ITEMID: 001-58217
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF CONTRADA v. ITALY
IMPORTANCE: 4
CONCLUSION: No violation of Art. 5
JUDGES: C. Russo;N. Valticos
TEXT: 6. The applicant, a senior police officer, was at the time of his arrest Deputy Director of the Civil Secret Service (SISDE) for Sicily, in Palermo. In the same city, he had previously been Head of the Mobile Unit, Head of the Criminal Investigation Police (Criminalpol) and Principal Private Secretary to the Anti-Mafia High Commission (Alto Commissario Antimafia).
7. Mr Contrada was detained on 24 December 1992 at Palermo Military Prison under a warrant issued the previous day by the investigating judge (Giudice per le indagini preliminari) attached to the Palermo District Court, at the request of the public prosecutor’s office. He was accused of involvement in a mafia-type organisation (concorso in associazione de stampo mafioso – contrary to Articles 110, 416 and 416 bis of the Criminal Code) on the basis of statements of several pentiti – former members of the Mafia who have decided to cooperate with the authorities – during questioning in the course of various investigations into Mafia offences. All the pentiti had themselves been charged with or convicted of involvement in a mafia-type organisation and, in some cases, other offences, such as drug trafficking or murder.
On 2 January 1993 Mr Contrada was suspended from duty.
8. The first four statements which led to the applicant’s arrest may be summarised as follows:
(a) G. Mutolo asserted that R. Riccobono, head of the Mafia clan of which he had been a “member” since 1973, had told him in 1981 that the applicant was at the service of key Mafia leaders for whom he had done a number of unspecified “favours”. R. Riccobono had also told him that one A.G., a property developer with Mafia connections, had provided the applicant with a flat and that in 1981 the Mafia had spent 15 million lire on a Christmas present of a car for one of the applicant’s mistresses.
As the Mafia had decided in 1975 to eliminate the applicant and two other high-ranking officials, and had instructed S. Micalizzi and himself to shadow the applicant, Mutolo had asked R. Riccobono why the applicant was still alive. Riccobono had replied that Mr Contrada was “at the disposal” (of the Mafia). That same pentito had previously accused the public prosecutor in charge of his case, four of the judges who had convicted him in the Assize Court and the Assize Court of Appeal and the former President of the Palermo Court of Appeal of collusion with the Mafia.
(b) T. Buscetta, who gave evidence in 1984, said that R. Riccobono had advised him to return to Palermo and had assured him that the police would not look for him. T. Buscetta had subsequently informed S. Bontade (a member of the Mafia belonging to a different clan) of the tenor of his conversation with R. Riccobono. S. Bontade had then drawn Buscetta’s attention to the fact that R. Riccobono was passing information to the police and, in particular, the applicant.
As a result of those statements, an investigation was started into Mr Contrada’s activities, but was discontinued.
On 25 November 1992, Buscetta repeated the statement he had made in 1984, but added that he did not have first-hand knowledge of the facts.
(c) R. Spatola accused the applicant of having helped T. Riina, one of the most powerful Mafia leaders, to escape during a police operation in the early 1980s. He asserted that the applicant was a Freemason and had contacts with the Mafia leaders, also Freemasons. He also described how a police operation to arrest another mafioso, G. Gambino, had been foiled by a telephone call alerting him.
(d) G. Marchese stated on 4 November 1992 that in 1981, after returning from a meeting with senior Mafia leaders, his uncle had instructed him to alert T. Riina to the fact that he had been informed by the applicant that the police had found out where Riina lived and were preparing to search his home. T. Riina had as a result left that address and hidden elsewhere. During questioning on 2 October 1992, however, Marchese had said that T. Riina had left home to ensure his safety owing to clashes between rival Mafia clans.
9. In making his order of 23 December 1992 the investigating judge held that the statements referred to above had to be considered reliable and to have been made voluntarily. They could therefore constitute serious evidence of guilt (gravi indizi di colpevolezza), which is a prerequisite under Italian law for a suspect to be detained. The judge also considered that the statements were corroborated by objective evidence confirming their credibility.
10. The applicant was subsequently implicated in 1993 and 1994 by four other pentiti. Their statements may be summarised as follows:
(a) F.M. Mannoia referred to the applicant during questioning on 24 January 1994, stating that the applicant was a friend of R. Riccobono, also had contacts with S. Bontade and had been given the use of a flat by A.G.
(b) S. Cancemi said that Mr Contrada had accelerated S. Bontade’s application for a licence to carry firearms and had also intervened to secure the return of S. Bontade’s driving licence, which had been withdrawn as a preventive measure.
(c) P. Scavuzzo claimed to have seen the applicant in January 1991 in a flat in Palermo in the company of a member of the Mafia. He alleged that Mr Contrada had been involved in a valuation by a Swiss art expert of an amphora which P. Scavuzzo had brought to the premises and had, he asserted, been intended for the deputy police commissioner. P. Scavuzzo had convictions for armed robbery, drug trafficking and calumny.
(d) M. Pirrone, a member of the Ndrangheta, a Calabrian mafia-type organisation, said that a member of the Mafia, C. Conti, had told him that Mr Contrada was “useful” to the Mafia as he provided it with information about police raids.
11. Lastly, on 23 March 1993 R. Spatola stated that while in a restaurant with two other members of the Mafia, the Di Caro brothers, they had drawn his attention to the fact that R. Riccobono was there with the applicant in a small room that had been reserved in the restaurant.
12. Mr Contrada was questioned by the investigating judge shortly after his arrest, on 27 December 1992.
On 27 April 1993 he was questioned, at his request, by the public prosecutor and, on an unspecified date, transferred to Rome Military Prison.
Subsequently, the investigating judge committed him for trial and ordered that the trial should start on 12 April 1994 (see paragraph 25 below).
13. On 3 January 1993 the applicant filed an application with the Court of Cassation for release on the grounds that, firstly, the order of 23 December 1992 did not state what the “serious evidence of guilt” against him was and, secondly, in any event, the statements of the first four pentiti, which referred to events in the distant past most of which had been related to them by third parties, could under no circumstances constitute serious evidence of guilt. In that connection, he referred in particular to the Court of Cassation’s case-law under which a statement implicating another person did not constitute serious evidence of guilt within the meaning of Article 273 of the Code of Criminal Procedure (“CCP” – see paragraph 36 below) unless it was supported by objective evidence. He said that G. Mutolo and R. Spatola had never said what the favours he had allegedly done for the Mafia leaders were and that, furthermore, it was impossible to check the truth of the information provided by G. Mutolo, G. Marchese and T. Buscetta, as the persons from whom it had been obtained had all died in the meantime. He also observed that the investigation into like allegations made by T. Buscetta in 1984 had been discontinued in 1985 for want of material corroborating evidence. Lastly, the applicant submitted that none of the conditions laid down in Article 274 CCP (see paragraph 37 below) could justify detention in his case.
14. On 5 February 1993 the Court of Cassation dismissed his appeal on the ground that the investigating judge had given logical and sufficient reasons for his decision. The court noted that the judge had found that the pentiti statements were to be considered reliable, as they had been made by persons who had occupied senior positions within the Mafia and who had in the past enabled the investigators to establish the structure of that organisation. The Court of Cassation said in that regard that hearsay evidence could be admissible if it emanated from a reliable witness. The evidence had also to be considered “serious”, as the judge had referred to objective corroborative evidence. Emphasising that the statements in question had been made by different people and concerned different events so that their credibility was strengthened, the Court of Cassation concluded that the evidence assembled by the investigating judge pointed to the likelihood that the applicant was guilty of the offences with which he had been charged. Furthermore, under Article 275 CCP, the seriousness of those offences raised a rebuttable presumption that a risk existed that the applicant would tamper with evidence, abscond or reoffend.
15. On 23 July 1993 the applicant made a further application for release from detention to the investigating judge and at the same time applied for the charges to be dropped on the grounds that the offence had not been made out. He said in particular that the investigation up to that point had already provided the investigators with substantial evidence of his innocence. He referred to the active role he had played in a number of investigations into the Mafia, as a result of which he had even received death threats, and argued that he had opposed granting T. Buscetta day-release from prison, fearing, as proved to be the case, that Buscetta would take advantage of it to escape and resume his activities. He maintained that he had never met R. Riccobono or been a Freemason.
