ITEMID: 001-102953
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF S.S. AND OTHERS v. DENMARK
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Art. 3 (in case of expulsion to Sri Lanka)
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicants were born in Sri Lanka in 1969, 1979, 2000 and 2002 respectively. Currently the applicant husband lives in Germany and the applicant wife lives with the children in an asylum centre in Denmark.
6. It appears that the applicants married on 30 September 1998 in northern Sri Lanka.
7. It also appears that they left Sri Lanka separately for Moscow. It is not known exactly when. The applicant husband was in possession of a valid passport with a study visa inserted. The applicant wife was in possession of a valid passport. Reunited, the applicants went to Ukraine and thereafter to Romania, where they were granted asylum in September 2001. Two children were born to them there. In 2002 the applicants attempted to apply for asylum in Switzerland, but apparently, before a decision was taken, they returned voluntarily to Romania. There, at some unknown time, they were issued with Romanian aliens' passports.
8. On 19 July 2005 the applicants entered Denmark, where the applicant wife's sister and cousin lived. Since they were in possession of Romanian aliens' passports they could enter Denmark without a visa. On 22 July 2005 under section 9a, subsection 1, of the Aliens Act (udlændingeloven) they applied for work and residence permits which they were refused on 12 October 2005. The applicants were ordered to leave the country before 15 November 2005.
9. On 14 November 2005 the applicants requested asylum.
10. In support thereof, on 14 and 17 November 2005, the applicant wife stated that she and her parents had moved around a lot within Sri Lanka and had lived both in northern and central Sri Lanka and in Colombo. The applicant wife went to school for twelve years after which she worked as a pre-school teacher. Her family was under surveillance by the police because her father and sister were involved with the Tamil Tigers (LTTE). The applicant had also been a member of and worked for the LTTE for two years from 1995 to 1997, when she lived in the north. She told the LTTE that she was unable to take part in their training because she had asthma. They demanded that she work for them and she thus carried out social work and made sure that the children could attend school and that they were provided with food and medicine. The applicant wife's parents did not like this and sent her to Colombo, where she lived at a boarding house for Tamils. In 1997, it appears, she and all the women at the boarding house were detained by the police, suspected of having blown up a bus. They were not provided with anything to eat or drink during the detention. Subsequently, she was arrested and interrogated on several occasions, including by the Criminal Investigation Department and the military. Her father paid for her release and arranged for her to leave Sri Lanka around October 1999. Her case in Sri Lanka was undecided but she remained on a list of suspects. Upon return, the police would reopen her case and that would harm her entire family. She did not want to ruin her children's chances of having an education.
11. In an asylum registration report of 23 November 2005, the applicant husband stated that he had been a member of the LTTE for three months in 1985, when he was 16 years old. He realised that the organisation was not for him. Thereafter he stayed neutral and was not a member of any political or religious party or organisation. He sold his garage in 1998 in order to leave Sri Lanka, which he did in April 1999. Being unsatisfied with the service in Romania and allegedly having trouble with the mafia there, the family decided to move to Denmark.
12. In an asylum application of 1 December 2005 the applicant husband stated that he had been a member of the LTTE from 1985 to 1986. Having completed his training, he distributed propaganda for the organisation. He owned a garage at which he repaired cars, minibuses and jeeps. Both the LTTE and the military brought their vehicles and would threaten him to work for only one party. The LTTE also asked him to place a bomb in a military jeep. He refused and was then accused of being an informant. He kept a low profile for a while and sold his garage so that he could leave the country. If returned to Sri Lanka, the LTTE would give him a death sentence.
13. According to an interview report of 3 July 2006, prepared by the Immigration Service (Udlændingestyrelsen, now Udlændingeservice) the applicant husband added, inter alia, that when he was a member of the LTTE in 1985 he trained with them three or four times a week, after school or after lunch breaks. He ended his membership because he wanted to finish training to be a mechanic. The LTTE told him that he could still assist them by putting up posters. He did not always comply with their orders because he was afraid of being caught by the authorities. The latter asked him frequently about the LTTE and its whereabouts and he would tell the authorities that he did not know anything. Nothing further would happen. The applicant husband was never wanted, detained or convicted and he had no criminal record. While working as mechanic, he had both the military and the LTTE as customers. In 1996, he refused a request by the LTTE to place a bomb in a military vehicle. He begged them not to cause any problems for him and eventually they left. In the end he felt so much under pressure and suspicion by both parties that he decided to leave the country. His departure was not triggered by a specific event, rather the general problems with the LTTE and the military forces had become too much. In April or May 1998 he sold his garage. Thereafter he married and in October 1998 he travelled on his own to Colombo with a view to leaving Sri Lanka. Six months later he left for Moscow.
14. According to an interview report of 3 July 2006, prepared by the Immigration Service, the applicant wife added, inter alia, that she had lived with her family at a boarding house in Colombo for about a year. Before that she had lived at a refugee camp for Tamils who wanted to go to Colombo. Before that, from 1996 to 1997, she had been a forced member of the LTTE's students' organisation and carried out social work for the LTTE. Her father had also carried out social work. He had not been a member of the LTTE but was accused of being a supporter, which caused problems for the family. Her father was detained once in 1985 or 1986, and in 1998 he was detained many times. The police would come to their home which was situated in an area controlled by LTTE. It was due to their Tamil ethnicity that the family had so many problems with the army. The applicant wife did not know her sister's exact position in LTTE, as she had not been in touch with her for many years, but she assumed that her sister had been a rank-and-file member of the LTTE for four to five years. When the applicant wife was detained in Colombo in connection with the bombing of the bus, she spent half a day at the police station. It was a female suicide bomber wearing sandals who had blown up the bus, and the police therefore checked all girls wearing sandals, including the applicant, who was innocent. Her sister was also arrested in that connection. If returned to Sri Lanka, the applicant wife feared problems with the Sri Lankan army, which would know that she had been away from her country for five years. She did not want to ruin her children's future and she feared that they would not be able to go to school in Sri Lanka.
