ITEMID: 001-22258
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: WEJRUP v. DENMARK
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is a Danish national, born in 1952 and living in Veksø, Denmark. He is represented before the Court by Mr A. Hvass, a lawyer practising in Copenhagen. The respondent Government are represented by their Agent Mrs Nina Holst-Christensen, the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1988 the applicant was appointed managing director of finance in Nordic Feather Factory Ltd Holding Company (Nordisk Fjerfabrik Holding Aktieselskab), henceforth called NFHA, the ultimate holding company in a holding group, consisting of more than 50 companies, at locations throughout the world. NFHA experienced financial difficulties and suspended its payments in November 1990. It went bankrupt in March 1991.
In this connection a police investigation was carried out which resulted in the criminal prosecution of 4 of the top executives in NFHA, including the applicant, and in addition 3 accountants. The applicant was charged with aggravated fraud and offences concerning misleading accounting in a court session held on 18 February 1991 in the Copenhagen City Court (Københavns byret).
Investigations were carried out in Sweden, England, Wales, the Isle of Man, Jersey, USA, the Netherlands, Switzerland, Liechtenstein, Hong Kong and Singapore.
As part of the investigations, the police asked accountants to draw up statements of account for the period 1985 until 1990. The accounts were submitted on 17 September and 26 November 1993, and as they were comprehensive the expenses incurred thereby amounted to more than 17 million Danish kroner (DKK).
On 23 September 1993 the prosecution submitted an indictment consisting of eight counts with which the applicant, the above three other top executives in NFHA, as well as the three accountants were charged. Counts 1-3 concerned the three other top executives, counts 4-7 concerned the applicant only and count 8 concerned the three accountants.
Count number 4 concerned, inter alia, the Holding Company’s accounts for the period 1 April 1989 until 31 March 1990, which were sent to the Copenhagen Stock Exchange, and which the applicant was accused of having manipulated, thereby converting a deficit of DKK 544 million, to a surplus of DKK 55 million, and the net capital of DKK 122 million to DKK 886 million. Furthermore, the net capital contained fictitious assets and questionable transactions from previous years amounting to at least DKK 598 million.
Preliminary court sessions were held in October and November 1993 concerning the mental health of one of the top executives. Subsequently his case was separated from the others.
At a hearing on 10 December 1993 the scheduling of the trial was determined to start on 22 November 1994. Due to its volume it was expected that the trial would last 100 days.
During the scheduling period several pleadings were submitted in order to clarify procedural questions, including objections to the statements of account and the appointment of a co-counsel to one of the co-accused top executives, and hearings on these issues were held on 15 December 1993, 4 March 1994 and 11 October 1994.
The trial commenced on 22 November 1994, it was conducted two days a week, and lasted for more than 14 months. The applicant, assisted by counsel, the co-accused and 11 witnesses were heard. The documentary evidence consisted of the above statements of account, an opinion of 20 February 1995 from the Association of Chartered Accountants (Foreningen af Statsautoriserede Revisorer) and a considerable amount of other documentary evidence, which was presented in court during its sessions. The court records ran to approximately 800 pages.
By judgment of 20 August 1996, which ran to 220 pages, the City Court of Copenhagen convicted the applicant and sentenced him to 2 years’ imprisonment. In addition, for a period of 5 years he was deprived of his right to establish or to become a manager and/or a member of a directors’ board in a limited company, or in a company or an association which would require public approval. Also, he was ordered to pay costs in the amount of DKK 400,000. The two co-accused top executives were sentenced to 4 years’ and 2½ years’ imprisonment respectively, deprived of the above right as well, and ordered to pay costs. The accountants were each sentenced to fines equivalent to DKK 40,000, and each ordered to pay costs in the amount of DKK 40,000.
As regards the order to pay costs the City Court stated in as far as relevant:
“... the prosecution has defrayed expenses in the amount of DKK 17,174,575 to the firm of accountants ... for auditing assistance during the case, including preparation of Audit Report I and II. When determining the share of the legal costs payable by the defendants, the court must make a distribution between the convicted offenders and the Treasury taking into account the proportion between the charge and the outcome of the case. Furthermore, in the light of the quite extraordinary level of legal costs in this case, the defendants’ circumstances must be particularly taken into account together with the fact that the consolidation of the cases against [the applicant and the two top executives] and the cases against the accountants should not be detrimental to the defendants ...”
On 28 August 1996 the applicant appealed against the judgment to the High Court of Eastern Denmark (Østre landsret). Also the co-accused top executives appealed against the judgment, and the prosecution appealed against the judgment in respect of all the accused.
Preliminary court sessions were held on 14 October 1996 and 10 February 1997 during which requests from two of the coaccused for a cocounsel were decided, and discussions went on as to the scheduling of the trial and practical problems related thereto. The High Court offered the parties to sit three days a week, but in accordance with counsels’ recommendation, endorsed by the prosecutor, it was agreed that only two weekly hearings were to be held. As the permanent courtroom was considered too small it was agreed that the High Court should rent a larger room. The trial, which was expected to last for 50 days, was scheduled to commence on 5 November 1997. Further preliminary hearings were held on 13 August and 31 October 1997 concerning procedural matters such as the use of the statements of account, whether the prosecution’s appeal relating to one of the co-accused was time-barred, and whether an assistant employed for the case by the prosecution was partial.
The trial in the High Court commenced on 5 November 1997, it lasted almost 10 months and was terminated by judgment of 18 September 1998 in which the court upheld the applicant’s conviction and sentence, but reduced the costs that the applicant had to pay to DKK 200,000. Also the co-accused top executives’ conviction and sentences were upheld, but their shares of the costs were reduced as well. Two of the accountants were convicted to a greater extent than before the City Court, one to a lesser extent.
Before the High Court the applicant and all the co-accused complained that Article 6 § 1 of the Convention had been violated due to the length of the proceedings. In its judgment the High Court stated, inter alia, that a duration of 7 years and 7 months in a case such as the present one with such an extraordinary extent and considerable complexity did not in itself amount to a violation of Article 6 § 1 of the Convention. Furthermore, it approved of the prosecution’s decision to join the cases against the accused with the aim of economising the legal process. However, in joining the cases the court found that the proceedings had been unduly prolonged in violation of Article 6 § 1 of the Convention in respect of the three accountants who had only played a minor role in the criminal activities. Thus, as to one accountant, his sentence was upheld, as to the remaining two their sentences were reduced, and they were all exempted from paying costs. As regards the applicant and the co-accused top executives the court held:
“As to the question of whether the case as such should have been terminated earlier, the court notes first of all that the investigation was carried out in respect of all counts at the same time and there is no reason to criticise its extent or duration.
As to the court proceedings they were arranged in agreement with counsels for the defence in both court instances, and there is no reason to criticise the duration hereof or the periods spent on the deliberations and the drawing up of the judgment.
Finally as to the period of scheduling i.e. the period from when the case was brought before the court until the trial actually commenced, this amounted to 1 year and 2 months both in the City Court and in the High Court. Of course this period can be expected to last longer in complex cases with several accused than in other cases, but in the present case the length of this specific period may also be imputed to the lack of resources in the court system.
Making an overall assessment of the lengthy proceedings, which only to a limited extent can be imputed to ‘dead periods’, namely the excessive periods of scheduling, the court does not find a violation of Article 6 § 1 of the Convention in relation to [the two named top executives] or the applicant, who are accused and convicted of aggravated fraud.”
As regards the sentence imposed on the applicant and the two co-accused top executives the High Court held inter alia:
“the High Court can concur entirely with ...the City Court ... regarding the penal merits of the counts adjudicated and the other circumstances emphasised in the sentencing. In this connection, the High Court states that the fraud is extremely serious and that - apart from the fact that it was committed under heavy pressure from the dominant Chairman of the Board of Directors - mitigating circumstances are scarce. On this basis it might be considered to increase the sentences somewhat for [the applicant and the two co-accused top executives], but in the view of the burden on [these] caused by the length of the proceedings, the court approves the prison sentences ...”
As regards the order that the applicant pay costs the High Court stated:
“... it is decided, partly in view of the statement in the City Court judgment, partly and particularly in view of the statement above regarding the length of the proceedings ... [that the applicant shall pay DKK 200,000 to the Treasury]“
On 14 December 1998 the Leave to Appeal Board (Procesbevillingsnævnet) rejected the applicant’s request for leave to appeal to the Supreme Court (Højesteret).


ITEMID: 001-118339
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF H. AND B. v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Afghanistan)
JUDGES: David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Ledi Bianku;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 7. The facts of the case, as submitted by the parties, may be summarised as follows.
8. The first applicant, originally from Wardak province in central Afghanistan, arrived in the United Kingdom on 30 October 2008 and claimed asylum on 3 November 2008.