The applicant submitted that there was no real and current risk justifying his detention, given, in particular, that he would never be able to tamper with the evidence, since in the course of the lengthy investigation into the allegations against him all the evidence had already been obtained. Nor was there any risk of his absconding, since he had been aware of the pentiti statements before being arrested. In view of his career and the role he had played in investigating the Mafia, any risk that he might continue assisting the Mafia’s activities should also be ruled out.
16. The investigating judge who had ordered the applicant’s arrest dismissed that application on 24 August 1993. He held that the pentiti statements, far from being refuted, had subsequently been successively confirmed by:
(i) further detailed statements by R. Spatola confirming that the applicant knew R. Riccobono;
(ii) the fact that the applicant had, after a search at the home of a member of the Mafia, allegedly asked another police officer to “ease up”; and
(iii) the fact that the applicant had tipped off O. Tognoli, who was suspected of having Mafia links, that an arrest warrant had been issued against him, thereby enabling him to get away.
The judge also considered that the pentiti’s decision to cooperate with the judicial authorities could not have been motivated by a grudge against the applicant, given the genuineness of their cooperation with the authorities. Lastly, in view of the fact that the applicant occupied a senior official position, there was a real risk – assuming the charges against him were founded – of evidence being tampered with and of his absconding.
17. Mr Contrada appealed against that order to the Palermo District Court, which had appellate jurisdiction on applications for release. As regards the further statements by R. Spatola (see paragraph 11 above) in which he had said that the applicant knew R. Riccobono well, the applicant submitted that it was only a few days before the applicant’s arrest that Spatola had started making allegations about him to the judicial authorities. Although R. Spatola had been cooperating with the judicial authorities since 1989 he was, apparently, unaware that the applicant had left the Anti-Mafia High Commission in 1985. No more reliable, in the applicant’s submission, was R. Spatola’s claim that he had seen the applicant with R. Riccobono in a well-known Palermo restaurant (see paragraph 11 above) for, at the time, Palermo had been the scene of a ruthless power struggle between the various Mafia clans and Riccobono had no interest in showing himself in public. As to his instruction to a colleague to “ease up”, his intention had not been to protect members of the Mafia, but to bring a junior police officer in line following a search in which he had ill-treated the sons and wife of a mafioso wanted by the police.
18. On 1 October 1993 the Palermo District Court dismissed the appeal on the ground that it concerned points which had already been rejected and that new facts emerging from the investigation appeared to confirm the strength of the case against him. The court observed, inter alia, that the junior police officer had confirmed his statement regarding the pressure exerted on him by Mr Contrada. Even if no account could be taken of the statements by O. Tognoli in Switzerland, as they had been related verbally by the judges and had not been recorded in any document, all the other evidence against the applicant justified keeping him in detention pending trial. The court therefore upheld the order of 24 August 1993, while declaring that the statements concerning O. Tognoli’s evidence were inadmissible. Lastly, the court stressed once again the risk of evidence being tampered with given the network of contacts on which the applicant could rely, as had been demonstrated in particular by the fact that the applicant had voluntarily reported to the public prosecutor’s office on 17 November 1992, when the investigation should still have been secret. That circumstance confirmed that he had been aware, not only of the existence of an investigation against him, but also of the tenor of the accusations made by G. Mutolo.
19. The applicant appealed to the Court of Cassation, but his appeal was dismissed on 13 December 1993. While acknowledging that the reasoning of the courts below regarding the threat posed by the applicant had been somewhat concise, the Court of Cassation considered, among other things, that it was nevertheless neither manifestly illogical nor unlawful.
20. On 7 December 1993, noting that checks were still being carried out at banks and requests for documents from the Ministry of the Interior and the police authorities were still in hand, the Palermo public prosecutor’s office applied for the applicant’s detention pending trial to be continued after the expiration of the statutory limit of one year on 24 December 1993. On 20 December 1993 the applicant opposed that application.
21. On 23 December 1993 the investigating judge, relying in particular on the complexity of the investigation (involving, among other things, an outstanding request for judicial assistance, transcripts of tapped telephone conversations and an analysis of data relating to mobile telephones used by Mr Contrada) and the risk of the applicant tampering with evidence (whether to hand, or to be obtained), absconding and committing further offences, ordered that the period of detention pending trial be extended by sixty days.
22. On 7 January 1994 the applicant appealed. He submitted, inter alia, that the investigative measures that had allegedly necessitated his continued detention could easily have been completed earlier and certainly before 24 December 1993 and that any delay should be attributed solely to the judicial authorities.
23. On 2 February 1994 the Palermo District Court dismissed the applicant’s appeal. It held that even if the data relating to the mobile telephones could have been requested and analysed earlier – it had not been requested until 8 November 1993 although the applicant had been in detention since 24 December 1992 – the prosecution could not be criticised in relation to the other investigative measures justifying the applicant’s continued detention. They had either been put in hand very early on or had been particularly complex, and the prosecution enjoyed a certain margin of appreciation in that regard. Furthermore, even if the risk of absconding could be discounted, the court considered that there was still a real risk that the applicant would reoffend or that evidence would be tampered with, given the extremely sensitive official position he had occupied. The court noted on that point that, after a year’s wait, the prosecution had still not obtained the files on, among other things, work done by the applicant for the Ministry of the Interior. Account also had to be taken of the fact that it would be very difficult for the applicant to extricate himself from the Mafia’s criminal network.
24. Mr Contrada appealed to the Court of Cassation on 1 March 1994, but his appeal was dismissed on 27 May 1994. The Court of Cassation held, in particular, that there was a danger that the applicant might use his contacts to tamper with the evidence.
25. On 10 January 1995, following his committal and the start of his trial (see paragraph 12 above), the applicant made a further application for release. The Palermo District Court dismissed his application on 19 January 1995, holding once again that, as the investigation was complex, the applicant’s release might interfere with its progress. The applicant could have used his many contacts and connections – made while working at his former highly sensitive posts – to tamper with evidence or to exert pressure on witnesses. As to the risk of reoffending, the court emphasised that criminal links with the Mafia were generally long-lived, particularly bearing in mind the Mafia’s hallmark of subjugating its members.
26. On 14 April 1995 the Palermo District Court granted the prosecution’s application of 31 March 1995 for an order pursuant to Article 304 § 2 CCP (see paragraph 39 below) extending the maximum periods of detention pending trial for the duration of the trial and deliberations at first instance, owing to the complexity of the proceedings. The court held that, given the number of hearings, witnesses’ depositions and statements from the applicant, the prosecution’s request appeared justified. As regards the applicant’s submission that the proceedings would have been completed earlier if the hearings had been held at more frequent intervals, the court considered that it had to take into account the court’s excessive workload and the fact that it had also had to deal with other cases involving accused detained pending trial.
27. On 24 April 1995 Mr Contrada appealed against that order, submitting in particular that the provision for extension of the maximum periods of detention pending trial had been adopted in order to meet the requirements of trials of a very large number of defendants (maxi-processi). In his case, however, it had not been possible to complete the trial within the maximum period permitted for detention pending trial for reasons other than the complexity of the proceedings.
28. The Palermo District Court dismissed the applicant’s appeal in an order of 22 May 1995, ruling that all the conditions laid down in Article 304 § 2 CCP (see paragraph 39 below) were satisfied in his case: that is to say, in particular, the complexity of the proceedings (exacerbated by the court’s excessive workload) and the continuing applicability of the conditions laid down in Article 274 CCP (see paragraph 37 below). The applicant did not appeal to the Court of Cassation against that order.
29. On 28 July 1995 Mr Contrada made a further application to the Palermo District Court for release, arguing that his detention was no longer necessary for the investigation and that his health was suffering, as attested by a psychiatrists’ report.
30. The court granted the application (which was, moreover, supported by the prosecution) and the applicant’s release was finally ordered on 31 July 1995. The court held in particular that:
(i) at that stage of the trial, as the oral hearings had been completed, all the prosecution and defence witnesses heard, the documentary evidence obtained and various confrontations necessary for the investigation held, there was no longer any risk that the evidence would be tampered with or witnesses procured to give false evidence;
(ii) the risk of absconding could also be ruled out owing to the applicant’s state of health – he was suffering from a sufficiently acute form of asthenia –, the long period he had spent in detention and the fact that it was far from certain that a final conviction, which would necessitate precautions being taken to ensure that he served his sentence, would be secured; and
(iii) any risk of the applicant committing further offences could also be ruled out, owing to his state of health, the long period he had spent in detention pending trial and, lastly, the fact that since his arrest he had no longer been in his post.