15. By letter of 31 July 2006 the Aliens Authorities requested the Danish Embassy in Bucharest to provide information about the applicants' basis for residence in Romania. By letter of 3 October 2006, the Embassy stated that the applicant husband had been granted refugee status in Romania on 4 September 2001. His residence permit expired on 22 September 2005 and his passport expired on 27 June 2006. A prohibition on his entry into Romania had been issued against him until 16 May 2021. The applicant wife and the oldest child had also been granted refugee status in Romania on 4 September 2001 and been granted unlimited protection on 14 and 24 September 2004, respectively. Their residence permit for Romania expired on 15 September 2005 and the passport expired on 27 June 2006. The youngest child had obtained refugee status in Romania on 5 July 2002. The applicant wife and the two children had a right to stay in Romania even though their residence permit and passport had expired.
16. On 26 October 2006 the applicants' request for asylum was refused by the Aliens Authorities finding that the applicants' previous connection with LTTE was unknown to the Sri-Lankan authorities and that none of them would face a real and concrete danger of being subjected to treatment contrary to Article 3 of the Convention upon return to Sri Lanka. Thus, they failed to fulfil the criteria under section 7 of the Aliens Act (Udlændingeloven) to be granted asylum.
17. The applicants appealed against the decision to the Refugee Appeals Board (Flygtningenævnet), before which an oral hearing was held on 4 October 2007. The applicant wife stated, among other things, that her father had led a humanitarian organisation which supported the LTTE. Moreover, while being a member of the LTTE's students' organisation she organised annual meetings and made speeches and read out poetry. She was a publicly known person and LTTE supporter. Her speeches were not political but concerned the situation in the country and the people who had given their lives for it. She had no connection with the high-ranking members of the LTTE and she never carried out any military activities for the organisation. After the marriage, her husband ran into problems with the army and they left because he was wanted.
18. At the same oral hearing before the Refugee Appeals Board, the applicant husband changed his explanation and stated that he had sold his garage already in 1996 and lived in hiding for three years until he left Sri Lanka. He had to leave because the army knew about his work for the LTTE. At some unknown time, several men from the army had pointed at him and said “tiger” and beaten him. The applicant husband submitted a declaration in English from a lawyer in Sri Lanka of 28 September 2005 to “whom it may concern” stating that the applicant husband was one of several suspected of helping LTTE and that he was “wanted by the Sri Lankan police and that there was a case pending against him”. The applicant husband explained that the police had come to his home and delivered the letter to his mother. Subsequently, his mother had contacted the said lawyer who had contact with all Singhalese authorities. The lawyer had said that the applicant husband was wanted for a criminal offence related to the abduction of a man who had worked at his garage. The applicant husband was therefore a wanted person in Sri Lanka and would be killed by the authorities upon return.
19. On 4 October 2007, the Refugee Appeals Board upheld the refusal to grant the applicants asylum. It found that the authorities were not aware of the activities carried out by the applicant wife which ended about two years before her departure. Likewise, it found that the applicant husband's activities had a low profile character. Moreover, having regard to the time that had passed since the activities took place, there was no basis for assuming that the applicants were at risk of persecution upon return. Finally, it found that the applicants' new changed explanations before it lacked credibility and it did not attach any value as evidence to the declaration submitted.
20. On 25 September 2008 the applicants' request for a residence permit on humanitarian grounds was refused by the Ministry of Refugee, Immigration and Integration Affairs (Ministeriet for flygtninge, indvandrere og integration).
21. On 14 November 2008 the Danish Refugee Council (Dansk Flygtningehjælp), an NGO, requested the Refugee Appeals Board to reopen the case. It referred to the applicants' previous explanations and the general deterioration of the security situation in Sri Lanka. In addition it alleged that the applicant husband was of interest to the authorities, most recently in connection with a bombing in 2007, and that the same applied to the applicant wife, who was of interest to the authorities due to her extensive activities for the LTTE; her many arrests; her sister's high-profile membership of the LTTE and subsequent television exposure; and her father's and cousin's affiliation with the LTTE.
22. On 14 November 2008, on the applicants' behalf, the Danish Refugee Council also submitted a letter to the Court of Human Rights requesting that it stay the applicants' deportation.
23. On 17 November 2008, the Court of Human Rights decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was in the interests of the parties and the proper conduct of the proceedings that the applicants should not be expelled to Sri Lanka pending the Court's decision.
24. Consequently, on 18 November 2008 the Refugee Appeals Board extended the time-limit for the applicants' departure until further notice.
25. On 30 March 2009 the Refugee Appeals Board decided to reopen the applicants' asylum case.
26. By letter of 11 June 2009 the applicants' representative forwarded a CD-ROM to the Refugee Appeals Board with a copy of a television broadcast which allegedly showed that the applicant wife's sister was active with the LTTE as a high-profile “training master”. The representative maintained that in April 2009 the applicant wife had talked to her father in Sri Lanka.
27. On 16 June 2009 the Refugee Appeals Board decided to suspend the examination of all asylum cases concerning ethnic Tamils from northern Sri Lanka, including the applicants' case.
28. On 16 December 2009, on the basis of the most recent background information concerning Sri Lanka including, inter alia, a Memorandum of 26 October 2009 prepared by the Ministry of Foreign Affairs, the Refugee Appeals Board decided to review the suspended cases, including the applicants' case.