9. The basis of his asylum claim was his fear of both the Taliban and Hizb-i-Islami (“HII”) due to his perceived connections with the Afghan Government and the United Nations (“the UN”). He claimed that a year after his birth he had moved to Kabul with his family and that, in 1996, he and his family had emigrated to Pakistan owing to problems that they had had with the Taliban primarily as a result of their Hazara ethnicity. They had returned to Kabul in 2001 where they had lived until his departure from Afghanistan. The first applicant claimed that between 2004 and 2005, he had worked as a driver distributing leaflets for the elections and that, in that capacity, he had regularly worked with the United Nations Assistance Mission in Afghanistan (“UNAMA”). From 2005 until 2008, he had worked as a driver in Kabul for the United Nations Office for Project Service, a branch of the United Nations Development Programme (“UNDP”). In August 2008, ten days before he had left Afghanistan, he had received a telephone call in the Pashto language from an unknown person (who he had presumed to be a member of the Taliban) threatening his life and that of his family unless he stopped working with “foreigners and non-Muslims”. He had spoken to his friends about the phone call but had initially decided to ignore it. A few days later, he claimed that the Taliban had come to his home, had made further threats against him and, in his absence, had kidnapped his cousin. The first applicant claimed that he had been advised on the phone by his family to leave Afghanistan immediately for his own safety. He had therefore fled to Pakistan, where his family had joined him five days later. However, in Pakistan he had felt that he remained a Taliban target and so he had arranged his journey through Europe to the United Kingdom.
10. On 17 December 2008, the Secretary of State refused the first applicant’s asylum application considering that he had fabricated aspects of his account and that his credibility was undermined by his failure to claim asylum in the European countries that he had passed through on his journey. Whilst it was acknowledged that the Taliban had been responsible for attacks on Hazara in the past, it was not accepted that the first applicant had ever been targeted by the Taliban or that he would be at risk in the future. It was similarly accepted that there may well have been incidents of the targeting of those working for foreign or international organisations within Afghanistan, but it was considered to be pure speculation that the threatening phone call that the first applicant had received in August 2008 had been from the Taliban. Further, it was considered to be inconsistent that the first applicant would have been able to work for the UN for three years without any incidents occurring earlier. Even if the first applicant’s cousin had been kidnapped, there was nothing to suggest that the incident related to the first applicant’s involvement with the UN or a systematic campaign against him. Even taking the first applicant’s claim at its highest, it was noted that the first applicant had failed to seek assistance from the Afghan authorities, the UN or any other party in Afghanistan. It was therefore considered that he had failed to demonstrate that a sufficiency of protection was not available to him in Afghanistan or that he could not internally relocate to another area of Kabul for safety.
11. The first applicant appealed against the refusal of his asylum claim and, in a determination published on 4 January 2010, the then Asylum and Immigration Tribunal (“the AIT”) dismissed his appeal. The immigration judge accepted that the first applicant was of Hazara ethnicity and that it was probably true that he had been employed by the UNDP as a driver from 2005 until 2008. The immigration judge also accepted that the first applicant had probably received a veiled threat in a telephone call from the Taliban, which he had decided initially to ignore. He considered that such action demonstrated that the first applicant had had no fear of the Taliban at that time. The immigration judge did not believe that there was any truth in the suggestion that the first applicant had been targeted by the Taliban who had kidnapped his cousin instead of him. The fact that the first applicant had been able to go home and travel to Pakistan before fleeing to Europe was found to indicate that he had not been under any specific threat from the Taliban. Further, the immigration judge did not believe that the first applicant would be known throughout Afghanistan as a UN driver. Finally, even if the whole of the first applicant’s account was true, the immigration judge considered that there was no reason why he could not safely relocate within Afghanistan, particularly to Kabul to where he would be removed in any event. In sum, the immigration judge did not accept that there were substantial grounds for believing that the first applicant would face a real risk of suffering serious harm if he were returned to Afghanistan.
12. The first applicant applied for reconsideration arguing that he would be at risk because of the level of violence in Afghanistan. On 26 January 2010, a Senior Immigration Judge refused his application for reconsideration noting that the first applicant had not sought to challenge any of the immigration judge’s findings in his case but had instead sought to rely on Article 15 of the Qualification Directive (see paragraphs 36-37 below).
13. On 15 June 2010, the High Court refused a further application for reconsideration, noting the findings of the Country Guidance determination of GS (Article 15(c): indiscriminate violence) Afghanistan CG [2009] UKAIT 00044 (see paragraph 29 below) and concluding that it would not be unduly harsh or unreasonable to expect a young man, like the first applicant, to return to Kabul.
14. The second applicant left Afghanistan on 30 April 2011 and arrived in the United Kingdom on 2 June 2011.
15. He claimed asylum on 3 June 2011 on the basis of his fear of the Taliban due to his work as an interpreter for the United States armed forces and the International Security Assistance Force (“ISAF”) from February 2009 until April 2011. He submitted letters in support from various commanding officers in the US forces which confirmed that he had worked with US forces in Kunar province in north-eastern Afghanistan. He claimed that he had received threats from the Taliban including a threat to behead him if he continued to work with foreigners. He also claimed that, in October 2010, he had been the interpreter involved in the search and rescue operation of an aid worker, which had ultimately led to the aid worker’s death and the death of eight Taliban members. He claimed that he had located the aid worker using a scanner and that the Taliban were aware of the significance of his role in that operation which had heightened their adverse interest in him. The second applicant had eventually fled Afghanistan after seeing armed Taliban outside his house. The second applicant additionally claimed that he would not be able to relocate to Kabul for safety because he had relatives who lived there who were involved in the HII and who would seek to forcibly recruit him into their forces.
16. On 20 June 2011, the Secretary of State refused his asylum application. It was accepted that he had worked as an interpreter for US forces in Afghanistan. However, it was not accepted that the second applicant had been involved in the search for the aid worker given that the information that he had given regarding the same contradicted the information which was available in the public domain. Additionally, it was not accepted that the second applicant had received threats as he had claimed from the Taliban given, inter alia, the discrepancies in his account over the dates of the same; and the fact that it was not plausible that the Taliban would have continued to threaten him rather than harm him, even after he had continued to work as an interpreter despite their earlier warnings. It was also considered that the fact that he had continued to work for US forces, despite the threats against him, was at odds with his claimed fear of the Taliban. Furthermore, it was not accepted that Taliban members had attended his home to kill him in April 2011 given that they had not fired at him and that he had been able to escape. The second applicant’s credibility was also considered to be undermined by the fact that he had failed to claim asylum in France, despite having spent twenty-two days there on his way to the United Kingdom.
17. In sum, even taking the second applicant’s claims at its highest, it was not accepted by the Secretary of State that his fear of the Taliban was well-founded because it was not accepted that he had had any real difficulties with them in the past. Furthermore, it was considered that he had failed to establish a sustained and systemic failure of state protection on the part of the Afghan authorities and he could therefore seek protection from the Afghan authorities against the Taliban. Finally, it was considered that he could internally relocate to Kabul for safety if necessary as a fit and healthy man of twenty-three years of age. In that regard, it had not been accepted that he was at any risk of being forcibly recruited by HII given that he was uncertain whether or not his relatives were even still alive and because such a fear was entirely speculative.
18. The second applicant appealed against the refusal of his asylum claim and, in a decision of 30 June 2011, the First-tier Tribunal (Immigration and Asylum Chamber) (“the First-tier Tribunal”) dismissed his appeal. The immigration judge accepted that the second applicant had worked as an interpreter for US forces in Kunar province, had probably used a scanner and had been given a weapon for his own protection given that he had been working in a volatile area.
19. However, the immigration judge did not accept that the second applicant had been involved in the rescue operation of the aid worker and found that he had fabricated that part of his claim and spoken of a well known and well publicised incident to embellish a claim that he would be at enhanced risk upon return to Afghanistan. In that regard, the immigration judge considered, inter alia, that the second applicant would have known the aid worker’s surname had he been so involved in the search operation; that there were inconsistencies between his account and the account set out in newspaper articles; and that the dates that he had given were inaccurate and inconsistent with when the rescue of the aid worker had taken place. Furthermore, the immigration judge considered that, if the second applicant had had such a pivotal role in the operation, the US forces would have provided a more recent and specific letter of recommendation rather than the general and comparatively out of date letters that he had submitted at his appeal. Furthermore, the immigration judge did not accept that the second applicant would have been the only interpreter involved in such a rescue operation, given the sensitivity of the same, the number of personnel involved and the number of villages that had been searched. The immigration judge also found that the second applicant had not given a credible explanation as to how the Taliban would have been aware that he had been the interpreter who had identified the location of the aid worker and that he had been inconsistent about when he had allegedly received threats from the Taliban.
20. The immigration judge further entirely disbelieved that there would be any risk to the second applicant in Kabul from members of his family who would force him to join HII and considered that that issue had been an embellishment of his claim. In that regard, the immigration judge noted that the second applicant had not submitted any evidence regarding the same and that in his asylum interview he had stated that those relatives were missing and may even have died.
21. The immigration judge commented that during the course of the hearing he had found the second applicant to be an untruthful witness who had been anxious to give a rehearsed story.
22. Additionally, the immigration judge considered the second applicant’s claim with reference to the country guidance determination of GS (see paragraph 29 below) and stated that he had considered with care whether the second applicant would fall within an enhanced risk category because of his work as an interpreter for the US forces but had concluded that that could not be considered to be the case given that many Afghan nationals would have worked for the US and international forces. The immigration judge further considered that, as a young man in good health who had been able to travel independently from Afghanistan, it was not likely to be unduly harsh or unreasonable to expect him to relocate to Kabul particularly given that he had married sisters apparently living safely there. Finally, the immigration judge considered that the second applicant’s failure to claim asylum in France damaged his credibility.