31. In a note of 8 November 1995, appended to the Government’s observations, the public prosecutor attached to the Palermo Court of Appeal admitted, with regard to the question of whether there had been a need to keep the applicant in detention pending trial, that there was an apparent contradiction between the decision of 14 April 1995 to extend the maximum period and the fact that the conditions justifying keeping the applicant in detention under Article 304 § 2 CCP had ceased to exist shortly afterwards, which showed that an overall view of the trial had been lacking.
32. The trial progressed at an average rate of two hearings a week. Additionally, a report by the President of the court dated 29 September 1995 shows that, after the maximum period of detention pending trial in the proceedings had been extended for the duration of the trial, the court proposed holding three hearings a week instead of two, but the applicant’s lawyers refused. It appears from the case file that the proceedings involved 165 hearings at the investigative stage and the examination of more than 250 witnesses or persons accused of offences connected with those with which the applicant was charged. There were also four confrontations; moreover, fourteen hearings were necessary merely to examine the applicant, thirteen of which were held in succession between 4 November and 29 December 1994. Fifty-eight witnesses called by the parties gave evidence at the trial. A large number of documents were lodged on the case file. The hearings between 22 April 1994 and 12 October 1995 were devoted to the hearing of witnesses. Seven pentiti were, for security reasons, questioned in the Rome and Padua prisons where they were detained. The public prosecutor made his submissions over the course of twenty-one hearings held between 23 November 1995 and 19 January 1996. Between 7 February and 29 March 1996, over twenty-two hearings, the applicant’s lawyer made his submissions for the defence.
In a judgment of 5 April 1996, which was filed with the court registry on 17 October 1996, the Palermo District Court sentenced the applicant to ten years’ imprisonment for aiding and abetting from the outside (concorso esterno) a mafia-type organisation (Articles 416 bis and 110 of the Criminal Code).
In the reasons for its decision it said:
“The court considers that the complex and extensive investigation carried out at the trial, at which the parties were able to put forward their respective arguments, enables the conclusion to be reached with total certainty that the accused was completely guilty. That finding is based on the accusations, all of which are consistent, made against him by people who have cooperated with the prosecution and which the court finds to be credible taken as a whole, whether individually or jointly with other items of evidence subsequently corroborated by a very large number of statements and documents from other sources, the accusatory content of which is unequivocal and the evidential value indisputable.”
33. The applicant has appealed. The hearing of his appeal before the Palermo Court of Appeal began on 11 June 1998. At the end of a subsequent hearing on 2 July the appeal was adjourned to 22 October 1998.
34. Article 416 bis of the Criminal Code provides, inter alia:
“A person who is a member of a mafia-type organisation of three or more persons shall be liable to imprisonment...
An organisation is of a mafia type if its members use the intimidatory power of the bonds of membership and the resulting vows of obedience and silence in order to commit an offence, to acquire (directly or indirectly) the management, or other form of control, of economic activities, licences, permits, public contracts or services or to gain unfair advantages or profits for its members or other persons, or to prevent or hinder the free exercise of the right to vote, or to secure votes for members or other persons in elections.
...”
35. Moreover, Article 110 of the Criminal Code provides that where several persons are accomplices in the commission of an offence, they shall each be individually liable to the punishment laid down for that offence.
The case-law has applied the concept of aiding and abetting in cases concerning criminal organisations – and, more particularly, a mafia-type organisation – and has accepted that the offence of aiding and abetting a mafia-type organisation may be committed from the outside. The latter concept applies to a person who is not a member of the organisation and has confined himself to doing one or more acts likely to further that criminal organisation’s aims and motivated by an independent intention – limited in aim, duration and effectiveness – to commit a crime (see, among other authorities, the Court of Cassation judgment no. 88/179169).
That interpretation has, however, given rise to controversy among the Court of Cassation judges themselves. Thus, in its judgment no. 2699 of 30 June 1994, the Court of Cassation held as follows:
“As regards offences associated with belonging to a criminal organisation, and in particular a mafia-type organisation, the concept of criminal responsibility in the form of ‘aiding and abetting from the outside’ is unacceptable; a defendant who undertakes acts which facilitate the organisation’s aims either specifically intends to contribute to the furtherance of that organisation’s aims and is therefore indistinguishable from a member of the organisation, or does not have that specific intention, whereupon the conduct which facilitates the organisation’s aims should be treated differently from the offence of belonging to a criminal organisation... The impossibility of applying the concept of ‘aiding and abetting an organisation from the outside’ is confirmed by the fact that the offence of ‘aiding and abetting the members of a criminal organisation’ already exists (Article 418 of the Criminal Code) and that several provisions ... already provide for an offence committed ‘in order to facilitate’ the activity of Mafia or similar organisations...”
36. Article 273 § 1 CCP provides:
“No one shall be detained pending trial unless there is serious evidence of his guilt.”
37. Article 274 CCP provides that a person may be detained pending trial:
“(a) if detention is demanded by special and unavoidable requirements of the inquiry into the facts under investigation concerning a genuine and present danger for the production or authenticity of evidence and based on matters of fact which must, on pain of nullity, be expressly set out in the decision, which the judicial authority may take of its own motion...;
(b) if the accused has absconded or there is a real danger of his absconding, provided that the court considers that, if convicted, he will be liable to a prison sentence of more than two years;
(c) where, given the specific nature and circumstances of the offence and having regard to the character of the suspect or the accused as shown by his conduct, acts or criminal record, there is a genuine risk that he will commit a serious offence involving the use of weapons or other violent means against the person or an offence against the constitutional order or an offence relating to organised crime or a further offence of the same kind as that of which he is suspected or accused...”
38. Under Article 275 § 3 CCP, as amended by Legislative Decree no. 152 of 1991 (which became Law no. 203 of 1991) and Legislative Decree no. 292 of 1991 (which became Law no. 356 of 1991) there is a rebuttable presumption that such a necessity exists with regard to certain particularly serious offences, including the one with which the applicant was charged.
39. Article 303 CCP lays down the maximum permitted periods of detention pending trial depending on the stage reached in the proceedings. As the applicant was prosecuted for the offence laid down in Article 416 bis of the Criminal Code, the periods applicable to him during the proceedings at first instance were as follows:
(i) one year from the beginning of his detention until the order committing him for trial;
(ii) one year from the beginning of the trial until his conviction at first instance.
Article 303 CCP provides, inter alia, that if the order committing the defendant for trial has not been made or, as the case may be, the defendant has not been convicted at first instance within the relevant period, the detention pending trial shall cease to be lawful and the defendant must be released.
Articles 304 and 305 CCP provide for exceptions to these rules.
In particular, paragraph 2 of Article 304 provides that for certain offences, including the one provided for in Article 416 bis of the Criminal Code, the periods laid down in Article 303 may be extended during the hearings, the deliberations at first instance or the appeal, if the proceedings prove to be particularly complex. Article 304 provides that the length of detention pending trial must not, under any circumstances, exceed two-thirds of the maximum sentence for the offence with which the defendant is charged or the sentence imposed by the first-instance court.
Paragraph 2 of Article 305 provides:
“During the preliminary investigation, the public prosecutor may request an extension of a period of detention pending trial that is about to expire, where there is a serious need for precautionary measures which, in particularly complex investigations, make it absolutely necessary to extend the period of detention pending trial.”
That provision goes on to provide that such an extension may be renewed only once and that, in any event, the periods provided for in Article 303 cannot be exceeded by more than half.
40. Article 477 CCP provides, inter alia, that where the trial cannot be completed at a single sitting, the President shall order it to continue on the next working day. Moreover, the court may not adjourn the proceedings other than on grounds of absolute necessity and for a maximum of ten working days.
In that connection, the Court of Cassation has held that the ten-day period provided for in Article 477 § 2 CCP is a guideline (termine di natura ordinatoria), non-compliance with which does not render the detention unlawful and cannot have any effect on the extension of periods of detention pending trial under Article 304 § 1 CCP. While the court must comply with the time-limits laid down in Article 477 CCP, especially in cases where the length of the trial affects the length of the detention, the ability to adhere to the time-limits is inevitably dictated by the workload of the court concerned; if the court has a heavy workload, the trial cannot always be conducted within the period provided for in Article 477 CCP (see the Butera judgment of 18 February 1994).
NON_VIOLATED_ARTICLES: 5


ITEMID: 001-5105
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: T.I. v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a Sri Lankan national, born in 1969 and currently held in Campsfield House Detention Centre, Kidlington, Oxon.
He is represented before the Court by Ms Shabana Khan, a lawyer practising at Sri Kanth & Co., in Wembley, Middlesex.