29. The Refugee Appeals Board obtained the files on the applicants from the Romanian and the Swiss authorities.
30. During a hearing before the Refugee Appeals Board on 19 April 2010 the applicant wife submitted a photograph of a stage performance and explained that she had played before an audience of more than five hundred people at such theatrical events. The play in question concerned the life story of an LTTE member, who was a martyr. The applicant wife believed that there were people present among the audience who informed the Government about the plays. Furthermore, her father had been deeply involved with the LTTE. The applicant wife added that just before her departure in 1999 she was arrested by the criminal police in Colombo, who said that she was to be interviewed again at a different location. Her father bribed the police and four days after, she left the country. The last time the applicant wife had contact with her family was when she spoke to her cousin in 2009. She last spoke to her mother and sister in 2005. The applicant did not know where her family was. The applicant wife showed a video clip from YouTube to the Refugee Appeals Board, allegedly showing her sister with other LTTE members in November 2007. The applicant had last seen her sister in 1997 when they lived at the boarding house in Colombo. The applicant did not know where her sister was. Finally, the applicant wife submitted that in Denmark, she has participated in demonstrations against the hostilities in Sri Lanka.
31. At the outset of the hearing before the Refugee Appeals Board on 19 April 2010 the applicant husband stated that he was mentally well and capable of being interviewed. He stated that he and his father were attacked by Singhalese in 1983. His father was killed and the applicant sustained an injury to his hand. Moreover, he had inherited the garage from his parents in 1996. The same year the LTTE had asked the applicant husband to place a bomb in a military vehicle. He had refused but hid the bomb in his garage, where it remained even after he sold the garage for about 300,000 rupees in May 1998. He was afraid that the bomb had been discovered and that he was therefore wanted by the authorities. He left Sri Lanka using a false passport with his own picture. The applicant husband had no contact with his family. He last spoke with them in 2007. However, in 2005 and 2007 he received two letters from his mother who stated that the buyer of the garage had informed the authorities about the bomb in the garage and that the secret police sought her out in order to find him. It appears that he submitted the two said letters from his mother, dated 2005 and 2007, alleging that the authorities were looking for the applicant husband. It also appears that the applicant husband submitted yet another declaration from the same lawyer, who had made the declaration in 2005. It was dated 5 December 2007 to “whom it may concern” and stated, inter alia, that the search for the applicant husband “had been intensified by the police, intelligence unit of the Sri-Lankan Army and the parliamentary groups” and that “there were several cases against him for allegedly supporting the LTTE”.
32. On 19 April 2010, the Refugee Appeals Board refused to reopen the applicants' case. It found that the most recent general background information would not lead to a revised assessment of the case. More specifically in its letter to the applicant's representative it stated as follows:
The Refugee Appeals Board finds that the applicants have provided new and/or extended information during the reopened proceedings, and that this gives rise to critical doubt about the credibility of the applicants' information, as there appears to be no reasonable explanation for the late appearance of the information, even in view of the information regarding the applicant husband's mental difficulties, see counsel's pleading of 19 April 2010 with exhibits. The applicant wife has thus stated that the reason why she did not inform the Refugee Appeals Board of her LTTE theatre performances in the previous asylum proceedings was that at the time she was not in possession of the photograph now submitted ... The Refugee Appeals Board finds that this is not a reasonable explanation why she did not, at the beginning of her asylum case, inform the Refugee Appeals Board of the high profile that she now invokes. The applicant wife further stated that, in connection with the arrest where her father paid a bribe for her release, she was the only one arrested and that she was to be questioned again at a different location, and that this arrest was the reason for her departure four or five days later. The Refugee Appeals Board finds that this statement contradicts her statement at the interview of 3 July 2006 as reported by the Danish Immigration Service according to which she was arrested with the sister who now lives in Denmark and that her father paid for the release without any conditions. It appears from her asylum application form that the arrest for which her father paid a bribe took place in 1998. Her departure was in March 1999. The Refugee Appeals Board finds that the applicant wife's statement appears to have been extended on essential points and it only considers it a fact that her father did social or humanitarian work in the local community in his home town ... without being a member of the LTTE, that as a member of the LTTE between 1995 and 1997, the applicant wife also did social work for the LTTE, including distribution of food and medicine, that she lived in various places after 1997, at which time she was exposed to general, brief periods of detention, and that one year prior to her departure she lived in Colombo, from where she departed using her genuine national passport. Moreover, the Refugee Appeals Board noted that the information provided by the applicant wife, that the last time she had contact with her father was in 2005, does not correspond with the information provided by the Danish Refugee Council in its letter of 11 June 2009. The Board further notes that the applicant wife's brief arrests were in the nature of general detention in which several other Tamils were detained by the authorities in connection with situations where the LTTE was considered responsible for specific actions. The applicant wife was released unconditionally every time. She stayed in Colombo for about one year with part of her family before her departure. They were registered with the authorities in Colombo. She departed using her own, genuine nationality passport. At the above interview, the applicant wife stated about her sister in the LTTE that she had been a member of the LTTE for four to five years and that she assumed that her sister was a rank-and-file member, but that she had no contact with her. This statement contradicts the information about the sister provided by the Danish Refugee Council in its letter of 11 June 2009.