23. On 6 July 2011, a Senior Immigration Judge refused an application for permission to appeal to the Upper Tribunal finding that, in a very careful and detailed determination, the immigration judge had given cogent and sustainable reasons, which had been fully open to her on the evidence, for concluding that the second applicant had not left Afghanistan because of persecution and that he could return there without facing a real risk of serious harm. The immigration judge had given ample justification for the adverse credibility findings she had made and had adequately explained why the second applicant would not be at risk in Kabul, to where he could viably relocate.
24. Sections 82(1) and 84 of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against an immigration decision made by the Secretary of State for the Home Department, inter alia, on the grounds that the decision is incompatible with the Convention.
25. Appeals in asylum, immigration and nationality matters were until 14 February 2010 heard by the AIT. Section 103A of the Nationality, Immigration and Asylum Act 2002 provided that a party to an appeal could apply to the High Court, on the grounds that the AIT had made an error of law, for an order requiring the AIT to reconsider its decision on the appeal. The High Court could make such an order if it thought that the AIT may have made an error of law. All applications for reconsideration went through a “filter procedure”, so that an application for reconsideration was first made to an authorised immigration judge of the AIT. If the immigration judge refused to make an order for reconsideration, the applicant was able to renew the application to the High Court, which would consider the application afresh.
26. Since 15 February 2010, appeals in asylum, immigration and nationality matters have been heard by the First-tier Tribunal. Section 11 of the Tribunals, Courts and Enforcement Act 2007 provides a right of appeal to the Upper Tribunal, with the permission of the First-tier Tribunal or the Upper Tribunal, on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision.
27. Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.
28. Country guidance determinations of both the former AIT and the Upper Tribunal are treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the AIT or Upper Tribunal that determined the appeal. Unless expressly superseded or replaced by a later country guidance determination, country guidance determinations are authoritative in any subsequent appeals so far as that appeal relates to the country guidance issue in question and depends upon the same or similar evidence.
29. In the country guidance determination of GS (Article 15 (c) : Indiscriminate violence) Afghanistan CG [2009] UKAIT 00044, of 15 October 2009, the then AIT held that there was not in Afghanistan such a high level of indiscriminate violence that substantial grounds existed for believing that a civilian would, solely by being present there, face a real risk which threatens the civilian’s life or person, such as to entitle that person to the grant of humanitarian protection, pursuant to Articles 2(e) and 15(c) of the Qualification Directive (see paragraphs 36-37 below).
30. In HK and others (minors – indiscriminate violence – forced recruitment by Taliban – contact with family members) Afghanistan CG [2010] UKUT 378 (IAC), the Upper Tribunal, in a determination dated 21 October 2010, concluded, inter alia, that the evidence as to the level of indiscriminate violence affecting civilians generally in Afghanistan which had become available since GS was not sufficient to show that the guidance given by the AIT in GS was no longer to be regarded as valid.
31. In AA (unattended children) Afghanistan CG [2012] UKUT 00016 (IAC), published on 1 February 2012, the Upper Tribunal found that there could be no doubt that the material before it revealed a deterioration in the security situation in Afghanistan since HK and others. However, the Upper Tribunal found that there was no evidence to suggest that there was any material difference to the risk to which the adult civilian population was subject in Afghanistan.
32. In AK (Article 15(c)) Afghanistan CG [2012] UKUT 00163 (IAC), promulgated on 18 May 2012, the Upper Tribunal reconsidered the evidence as to the applicability of Article 15(c) of the Qualification Directive (see paragraphs 36-37 below) and the level of indiscriminate violence affecting ordinary civilians which had become available since GS. In its examination, the Upper Tribunal examined a large amount of country of origin information, including that set out below at paragraphs 41-49 and paragraphs 53-58. With regard to Kabul, the Upper Tribunal found that:
“As regards Kabul, even confining attention to Kabul city, given the fact that this has a reported population of around 5 million and that Kabul province does not feature in any list of the most violent provinces, the argument for any engagement of the Article 15(c) threshold, if based primarily on civilian deaths, is even weaker: according to the 2011 UNAMA report, the number of civilian deaths in Kabul in 2011 was 71. We remind ourselves that the population of Kabul is around 5 million.”
In relation to Afghanistan as a whole, the Upper Tribunal concluded as follows:
(i) This decision replaces GS (Article 15(c): indiscriminate violence) Afghanistan CG [2009] UKAIT 00044 as current country guidance on the applicability of Article 15(c) to the on-going armed conflict in Afghanistan. ...
(ii) Despite a rise in the number of civilian deaths and casualties and (particularly in the 2010-2011 period) an expansion of the geographical scope of the armed conflict in Afghanistan, the level of indiscriminate violence in that country taken as a whole is not at such a high level as to mean that, within the meaning of Article 15(c) of the Qualification Directive, a civilian, solely by being present in the country, faces a real risk which threatens his life or person.
(iii) Nor is the level of indiscriminate violence, even in the provinces worst affected by the violence (which may now be taken to include Ghazni but not to include Kabul), at such a level...”
33. In the country guidance determination of PM and Others (Kabul – Hizb-i-Islami) Afghanistan CG [2007] UKAIT 00089, the then AIT held, in respect of the ability to internally relocate to Kabul, as follows:
“If the appellants show that they have a well founded fear in their home areas it is reasonable to expect them to live in Kabul. Kabul is a functioning city. It has a government and some security forces. We acknowledge that it is not the role of ISAF to protect individuals, but there is an Afghan army and a police force and security forces. Kabul is not an entirely lawless place. There are houses to rent, at a price; and despite a fairly high level of unemployment, there is work. The three appellants have spent a considerable time in the United Kingdom, they are all relatively educated and may well be in a good position to obtain work with the authorities or an NGO or similar. There is no satisfactory evidence that suggests that it would be unreasonable to expect them to live there, or that they would lead other than a relatively normal life. Insofar as Article 3 is concerned there is no satisfactory evidence that they would be subject to inhuman or degrading treatment or that they would be at real risk of a breach of any of their fundamental human rights in Kabul. It follows from all that we have said that in general returning failed asylum seekers, without more, are able to relocate to Kabul, if they cannot return safely to their home areas.”
34. In RQ (Afghan National Army – Hizb-i-Islami – risk) Afghanistan CG [2008] UKAIT 00013, the then AIT held that unless there were particular reasons, it would not be unduly harsh to expect an appellant with no individual risk factors to relocate to Kabul and assist in the rebuilding of his country.
35. In AK (Article 15(c)) Afghanistan, see above at paragraph 32, the Upper Tribunal concluded in relation to internal relocation that:
“Whilst when assessing a claim in the context of Article 15(c) in which the respondent asserts that Kabul city would be a viable internal relocation alternative, it is necessary to take into account (both in assessing “safety” and “reasonableness”) not only the level of violence in that city but also the difficulties experienced by that city’s poor and also the many Internally Displaced Persons (IDPs) living there, these considerations will not in general make return to Kabul unsafe or unreasonable.”
36. In addition to regulating refugee status within the European Union legal order, the Council Directive 2004/83/EC of 29 April 2004 (on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted: “the Qualification Directive”) makes provision for granting subsidiary protection status. Article 2(e) defines a person eligible for subsidiary protection status as someone who would face a real risk of suffering serious harm if returned to his or her country of origin and who is unable, or, owing to such risk, unwilling to avail himself of the protection of that country.
37. “Serious harm” is defined in Article 15 as consisting of:
“a) death penalty or execution; or
b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or
c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict”.
38. In decision 1002233 [2010] RRTA 588 of 19 July 2010, the Refugee Review Tribunal of Australia examined the asylum appeal of an Afghan national of Hazara ethnicity who had worked as a truck driver delivering goods for the Afghan Government and who claimed that he would be at risk from the Taliban if returned to Afghanistan.
39. In light of the country information available at that time, including the United Nations High Commissioner for Refugees Eligibility Guidelines for Assessing the International Protection needs of Asylum-Seekers from Afghanistan dated July 2009 (see below at paragraph 40), which indicated that the Taliban targeted people who worked for the Government and that outside of the appellant’s home area of Jaghouri in Ghazni province, the Taliban were active, the Tribunal found that they could not discount the real possibility that the local Mullah with ties to the Taliban might seek to seriously harm the appellant. The Tribunal therefore concluded that the appellant had a well founded fear of persecution on his return to Afghanistan.
40. In July 2009, UNHCR issued Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan (“the July 2009 UNHCR Guidelines”) and set out the categories of Afghans considered to be particularly at risk in Afghanistan in view of the security, political and human rights situation in the country at that time. The Guidelines stated that all indications pointed to a general threat to local and international humanitarian workers, without distinguishing between UN, NGOs and other humanitarian actors.
41. On 17 December 2010, UNHCR issued the most recent Eligibility Guidelines for Assessing the International Protection needs of Asylum-Seekers from Afghanistan (“the December 2010 UNHCR Guidelines”).
42. The Introduction to those Guidelines observed:
“UNHCR considers that individuals with the profiles outlined below require a particularly careful examination of possible risks. These risk profiles, while not necessarily exhaustive, include (i) individuals associated with, or perceived as supportive of, the Afghan Government and the international community, including the ISAF; (ii) humanitarian workers and human rights activists; (iii) journalists and other media professionals; (iv) civilians suspected of supporting armed anti-Government groups; (v) members of minority religious groups and persons perceived as contravening Shari’a law; (vi) women with specific profiles; (vii) children with specific profiles; (viii) victims of trafficking; (ix) lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals; (x) members of (minority) ethnic groups; and (xi) persons at risk of becoming victims of blood feuds.”