A.
1. Facts as presented by the applicant
The applicant lived in Jaffna until May 1995. This area was, and is, controlled by the LTTE, a Tamil terrorist organisation, engaged in an armed struggle for independence.
From 1993 until June 1994, the applicant was forcibly taken by LTTE members, 3-4 times each month, for periods of 2-3 days, to mend their radio equipment. In June 1994, LTTE members came to the applicant's house to search for his cousin who had escaped from the organisation. When they could not find him, they turned their attention to the applicant. They interrogated him but he was unable to tell them of his cousin's whereabouts. He was taken to an LTTE settlement in Vasavilan, where he was held prisoner for more than 3 months. He was made to repair radio equipment, dig bunkers, cook food and on one occasion was beaten when he asked to return home.
In April 1995, the applicant escaped from the LTTE settlement. He left Jaffna with his father, arriving by train in Colombo on 1 May 1995. On 5 May 1995, the applicant was arrested by the Sri Lankan army which raided the rented house where they were staying. They suspected him of being an LTTE member. When his father tried to intervene, he was forcibly restrained by the soldiers. Following this incident, his father died of a heart attack on 6 May 1995.
After being beaten by the soldiers at the house, he was held in detention until 20 September 1995. He was photographed and his measurements taken. He was questioned regularly about his links with the LTTE and referred to as being a “Tiger”. During that time, he was tortured and ill-treated by the soldiers. He was hit about the head by the soldiers, who also banged his head on the wall. He was whipped with an electric cable and, on at least one occasion, he was strung up by his feet with chains from a bar in the ceiling. While he was hanging, the soles of his feet and lower back were beaten with an S-LON pipe (a plastic pipe filled with cement). While in detention, the applicant developed a skin disease which was diagnosed as psoriasis resulting from the overcrowding and poor hygiene in the prison. The applicant was finally released from detention when his uncle paid a bribe.
On release, the applicant went to a skin clinic for treatment. This was in an area controlled by the ENDLF, a pro-Government Tamil group. He was picked up twice by the ENDLF and taken to their camp for questioning about his involvement with the LTTE, being held for one day and seven days respectively. He was beaten on both occasions.
Following the explosion of an oil tanker near his home, the applicant was arrested on 23 October 1995. He was taken to the police station where he was questioned. He was pulled by the hair, chained to the wall by the arms and beaten with truncheons. A heated iron rod was pressed against his arm which caused him to lose consciousness. He was taken to a different room and questioned by officers of the Criminal Investigation Department who took turns in questioning him while two officers kicked and beat him. He was released on about 25 January 1996 when his uncle bribed a police officer.
2. Asylum proceedings
Shortly after his release, the applicant left Sri Lanka. He arrived in Germany on 10 February 1996. He claimed asylum on 13 February 1996.
In its decision of 26 April 1996, the Federal Office for the Recognition of Foreign Refugees (“the Federal Office”) did not make any findings as to whether the applicant had been tortured as alleged, but considered that this was “not relevant regarding the right of asylum. These are excesses of isolated executive organs and cannot be imputed to the Sri Lankan State.” In that regard, new Government orders had made clear that such practices were not to be tolerated. It was also found that there was no ground for the applicant to fear persecution as a consequence of his having claimed asylum in Germany.
The applicant’s appeal was heard on 21 April 1997 by the Bavarian Administrative Court, Regensburg, and rejected after an oral hearing. The Administrative Court noted that the actions of the LTTE could not be attributed to the State and that the applicant would be sufficiently safe from political persecution if he returned to the south of Sri Lanka. It referred to various measures adopted by the Sri Lankan Government including the ratification of the United Nations Convention against Torture, which was made domestic law in November 1994. While it noted that there was a risk of long term detention for persons suspected before their emigration of membership of the LTTE, an actual terrorist should not be granted asylum. Also, though a risk of detention and ill-treatment by the security forces and army existed in respect of persons suspected of supporting the LTTE, it concluded that the Sri Lankan security forces and army had no reason to suspect the applicant of supporting terrorist activities or LTTE military activities. Any arrests made for the purpose of extorting money did not disclose political persecution but were cases of excesses by individual officials. Furthermore it was of the opinion that the entire presentation of the applicant was a completely fabricated tissue of lies. He was not credible having regard, inter alia, to his lack of detail as to his activities as a student in Colombo, the way in which he left all his personal papers behind when he emigrated, and the fact that the letter which he presented in court from his mother was contained in an envelope on which the address was written by another person. It further concluded that there was no obstacle to deportation under Article 53(4) of the Aliens Law, in conjunction with Article 3 of the European Convention on Human Rights, as the pre-condition for this was that there was a threat of individually-specific and serious danger of treatment unconnected with political persecution, which was contrary to human rights or degrading, deriving from State organisations, or that such treatment was attributed to State organisations.
The applicant did not apply for leave to appeal against this decision. He states that his lawyer advised him not to appeal as there were clearly no prospects of success.
On 16 September 1997, the applicant left Germany and travelled to Italy. After one day in Italy, he travelled to the United Kingdom hidden on board a trailer where he arrived on 19 September 1997 and was discovered by immigration officers. On 20 September 1997, he claimed asylum.
On 15 January 1998, the United Kingdom Government requested that Germany accept responsibility for the applicant’s asylum request pursuant to the Dublin Convention. On 26 January 1998, Germany agreed. On 28 January 1998, the Secretary of State issued a certificate under section 2 of the Asylum and Immigration Act 1996 and directed the applicant’s removal to Germany. He refused to examine the substance of the applicant’s asylum claim.
On 10 February 1998, the applicant applied for judicial review. On 19 March 1998, Mr Justice Jowitt refused leave. On 17 April 1998 the applicant was released from detention.
On 28 April 1998, the applicant applied to the Court of Appeal, complaining of the approach of the German authorities to the standard of proof and application of the Geneva Convention. His renewed application was granted by the Court of Appeal which decided to determine the substantive application. In its judgment given on 10 June 1998, the Court of Appeal held that the Secretary of State was entitled to conclude that the German authorities do not adopt an approach which was outside the range of responses of a Contracting State acting in good faith to implement its obligations under the Convention. It noted that care had to be taken not to subject the approach adopted in other States to an over technical comparison. The higher recognition rate in Germany for Sri Lankan asylum-seekers undoubtedly supported the Secretary of State's opinion. Since he had taken reasonable steps to inform himself of the position in Germany by obtaining the opinion of Professor Dr Kay Hailbronner, a distinguished German lawyer who had been legal counsel for the Federal Government in asylum and immigration law and a judge of an administrative appeal court and Director of the Centre for International and European law on immigration and asylum, no more was required of him.
On 22 July 1998, the applicant’s application for leave to petition the House of Lords was refused. On 6 August 1998, the Secretary of State refused to exercise his discretion to grant leave to remain in the applicant’s favour on compassionate grounds. On 13 August 1998, the applicant was again placed in detention.
On 19 August 1998, the Secretary of State informed the applicant that he was satisfied that Germany was a safe third country. He noted that it was well-established that the German authorities were under a legal obligation to look at any new material placed before them. On 19 August 1998, removal directions to Germany were issued.
On 22 September 1998, Dr Michael Peel of the Medical Foundation for the Care of the Victims of Torture, London, issued a medical report in which he concluded that:
1. Two 1 cm scars on the right side of the head were consistent the applicant's account of his head being hit against the wall;
2. Scarring of the right eardrum was consistent with the surgical repair of a traumatic rupture of the eardrum;
3. Psoriatic plaques on his upper back confirmed the diagnosis of psoriasis (The condition was not infectious but was made worse by stress);
4. A linear 4 cm scar on his right upper arm was consistent with his account of being whipped with electric cable;
5. Two linear scars inside the left fore-arm, 5 x 1 cm and 4 x 2 cm, were consistent with his account of being burned by a heated metal rod;
6. An irregular scar on the back of the left hand, 1cm in diameter, was consistent with his account of a cigarette being pressed against his hand;
7. An irregular scar, 1cm long, behind the right heel was consistent with his account of a chain cutting into his ankles when he was suspended.
Dr Peel concluded that the details given by the applicant of his detention were completely consistent with the descriptions of Sri Lankan detention centres given to him by other asylum seekers, that the scars on his body were fully consistent with his story and that he described some psychological symptoms found in persons who have been detained and beaten.
