007 (NJA 2007 p. 295), the Supreme Court held that the principle concerning a right to damages established in the above-mentioned case of 9 June 2005 also applied with regard to the rights contained in Article 5 of the Convention. The Supreme Court stated that the plaintiff’s right to damages on account of a violation of Article 5 should be assessed in the first place under the Tort Liability Act (Skadeståndslagen, Act no. 1972:207) and the Act on Compensation for Deprivation of Liberty and Other Coercive Measures (Lagen om ersättning vid frihetsberövanden och andra tvångsåtgärder, 1998:714). To the extent necessary, the relevant provisions of domestic law should be interpreted in accordance with the Convention. If Sweden’s obligations under Article 5 § 5 could not be met by such an interpretation, the domestic courts should award compensation without the support of specific legal provisions. As concerned the determination of the level of compensation, the Supreme Court repeated that the Court’s case-law was a natural point of departure but also noted that account must be taken of the fact that different national conditions may lead to variations from one country to another in what should be regarded as a reasonable level of compensation.
In a judgment of 21 September 2007 (NJA 2007 p. 584), the Supreme Court held that the plaintiffs’ right to respect for their private life under Article 8 had been violated on the basis that a police decision on a medical examination of some of them had not been “in accordance with the law”. Having found that compensation for the violation could not be awarded directly on the basis of the Tort Liability Act, the Supreme Court held that there was no reason to limit the scope of application of the principle established in the above-mentioned cases of 9 June 2005 and 21 September 2007 to violations of Articles 5 and 6 of the Convention. In view of this and with reference to, inter alia, Articles 8 and 13 of the Convention and the Court’s case-law under these Articles, the Supreme Court concluded that the plaintiffs should be awarded non-pecuniary damage for the violation of Article 8. With regard to the levels of compensation, the Supreme Court concluded that they should not be too far removed from the levels which applied when awarding damages under the Tort Liability Act. Generally speaking these levels should, however, be compatible with the case-law of the Court. In the same case, Svea Court of Appeal had also concluded, in a judgment dated 12 January 2006, that there had been a violation of Article 8 and that an award for non-pecuniary damage should be made on the basis of the principle established in the case of 9 June 2005.
A further Supreme Court judgment of 28 November 2007 (NJA 2007 p. 891) concerned a claim for damages against the Swedish State on the basis of an alleged violation of Article 2 of the Convention relating to the suicide of the plaintiffs’ father while in detention. The Supreme Court concluded that the case revealed no violation of Article 2. However, in its reasoning leading to this conclusion, the Supreme Court noted, inter alia, that according to the Court’s case-law there was a right to an effective remedy under Article 13 connected to the State’s duty under the Convention to take measures to protect the lives of individuals in custody or who were otherwise deprived of their liberty, which should, in principle, include a possibility of obtaining compensation for damage. The Supreme Court referred in particular to the judgment in Keenan v. the United Kingdom (no. 27229/95, § 130, ECHR 2001III).
In May 2009 the Government decided to set up a working group on tort liability and the Convention to study the current legal situation. In December 2010 the working group submitted its report (Skadestånd och Europakonventionen, SOU 2010:87) to the Government. In the report it is proposed that the Tort Liability Act be amended in order to allow natural and legal persons to obtain damages from the State or a municipality for violations of the Convention. Such an action against public authorities would be examined by a general court which would need first to establish that a right provided by the Convention has been violated. The aim of the proposal is to provide a legal basis for granting non-pecuniary damage arising from disregard of the Convention and to fulfil, together with the other already existing legal remedies, Sweden’s obligations under Article 13 of the Convention.
In his comments on the above report, the Chancellor of Justice, on 7 July 2011, stated that, since the autumn of 2007 following the Supreme Court’s case-law developments (as set out above), he had dealt with a large number of requests from individuals for compensation on the basis of violations of the Convention. He estimated that he had dealt with roughly 1000 cases over the previous three years. During this time he had also represented the Swedish State in a number of cases before the civil courts concerning alleged violations of the Convention. A majority of the cases that he had dealt with had concerned non-pecuniary damage for excessive length of proceedings under Article 6 § 1 of the Convention. Since November 2009, he had received more than 400 such complaints and in more than half of them, he had found a violation and granted compensation. The level of compensation for non-pecuniary damage had been determined with reference to the Court’s case-law and varied between SEK 10,000 and SEK 30,000 (approximately EUR 1,100 and EUR 3,300). Furthermore, the Chancellor of Justice had dealt with a substantial number of cases (around 160) concerning the registration of individuals in the register of the Security Police. These cases had concerned one or more of Articles 8, 10, 11 and 13 of the Convention. There had also been other individual cases relating to alleged violations of Articles 5 and 7 of the Convention, among others.