43. In relation to the risk to individuals perceived as supporting the Afghan Government or the international community, the Guidelines set out that:
“There is a systematic and sustained campaign by armed anti-Government groups to target civilians associated with, or perceived as supporting, the Afghan Government or the international community, particularly in areas where such groups are active.
Attacks by armed anti-Government groups, which have ranged from intimidation, assassinations, abductions and stand-off attacks, to the use of improvised explosive devises (IEDs) and suicide attacks, increasingly target civilians associated with or perceived as supportive of the Government and the international community/ISAF. Targeted civilians include Government officials and civil servants, Government-aligned tribal leaders, Ulema Council (a national clerics’ body) members, religious scholars, judges, doctors, teachers, and workers on reconstruction/development projects.
The majority of targeted attacks on civilians by armed anti-Government groups have occurred in those groups’ strongholds. However the number of targeted assassinations and executions of civilians has also increased in other parts of the country previously considered more secure. In the south-eastern and central regions, the number of assassinations and executions allegedly committed by armed anti-Government groups in 2010 has increased in comparison to 2009. Such targeted attacks rose dramatically in parts of the southern region, particularly in Kandahar, where the Taliban have been conducting a systematic and targeted assassination campaign since the beginning of 2010. An average of 21 assassinations per week (compared to seven per week during the same period in 2009) was recorded from June to mid-September 2010, mostly in the southern and south-eastern regions.
UNHCR considers that persons associated with, or perceived as supportive of, the Government and the international community and forces, including Government officials, Government-aligned tribal and religious leaders, judges, teachers and workers on reconstruction/development projects, may,, be at risk on account of their (imputed) political opinion, particularly in areas where armed anti-Government groups are operating or have control.”
44. With regard to the particular risk to civilians perceived as supporting ISAF, the Guidelines stated that:
“A recently intercepted message from Mullah Omar, the spiritual leader of the Taliban movement, ordered Taliban members to capture and kill any Afghan who is supporting or working for Coalition forces or the Government of Afghanistan, as well as any Afghan women who are helping or providing information to Coalition forces. The message, which departs from his previous instructions to minimize civilian deaths, has fuelled fears of Taliban retaliation among ISAF civilian support personnel, such as Afghan interpreters.
The increased targeting of civilians is perceived as part of an effort by armed anti-Government groups to gain control over territories and populations. Local inhabitants are reportedly coerced into supporting anti-Government groups through threats or the use of force...”
45. In relation to internal relocation, the Guidelines stated that:
“In order for an IFA/IRA [internal flight alternative/internal relocation alternative] to be a relevant consideration in any given case, the area must be found to be accessible and without factors that could constitute a well-founded fear of being persecuted.
Given the wide geographic reach of some armed anti-Government groups, a viable internal relocation alternative may not be available to individuals at risk of being targeted by such groups. It is particularly important to note that the operational capacity of the Taliban (including the Haqqani network), the Hezb-e-Eslami (Gulbuddin) and other armed groups in the southern, south-eastern and eastern regions is not only evidenced by high-profile attacks, such as (complex) suicide bombings, but also through more permanent infiltration in some neighbourhoods and the regular distribution of threatening “night-letters”.
Furthermore, some non-State agents of persecution, such as organized crime networks, local commanders of irregular or paramilitary outfits and militias, as well as the Taliban and the Hezb-e-Eslami (Gulbuddin), have links or are closely associated with influential actors in the local and central administration. As a result, they largely operate with impunity and their reach may extend beyond the area under their immediate (de facto) control.
...
UNHCR generally considers [internal relocation] as a reasonable alternative where protection is available from the individual’s own extended family, community or tribe in the area of intended relocation. Single males and nuclear family units may, in certain circumstances, subsist without family and community support in urban and semi-urban areas with established infrastructure and under effective Government control. A case-by-case analysis will, nevertheless, be necessary given the breakdown in the traditional social fabric of the country caused by decades of war, massive refugee flows, and growing internal migration to urban areas.”
46. The UNAMA Annual Report 2010 on Protection of Civilians in Armed Conflict (“the UNAMA 2010 Report”) of March 2011 was prepared with the Afghanistan Independent Human Rights Commission (“AIHRC”) and was compiled in pursuance of the AIHRC’s mandate to, inter alia, monitor the situation of civilians in Afghanistan.
47. The executive summary stated that the human cost of the armed conflict in Afghanistan had grown again in 2010. Seventy-five percent of civilian deaths were attributed to anti-government elements. The overall rise in civilian deaths in 2010 was reported to be attributed to the increase use of IEDs (“improvised explosive devices”), targeted assassinations by anti-government elements and intensified military operations particularly in southern Afghanistan. Although the majority of fighting in 2010 had occurred in the southern and south-eastern regions, the insecurity and volatility of the conflict had continued to spread to the northern, eastern and western regions. All regions apart from the eastern region had experienced major increases in the number of civilians killed compared to 2009. Half of all civilian assassinations had occurred in southern Afghanistan.
48. The most alarming trend in 2010 was considered to be the huge number of civilians assassinated by anti-government elements. Persons and relatives of persons perceived to be supportive of the Government of Afghanistan and/or international military forces, high-level provincial government officials, such as governors, district governors, shura and provincial council members and religious elders and ordinary civilians such as doctors, teachers, students and construction workers had reportedly been targeted and killed.
49. That conclusion was reiterated in UNAMA’s Annual Report 2011 on the Protection of Civilians in Armed Conflict (“the UNAMA 2011 Report”) of February 2012 which reported that targeted killings of civilians by anti-government elements had persisted in 2011, exceeding the rate recorded in 2010. Provincial and district governors, local government officials and workers, provincial and peace council members and local community and tribal elders had been deliberately targeted. Antigovernment elements had also deliberately targeted and killed civilians who supported, or were perceived as supporting, the Afghan Government or international military forces.
50. In its 2011 Country Report on Human Rights Practices, Afghanistan, published in May 2012 (“the USSD Report”), the State Department observed, in relation to unlawful or arbitrary deprivation of life, that the Taliban had committed a string of high-profile, targeted killings of regional police commanders, provincial police chiefs, and other officials and had also killed numerous civilians.
51. With regard to the excessive use of force and other abuses in the conflict in Afghanistan, the State Department reported, inter alia, that the Taliban had continued to engage in indiscriminate use of force, attacking and killing villagers, foreigners, and NGO workers; and that insurgents had targeted national and government officials, foreigners, and local NGO employees.
52. The United Kingdom Border Agency’s Operational Guidance Note on Afghanistan of June 2012 (“the OGN”) stated that insurgents had continued to conduct a campaign of intimidation, through the targeted assassination of high ranking Government officials, members of the security forces and influential local political and religious leaders. The OGN concluded that the risk from anti-government groups and forced recruitment into the Taliban was highest in areas where armed antigovernment groups were operating or had control.
53. The Norwegian Country of Origin Information Centre, Landinfo, is an independent body within the Norwegian Immigration Authorities which was established on 1 January 2005. It is responsible for collecting, analysing and presenting objective and updated country of origin information to various actors within the immigration authorities in Norway.
54. The introduction to the Landinfo Report on Afghanistan states that the report aims at providing a concise picture of the human rights situation in the context of the ongoing conflict in Afghanistan. In conducting a short military-political assessment of the conflict, the report set out that the Afghan conflict was continuing to expand geographically and to intensify in terms of violence.
55. In considering the attitude of the parties of the conflict towards civilians, the report stated that:
“In comparative terms, the ongoing Afghan conflict has not been particularly bitterly targeted at civilians. Although civilian casualties have gradually increased year after year, they have done so less than proportionally with the increase in the number of violent incidents from 2008 onwards. This suggests that the parties in the conflict have been trying to restrain themselves and contain civilian casualties. In fact in the case of ISAF data provided by UNAMA shows a new decline in the number of civilians killed from 2009 onwards. In the case of the insurgents, they have killed more civilians, but not as many as they should have based on the increase in number of acts of violence. Similarly, episodes of targeting of civilians because of their association with one of the parties in the conflict have been rare. The main exception is represented by government officials, whom the insurgents have been proactively targeting and increasingly so.
...
The Taliban also forbid any kind of collaboration with the government and particularly with the foreign troops, including of an economic nature. Since contracting for ISAF or for western aid agencies is one of the main sources of employment in Afghanistan, the ban has a major impact on the ability of household to earn a livelihood. Unsurprisingly, most Afghans ignore it, at their risk and peril. Executions of contractors do occur. Usually the Taliban follow a procedure, which includes warning the collaborationists that they are going to be punished if they persist.”
56. It was then reported that the Afghan government, supported by ISAF, still had a hold over most Afghan cities with the exception of Kandahar.