The applicant made a second application for judicial review, submitting the above medical evidence and challenging the certification of Germany as a safe third country as, inter alia, Germany failed to recognise persons as refugees where the persecution emanated from non-State agents. Leave was refused by Mr Justice Latham on 2 October 1998. Counsel advised that there were no grounds on which to appeal to the Court of Appeal. Removal directions were set for 8 October 1998 and then deferred.
A further medical report was prepared by Dr Colin Livingston of the Medical Foundation (Caring for victims of Torture) after two examinations of the applicant on 28 June and 9 July 1999. He stated:
“My professional view is that particularly in regard to the neck, jaw and burn scars ... that there is a serious possibility and I would go beyond that <to conclude that there is> very little doubt that what has been observed and recorded above results from physical injuries inflicted upon him during periods of detention in the past. ... Though there are symptoms of a physical nature which have been described which persist, I find also that there are psychological ill effects of his past ill treatment which are present and likely to remain for a long period in the future … there can be little doubt, if any doubt, that [the applicant’s scars] have been caused in the way he describes.”
On 11 August 1999, following the decision of 23 July 1999 of the Court of Appeal in the case of Adan, Subaraskan and Aitsegeur (see domestic law and practice below), the applicant's representatives requested that the Secretary of State reconsider his decision to issue a certificate under section 2(2) of the Asylum and Immigration Act 1996 authorising the removal of the applicant to Germany, and to consider the merits of his claim for asylum. On 12 August 1999, the Secretary of State stated that he was not willing at this stage to consider the merits of the applicant’s claim as he was pursuing an appeal to the House of Lords in respect of Adan and Aitsegeur. He also expressed the view that it would be premature to do so as the applicant’s application to the Court concerned Convention issues not considered by the Court of Appeal in the Adan, Subaskaran and Aitsegeur case.
The applicant has submitted material from members of his family supporting his account of events, e.g. a statement from his mother dated 3 June 1999, an affidavit from his mother dated 1 August 1999, a letter from his uncle dated 24 May 1999 and a letter from his sister dated 3 June 1999. He has also provided the Court with colour photographs showing various marks on his head, legs, arm and torso.
B. Relevant domestic law and practice
1. Applicable international texts
The United Kingdom and Germany are parties to the 1951 Geneva Convention relating to The Status of Refugees. Article 33(1) provides:
“No contracting state shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”
The Dublin Convention (the Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities, 15 June 1990) provides for measures to ensure that applicants for asylum have their applications examined by one of the Member States and that applicants for asylum are not referred successively from one Member State to another. Articles 4 to 8 set out the criteria for determining the single Member State responsible for examining an application for asylum. Pursuant to Article 7, the responsibility for examining an application for asylum is incumbent upon the Member State responsible for controlling the entry of the alien into the territory of the Member States. The United Kingdom and Germany are both signatory States.
2. United Kingdom immigration statutes and rules
Section 2 of the Asylum and Immigration Act 1996 provides:
“(1) ... a person who has claimed asylum [may be] removed from the United Kingdom if -
(a) the Secretary of State has certified that, in his opinion, the conditions mentioned in subsection (2) below are fulfilled; ...
(2) The Conditions are:
(a) that the person is not a national or citizen of the country or territory to which he is to be sent;
(b) that his life and liberty would not be threatened in that country or territory by reason of his race, religion, nationality, membership of a particular social group or political opinion; and
(c) that the government of that country or territory would not send him to another country or territory otherwise than in accordance with the [Geneva] Convention.”
Paragraph 345 of the Immigration Rules states:
“If the Secretary of State is satisfied that there is a safe country to which an asylum applicant can be sent, his application will normally be refused without substantive consideration of his claim to refugee status. A safe country is one in which the life or freedom of the asylum applicant would not be threatened (within the meaning of Article 33 of the [Geneva] Convention) and the government of which would not send the applicant elsewhere contrary to the principles of the [Geneva] Convention....”
Paragraph 347 of the Immigration Rules provide:
“When an asylum applicant has come to the United Kingdom from another country which is party to the [Geneva] Convention...... and which has considered and rejected an application for asylum from him, his application for asylum in the United Kingdom may be refused without substantive consideration of his claim for refugee status. He may be removed to that country, or any country meeting the criteria of paragraph 345, and invited to raise any new circumstances with the authorities of the country which originally considered his application.”
The Secretary of State has power to grant exceptional leave to enter or remain in cases which do not fall within the Act or the Rules. His policy is to grant such leave:
“... Where the [Geneva] Convention requirements are not met in the individual case but return to the country of origin would result in the applicant being subjected to torture or other cruel, inhuman or degrading treatment, or where the removal would result in an unjustifiable break-up of family life... A person should never be disqualified from exceptional leave to enter or remain if there are substantial reasons for believing that he or she would be tortured or otherwise subjected to inhuman or degrading treatment if they were to be returned to their country of origin.”
A refusal to grant exceptional leave is subject to judicial review. The courts can rule that the particular exercise of the Secretary of State’s discretion is unlawful on the ground that it was tainted with illegality, irrationality or procedural impropriety. The courts could quash a decision if it was established that there was a serious risk of inhuman treatment on the ground that no reasonable Secretary of State could take such a decision.
4. United Kingdom case-law
The domestic courts’ approach under Section 2 of the Asylum and Immigration Act 1996 prior to July 1999 was summarised as:
(i) The Secretary of State cannot simply rely upon the fact that the third country is a signatory to the Geneva Convention: he must be satisfied that in practice it complies with its obligations (Re Musisi [1987] AC 514).
(ii) The issue is whether the third country adopts an approach within the range of responses of a Contracting State acting in good faith to implement its obligations under the Geneva Convention (R. v. Secretary of State for the Home Department Ex parte Iyadurai [1998] INLR 472).
(iii) The Secretary of State must be satisfied that there is no real risk that the third country would send the applicant elsewhere in breach of the Geneva Convention (R. v. Secretary of State for the Home Department Ex parte Canbolat [1997 1 WLR] 1569).
In its judgment of 23 July 1999 in the case of R. v. Secretary of State for the Home Department ex parte Adan, Subaskaran and Aitsegeur, the Court of Appeal examined as a question of general importance whether the Secretary of State was entitled to return asylum seekers to France and Germany under section 2 (2) c of the Asylum and Immigration Act 1996, as being countries which did not recognise as refugees those who feared persecution from non-State agents. Adan was a citizen of Somalia who had been refused asylum in Germany prior to her arrival in the United Kingdom; Subaskaran was a Sri Lankan national who claimed asylum in the United Kingdom on account of his ill-treatment by both the LTTE and the Sri Lankan army but whose claims had been rejected by the German authorities; and Aitsegeur was a citizen of Algeria whose asylum application had been rejected by French authorities. The Court of Appeal held that the Geneva Convention extended protection to persons who feared persecution by non-State agents, where, for whatever cause, the State was unwilling or unable to offer protection itself. As the German and French authorities subscribed to the “accountability theory” - ie. refugee status was limited to those who feared persecution emanating from State or quasi-State authorities or persecution from non-State agents where it was shown that it was tolerated or encouraged by the State, or at least that the State was unwilling to offer protection - the Secretary of State could not as a matter of law certify the claimants for return to these countries as safe third countries because these countries did not give effect to the Convention’s core values:
“If a party to the Geneva Convention were to take a position which was at a variance with the Convention’s true interpretation, and act upon it, it could not be regarded as a safe third country; not merely because the “real risk” test is not breached (though certainly it would be) but because in the particular case the Convention was not being applied at all.” (§ 68)
The Secretary of State has petitioned the House of Lords for leave to appeal against this decision as regards Adan and Aitsegeur, no separate petition being pursued in respect of Subaskaran due to the similarity of the issues.
5. German law concerning asylum-seekers and persons claiming protection
The Federal Office for the Recognition of Foreign Refugees considers claims for asylum or whether there are obstacles to the deportation of aliens. Its decisions to issue deportation orders may be reviewed by the Federal Administrative Court.
Pursuant to Article 16a(1) of the Basic Law, a person persecuted on political grounds has the right of asylum. Persons entitled to asylum enjoy legal status pursuant to the Geneva Convention on Refugees and are issued with an unlimited residence permit (section 68 of the Asylum Procedure Act).
Section 51 of the Aliens Act prohibits the deportation of aliens to a State where they would face political persecution. Aliens granted protection against deportation under this provision enjoy legal status under the Geneva Convention but are merely issued with limited residence for exceptional purposes.