ITEMID: 001-89902
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF TISHKEVICH v. RUSSIA
IMPORTANCE: 4
CONCLUSION: No violation of Article 6 - Right to a fair trial
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1936 and lives in Novyi Urengoy, a town in the Tyumen Region.
5. The facts of the case, as submitted by the parties, may be summarised as follows.
6. In 1998 the applicant sued Mr T. for damages. On 26 November 2001 the Oktyabrskiy District Court of Tomsk held for the applicant. Mr T. was absent from this hearing because he did not live at the address to which the summons had been mailed.
7. On 10 December 2001 the applicant collected the writ of enforcement from the court and submitted it to bailiffs for enforcement.
8. On 13 February 2003 the bailiffs returned the writ to the applicant, because it contained wrong information on Mr T.’s identity. The applicant asked the court to rectify Mr T.’s identity, and on 23 December 2003 the court issued a new writ of enforcement.
9. On 30 December 2003 the bailiffs instituted enforcement proceedings and on 26 January 2004 they attached Mr T.’s at in Tomsk.
10. On 17 September 2004 the bailiffs transferred the enforcement ﬁle to the service having territorial competence over Mr T.’s residence.
11. On 9 September 2004 the District Court restored for Mr T. the time-limit for supervisory review of the judgment. On 20 October 2004 the Tomsk Regional Court stayed the enforcement pending the supervisory review.
12. On 9 March 2005 the Presidium of the Tomsk Regional Court granted Mr T.’s application for supervisory review, quashed the judgment, and remitted it for a rehearing. The Presidium found that the District Court had gone beyond the applicant’s claims by adjusting the award for ination, and had failed to notify Mr T. of the proceedings.
13. On 23 June 2005 the District Court adjourned the proceedings for the applicant’s persistent failure to appear.
NON_VIOLATED_ARTICLES: 6


ITEMID: 001-85472
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF WILCZYNSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: 4. The applicant was born in 1936 and lives in Dębica.
5. On 9 July 1998 demarcation proceedings involving the applicant’s land were instituted by the Head of the District Office of the Town of Dębica (Kierownik Urzędu Rejonowego Miasta Dębica).
6. On 1 January 1999 an administrative reform was introduced in Poland and the Mayor of the Czarna District (wójt gminy Czarna) became the competent body for examination of the demarcation proceedings. However, the District Office of the town of Dębica neither informed the Mayor about the proceedings nor transferred the case file to the Mayor.
7. On 16 August 2002 the Czarna District Office received another motion for instituting demarcation proceedings involving the applicant’s land. The motion was transferred to the Mayor of the Czarna District.
8. On 14 October 2002 a second set of demarcation proceedings concerning the same piece of land was instituted by the Mayor of the Czarna District. Acting under Article 31 section 1 of the 1989 Geodetic and Cartographic Act (ustawa z 1989 r. Prawo geodezyjne i kartograficzne) the Mayor appointed a geodesist, Mr C.B., to conduct the demarcation proceedings. None of the parties to the proceedings informed the Mayor that the same proceedings had already been instituted in 1998.
9. On 24 January 2003 the Czarna District Office received the applicant’s request for the adjournment of the demarcation proceedings because of his state of health. The appointed geodesist agreed to adjourn the proceedings and fixed the new date for 10 February 2003.
10. By letter of 31 January 2003 the Mayor of the Czarna District informed the applicant that due to the necessity of obtaining some additional information, the proceedings in respect of the applicant’s motion for a stay of the demarcation proceedings and the exclusion of the geodesist C. B. had been adjourned until 11 February 2003.
11. On 11 February 2003 the Czarna District Office received the applicant’s request for the adjournment of the demarcation proceedings fixed for 10 February 2003 because of the applicant’s medical appointment at a hospital in Kraków. The applicant also requested that the conduct of the demarcation proceedings be adjourned until spring time. He submitted that, given his health problems, he could not take part in any demarcation proceedings conducted in winter.
12. Further, by letter of 12 February 2003 the Mayor of the Czarna District informed the applicant that due to the necessity of obtaining some additional information, the proceedings in the applicant’s case had been adjourned once again until 4 March 2003.
13. On 14 February 2003 the applicant lodged a request with the Self-Government Board of Appeal to have the decision of 14 October 2002 declared null and void. The applicant submitted that the institution of the demarcation proceedings in 2002 was illegal as the same proceedings had already been instituted in 1998 and had not yet been terminated.