The applicant husband stated to the Refugee Appeals Board that, contrary to what he stated in 2007, he did in fact own the garage until 1998. He further stated that LTTE left a bomb in his garage, that he hid the bomb there and that that was the reason why he chose to sell the garage ... in May 1998 for 300,000 Sri Lankan rupees. Thereafter, he stayed in various locations until October 1998 when he took up residence in or near Colombo. He did not use his own name and was not registered with the authorities, and in April 1999 he left using a false passport with his picture inserted. The Refugee Appeals Board finds that this statement contradicts the applicant husband's previous statements, including the interview report of 3 July 2006 according to which he stated that he refused to help the LTTE plant the bomb, that the LTTE had eventually left, and that the LTTE as well as people from the Sri Lankan army continued to force him to work for them, that he needed the money but that they did not pay very often, and that he eventually could not stand it and therefore sold his garage in April or May 1998, that he stayed for six months in Colombo before his departure, and that he departed lawfully using his genuine passport in which a study visa had been inserted. In its decision of 4 October 2007, the Refugee Appeals Board rejected the idea that the applicant husband was the subject of a specific search at his mother's house, and on the basis of an assessment of the applicant's statement at the current Refugee Appeals Board hearing, the Refugee Appeals Board does not find that the current statement and the letter from the mother, which dates from 2007, ... [can] lead to a revised assessment. Therefore, concerning the applicant husband, the Refugee Appeals Board only considers it a fact that he sustained an injury to his hand in 1983 in connection with the assault where his father was killed, that he trained with the LTTE for three months in 1985 and subsequently left without problems to continue his education, that he probably inherited the garage from his mother's family in 1996, that he ran the garage, that he sold the garage in 1998 because both the LTTE and the Sri Lankan authorities were pressuring him to work for them, and that thereafter he stayed in various locations, most recently for six months in Colombo before departing from the airport in Colombo in April 1999 using his own name and his own genuine passport.
... As the applicants' statements are assessed, the Refugee Appeals Board thus deems it a conclusive fact that neither applicant stood out at all in March and April 1999. Neither of them was wanted by the Sri Lankan authorities nor did they have any specific conflicts with the authorities. Both departed lawfully. In the assessment of whether, if they were to return to Sri Lanka, including via Colombo, the applicants, who are ethnic Tamils from northern Sri Lanka, would risk persecution or assault as covered by section 7 of the Aliens Act, including treatment as covered by Article 3 of the ECHR, particularly because a video clip exists on YouTube of the applicant wife's younger sister who allegedly was a high-ranking so-called training master in LTTE according to the information received, the Refugee Appeals Board notes that in the sequence shown the person pointed out in the video clip - in part together with others and in part alone - is seen wearing a uniform and carrying weapons and ammunition and agitating for the LTTE's fight. The person in question speaks directly to the camera. The Board notes that there is no other information available about the applicant's younger sister apart from that provided for the case by the applicant wife herself. In this connection, it gives rise to some uncertainty with the Refugee Appeals Board that the applicant wife stated at the hearing that the last times she had contact with her parents was in 2005, but that a cousin told her in a brief telephone conversation in 2009 that the family was staying in M. According to the information from the Danish Refugee Council ...on 11 June 2009, the applicant wife stated that in April 2009 she was contacted by her father who informed her that he was with her sister, but that they would move to M as soon as possible. Even if it is considered a fact that the sister in question is the person pointed out in the video clip on YouTube, the Refugee Appeals Board finds that, in view of the applicants' insignificant profile as described above, their return would not put them at risk of persecution or assault as covered by section 7 of the Aliens Act. This assessment takes into consideration that the applicants departed lawfully from Sri Lanka in 1999 and are now thirty-one and forty years old, respectively. Although the applicants are ethnic Tamils from northern Sri Lanka, neither of them has had specific conflicts with the Sri Lankan authorities and cannot be considered to be wanted or having been wanted previously. In this respect, the Refugee Appeals Board finds that the circumstance that as ethnic Tamils from northern Sri Lanka the applicants may risk being questioned by authorities when entering the country does not lead to a revised assessment of the case in terms of asylum law. In this assessment, consideration has been had to the background information available to the Refugee Appeals Board, from which it appears that the individuals at particular risk of being detained and investigated upon entry in Colombo are young Tamils, men in particular, from northern and eastern Sri Lanka: those without ID; those not resident or employed in Colombo; and those recently returned from the West, see United Kingdom: Home Office, Report of Information Gathering Visit to Colombo, Sri Lanka 23 -29 August 2009. It further appears from the background material available to the Board that, in general, individuals who have previously supported LTTE on a lower level are not of interest to the authorities, see Home Office, Operational Guidance Note, Sri Lanka, August 2009, and Home Office, Report of Information Gathering Visit to Colombo, Sri Lanka 23 - 29 August 2009. Therefore, the Refugee Appeals Board finds that, following an overall assessment of the specific circumstances of the present case, including the specific assessment that must be made according to the Court's decision of 6 August 2008, NA. v. The United Kingdom, the applicants cannot be considered to be in such a position upon return that it justifies asylum. The injury to the applicant husband's little finger on his right hand is found not to lead to another assessment. The circumstance that the applicant wife has participated in demonstrations in Copenhagen as one of several Tamil demonstrators is also found not to lead to another assessment. Accordingly, the applicants are still not entitled to a residence permit under section 7 of the Aliens Act as they, if they return, are not considered to be at risk of persecution that could motivate asylum or of inhuman or degrading treatment or punishment as covered by section 7, subsection 2 of the Aliens Act ... No time limit for departure is fixed as ...the Court has requested the Danish Government not to return the applicants by force for the time being with reference to Rule 39 of the Rules of Court. If the applicants' basis for lawful residence in Denmark lapses, they must leave Denmark immediately ... If the applicants do not leave voluntarily, they may forcibly be returned to Sri Lanka...
33. At some unknown time thereafter the applicant husband moved to Germany and obtained a residence permit.
34. By virtue of section 7 of the Aliens Act (Udlændingeloven), asylum is granted to aliens who satisfy the conditions of the Geneva Convention. Applications for asylum are determined in the first instance by the former Aliens Authorities (now called the Immigration Service) and in the second instance by the Refugee Appeals Board.