According to the constant case-law of the German Constitutional Court, recognition as a political refugee requires a risk of persecution emanating from a State or quasi-State like authority. Persecution by private organisations or persons qualifies only if it can be attributed to the State in that the State supports or passively tolerates the persecution by private groups or exceptionally if the State does not provide adequate protection due to its inability to act as a consequence of existing political or social structures. This does not cover situations where a State has factually lost control of parts of its territory (FCC of July 2, 1980, vol. 54, 341, 358).
Ill-treatment by a State officer considered as an isolated event in excess of his functions and prohibited and sanctioned according to the regular administrative and penal procedures is not attributed to the State. A practice of torture by police or prison authorities, either in the form of political persecution or in the context of Article 3 of the Convention, is attributable to the State. State complicity may be shown where torture is practised as part of the police or military structure of a State.
If an asylum claim for protection against political persecution does not meet the necessary requirements under Article 16a(1) of the Basic Law or section 51(1) of the Aliens Act, the Federal Office is obliged to examine whether an applicant faces a serious risk of treatment contrary to Article 3 of the Convention if he were returned. Section 53(4) of the Aliens Act prohibits expulsion in such circumstances.
In a decision of 15 April 1997 (Vol. 104, 265), the German Federal Administrative Court decided that an applicant, in order to meet the requirements of section 53(4) of the Aliens Act, must show a serious risk of inhuman or degrading treatment or punishment by a State or a State-like authority. It therefore declined to follow the interpretation of Article 3 of the Convention adopted by the European Court of Human Rights in Ahmed v. Austria (judgment of 17 December 1996, Reports 1996-V1).
If the preconditions for the application of section 53(4) are not met, protection may be granted under section 53(6) of the Aliens Act, which grants a discretion to the authorities to suspend deportation in case of a substantial danger for life, personal integrity or liberty of an alien. This applies to concrete individual danger resulting from either State or private action. It does not require an intentional act, intervention or State measure and covers risks for life resulting from adverse living conditions, lack of necessary medical treatment, etc. (FAC 9 September 1997, InfAusIR 1998, 125). This provision has also been applied to civil war or war situations where the threat derived from a non-State source (Administrative Appeal Court of Baden-Württemberg decision of 11 May 1999, 6S 514/99). Persons afforded protection under this provision are granted temporary permission to remain for periods of three months, renewable by the authorities.
In the first six months of 1999, section 53(6) was applied to 24 Sri Lankan nationals in respect of serious individual risks of ill-treatment which could not be attributed to the Sri Lankan State. This included the case of a Tamil whose scars placed him a real danger of being apprehended by the security forces and submitted to renewed torture as a person suspected of LTTE involvement (Dresden Administrative Court decision of 16 November 1998, 5 K 30493/96)
Unsuccessful applicants are entitled to have their case re-examined in a new asylum procedure (follow up application, section 71 of the Asylum Procedure Act) subject to section 51(1)-(3) of the Administrative Procedure Act. This only applies where the factual or legal situation has changed in favour of the applicant, where there is new evidence or there are reasons to resume proceedings analogous to those relevant to section 580 of the Code of Civil Procedure (false evidence, fresh witnesses etc). In addition, the applicant must show that such new facts or evidence, which have to be submitted with a three months time-limit, are suitable to support a favourable result and that he/she was unable to deliver such facts or evidence in the previous asylum procedure.
However, even where these conditions are not met, the competent authorities would be obliged to examine whether the applicant, if removed, was facing a serious individual risk for life and personal integrity, in particular a grave danger within the meaning of the Federal Administrative Court’s jurisprudence relating to section 53(6) (see e.g. FAC of September 7, 1999, 1 C 6.99).
An applicant filing a follow-up application or claiming protection under section 53 cannot be removed immediately upon return to Germany on the basis of the previous rejection of an asylum claim and deportation order. If the applicant does not meet the requirements for a resumption of the procedure or a re-examination of his case, the authorities have to issue a new deportation order, which may be subject to judicial review. Only where an unfounded application ensued within two years would the original deportation order remain in force. An applicant has a week to file a complaint against the deportation with the Administrative Court. Deportation cannot take place pending the court’s decision. The applicant may ask the court to grant suspensive effect to the appeal.
6. Relevant Reports
In the part of the Amnesty International Report for 1998 concerning Sri Lanka, it was reported that ‘no member of the security forces has been brought to justice for committing torture’. In June 1999 Amnesty International published a report entitled “Sri Lanka Torture in Custody”. That report noted:
“..[T]orture... continues to be reported almost (if not) daily in the context of the ongoing conflict between the security forces and the Liberation Tigers of Tamil Eelam (LTTE) fighting for an independent State, Eelam, in the north and east of the country...
The pattern of arrest, detention and torture in Colombo is closely linked to the occurrence of LTTE attacks in the city, the discovery of materials for such attacks or any major public events in Colombo such as Independence Day. High numbers of arrests are reported after explosions, assassinations and arm-finds.”
A report by the Medical Foundation for the Victims of Torture entitled “No Safe Haven: Nigerian, Kenyan and Sri Lankan Torture Victims in the United Kingdom” dated October 1997 stated:
“Although the government elected in 1994 has established legal and statutory frameworks with the expressed intent to control human rights abuses by security forces, these have not been very successful in curbing human rights violations by army or police, or in bringing perpetrators to justice. Tamils, especially young men, are frequently detained by security forces in search of Tiger supporters ... many ... are detained, sometimes for long periods, and ill-treated or tortured....
When the security forces detain someone with scarring, they assume the person to be a LTTE member and treat them extremely brutally ...”
The Report of the United Nations Special Rapporteur on extra-judicial and summary executions dated 10 March 1998 stated in respect of his visit to Sri Lanka:
“Human rights violations are most frequent in the context of operations carried out by the security forces against the armed insurgency ... the violations have been so numerous, frequent and serious over the years that they could not be dealt with as if they were just isolated or individual cases of middle and lower-rank officers, without attaching any political responsibility to the civilian and military hierarchy.”
The US Department of State “Sri Lanka Country Report on Human Rights Practices for 1998” dated 26 February 1999 stated:
“Torture remained a serious problem, and prison conditions remained poor. Arbitrary arrests and detentions continued, often accompanied by failure of the security forces to comply with some of the protective provisions of the Emergency Regulations. Impunity for those responsible for human rights abuses remained a serious problem.
No arrests were made in connection with the disappearance and presumed killing of at least 350 LTTE suspects in Jaffna in 1996 and 1997.”


ITEMID: 001-109268
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: ALI v. NORWAY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 1. The applicant, Mr Dilan Sadik Ali, is an Iraqi national who was born in 1979 and lives in Kristiansand. He is represented before the Court by Mr D. Gallup, legal officer at the World Service Authority, Washington, the United States of America (USA).
2. The Norwegian Government (“the Government”) were represented by Mr M. Emberland, Attorney, Attorney-General’s Office (Civil Matters), as their Agent, assisted by Mr G.O. Hæreid, Attorney.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant applied for asylum in Norway on 21 March 2001. On 14 November 2001 the Directorate of Immigration rejected his asylum request but granted him a work- and residence permit on humanitarian grounds (section 8 of the Immigration Act of 24 June 1988 No. 64, Lov om utlendingers adgang til riket og deres opphold her – utlendingsloven, applicable at the material time).
5. By a judgment of 15 April 2005 the Kristiansand City Court convicted the applicant on charges of aggravated assault committed against his former girlfriend. It found established beyond reasonable doubt that he had pushed her to the ground so that she had fallen and hit her head against the asphalt and, while she was lying on the ground, had kicked her twice on her left hand side and had then left the scene. The victim was hospitalised for three days while suffering from nausea and vomiting, minor head aches, amnesia and pain in the rib on her left side. The applicant was in addition convicted on a count of speeding. The City Court, finding that the applicant’s kicking of the victim made the offence borderline to what would warrant a nonsuspended sentence and being in doubt therefore, decided to impose a suspended sentence of sixty days’ imprisonment and a fine of 3,000 Norwegian kroner (NOK), corresponding to approximately 390 Euros (EUR).
6. In the light of his conviction on 15 April 2005, the Directorate of Immigration warned the applicant on 8 September 2005 that it contemplated expelling him.
7. On 30 November 2006 the Directorate decided to expel the applicant, finding that the conditions under section 29 (1) (c) and (3) of the Immigration Act 1988 had been fulfilled and that his expulsion would not be disproportionate for the purposes of section 29 (2). Under section 29 (4), the Directorate further decided to prohibit the applicant from re-entry into Norway indefinitely.