57. In relation to areas controlled by the insurgents, the report observed an outflow of civilians escaping from them as follows:
“This is not a massive flow; most internally displaced people seem to have fled large scale military operations. However, there are thousands of individuals and families who have clashed with the Taliban, mostly for having been suspected of collaborating with the government. There are also government officials fleeing from their job towards Kabul or the cities in general. The Taliban has increasingly developed an ability to strike at will almost anywhere; harassment and targeting of “collaborators” now occurs even in the cities, even if on a small scale in Kabul and in the north and west. Those who fled and have given up their jobs, as well as their family members, do not appear to have been actively targeted in the cities. The Taliban potentially has the resources and skills to track down people, particularly if these are not in hiding but have to work; extensive infiltration of the police also helps the Taliban’s information gathering efforts. However, these escapees who no longer collaborate for the government are a low priority target to the Taliban, whose assets in the cities are limited and usually devoted to high profile targets, ranking from serving government officials upwards. In Kabul, for example, colonels of the police and army have been targeted, as well as commanding officers of the security services. In the provinces, particularly in the south, government officials of any rank, even low ones, have been targeted. The Taliban do not seem to systematically transfer information about targeted individuals from one area to the other; they maintain no databases. What typically happens is that the Taliban operating in a specific area will request information from other Taliban about a suspect individual, whenever needed. The flow of information therefore depends on the intensity of Taliban operations: the greater the presence, the greater the request of information. Often individuals apprehended by the Taliban as suspect spies are asked to provide references in order to verify their identity and activities. The risk to the escapees from Taliban controlled areas seems to derive mainly from chance contact with the Taliban, who may consider them an opportunity target. Usually the poorest and the Pashtun-populated areas of the big cities are the places where most Taliban infiltration of the cities occurs; in Kabul these are Bagrami suburb, south-eastern Kabul, southern Kabul and parts of western Kabul. In central Kabul, the Taliban are known to have developed a network of informers, among else buying shops in strategic locations and staffing them with members and sympathisers, the purpose being to observe embassies and government buildings. Such effort is clearly geared towards high value targets and collaborators.”
58. In conclusion, the report set out the main factors affecting the security and human rights of Afghan civilians and stated as follows:
“The Taliban have been consistently expanding their information gathering operations; some parts of the country, in particular the south but also the south-east, the east and the provinces south and west of Kabul (Wardak, Logar) are thoroughly covered and there is little that the Taliban do not know, not least because they have extensively infiltrated the police and the state administration. In other parts of the country, like most of Kabul, most of the west and most of the north, the Taliban’s presence on the grounds is more modest and their ability to collect information more limited. More importantly, the Taliban’s ability to auction off the information collected is more limited in these areas, where they have to rely on a few hit teams in order to carry out their strategy of targeted killing. As a result, while the Taliban target even low level collaborators in the areas where they are present in force, they limit themselves to high profile targets elsewhere. Killings of low profile collaborators of the government is not being reported in these areas. We can expect the policy of targeted intimidation and killing to continue expanding, but the rate of expansion will depend on the ability of the Taliban to establish a strong presence in ever newer areas. There are already some areas of the regions less affected by the insurgency, where the Taliban are able to extensively target collaborators: a few suburbs of Kabul, Pashtun-populated areas of the north, etc.”
59. Various media reports submitted by the first applicant indicated that a number of US troops and Afghan security officers working with them had been killed in Wardak province in 2011.
60. Various media reports submitted by the applicants indicated that between 2006 and 2011, at least twenty-two Afghan interpreters working for US forces, the international community or the UN had been killed in different parts of Afghanistan.
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-5645
LANGUAGEISOCODE: ENG
RESPONDENT: PRT
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: TOME MOTA v. PORTUGAL
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Cesário Manuel Tomé Mota, is a Portuguese national who was born in 1952. He is currently being held in Linhó Prison in Portugal.
He is represented before the Court by Mr J. L. Lopes dos Reis, of the Lisbon Bar.
The facts of the case, as submitted by the parties, may be summarised as follows.

On 31 August 1991 the applicant was arrested. He was suspected of having used several stolen cheques after signing them with signatures corresponding to those of the rightful bearers, thus making himself guilty of handling stolen goods, fraud and forgery.
Those facts led to several sets of criminal proceedings being initiated against the applicant, of which the following form a first group:
(a) case no. 827/90, judgment delivered by the Setúbal Court on 18 December 1991;
(b) case no. 4000/92, judgment delivered by the Sintra Court on 13 July 1992 (pre-trial detention of the applicant was ordered in that set of proceedings);
(c) case no. 570/92, judgment delivered by the Sintra Court on 12 February 1993;
(d) case no. 1239/92, judgment delivered by the Oeiras Court on 12 May 1993; and
(e) case no. 381/93, judgment delivered by the Vila Franca de Xira Court on 24 February 1994.
A second group comprises the sets of proceedings mentioned below, which took place as follows.
Case no. 313/94 in the Tenth Criminal Division (Vara Criminal) of the Lisbon Criminal Court
Following several complaints made from March 1988 onwards, the applicant was questioned on 26 November 1991.
On 15 December 1993 the public prosecutor made his submissions (acusação) against the applicant to the investigating judge.
On 24 May 1994 the applicant applied for an order to expedite the proceedings (aceleração processual), in accordance with Articles 108 and 109 of the Code of Criminal Procedure.
By a decision of 17 November 1994 the Vice-Attorney-General refused the application on the ground that the file had already been transmitted to the Lisbon Criminal Court.
On 8 November 1994 the applicant had applied a second time for an order to expedite the proceedings. In a letter dated 22 November 1994 the Judicial Service Commission returned the application to him, inviting him to lodge it under Article 109 of the Code of Criminal Procedure. The applicant did not do so.
On 29 September 1994 the file was transmitted to the Lisbon Criminal Court. On 12 October 1994 the judge sitting in the Tenth Criminal Division fixed the date of the hearing for 4 April 1995. He further decided that the applicant’s pre-trial detention should continue in the event of his release in connection with other proceedings.
The hearing was held on 4 April 1995. On 28 April 1995 the Lisbon Criminal Court found the applicant guilty, and sentenced him to fifteen years’ imprisonment to be served concurrently with the sentences in other proceedings.
On 11 May 1995 the applicant appealed against that judgment to the Supreme Court (Supremo Tribunal de Justiça), but that court dismissed the appeal in a judgment of 16 November 1995.
Case no. 15/96 in the Second Criminal Division of the Lisbon Criminal Court

Following a complaint filed on 20 April 1990, the applicant was questioned on 2 December 1991.
The police report relating to the investigations carried out was filed on 22 December 1994.
On 3 July 1995 the public prosecutor made his submissions against the applicant to the investigating judge.
The file was transmitted on an unspecified date to the Lisbon Criminal Court. On 26 February 1996 the judge sitting in the Second Criminal Division fixed the date of the hearing for 9 May 1996.
In a decision of 17 May 1996 the court found the applicant guilty and sentenced him to one year and six months’ imprisonment.
Case no. 4/96 in the Seixal Court
Following a complaint made on 26 January 1990, the public prosecutor decided on 25 January 1993 to question the applicant. This was done on 5 June 1995.
On 27 June 1995 the public prosecutor made his submissions against the applicant to the investigating judge.
The hearing was held on 20 May 1996, and on 4 June 1996 the court found the applicant guilty and sentenced him to a one-year prison term.
Case no. 26/96 in the Fifth Criminal Division of the Lisbon Criminal Court
Following a complaint made on 6 November 1990, the applicant was questioned on 2 December 1991.
On 10 January 1996 the public prosecutor made his submissions against the applicant to the investigating judge.
On 14 March 1996 the file was transmitted to the Lisbon Criminal Court. On 9 April 1996 the judge sitting in the Fifth Criminal Division fixed the date of the hearing for 6 November 1996.
The hearing did not take place on that date on account of the absence of one of the witnesses. After being adjourned to 26 February 1997, the hearing took place on that date.
In a judgment of 19 March 1997 the court found the applicant guilty and sentenced him to nineteen years and four months’ imprisonment, to be served concurrently with sentences imposed in other proceedings.
It is that sentence that the applicant is currently serving.
Case no. 83/96 in the Tenth Criminal Division of the Lisbon Criminal Court
Following a complaint made on 3 April 1991, the applicant was questioned on 12 December 1991.
On 28 May 1992 the public prosecutor decided to have an expert graphological report drawn up. The expert report was filed on 5 April 1994.
On 18 March 1996 the public prosecutor made his submissions against the applicant and another person to the investigating judge.
On 21 October 1996 the file was transmitted to the Lisbon Criminal Court.
The first hearing, set for 24 February 1997, was adjourned sine die because the applicant’s co-accused was absent. The second hearing, set for 19 May 1997, was adjourned sine die for the same reason.
In a judgment of 11 June 1997, served on the applicant on 18 November 1998, the court closed the case as the limitation period had expired.
B. Relevant domestic law and practice
Articles 108 and 109 of the Portuguese New Code of Criminal Procedure, which entered into force on 1 January 1988, made provision for interlocutory proceedings to expedite criminal proceedings. The preamble of the Code states, in particular, that the requirement of a speedy criminal trial is currently, thanks to the influence of the European Convention on Human Rights, a true fundamental right. The Articles in question provide:
Article 108
“1. When the time-limits provided for by law for any step in the proceedings are exceeded, the public prosecutor, the accused, the private prosecutor (assistente) or the civil parties may make an application for an order to expedite the proceedings.
2. That application shall be considered by:
(a) the Attorney-General, when the proceedings are in the hands of the Attorney-General’s Department;
(b) the Judicial Service Commission, when the proceedings are taking place in a court or before a judge.
3. No judge who has intervened in the proceedings in any capacity may participate in the decision.”
Article 109
“1. An application for an order to expedite criminal proceedings must be addressed to the President of the Judicial Service Commission or to the Attorney-General, as the case may be, and filed with the court or the institution dealing with the proceedings.
2. The judge or the public prosecutor shall prepare the case file on the basis of the material available and relevant to the decision and shall send it within three days to the Judicial Service Commission or to the Attorney-General.