14. On 24 February 2003 the Self-Government Board of Appeal refused to examine the applicant’s request of 14 February 2003 as it found that such a request was not available to the applicant.
15. On 7 March 2003, the applicant applied to the Self-Government Board of Appeal asking for a re-examination of his request of 14 February 2003.
16. On 9 April 2003 the demarcation proceedings that had been instituted on 9 July 1998 were discontinued at the request of another party. The applicant appealed to the Self-Government Board of Appeal against this decision.
17. On 22 April 2003 the Self-Government Board of Appeal re-examined the applicant’s request of 14 February 2003 and dismissed it. The applicant lodged a complaint with the Regional Administrative Court.
18. On 5 June 2003 the Self-Government Board of Appeal quashed the decision of 9 April 2003 and remitted the case for reconsideration.
19. On 25 February 2005 the Regional Administrative Court (which had assumed the jurisdiction of the Supreme Administrative Court in the matter) dismissed the applicant’s complaint against the decision of 22 April 2003. The applicant requested to have this judgment together with its written grounds served on him. He was requested by the Regional Administrative Court to pay court fees for receiving the written grounds of the judgment.
20. Subsequently, the applicant lodged several requests for exemption from court fees.
21. On 25 March 2005 the Regional Administrative Court refused to exempt the applicant from court fees. The applicant lodged an interlocutory appeal (sprzeciw) with the Regional Administrative Court.
22. On 10 June 2005 the Regional Administrative Court dismissed the applicant’s interlocutory appeal. The applicant appealed against this decision.
23. On 18 October 2005 the Supreme Administrative Court dismissed the applicant’s appeal.
24. On 10 May 2006 the Mayor’s Office discontinued the proceedings instituted on 14 October 2002. In its reasoned grounds it justified its decision with reference to the Regional Administrative Court’s refusal to “lend” the case file with the result that it could not be examined by the Mayor’s Office. The applicant appealed.
25. On 25 July 2006 the Self-Government Board of Appeal quashed the decision of 10 May 2006.
26. On 17 January 2007 the Mayor discontinued the demarcation proceedings instituted on 14 October 2002.
27. On the same date the Mayor approved the demarcation border established by the geodesist C.B. in the course of the demarcation proceedings that has been instituted in 1998. The latter decision was not subject to appeal; however the party challenging the established border was entitled to request the Dębica District Court to examine the case. It results from the parties’ submissions that the applicant availed himself of this possibility. The proceedings before the Dębica District Court are still pending.
28. On 7 March 2003 the applicant lodged a complaint about the inactivity of the Mayor’s Office with the Self-Government Board of Appeal.
29. On 23 April 2003 the Self-Government Board of Appeal discontinued the proceedings initiated by the applicant’s complaint in view of the fact that the proceedings on the merits had been discontinued. The applicant lodged a complaint with the Supreme Administrative Court.
30. On 8 October 2003 the Supreme Administrative Court rejected the applicant’s complaint against the decision of 23 April 2003 as it found that such complaint was not available in the applicant’s case.
31. On an unknown date the applicant lodged another complaint about the inactivity of the Mayor’s Office with the Self-Government Board of Appeal.
32. On 15 March 2006 the Self-Government Board of Appeal found the applicant’s complaint well-founded and fixed a 30-day time limit for the administrative authorities to deal with the case.
33. For a presentation of domestic law, see: Kaniewski v. Poland, no 38049/02, 8 February 2006; Koss v. Poland, no 52495/99, 28 March 2006.
34. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”), are stated in the Court’s decisions in the cases of Charzyński v. Poland no 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no 61444/00, §§ 34-46, ECHR 2005-V.
VIOLATED_ARTICLES: 6


ITEMID: 001-119824
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: KOCHIEVA AND OTHERS v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens
TEXT: 1. The first applicant, Mrs L. Kochieva, was born in 1968. The second and the third applicants, Ms K. Gobozova and Mr M. Gobozov, are her children, born in 1991 and 1994. The applicants are all Russian nationals. They were represented before the Court by Mr D. Ahl, a lawyer practising in Stockholm.
2. On an unknown date, the applicants arrived in Sweden from Finland and applied for asylum and residence permits. Before the Migration Board (Migrationsverket) they claimed, inter alia, the following. They originated from South Ossetia and feared persecution due to the internal armed conflict there. The first applicant’s former husband had been engaged in the resistance movement. They had last met at the end of the 1990s. Some time later, she had met another man who had fought for the South Ossetian army and who had been shot dead. Subsequently, the applicants’ house had been shot at on several occasions and they had been unable to obtain any protection from the domestic authorities.