8. In a separate decision of the same date, the Directorate rejected an application by the applicant for renewal of his work- and residence permit. It held that the conditions for granting him such a permit had not been fulfilled as there existed circumstances that warranted refusing him entry into the country.
9. Represented by a new lawyer, the applicant appealed (via the Directorate) to the Immigration Appeals Board. He argued that the expulsion was disproportionate as he had settled in Norway and that he was not a criminal in the normal sense of the word. The applicant pointed out that he had not been involved in any criminal offence either before or after those dealt with by the City Court. Moreover, Iraq was in a state of civil war and there was a high risk of escalation of the internal conflict, meaning that the situation was generally insecure.
10. In a letter to the Directorate, dated 14 January 2007, the applicant claimed to be of Turkmen ethnic origin coming from Kirkuk. He also maintained that his previous girlfriend had tried to blackmail him and added that he had a new girlfriend.
11. By a letter of 1 February 2007 the applicant’s new girlfriend, Ms M.O. who was Norwegian, requested the Directorate of Immigration to reconsider its previous rejection. On 11 April 2007, he informed the Directorate that on 31 March 2007 he had married M.O.
12. On reviewing the above-mentioned arguments, the Directorate did not consider that the appeal contained any new information of significance and maintained its previous decisions. The Directorate noted that the applicant had married on 31 March 2007, but did not attach great importance to this event since the marriage had occurred after the Directorate’s decision of expulsion. It was also pointed out that the applicant was suspected of two further incidents of assault, occurred on 12 June and 1 August 2007, respectively. The Directorate consented, however, to postpone the enforcement of his expulsion pending a decision on his appeal, which the Directorate referred to the Immigration Appeals Board on 15 October 2007.
13. On 15 August 2008 the Immigration Appeals Board rejected the applicant’s appeal against the Directorate’s refusal of the applicant’s request for renewal of his work- and residence permit. The Board upheld in part his appeal against the Directorate’s decision to expel him indefinitely by limiting the prohibition on re-entry to five years. It decided that an application for re-entry could be made at the earliest after a period of two years from his leaving the country.
14. The Board reiterated that, according to section 29 (1) (c) of the Immigration Act 1988, a foreign national might be expelled if he or she had been sentenced in Norway for an offence that was punishable by imprisonment for a term exceeding three months. Moreover, pursuant to section 29 (3), if the person concerned held a work- or residence permit, he or she could only be expelled if the offence was punishable by imprisonment for a term exceeding one year or in the event of violation of inter alia Article 228 (1) (assault) of the Penal Code. The Board, referring to the applicant’s conviction and sentence (for aggravated assault under Article 228 (1) and (2)) by the City Court of 15 April 2005, considered that this condition had been fulfilled in his case.
15. As to the condition in section 29 (2) that the expulsion should not be a disproportionately severe measure vis-à-vis the foreign national himself or his closest family members, the Board first had regard to the seriousness of the offence. The City Court had imposed a suspended term of sixty days’ imprisonment in respect of offences that included assault against his previous girlfriend, resulting in injury to her body and health. This was a relatively serious offence which carried a maximum penalty of three years’ imprisonment. In meting out the sentence, the trial court had held that the fact that applicant had kicked the victim’s body after she had fallen to the ground was an important aggravating factor and had found no mitigating circumstances.
16. The Board further considered it significant that, on 2 May 2008, the applicant had accepted a summary fine (forelegg) for an offence of theft (Article 257 (1) of the Penal Code). It in addition noted that on 30 June 2008 the City Court had sentenced him to forty-five days’ suspended imprisonment in respect of two instances of aggravated violent assault (Article 228) and for dealing with stolen goods (Article 317 (1)), but without attaching decisive importance thereto, it being unclear whether the judgment had gained legal force.
17. In light of the gravity of the applicant’s offences, the Board found that his personal attachment to Norway carried little weight, as did the fact that he had married a Norwegian national after the Directorate had decided to expel him. At that time they could hardly have entertained any legitimate expectation about being able to live together in Norway. The applicant’s links to the country through his wife had mainly been established after he had committed the offences for which he had been convicted. However, having regard to it being a suspended sentence, to his overall links to Norway and to the Board’s practice in this area, the latter limited the prohibition on re-entry to five years. In the Board’s opinion, the consequent interference with the applicant’s enjoyment of private and family life would be justified for the purposes of Article 8 of the Convention.
18. The Board next considered whether the applicant’s expulsion would be prevented by a real risk of persecution, loss of life or ill-treatment (section 15 of the Immigration Act and Article 3 of the Convention).
19. In this connection, the Board based its assessment on it having been established that the applicant was of Kurdish ethic origin and came from Kirkuk, as he had consistently submitted in his request for a residence permit in Norway. His claim on some occasions in 2005 and thereafter that he was of Turkmen origin had weakened his credibility.
20. In so far as the applicant’s individual situation was concerned, the Board noted that the reasons underlying his asylum request had related to the Baath regime and that this regime no longer existed. Nor were there any other circumstances pertaining to the applicant or the conditions in his home country suggesting that he was in need of protection.
21. As to the general security situation in Kirkuk, the Board stated that it was characterised by violence and disturbance and had been unstable and difficult. Kirkuk had been located in the border region near the Kurdish autonomous areas in Iraq. The Kurdish population had been in a majority whereas Turkmens, Arabs and Assyrians had constituted the largest minority groups. Kirkuk had mainly been under Kurdish political and military control, though the minorities had also been represented in governing bodies.
22. At times during the past years the level of violence had been high, notably because of the presence of several different militant groups. In Kirkuk the violence had in particular taken the form of shootings, road bombs, suicide bombs and car bombs. The targets of the actions had first and foremost been the security forces and the police, but also local political leaders and their family members as well as members of the civilian population had been affected by actions.
23. The Board nonetheless considered that the current situation had not been such as to regard all citizens in the area as being in imminent danger of loss of life or ill-treatment. The most recent reports on the area, amongst other from the United Nations Security Council, the United States’ Department of Defence, the UN Assistance Mission for Iraq (UNAMI) and the United Nations High Commissioner for Refugees (UNHCR), had showed that the security situation in the area was improving. In comparison with other areas of Central and Southern Iraq, the current violence had been more limited and had to a greater extent been aimed at specific target groups, than was the case in Southern Iraq. According to the Board’s practice, the general security situation in Kirkuk had not on its own constituted a ground for protecting persons of Kurdish ethnic origin.
24. The applicant requested the Immigration Appeals Board to reconsider its above-mentioned refusal of 15 August 2008. He argued that his return would be prevented by the security situation in Iraq generally and that in Kirkuk specifically. He further submitted that his wife suffered from depression. According to a medical statement from the psychiatric clinic of Sørlandet Hospital, in view of her husband’s impending expulsion, her psychological problems had increased with serious suicidal thoughts and impulses. He was important to her and represented a stabilising factor in her life and her mental health. Also, he assumed a significant role as a care person for his stepson who was showing signs of behavioural difficulties.
25. On 30 June 2009 the Board refused the applicant’s request, finding no hardship exceeding what was normal in a situation of expulsion. Also, the applicant’s relationship to his spouse and stepchildren had been established essentially after he had committed the offences for which he had been convicted. The Board reiterated that the prohibition on re-entry had been limited to five years.
26. As regards the question whether the general situation in Kirkuk was such as to prevent the applicant’s return, the Board restated the findings made in its decision of 15 August 2008 summarised above. It noted that in its recommendations of 18 December 2008 and Eligibility Guidelines of August 2007, and the Addendum thereto of December 2007, as well as Eligibility Guidelines of April 2009, the UNHCR had advised against any forcible return to the five governorates of Central Iraq (Bagdad, Ninewah, Diyala, Salah al-Din, Tamim) and considered that persons coming from these areas should be recognised as refugees. The UNHCR had assumed in its recommendations that persons who were not recognised as refugees should nevertheless be granted protection. The UNHCR had amongst other referred to the general situation of violence, the great number of internally displaced people, the authorities’ inability and unwillingness to provide protection, the high unemployment, limited access to fuel, electricity and water and great shortcomings in public health services, education etc.
27. The Board reiterated that UNHCR recommendations were relevant and had to be given weight, both as information about the general situation in Iraq and as part of the interpretation of whom had a right to protection under the Refugee Convention. However, the UNHCR recommendations could not be decisive of their own. The Board had to have regard to other information and reach a correct decision in accordance with the Refugee Convention and other relevant rules. The Board also took account of the fact that the UNHCR recommendations had regard to humanitarian and socioeconomic considerations, not only to the security situation and the danger of being affected by violence.