35. Pursuant to section 56, subsection 8, of the Aliens Act, decisions by the Refugee Board are final, which means that there is no avenue for appeal against the Board's decisions. Aliens may, however, by virtue of Article 63 of the Danish Constitution (Grundloven) bring an appeal before the ordinary courts, which have authority to adjudge on any matter concerning the limits to the competence of a public authority.
36's country of origin or first country of asylum. For this purpose, the Refugee Appeals Board has a comprehensive collection of general background material on the situation in the countries from which Denmark receives asylumseekers. The material is up-dated and supplemented on a continuous basis. The background material of the Refugee Appeals Board is obtained from various authorities, in particular the Danish Ministry of Foreign Affairs and the Danish Immigration Service. In addition, background material is procured from various organisations, including the Danish Refugee Council, Amnesty International and other international human rights organisations and the UNHCR. Also included are the annual reports of the US State Department (Country Reports on Human Rights Practices) on the human rights situation in a large number of countries, reports from the British Home Office, reports from the documentation centre of the Canadian Refugee Appeals Board, reports from the Swedish Ministry for Foreign Affairs, reports from EURASIL (European Union Network for Asylum Practitioners), reports from the authorities of other countries and to some extent articles from identifiable (international) journals. Moreover, the Board may request the Danish Ministry of Foreign Affairs to issue an opinion on whether it can confirm information from a background memorandum drafted in general terms. The Refugee Appeals Board also retrieves some of its background material from the Internet. Internet access also enables the Board to obtain more specific information in relation to special problems in individual cases.
37. Usually, the Refugee Appeals Board assigns counsel to the applicant. Board hearings are oral and the applicant is allowed to make a statement and answer questions. The Board decision will normally be served on the applicant immediately after the Board hearing, and at the same time the Chairman will briefly explain the reason for the decision made.
38. Extensive information about Sri Lanka can be found in NA. v. the United Kingdom, no. 25904/07, §§ 53-83. The information set out below concerns events occurring after the delivery of the said judgment on 17 July 2008 and, in particular, after the cessation of hostilities in May 2009.
39. Fighting between the Sri Lankan army and the LTTE intensified in early 2009, with the army taking a number of rebel strongholds in the north and east of the country. On 19 May 2009, in an address to the country's parliament, the President of Sri Lanka announced the end of hostilities and the death of the leader of the LTTE, Velupillai Prabhakaran. It was also reported that most, if not all, of the LTTE's leadership had been killed.
40. The previous day, the United Nations Office for the Coordination of Humanitarian Affairs had estimated that around 220,000 people had already reached internally displaced persons' camps, including 20,000 in the last two or three days. In addition, it was believed that another 40,000-60,000 people were on their way to the camps through the crossing point at Omanthai, in the northern district of Vavuniya.
41. In July 2009, the South Asia Terrorism Portal reported that the number of killings in Sri Lanka in the previous three years (including deaths of civilians, security forces and members of the LTTE) was: 4,126 in 2006; 4,377 in 2007; 11,144 in 2008 and 15,549 between 1 January 2009 and 15 June 2009. An estimated 75-80,000 people were reported to have been killed in total over the course of the 26 year conflict.
“Notwithstanding the cessation of the hostilities, the current protection and humanitarian environment in Sri Lanka remains extremely challenging. In the North, nearly the entire population from the territory formerly held by the LTTE in the North (285,000 Tamils) has been confined to heavily militarized camps in the Northern region. Although the government has gradually reduced the military presence in the camps and has pledged to start the progressive return to their villages of origin of the majority of those in the camps, it is clear that this may take a considerable amount of time. The lack of freedom of movement remains the overriding concern for this population restricting its ability to reunite with family members outside the camps, access employment, attend regular schools, and ultimately choose their place of residence.”
43. A Human Rights Watch [HRW] press release, dated 28 July 2009, reported that:
“The government has effectively sealed off the detention camps from outside scrutiny. Human rights organizations, journalists, and other independent observers are not allowed inside, and humanitarian organizations with access have been forced to sign a statement that they will not disclose information about the conditions in the camps without government permission. On several occasions, the government expelled foreign journalists and aid workers who had collected and publicized information about camp conditions, or did not renew their visas.”
44. A further Human Rights Watch press release dated 26 August 2009 set out concerns that more than 260,000 Tamil civilians remained in detention camps without the freedom to leave.
45. In August 2009, the first post-war local elections were held in Northern Sri Lanka. The British Broadcasting Corporation reported that voter turn-out was low due to the number of people who were still displaced. The governing party, the United People's Freedom Alliance, took the majority of seats in the biggest city in the region, Jaffna. However, the Tamil National Alliance, a party sympathetic to the defeated LTTE, took the majority of seats in Vavuniya, the other town where polling took place.
46. On 7 September 2009, James Elder, the official spokesman for the United Nations Children's Fund in Sri Lanka was ordered to leave Sri Lanka because of adverse remarks that he had made to the media about the plight of Tamils in the government-run camps.
47. On 10 September 2009 the Sri Lankan Official Government News Portal announced that the motion to extend the State of Emergency (under which the authorities have extensive anti-terrorism powers and heightened levels of security including checkpoints and road blocks) by a further month had been passed by Parliament with a majority of 87 votes.
48. In a report dated 22 October 2009, the United States of America State Department published a report entitled “Report to Congress on Incidents During the Recent Conflict in Sri Lanka”, which compiled incidents from January 2009, when the fighting intensified, until the end of May 2009. Without reaching any conclusions as to whether they had occurred or would constitute violations of international law, it set out extensive reports of enforced child soldiers, the killing of captives or combatants trying to surrender, enforced disappearances and severe humanitarian conditions during the hostilities.