3. On 23 December 2008, the Migration Board rejected the applications and decided that the applicants were to be expelled to either Russia or Georgia. It stated that the first and the second applicants’ passports had been submitted to the Board anonymously and that these showed that the applicants were Russian nationals. Moreover, the passports contained Schengen visas issued by the Finnish Consulate in St Petersburg and stamps which showed that they had entered Finland by car in September 2007. However, it noted that the first applicant had undergone a language test, according to which it was found probable that she originated from South Ossetia. Moreover, the first and second applicants had also submitted documents which they claimed were temporary documents issued by the South Ossetian authorities and which functioned as internal passports for Georgia. Consequently, their applications were examined on the basis of a return to either Russia or Georgia. In the Board’s view, there were no indications that the applicants would risk persecution or other ill-treatment upon return to Georgia due to their South Ossetian ethnicity. It further noted that the family had not claimed that they needed international protection in relation to Russia. Finally, the Board noted that there were no particularly distressing circumstances in the case since the family had no strong connection to Sweden and it had not appeared that any person in the family suffered from serious health problems.
4. The applicants appealed to the Migration Court (Migrationsdomstolen), maintaining their claims and adding the following new information. The Russian passports were false and the family’s real last name was Hubaeva. The family had come to Sweden with the help of smugglers but had been unable to pay them the full amount demanded, for which reason the smugglers had submitted false passports to the Swedish authorities as revenge. The first applicant had herself ordered the passports in North Ossetia, which were falsifications of authentic Russian passports. Consequently, it had been wrong of the Board to base its examination on these passports and their asylum claims should be tried only against Georgia and in particular South Ossetia. In this respect, they asserted that South Ossetia was an unsafe place for a single mother with children and that they had nothing to return to since their house had been destroyed in the war between Georgia and Russia. The children could not be guaranteed schooling or good health care there. Moreover, the first and second applicants risked gender-related persecution and possibly even trafficking.
5. As concerned the family’s health, it had deteriorated since the Migration Board’s rejection. They submitted a medical certificate from February 2010 concerning the third applicant, which stated that he had been receiving treatment for depression at the Child and Youth Psychiatric Centre (Barn- och ungdomspsykiatrin - BUP) since October 2009. Furthermore, he had been hospitalised for a shorter period due to somatic symptoms, depression and refusal to eat. They further submitted a certificate from June 2010 and issued by a psychotherapist at BUP which stated that the third applicant was in a state of apathy and spent all his time in bed, which was confirmed by a medical certificate from October 2010. Regarding the second applicant, a medical certificate from February 2010 issued by a psychiatrist stated that she had been in contact with the psychiatric unit since April 2008 due to anxiety and tendencies to try to isolate herself from the outside world. In January 2009 her health had deteriorated and she had refused to eat. In October the same year, she had been hospitalised due to depression and malnutrition.
6. On 4 November 2010, the Migration Court upheld the Board’s decision and ordered that the applicants be expelled to Russia. At the request of the court, the Board had contacted the Swedish Consulate in St Petersburg to verify the authenticity of the passports. The results indicated that the passports and the visas were authentic and that they had not been tampered with. Moreover, the Finnish Consulate in St Petersburg had confirmed that the first and the second applicants had been granted visas for the relevant period. Consequently, the Migration Court found it substantiated that the applicants had used their passports when entering Finland and noted that the first applicant had stated that she had ordered them herself. As to the other identity documents submitted by the applicants, the court found them to be of a simple nature and noted that they contained different names from those in the passports. Therefore, in the court’s view, the applicants had not substantiated any nationality other than Russian and their applications should accordingly be examined only on the basis of a return to Russia. Turning to the applicants’ personal situation, the Migration Court found no reason to believe that the applicants would risk any persecution or discrimination due to their South Ossetian ethnicity and noted that they had not submitted any other grounds for international protection against Russia.
7. As concerned the applicants’ ties to Sweden and their state of health, the Migration Court observed that the applicants had only spent three years in Sweden and noted that it could not be considered contrary to the children’s best interests to accompany their mother back to Russia. Moreover, since the medical documentation relied on by the applicants did not contain any information about the prognosis of the applicants’ need for health care, or the consequences if no care were provided, the court found them to have low evidentiary value. It also appeared from country information submitted in the case that health care was available in Russianted leave to remain in Sweden.
8. The applicants appealed to the Migration Court of Appeal (Migrationsöverdomstolen) which, on 30 September 2011, refused leave to appeal.