28. Although the security situation in Kirkuk was difficult and unstable, the Board did not consider that the current situation was of such a nature that all the inhabitants of the region could be said to face a real risk of losing their lives or of being made to suffer inhuman treatment. Nor were there factors related to the applicant’s Kurdish origin that indicated that he would face a real risk of losing his life or being made to suffer inhuman treatment if he were to return to Kirkuk.
29. In this connection, the Board reiterated that, throughout his application to stay in Norway, the applicant had maintained that he was of Kurdish ethnic origin and that so was his father. The fact that the applicant in 2005 onwards had claimed to be of Turkmen origin detracted from his general credibility.
30. In its decision the Board also provided information about a voluntary repatriation program that had operated since 1 March 2008, covering the Dahuk, Erbil and Sulaymaniyah Governorates in Northern Iraq and opening also for the possibility to apply for repatriation to other areas. It was sponsored by the Norwegian Government and implemented by the International Organization for Migration. Under this program a returnee would be eligible to receive NOK 10,000 (approximately EUR 1,300) in cash and be offered an additional NOK 25,000 (approximately EUR 3,250) in resettlement support.
31. The applicant sought to bring his case to the attention of a number of instances, including to the King, the Prime Minister and various ministries, but to no avail.
32. Under the Code of Civil Procedure of 17 June 2005 No. 90 (tvisteloven), a decision by the Immigration Appeals Board could form the subject of an appeal to the competent city court or district court (tingrett) (Articles 1-3, 15, 4-1), from there to the High Court (lagmannsrett) (Articles 4-1 and 291) and ultimately to the Supreme Court (Article 30-1). The domestic courts had full jurisdiction to review the lawfulness of the Board’s decision and were empowered to quash the decision should they find that it was unlawful. Pursuant to section 4 of the Immigration Act 1988, the provisions of the Act were to be applied in accordance with Norway’s international legal obligations intended to strengthen the legal position of a foreign national. In the event of conflict between the national legal provision and Norway’s obligations under the Convention, the latter was to take precedence (sections 2 and 3 of the Human Rights Act of 21 May 1999 No. 30).
33. Under Chapters 32 and 34 of the Code of Civil Procedure, a person whose expulsion had been ordered by the immigration authorities could apply to the courts for an interlocutory injunction to stay the implementation of the expulsion order.
34. Further conditions regarding judicial review of the Immigration Appeals Board’s decision were set out inter alia in the following provisions and guidelines.
35. At the material time, the fee for filing a lawsuit before a City Court or a District Court (tingrett) was NOK 4,300, corresponding to approximately EUR 560, if the hearing lasted for one day and NOK 6,880 (EUR 900) if the hearing lasted for two days.
36. Pursuant to section 3 of the Court Fees Act of 17 December 1982 No. 86 (rettsgebyrloven), fees should be paid in advance. In the event that a sufficient amount had not been paid when a request for a judicial order had been made, the court was to fix a brief time-limit for payment. In the event that payment is not effected within the time-limit fixed, the court shall dismiss the case, unless the provisions in section 5 apply. The latter provided:
“If a party has applied for free legal aid or for exemption from the payment of court fees under the Free Legal Aid Act of 13 June 1980 No. 35 [rettshjelploven], a respite should be granted until the application has been decided. In this event no security can be required for the payment of the fee.
If a party who has requested a procedural step [rettergangsskritt] has obtained respite in accordance with the foregoing, the court shall grant the measure. In other cases the court may grant a measure if the party who has requested it is unable to pay immediately and it would entail a damage or significant inconvenience for that party if the measure is not taken. If the measure requires payments, an advance payment may be made by the public authorities.
If a measure has been taken with a respite, the court shall fix a time-limit for payment. Until payment has been made or the time-limit has expired, the court shall only take such measures as it deems necessary. If payment is not made within the time-limit, the court gives a ruling in absentia according to Articles 16-9 and 16-10 of the Code of Civil Procedure.”
37. An exception from the condition to pay court fees could be granted as part of a grant to free legal representation according to the same rules as those that applied to the latter (section 25 of the Free Legal Aid Act). A person who was not entitled to free legal representation could be granted an exemption from the duty to pay court fees provided that the financial conditions in section 16 (2) or (4) had been fulfilled (see below).
38. According to the Code of Civil Procedure a party could be represented by counsel (Article 3-1), but was not obliged to be so represented, save if the party was unable to present the case in a comprehensible manner and the court has ordered the party to appear with counsel (Article 3-2).
39. Section 16 (1) to (5) of the Free Legal Aid Act 1980 included the following provisions of relevance to the present case:
“(1) Free legal representation shall be granted without means testing in ... the following instances:
...
4. to a foreign national in such instances as mentioned in section 92 (3), second sentence, and (4) of the Immigration Act [2008] ....
...
(2) In such cases as mentioned in section 11(2) nos. 1-5 [not applicable in the instant case], an application for free legal representation may be granted to a person whose income and assets do not exceed certain levels set by the Ministry.
(3) In other cases, free legal representation may be granted exceptionally, provided that the financial conditions pursuant to the second sub-section are fulfilled and that the case affects the claimant especially from an objective point of view. In the assessment, weight should be attached to whether the case has similarities with the litigation areas mentioned in the first and second sub-sections.
(4) In such cases as mentioned in the second and third sub-sections, free legal representation may be granted even if the claimant does not fulfil the financial conditions prescribed in the second sub-section, provided that the expenses for legal assistance will be substantial compared to the claimant’s financial situation.
(5) Free legal representation shall not be granted pursuant to the second through fourth sub-sections where it would be unreasonable that such assistance be paid out of public funds.”
40. In Circular G-12/05 the Ministry of Justice and Home Affairs stated at paragraph 6.5.2:
“In immigration cases not covered by section 16 (1) nr 4, the practice should be very restrictive. The general legal security of the foreigner is considered to be sufficiently secured through the administrative processing of the case. Legal aid to take the case before court should only be granted in exceptional cases, i.e. if there are very specific reasons, for instance if the case presents questions of a particular principal interest that has not previously been tried by the courts.”
41. Section 135 (1) of the Administration of Courts Act 1915 (domstolloven) provided:
“In the event that a person, who does not know Norwegian, is to take part in the proceedings, an interpreter appointed and approved by the court shall be used. Recordings are to be made in Norwegian. If required by the importance of the case, the court may decide that recording shall take place in a foreign language, either in the court records or in separate annexes, to be submitted for approval.”
42. The Government referred in particular to the following provisions of the Code of Civil Procedure:
“(1) The court shall actively and systematically conduct the preparation of the case to ensure that it is heard in a swift, cost effective and sound manner.”
“(1) ....
(2) The parties have the primary responsibility for presenting evidence. The court can take care of the presentation of evidence if the parties do not object. The court is not bound by the parties’ arguments with regard to questions of evidence.”
“The court shall on its own motion apply current law within the scope of section 112 (1). In accordance with section 1-1, the court shall ensure that there is a satisfactory basis upon which to apply the law. If the application of law cannot otherwise be clarified in a fully satisfactory manner, the court may decide that evidence of the law shall be presented, or it may allow the parties to present such evidence. The court shall determine the scope of the presentation of evidence and the manner in which it shall be carried out. Statements on the law occasioned by the case may only be submitted as evidence with the consent of all parties.”
“(1) The court shall give the parties such guidance on procedural rules and routines and other formalities as is necessary to enable them to safeguard their interests in the case. The court shall seek to prevent errors and shall give such guidance as is necessary to enable errors to be rectified. ...
(2) The court shall, in accordance with subsections (3) to (7), give guidance that contributes to a correct ruling in the case based on the facts and the applicable rules.
(3) The court shall endeavour to clarify disputed issues and ensure that the parties’ statements of claim and their positions regarding factual and legal issues be clarified.
(4) The court may encourage a party to take a position on factual and legal issues that appear to be important to the case.
(5) The court may encourage a party to offer evidence.
(6) The court shall during the proceedings show particular consideration for the need for guidance of parties not represented by counsel.
(7) The court shall provide its guidance in a manner that is not liable to impair confidence in its impartiality. The court shall not advise the parties on the position they should take on disputed issues in the case or on procedural steps they should take.”
“(1) The court shall prepare a plan for dealing with the case and follow it up in order to bring the case to a conclusion in an efficient and sound manner.
(2) ....
(3) In each case, a preparatory judge shall be responsible for the conduct of the proceedings.
...”