49. On 21 November 2009, the Sri Lankan Government announced its decision that all internally displaced persons would be given freedom of movement and allowed to leave the detention camps from 1 December 2009.
50. In its Global Appeal 2010-2011, the UNHCR reported that:
“The Government-led military operations in northern Sri Lanka which ended in May 2009 displaced some 280,000 people, most of whom fled their homes in the last few months of the fighting. The majority of these internally displaced persons (IDPs) now live in closed camps in Vavuniya district, as well as in camps in Mannar, Jaffna and Trincomalee. An additional 300,000 IDPs, some of whom have been displaced since 1990, are also in need of durable solutions.
The IDPs originate mainly from the Mannar, Vavuniya, Kilinochchi, Mullaitivu and Jaffna districts in northern Sri Lanka, as well as from some areas in the east of the country. Though the end of hostilities has paved the way for the voluntary return of displaced people, some key obstacles to return remain. For instance, many of the areas of return are riddled with mines and unexploded ordnance. Not all are considered to be of high risk, particularly those away from former frontlines, but mine-risk surveys and the demarcation of no-go areas are urgently needed.
Other key obstacles to return include the need to re-establish administrative structures in areas formerly held by the Liberation Tigers of Tamil Eelam; the destruction or damaged condition of public infrastructure and private homes; and the breakdown of the economy - including agriculture and fisheries.
The Government of Sri Lanka is planning the return framework, and it has called on UNHCR for support with return transport, non-food items, return shelter, livelihoods support and assistance in building the capacity of local authorities.
With some progress having been recently achieved, it is hoped that a substantial number of IDPs will be able to return to their places of origin in the latter half of 2009, but a large portion of new IDPs are also likely to remain in the camps and with host families until well into 2010.”
51. In a Human Rights Report 2009, dated 11 March 2010, the United States of America State Department stated that the Sri-Lankan Government accepted assistance from NGOs and international actors for the IDP camps but management of the camps and control of assistance were under the military rather than civilian authorities. Food, water, and medical care were all insufficient in the first few weeks after the end of the war, but by July the situation had stabilised and observers reported that basic needs were being met. In June the military withdrew from inside the camps but continued to provide security around the barbed wire-enclosed perimeter. The IDPs in the largest camp, Manik Farm, were not given freedom of movement until December, when a system of temporary exit passes was implemented for those who had not yet been returned to their districts of origin. Some observers said that this exit system still did not qualify as freedom of movement.
52. Human Rights Watch, in their report, World Report 2010, estimated that six months after the main fighting ended, the Government continued to hold more than 129,000 people (more than half of them women and girls) in the camps. Over 80,000 of these were children. The camps were severely overcrowded, many of them holding twice the number recommended by the UN. As a result, access to basic requirements such as food, water, shelter, toilets and bathing, had been inadequate. These conditions imposed particular hardships on the elderly, children and pregnant women. The camps were under military administration, and effective monitoring by humanitarian agencies was lacking. The authorities failed to provide camp residents with sufficient information about the reason for their continued detention, the whereabouts of relatives, or the criteria and procedure for their return home.
53. The United Kingdom Border Agency Country of Origin Information Report on Sri Lanka of 11 November 2010 (“the November 2010 COI Report”) stated as follows:
4.23 The International Crisis Group (ICG) report Sri Lanka: A Bitter Peace, 11 January 2010, also referred to “extra-legal detention centres” maintained by the military and observed: “These detained have had no access to lawyers, their families, ICRC or any other protection agency, and it is unclear what is happening inside the centres. In addition, 'the grounds on which the ex-combatants have been identified and the legal basis on which they are detained are totally unclear and arbitrary'. Given the well-established practice of torture, enforced disappearance and extra-judicial killing of LTTE suspects under the current and previous Sri Lankan governments, there are grounds for grave concerns about the fate of the detained. The government has announced that of those alleged ex-combatants currently detained, only 200 will be put on the trial; most will detained for a further period of 'rehabilitation' and then released.”
...
4.25 Referring to the “at least 11,000 people” detained “in so-called 'rehabilitation centers” because of their alleged association with the LTTE, the HRW [document Legal Limbo, The Uncertain Fate of Detained LTTE Suspects in Sri Lanka, released on 29 January 2010, observed: “The government has routinely violated the detainees' fundamental human rights, including the right to be informed of specific reasons for arrest, the right to challenge the lawfulness of the detention before an independent judicial authority, and the right of access to legal counsel and family members. The authorities' consistent failure to inform families of the basis for the detainees' arrest and their whereabouts raises serious concerns that some detainees may have been victims of torture and ill-treatment, which are more likely to take place where due process of law is lacking and which have long been serious problems in Sri Lanka. Given the lack of information about some detainees, there is also a risk that some may have been 'disappeared'.”
4.31 The UNHCR 'Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka', 5 July 2010 reported that “In the wake of the conflict, almost 11,000 persons suspected of LTTE links were arrested and detained in high-security camps” adding that “According to a Government survey, as of 1 March 2010, 10,781 LTTE cadres were being held at 17 centres. Among the detainees were 8,791 males and 1,990 females.” and noted that “Some of the adult detainees have...been released after completing rehabilitation programmes or because they were no longer deemed to present a risk, including some persons with physical disabilities.”