9. Subsequently, the applicants requested the Migration Board to reexamine their case, arguing that there were impediments to the enforcement of the expulsion order. They claimed that they all suffered poor health and that medical care in Russia was insufficient. They further referred to a car accident in May 2011, in which the first applicant’s youngest son and the second and third applicants’ younger brother, M., had died, and the fact that he was buried in Sweden. They submitted new medical certificates regarding the second and the third applicants.
10. On 19 December 2011, the Migration Board rejected the application. It noted that the health of the third applicant had recently improved since he was no longer being tube fed and had started talking and interacting socially. As concerned the second applicant, it observed that her health was likewise better as her depression was considered mild and no longer serious. In the Board’s view, there was sufficient health care available in Russia for the applicants. When taking these circumstances into account, and despite the fact that M. was buried in Sweden, it found no impediments to the enforcement of the expulsion order.
11. The applicants appealed to the Migration Court which, on 16 January 2012, upheld the Board’s decision in full.
12. In September 2012 the applicants again requested the Migration Board to re-examine their case, invoking the same grounds as previously and adding that the first applicant was mentally unstable and under severe stress with suicidal tendencies. The third applicant was at risk of falling into a state of apathy.
13. On 31 October 2012, the Migration Board rejected the request on the grounds that the applicants had invoked no new circumstances of importance to justify altering the previous decisions. Moreover, it found that there were no impediments to their expulsion.
14. The applicants lodged yet another request with the Migration Board to re-examine their case, invoking their continued ill-health and the fact that M. was buried in Sweden. They submitted the same medical certificates as submitted to the Court and referred to below, §§ 19-21).
15. On 23 January 2013 the Migration Board rejected the request. It noted that the applicants had not invoked any new circumstances which had not already been examined by the Board. As concerned the applicants’Sweden.
16. On 26 November 2012, the applicants requested the Court to apply Rule 39 of the Rules of Court in order to stop their expulsion to Russia.
17. On 5 December 2012, the Acting President of the Section to which the case had been allocated refused the applicants’ request for interim measures.
18. Before the Court, the applicants submitted new medical certificates concerning their state of health, issued by a Chief physician and specialist in psychiatry.
19. As regards the first applicant the certificates, dated 6 September 2012, 28 November 2012 and 5 December 2012 stated, inter alia, that her state of health had markedly worsened after the Migration Board’s rejection of the asylum request in December 2008, making her increasingly anxious and worried about her children’s ill-health. Since the loss of her youngest son, M., in May 2011, the first applicant’s mental health had visibly worsened and she had persistently sought help. She questioned her capabilities as a mother and blamed herself for what had happened to her family. She was suffering from a serious psychological disorder with signs of depression and posttraumatic stress disorder (PTSD) for which she was in need of long-term medication as well as therapeutic treatment. She had become increasingly depressive and suicidal with an imminent risk of destructive actions. She received a variety of medication.
20. Turning to the second applicant, the certificate dated 6 December 2012 stated, inter alia, that she had suffered from recurrent serious depression and difficulties sleeping and eating. She had been treated with medication for anxiety but had shown tendencies to overdose which had made physicians cautious to prescribe medication. Currently, the depression was considered mild but she still had panic attacks, was anxious and felt hopeless about her life situation.
21. As regards the third applicant, the certificate dated 6 December 2012 stated, inter alia, that he had been treated periodically at BUP for deep depression which had worsened since his brother’s death. He had lost weight and no longer had any interest in life. He had difficulties eating and sleeping properly and had recurring rages where he hit his head against the table and beat his fists against the wall. At present, he was heading for a breakdown and could see no other option than to end his life. He probably had a personality disorder due to extensive periods of stress with minimal possibilities to control his own acts. He was in need of long-term treatment.
22. The basic provisions mainly applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the 2005 Aliens Act (Utlänningslagen, 2005:716). It defines the conditions under which an alien can be deported or expelled from the country, as well as the procedures relating to the enforcement of such decisions.
23. Chapter 5, section 1, of the Aliens Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, section 1, of the 2005 Act, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, section 2, of the Aliens Act).
24. Moreover, if a residence permit cannot be granted on the above grounds, a permit may nevertheless be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances (synnerligen ömmande omständigheter) as to allow him or her to remain in Sweden (Chapter 5, section 6, of the Aliens Act). During this assessment, special consideration should be given to, inter alia, the alien’s state of health. In the preparatory works to this provision (Government Bill 2004/05:170, pp. 190-191), life-threatening physical or mental illness for which no treatment can be given in the alien’s home country could constitute a reason for granting a residence permit.
25. According to a provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, section 1, of the Aliens Act). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, section 2, of the Aliens Act).