3. The Attorney-General shall make a decision within five days.
4. When the decision is to be taken by the Judicial Service Commission, the file shall be submitted, after distribution, at the first ordinary or extraordinary sitting...
5. The decision shall be taken without any other formalities. It may take the form of:
(a) a dismissal of the application as unfounded or because the delays complained of are justified;
(b) a request for further information...;
(c) an order for an investigation to be carried out within fifteen days into the delays complained of...;
(d) a proposal to implement or cease to implement disciplinary measures or measures to manage, organise or rationalise the methods required by the situation.
6. The decision shall be communicated immediately to the court or institution dealing with the proceedings. It shall likewise be communicated to the bodies invested with the power to discipline those responsible for any delays found to have occurred.”
The time-limits to which Article 108 § 1 refers are, as a general rule, six months for inquiries conducted while the accused is in custody and eight months for those where the accused remains at liberty (Article 276 of the Code of Criminal Procedure). The judicial investigation must not exceed two months where the accused is detained and four months where the accused is not (Article 306). Lastly, the case must come on for trial within two months of the date on which the file is received by the court with jurisdiction to give a judgment (Article 312).
According to information supplied by the Government and not disputed by the applicant, the Attorney-General received 574 applications for an order to expedite proceedings in 1995, of which 357 (that is, 62.2%) were granted. In 1996 there were 808 applications, of which 513 (63.49%) were granted. In 1997 there were 1,017 applications, of which 547 (53.79%) were granted. In 1998 there were 590 applications, of which 375 (63.56%) were granted. Lastly, from 1 January to 15 September 1999, 227 applications were filed, of which 153 (67.4%) were granted.
As for the Judicial Service Commission, between 1 January and 15 September 1999, it received 22 applications for an order to expedite proceedings, of which 8 (36.36%) were granted.
It is the Vice-Attorney-General who, using delegated powers, decides on the applications addressed to the Attorney-General and it is the plenary meeting of the Judicial Service Commission, convened monthly, which decides on those filed with that body.
The Government have given examples of decisions on applications for orders to expedite proceedings. The following are the operative provisions of some of them (translation).
Attorney-General
Decision of 4 April 1995
“orders the closing of the investigation within a maximum of forty days, which may be extended only on an exceptional basis on prior application by the investigating prosecutor, with notice to his or her immediate superior”.
Decision of 2 April 1998
“orders the closing of the investigation within a maximum of fifteen days, which may be extended only on an exceptional basis and on prior application by the investigating prosecutor, with notice given to his or her immediate superior”.
Decision of 7 July 1998
“orders, having taken into account its complexity, the closing of the investigation within a maximum of ninety days, a time-limit which may be extended only on an exceptional basis and on prior application by the investigating prosecutor, with notice to his or her immediate superior”.
Judicial Service Commission
Decision of 23 February 1999

“decides to grant the application for an order to expedite the proceedings by ... concerning the proceedings ... pending before the Third Criminal Division of the ... Court and orders the judge to fix a date for the trial hearing immediately”.

Decision of 25 March 1999
“decides to grant the application for an order to expedite the proceedings and orders that the necessary steps be taken for the proper prosecution and speedy termination of the investigation in question”.


ITEMID: 001-21927
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: POLAT v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: The applicant, Sadullah Polat, is a Turkish national of Kurdish origin, born in 1972 and, at the time of introduction of the application, he was detained in the Netherlands for expulsion purposes. He is represented before the Court by Ms G.E.M. Later, a lawyer practising in The Hague.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 5 January 1999, the applicant and twelve others left İstanbul by truck. The applicant arrived in the Netherlands on 11 January 1999 and, on 12 January 1999, pursued his journey to Germany, where his brother was residing and where he wished to apply for asylum.
On 12 January 1999, the applicant was apprehended by the German authorities and handed over to the Netherlands authorities, who placed him in detention in accordance with Article 19 of the Aliens Act (Vreemdelingenwet) in order to verify his identity, nationality and residence title. On the same day, after the applicant had filed a request for asylum or a residence permit on humanitarian grounds, he was subsequently placed in aliens’ detention (vreemdelingenbewaring) pending the determination of his asylum request, in accordance with Article 26 § 1 (c) of the Aliens Act.
On 18 January 1999, the applicant filed an appeal with the Hague Regional Court (Arrondissementsrechtbank) sitting in ‘s-Hertogenbosch against the measure of his placement in aliens’ detention and requested his immediate release.
On 21 January 1999, the applicant was interviewed by an official of the Ministry of Justice in relation to the grounds for his asylum request.
On 2 February 1999, following a hearing held on 1 February 1999 in the course of which the applicant was represented by a lawyer, the Hague Regional Court rejected the applicant’s appeal against his placement in aliens’ detention. It held that there were sufficient grounds to justify the applicant’s placement in aliens’ detention. In this respect it noted that, at the time of his placement in detention and to date, the applicant did not have a valid residence title, valid identity documents or sufficient means of existence. At the time of his apprehension, the applicant had further been in the possession of a false Turkish identity card and he had only applied for asylum after having been handed over by the German authorities to the Dutch authorities whereas he could have made such an application during his stay in the Netherlands prior to his departure to Germany. In these circumstances, the Hague Regional Court held that there were sufficient grounds to conclude that there were reasons to believe that the applicant would seek to find ways of avoiding his expulsion and that therefore he had rightly not been transferred to an ordinary asylum seekers centre.
The Regional Court further held that the fact that the applicant had applied for asylum did not imply that there were no longer any prospects for his expulsion. This would only be the case if it was highly likely that his request for asylum would be granted. However, this did not appear to be the case. Noting that the applicant had been heard in relation with his request for asylum on 21 January 1999, that the court had been informed that a decision was expected at short notice and that, pursuant to Article 26 § 3 of the Aliens Act, a placement in aliens’ detention ends where a request for asylum is not decided upon within four weeks, the Hague Regional Court found that there were as yet realistic prospects for the applicant’s expulsion and that the authorities were sufficiently diligent in their activities aimed at his expulsion. The Hague Regional Court concluded that the applicant’s placement in aliens’ detention was in accordance with the relevant statutory provisions and, after having weighed all interests involved, could reasonably be regarded as justified.
On 4 February 1999, the State Secretary of Justice (Staatssecretaris van Justitie) rejected the applicant’s request for asylum or a residence permit on humanitarian grounds and ordered his expulsion from the Netherlands. The applicant was, consequently, placed in aliens’ detention for the purposes of his expulsion in accordance with Article 26 § 1 (a) of the Aliens Act.
At some unspecified point in time, the applicant filed an appeal against the decision of 4 February 1999 with the Hague Regional Court sitting in ‘s-Hertogenbosch. He further applied to the Regional Court for an injunction on his expulsion pending the appeal proceedings. As he had been placed in aliens’ detention he was not required, like asylum seekers not placed in such detention, first to file an objection (bezwaarschrift) with the State Secretary of Justice before filing an appeal with the Hague Regional Court.
On 5 February 1999, the applicant filed a second appeal with the Hague Regional Court sitting in ‘s-Hertogenbosch against the measure of his placement in aliens’ detention and he requested that he be released immediately.
On 23 February 1999, following a hearing held on 22 February 1999 in the course of which the applicant was represented by a lawyer, the Hague Regional Court rejected the applicant’s second appeal against his placement in aliens’ detention. Noting that the lawfulness of this placement had already been determined in its decision of 2 February 1999, it limited its examination to the lawfulness of the applicant’s continued placement in aliens’ detention.
It held that the fact that the applicant had applied for an injunction on his expulsion did not, as such, affect the lawfulness of his placement in aliens’ detention, since – pending the determination of this request – it could not be said that there were no prospects for his expulsion. This would only be the case where it was highly likely that an injunction would be granted. This had, however, not appeared to be the case.
Noting that the State Secretary had requested the Hague Regional Court on 9 February 1999 to give priority to the applicant’s request for an injunction, the Regional Court stated on this point that it assumed that the request for an injunction would be dealt with in the near future. Noting further that the question whether the applicant could be expelled to Turkey with a second Turkish identity card submitted by him was in the process of being examined, the Regional Court held that there remained realistic prospects for the applicant’s expulsion and considered that it could not be held that the authorities were insufficiently diligent in their activities aimed at the applicant’s expulsion. The Hague Regional Court concluded that the applicant’s placement in aliens’ detention was in accordance with the relevant statutory provisions and, after having weighed all interests involved, could reasonably be regarded as justified.
On 13 October 2000 and without providing further details, the applicant informed the Court that his request for asylum had been unsuccessful and that, on 31 August 1999, he had been released from aliens’ detention on the basis of a temporary suspension of the expulsion of Turkish nationals of Kurdish origin.
Article 26 of the Aliens Act, insofar as relevant, provides:
“1. If the interests of public order, public policy or national security so require, the following categories of aliens may be detained:
a. aliens whose expulsion has been ordered;
b. aliens in respect of whom there are serious ground to believe that their expulsion will be ordered;
c. aliens who are not allowed to reside in the Netherlands by virtue of any of the provisions contained in Articles 8-10 <of the Aliens Act>, pending the decision on an application for a residence permit, a permanent residence permit or leave to enter as refugees.
2. An alien shall not be detained when, and detention shall be terminated as soon as, he intimates that he wishes to leave the Netherlands and is in fact in a position to do so.