54. The November 2010 COI Report also set out:
4.09 The EIU [The Economist Intelligence Unit], Country Report, Sri Lanka, July 2010 reported: “The EU has warned that Sri Lanka faces losing trade advantages under the Generalised System of Preferences-Plus (GSP-Plus) scheme from August 15th, unless the Government commits itself in writing to improving its human rights record. The EU has put forward 15 conditions that it says the Government needs to promise to meet within the next six months. These include: ensuring that the 17th amendment to the constitution, which requires that appointments to public positions be impartial and reflect the country's ethnic and religious mix, is enforced; repealing parts of the Prevention of Terrorism Act that are incompatible with Sri Lanka's covenants on political and human rights; reforming the criminal code to allow suspects immediate access to a lawyer on arrest; and allowing journalists to carry out their professional duties without harassment. However, the Government has rebuffed the EU, stressing that the issues that it has raised are internal political matters that should not be linked to trade. “The EU is not the only international body currently putting pressure on the government. Sri Lanka has also rejected the UN's appointment of a three-member panel to examine possible human rights violations during the island's civil war. The Sri Lankan authorities have warned that they will not provide visas for panel members to enter the country.”
...
4.11 The EIU, Country Report, Sri Lanka, August 2010 noted that: “The decision by the UN secretary-general, Ban Ki-moon [on 22 June 2010], to appoint a panel to examine accountability issues stemming from the final stages of the island's civil war, which ended in May 2009, has prompted a strong reaction in Sri Lanka ...
4.12 On 17 September 2010 the UN News Service reported that “Secretary-General Ban Kimoon has held his first meeting with the panel of experts set up to advise him on accountability issues relating to alleged violations of international humanitarian and human rights law during the final stages last year of the conflict in Sri Lanka.” The source also noted that the role of the experts was to examine “the modalities, applicable international standards and comparative experience with regard to accountability processes, taking into account the nature and scope of any alleged violations in Sri Lanka.”
55. The United Kingdom Border Agency Country of Origin Information Report on Sri Lanka of 18 February 2009 (“the February 2009 COI Report”) sets out a series of letters from the British High Commission – hereafter “BHC”, Colombo, on arrival procedures at Colombo airport. In its letter of 28 August 2008, the BHC observed:
“[T]he correct procedure for [Department of Immigration and Emigration [DIE]] officers is to record the arrival of these persons manually in a logbook held in the adjacent Chief Immigration Officer's office. The name, date and time of arrival and arriving flight details are written into the log. It records why the person has come to their attention and how the case was disposed of. I have had the opportunity to look at the log, and it appears that the only two ways of disposal are to be passed to the Criminal Investigations Department [CID], or allowed to proceed.
The office of the State Intelligence Service [SIS] is in the immigration arrivals hall and an officer from SIS usually patrols the arrivals area during each incoming flight. Invariably, if they notice a person being apprehended they approach IED [Immigration and Emigration Department] and take details in order to ascertain in [sic] the person may be of interest to them. Their office contains three computer terminals, one belonging to the airport containing flight information and two stand-alone terminals. If an apprehended person is considered suitable to be passed to CID, they are physically walked across the terminal building to the CID offices. A CID officer should then manually record the arrival of the person in a logbook held in their office...often persons shown in the DIE logbook to have been handed to CID are never actually recorded as being received in the CID logbook. It is believed that CID has allowed these persons to proceed and no action has been taken against them.”
56. The same letter also noted that CID offices at the airport contained two computers, which were not linked to any national database. Any checks on persons detained or apprehended were conducted over the phone with colleagues in central Colombo. There were no fingerprint records at the airport. One computer contained records of suspects who had been arrested and charged with offences, and court reference numbers. It continued as follows:
“Were a Sri Lankan national to arrive at Colombo Airport having been removed or deported from the United Kingdom, they would be in possession of either a valid national Sri Lankan passport, or an emergency travel document/temporary passport, issued by the Sri Lankan High Commission in London. The holder of a valid passport would have the document endorsed by the immigration officer on arrival and handed back to him/her. A national passport contains the national ID card number on the laminated details page. I have made enquiries with the DIE at Colombo Airport, and with the International Organisation for Migration who meet certain returnees at the airport, and both have confirmed that a person travelling on an emergency travel document is dealt with similarly. They too have the document endorsed by the immigration officer on arrival and returned to them. Before issuing an emergency travel document, the Sri Lankan High Commission in London will have details of an applicant confirmed against records held in Colombo and will thus satisfactorily confirm the holder's nationality and identity. If a returnee subsequently wishes to obtain a national identity card, they have to follow the normal procedures.”
57. In a letter dated 22 January 2009, the BHC reported that an official had spent several hours observing the return of failed asylum seekers from the United Kingdom, including those who were in possession of emergency travel documents, issued by the Sri Lankan High Commission in London. In the official's opinion, the fact that certain returnees had been issued with emergency travel documents by the Sri Lankan High Commission in London did not seem to make any difference to their treatment upon arrival.
58. The Report of Information Gathering Visit to Colombo on 23 to 29 August 2009, conducted jointly by the Foreign and Commonwealth Office Migration Directorate and United Kingdom Border Agency Country of Origin Information Service (“the Report of Information Gathering Visit, August 2009”), concluded that all enforced returns (of whatever ethnicity) were referred to the CID at the airport for nationality and criminal record checks, which could take more than 24 hours. All enforced returns were wet-fingerprinted. Depending on the case, the individual could also be referred to the SIS and/or the Terrorist Investigation Department for questioning. Anyone who was wanted for an offence would be arrested.