3. Detention for the reasons set out in the first sentence of paragraph 1 and for the categories referred to under b. or c. of that paragraph shall not be of longer duration than one month.
...”
An alien whose expulsion has been ordered can, in principle, remain in aliens’ detention for an unlimited period of time. The lawfulness of a placement in aliens’ detention can, however, be challenged before the Hague Regional Court. Where the Hague Regional Court finds that there are no prospects for expulsion within a reasonable time, it can order that the measure of placement in aliens’ detention be terminated.
It has been established in the case-law of the Legal Uniformity Division (Rechtseenheidskamer) of the Hague Regional Court that the interest of an alien to be released from aliens’ detention increases with the passage of time. Where a placement in aliens’ detention exceeds a period of six months, it is generally held that the alien’s interest in being released is greater than the interest to keep him in detention for the purposes of expulsion. Depending on the specific circumstances of each case, this point in time may also be reached before or after six months have passed. It may be later where the alien frustrates the determination of his identity or nationality and it may be earlier where the alien concerned is unable to obtain travel documents for reasons beyond his control.
Although no appeal lies against a decision by the Regional Court in proceedings concerning requests for release from detention for expulsion purposes, an appeal to the Court of Appeal (Gerechtshof) is available in relation to a decision taken in the context of such proceedings on a request for compensation for the time spent in detention for expulsion purposes. Furthermore, an appeal may be admitted in which the complaint is made that in the decision challenged a fundamental principle of law has been disrespected (cf. The Hague Court of Appeal, 12 November 1998, Nederlandse Jurisprudentie 1999, nr. 127)
There is no time-limit for the filing of an appeal against a decision of placement in aliens’ detention and in principle a person placed in aliens’ detention may file as many appeals against this decision as he sees fit. When the lawfulness of a decision of placement in aliens’ detention has been determined for a first time, the examination of any subsequent appeal in this respect will be limited to the lawfulness of the continuation of the placement in aliens’ detention as from the date of the last judicial decision taken on this point.


ITEMID: 001-96201
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: ZGOLA v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr Bronisław Zgoła, is a Polish national who was born in 1918 and lives in Kołobrzeg. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was captured by the invading German army on 1 September 1939, while returning from a scout outing. In the evening of that day he was transported to a camp in Nieborowice (Neubesdorf). He was detained there along with former Silesian insurgents.
On 19 September 1939 the applicant escaped and was subsequently in hiding. In June 1940 he moved to Kraków. He was soon arrested in a round-up and deported to Germany. He worked as a forced labourer in a construction company, then in a food-processing factory and lastly for the German railways.
On an unspecified date in 2001 the applicant applied to the PolishGerman Reconciliation Foundation (“the Foundation”) for compensation on account of his forced labour during the war. That request was made under the scheme for slave and forced labourers (“the second compensation scheme”) established under the Joint Statement of 17 July 2000, the German Law of 2 August 2000 on the Creation of the “Remembrance, Responsibility and Future” Foundation (“the German Foundation Act”) and the subsequent Agreement of 16 February 2001 between the Remembrance, Responsibility and Future Foundation (“the German Foundation”) and the Polish-German Reconciliation Foundation.
On an unspecified date the Foundation’s Verification Commission found that the applicant was eligible for compensation, his persecution falling under the 3rd category which included persons who had been deported to Germany and subjected to forced labour in industry. It appears that the applicant was awarded DEM 4,400.
On 15 June 2002 the applicant filed an appeal against that decision. It appears that he contested the fact that the Verification Commission had not taken into account his internment in the Nieborowice camp.
On 12 July 2002 the Appeal Commission upheld the decision under appeal, holding that the applicant had not adduced any new evidence of persecution which could justify the change of his eligibility status.
In the letter accompanying the decision, the Appeal Commission informed the applicant that his request to consider his internment in the Nieborowice camp as falling under the 1st category of eligibility could not be granted. It underlined that according to the applicable regulations persons falling under the 1st category of eligibility were only the detainees of those camps which had been listed in the German Indemnification Act. However, that had not been the case with the Nieborowice camp.
On 21 July 2002 the applicant appealed against that decision. On 28 August 2002 the Appeal Commission upheld its previous decision.
By a letter dated 17 September 2002 the German Foundation informed the applicant that the list of concentration camps as defined in the Indemnification Act could not be supplemented. All other camps with conditions similar to those prevailing in concentration camps were placed on the list of “other persecution camps” which had been accepted by the German Foundation and communicated to the Polish Foundation. The applicant was further informed that the Nieborowice camp had not been placed on that list and that the Polish Foundation could request the German Foundation to place a particular camp on the list.
Subsequently, on 27 September 2002 the applicant requested the Polish Foundation to apply to the German Foundation with a view to including the Nieborowice camp on the list of “other persecution camps”.
On 27 October 2002 the Appeal Commission informed the applicant that the Nieborowice camp was not listed in a specialised publication of the Chief Commission for the Examination of the Nazi Crimes in Poland (Główna Komisja Badania Zbrodni Hitlerowskich w Polsce). Accordingly, the Foundation could not request the German Foundation to place that camp on the list of “other persecution camps”.
The applicant contested that finding. He submitted that the Nieborowice (Neubesdorf) camp was not listed in the Chief Commission’s publication since it had been located in Germany as its borders had stood before the outbreak of the Second World War.
On 9 December 2002 the applicant received a letter from the Institute of National Remembrance (Instytut Pamięci Narodowej). He was informed that the Katowice Regional Commission for the Examination of the Nazi Crimes in Poland had carried out in 1967 an investigation concerning the Nieborowice camp. It had been established that the camp had been set up on 1 September 1939 as a transitional camp for Polish activists, in particular Silesian insurgents. It had operated until November 1939. On two occasions the German army had carried out executions in which at least 34 persons had died.
The investigation concerning that crime had been finally discontinued on 24 June 2005 as its perpetrators could not be established.
From 1998 to 2000 international negotiations took place on the issue of compensation for persons subjected to slave or forced labour by Nazi Germany. The government of Poland was one of the parties to these negotiations. They were prompted by a number of lawsuits against certain German companies before the courts in the United States in which compensation was sought on account of forced labour during the Second World War. The German companies against which the lawsuits had been brought wished to bring them to an end and secure legal peace. The negotiations concluded on 17 July 2000 with the adoption of a Joint Statement which was signed by all the parties to the negotiations, including the government of Poland.
The parties to the Joint Statement acknowledged the intention of the Government of Germany and of the German companies concerned to accept moral and historic responsibility arising from the use of slave and forced labourers and from other injustices committed during the National Socialist era and the Second World War. They affirmed their consensus of 17 December 1999 on the establishment of the Remembrance, Responsibility and Future Foundation, which was to be a means of providing funds for victims from central and eastern Europe, most of whom had benefited little from prior German compensation and restitution programmes. The parties to the Joint Statement further agreed to base their decisions regarding the distribution of funds on the eligibility criteria set out in the German Foundation Act.
According to the Joint Statement, the Government of Germany and the German companies concerned undertook to contribute DEM 5 thousand million to the Remembrance, Responsibility and Future Foundation. The Joint Statement stipulated that the governments of the participating central and eastern European States, including Poland, and the government of Israel agreed to implement the necessary specific measures within the framework of their national legal systems to achieve legal peace.
Subsequently, on 2 August 2000 the German parliament enacted the Law on the creation of the Remembrance, Responsibility and Future Foundation (Gesetz zur Errichtung einer Stiftung “Erinnerung, Verantwortung und Zukunft”). It came into force on 12 August 2000. However, the disbursement of payments only started on 30 May 2001, once the relevant guarantees had been secured by the German companies concerned with regard to the dismissal of the lawsuits filed against them in the United States courts. The disbursement of payments terminated at the end of 2006.
The relevant parts of the Law on the creation of the Remembrance, Responsibility and Future Foundation provide:
Recognising
that the National Socialist State inflicted severe injustice on slave labourers and forced labourers, through deportation, internment and exploitation, which in some cases extended to destruction through labour, and through a large number of other human-rights violations,
that German companies which participated in the National Socialist injustice bear a historic responsibility and must accept it,
that the companies which have come together in the Foundation Initiative of German Industry [Stiftungsinitiative der deutschen Wirtschaft] have acknowledged this responsibility,
that the injustice committed and the human suffering it caused cannot be truly compensated by financial payments,
that the Law comes too late for those who lost their lives as victims of the National Socialist regime or have died in the meantime,
the German Bundestag acknowledges political and moral responsibility for the victims of National Socialism. The Bundestag also intends to keep alive the memory of the injustice inflicted on the victims for coming generations. (...)
(1) A legally recognised Foundation with the name ‘Remembrance, Responsibility and Future’ shall be established under public law. (...)
(1) The purpose of the Foundation is to make financial compensation available through partner organisations to former forced labourers and to those affected by other injustices from the National Socialist period. (...)
(1) The approval and disbursement of one-off payments to those persons eligible under section 11 will be carried out through partner organisations. The Foundation is neither authorised nor obligated in this regard. The board of trustees may opt for another mode of payment. (...)
(1) Eligible under this Law are:
1. persons who were held in a concentration camp as defined in section 42(2) of the German Indemnification Act [Bundesentschädigungsgesetz] or in another place of confinement outside the territory of what is now the Republic of Austria or a ghetto under comparable conditions and were subjected to forced labour;
2. persons who were deported from their homelands into the territory of the German Reich within the borders of 1937 or to a German-occupied area, subjected to forced labour in a commercial enterprise or for public authorities there, and held under conditions other than those mentioned in paragraph 1, or were subjected to conditions resembling imprisonment or similar extremely harsh living conditions; (...)
(2) Eligibility shall be demonstrated by the applicant by submission of documentation. The partner organisation shall take into account relevant evidence. If no relevant evidence is available, the claimant’s eligibility may be substantiated in some other way.
(1) Specific characteristics of other places of confinement referred to in Section 11, Paragraph 1, Number 1 are inhumane conditions of detention, insufficient nutrition and lack of medical care. (...)”
Section 42 § 2 of the German Indemnification Act (Bundesentschädigungsgesetz) provided that the German Government would issue a decree containing a list of concentration camps within the meaning of the Act. The German Government issued the decree in 1967 with an annex listing concentration camps. It was twice amended, most recently in 1982. The list of concentration camps does not contain the camp where the applicant was detained during the Second World War.
On 10 August 2000 the Polish government submitted to Parliament a bill on the exemption from tax and duties of payments received in connection with Nazi persecution. In the explanatory memorandum to the bill, the government stated that payment of benefits in respect of forced labour for the Nazi regime had been agreed in the course of negotiations involving the respective governments, German companies and the victims. They further stated that, as a result of the agreement with the Germans, Poland would receive more than DEM 1.8 thousand million. On 21 September 2000 the Polish parliament enacted the Law on exemption of payments received in connection with Nazi persecution from tax and duties. That Law also exempted the Polish-German Reconciliation Foundation from taxes due on funds received by the Foundation for the distribution of payments. The Law came into force on 17 November 2000.
On 16 February 2001 an agreement was concluded between the Remembrance, Responsibility and Future Foundation and the PolishGerman Reconciliation Foundation (“the partnership agreement”). Under its terms the PolishGerman Reconciliation Foundation was to act as a partner organisation of the German Foundation, with a view to securing prompt disbursement of compensation payments to slave and forced labourers (paragraph 1 of the agreement). Both parties agreed to implement fully the provisions of the GFA and declared that their agreement was in compliance with the Joint Statement of 17 July 2000.
The above agreement further stipulated that the Polish Foundation, as a partner organisation, was entrusted with determining eligibility for compensation payments in respect of all claimants who resided on the territory of Poland on 16 February 1999 (paragraph 2). The partner organisation was to verify and determine whether the relevant conditions for awarding payment had been established or substantiated in some other way (paragraph 5.1). A claimant could appeal against a decision taken by the partner organisation in respect of the grounds of the decision or the amount of compensation awarded before an independent appeal body established within the partner organisation (paragraph 5.5). Under paragraph 6.3 of the agreement, decisions taken by the appeal body were final and could not be challenged before a court (paragraph 3).
The Agreement of 16 February 2001 was accompanied by three annexes. Annex no. 3 contained a declaration by the Polish government with regard to responsibility for the disbursement of compensation payments. The relevant parts provide:
“Since 1998 the government of the Republic of Poland has made exceptionally concerted efforts to secure payment of compensation for slave and forced labour imposed by Nazi Germany. In the negotiations, the government has played a significant role on behalf of the representatives of the victims. Due to the government’s efforts, former slave and forced labourers will receive in total DEM 1.812 thousand million, which constitutes a very positive outcome to the negotiations.
The government of the Republic of Poland will endeavour to ensure that the payments from the Remembrance, Responsibility and Future Foundation, handled by the Polish-German Reconciliation Foundation with the participation of Polish financial institutions, will be processed properly. To that end the Polish authorities will take steps with regard to the Polish-German Reconciliation Foundation within their founding and supervisory competences.”
The statutes of the Polish-German Reconciliation Foundation was amended on the initiative of its founder, namely the Minister of the State Treasury, with a view to implementing the provisions of the GFA and the Agreement of 16 February 2001; those amendments were subsequently registered by the Warsaw District Court on 26 June 2001.
The amended statutes stipulated that the Foundation was to disburse compensation payments to the victims specified in section 11 of the GFA from the funds contributed by the German Foundation on the basis of the same Act (paragraphs 6.2 and 9.2). It further specified that the Foundation’s decisions in individual cases were to be taken on the basis of internal regulations. A decision in an individual case could be appealed against; however, a decision taken after an appeal had been considered was final and no appeal lay against it (paragraphs 6.4 and 6.5).
Pursuant to paragraph 20 of the amended statutes, the Verification Commission was to determine individual claims for assistance filed by victims of Nazi persecution. Members and the president of the Verification Commission were to be appointed and dismissed by the Foundation’s management board (paragraph 21.1). Detailed regulations as to the organisation of the Verification Commission and the rules and criteria on the granting of assistance were specified in the internal regulations of the Verification Commission, drafted by the management board and adopted by the supervisory board (paragraph 21.2).
Decisions taken by the Verification Commission could be appealed against to the Appeal Commission. Its president and members are appointed and dismissed by the Foundation’s management board, having consulted the supervisory board. The Appeal Commission operates on the basis of internal regulations drafted by the management board and adopted by the supervisory board (paragraph 23.2). The amended statutes stipulated that the decisions of the Appeal Commission were final (paragraph 23.3).
In 1997 the Ombudsman referred to the Supreme Court a question of law (pytanie prawne), as to whether decisions given by the organs of the Foundation could be appealed to the Supreme Administrative Court and, if not, whether they could be subjected to judicial review in civil proceedings. On 31 March 1998 the Supreme Court adopted resolution no. III ZP 44/97, holding that, since administrative functions could only be delegated by statute, which was not the case with regard to the Polish-German Reconciliation Foundation, its decisions did not meet the requirements of an administrative decision and thus could not be appealed to the Supreme Administrative Court. However, the Supreme Court refused to give a definite answer as to whether the Foundation’s decisions could be subject to judicial review in civil proceedings. It nevertheless observed that entitlement to receive a benefit from the Foundation did not fall within the scope of civil law, and thus could not be raised before a civil court. In exceptional cases, such as where the claimant’s eligibility had been established but the benefit was not paid, a claim could arise under civil law.
In Resolution no. OPS 3/01 of 3 December 2001, the Supreme Administrative Court upheld the earlier case-law to the effect that it did not have jurisdiction to review the decisions of the Foundation and observed that:
“The Polish-German Reconciliation Foundation, which awards benefits to the victims of Nazi persecutions using the financial resources allocated to it by foreign entities, does not perform functions in the area of public administration. Thus, the source of the entitlement to receive an award from the Foundation does not stem from actions of the public administration.”
It further observed:
“There is no doubt that the Agreement of 16 October 1991, concluded between the Polish and German Governments, which was not ratified, as well as subsequent acts [starting with the Joint Statement and the German Foundation Act] concerning grants of financial assistance by the Foundation on account of Nazi persecution do not fulfil the criteria which would make it possible to classify them as sources of binding Polish law. No administrative-law relation arises between a claimant and the Foundation on the basis of the aforementioned acts, and consequently the Foundation is not an organ of public administration established by law to determine cases in the sphere of public administration.”
On 27 June 2007 the Supreme Court adopted Resolution no. III CZP 152/06 in response to a question of law put forward by the Ombudsman. It revisited its earlier case-law on the interpretation of the notion of a “civil case” laid out in Article 2 of the Code of the Civil Procedure in relation to claims against the Foundation. The Supreme Court held that:
“The [civil] courts have jurisdiction in the case where a claimant – due to an unfavourable decision by the “Polish-German Reconciliation” Foundation – is seeking a payment [from the Foundation] in respect of Nazi persecution.”
In the reasons for its Resolution the Supreme Court found, inter alia, that:
“The procedure concerning examination of claims under the first and the second German fund ... may not be currently instituted. The relevant funds were allocated and the disbursement of payments has been finally concluded. (...)
There is no doubt that the current state of affairs resulting from the relevant case-law, under which those persons interested in challenging before a court the Foundation’s refusal to grant them a suitable payment are deprived of such a possibility, cannot be accepted in the light of the binding constitutional and Convention standards. Article 184 § 1 in conjunction with Article 177 of the Constitution establishes a presumption in favour of jurisdiction of the ordinary courts which indicates – at least indirectly – that a possible jurisdiction of the administrative courts should be based on a specific statutory rule. (...)
The need for extensive interpretation of the individual’s access to a court, or in other words, the right to bring an action (the right to a court) follows also from Article 6 § 1 of the Convention and Article 14 § 1 of the International Covenant on Civil and Political Rights, which stipulate that everyone is entitled to a fair and public hearing by an independent and impartial tribunal established by law in the determination of his civil rights and obligations. It may be assumed from the established case-law of the European Court of Human Rights that Article 6 § 1 of the Convention guarantees to everyone the inalienable right to submit for a judicial determination any claims concerning civil rights and obligations.... Obviously, the right to a court does not denote the right to “win” a case, but it signifies that the filed claim should be examined by a court and determined on the merits (judgment of the Supreme Court of 3 January 2007, no. IV CSK 312/06, unpublished).
The results of interpretation of Articles 1 and 2 of the Code of Civil Procedure thus require us to acknowledge that the [civil] court has jurisdiction where a case has the features of a civil case in the substantive sense and where no particular provision delegates its examination and determination to a different organ than an ordinary court. The [civil] court also has jurisdiction where a case has the features of a civil case only in the formal sense.”