59. The report set out that those with a criminal record or LTTE connections would face additional questioning and might be detained. In general, non-government and international sources agreed that Tamils from the north and east of the country were likely to receive greater scrutiny than others, and that the presence of the factors below would increase the risk that an individual could encounter difficulties with the authorities, including possible detention:
- Outstanding arrest warrant
- Criminal record
- Connection with the LTTE
- Bail jumping/escape from custody
- Illegal departure from Sri Lanka
- Scarring
- Involvement with media or NGOs
- Lack of an ID card or other documentation
60. The United Kingdom Border Agency Country of Origin Information Report on Sri Lanka of 11 November 2010 set out the following:
33.20 The BHC letter of 30 August 2010 went on to observe that: “At the beginning of 2010, partly due to the large numbers of Sri Lankans being returned from around the world and causing logistical problems, CID procedures were relaxed in that they no longer had to detain returnees until written confirmation was received from the local police. All returnees are still interviewed, photographed and wet fingerprinted. The main objective of these interviews is to establish if the returnee has a criminal record, or if they are wanted or suspected of committing any criminal offences by the police. The photographs are stored on a standalone computer in the CID office at the airport. The fingerprints remain amongst paper records also in the CID office at the airport. Checks are initiated with local police, but returnees are released to a friend or relative, whom CID refers to as a surety. This surety must provide evidence of who they are, and must sign for the returnee. They are not required to lodge any money with CID. “The main CID offices at Colombo Airport, which are housed on the ground floor adjacent to the DIE embarkation control, are currently undergoing a complete refurbishment funded by the Australian government. The one completed office suite has three purpose built interview rooms, and facilities where returnees can relax and eat meals.”
...
33.22 A British High Commission letter of 14 September 2010 reported: “There is strong anecdotal evidence that scarring has been used in the past to identify suspects. Previous conversations with the police and in the media, the authorities have openly referred to physical examinations being used to identify whether suspects have undergone military style training. More recent claims from contacts in government ministries suggest that this practice has either ceased or is used less frequently. At the very least it appears that the security forces only conduct these when there is another reason to suspect an individual, and are not looking for particular scars as such, but anything that may indicate the suspect has been involved in fighting and/or military training. There is no recent evidence to suggest that these examinations are routinely carried out on immigration returnees.”
61. On 19 October 2009, Tamilnet reported that twenty-nine Tamil youths were taken into custody by the State Intelligence Unit of the Sri Lanka Police at the International Airport in two separate incidents whilst trying to leave Sri Lanka. It was also reported that since July 2009, special teams of the State Intelligence Unit and police had been deployed in the airport to monitor the movement of Tamils who try to go abroad.
62. The Report of Information Gathering Visit, August 2009, stated that the frequency of cordon and search operations had not reduced significantly in recent months, though there were fewer large-scale operations than in previous years. In general, young male Tamils originating from the north and east of the country were most at risk of being detained following cordon and search operations, with the presence of the risk factors set out above increasing that risk. Those without employment or legitimate purpose for being in Colombo were also likely to be seen as suspect. The same report also noted that most sources agreed that there had been few, if any, abductions or disappearances since June 2009. There was not a great deal of available information about the profile of Tamils targeted for abduction, although it appeared that people linked to the media might be more vulnerable. Police did not generally carry out effective investigations. It went on to note that most sources agreed that there had not been any significant reduction in the number of checkpoints in Colombo, whose stated purpose remained to detect and prevent terrorist activity. In general those most likely to be questioned were young Tamils from the north and east; those without ID; those not resident or employed in Colombo; and those recently returned from the West. However, most sources said that arrests at checkpoints were rare and none had been reported since June 2009. It was reportedly fairly likely that someone would be stopped at a checkpoint en route from the airport to Colombo city. Finally, it clarified that people who wished to live in Colombo but did not originate from there must register with the local police station with a national ID card or full passport, and details of planned length and purpose of stay. In theory, whilst anyone was entitled to register to stay in Colombo, some sources suggested that young Tamil men originally from the north or east of the country could encounter difficulties and face closer scrutiny. The presence of any of the risk factors set out above would also attract greater attention from the police.
“The significant majority of reported cases of human rights violations in Sri Lanka involve persons of Tamil ethnicity who originate from the North and East...In Government-controlled areas, Tamils who originate from the North and the East, which are, or have been under LTTE control, are frequently suspected as being associated with the LTTE. For this reason, Tamils from the North and the East are at heightened risk of human rights violations related to the implementation of anti-terrorism and anti-insurgency measures. While this risk exists in all parts of Sri Lanka, it is greatest in areas in which the LTTE remains active, and where security measures are heaviest, in particular the North and parts of the East, and in and around Colombo.”
“The country of origin information that UNHCR has considered indicates that Tamils from the North of Sri Lanka continue to face a significant risk of suffering serious human rights violations in the region (and elsewhere in the country) because of their race (ethnicity) or (imputed) political opinion. Tamils in the North are still heavily targeted in the security and anti-terrorism measures described in the Guidelines. Wide scale detention and confinement of Tamils from the North remains a serious concern. Pro-Government paramilitary elements also continue to operate with impunity against Tamils in the North.”
66. The UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka of 5 July 2010, which superseded the April 2009 Guidelines contained information on the particular profiles for which international protection needs may arise in the current context. It was stated that:
“given the cessation of hostilities, Sri Lankans originating from the north of the country are no longer in need of international protection under broader refugee criteria or complementary forms of protection solely on the basis of risk of indiscriminate harm. In light of the improved human rights and security situation in Sri Lanka, there is no longer a need for group-based protection mechanisms or for a presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country. It is important to bear in mind that the situation is still evolving, which has made the drafting of these Guidelines particularly complex.”
67. In summary, the following were UNHCR's recommendations: All claims by asylum seekers from Sri Lanka
(i) persons suspected of having links with the Liberation Tigers of Tamil Eelam (LTTE);
(ii) journalists and other media professionals;
(iii) civil society and human rights activists;
(iv) women and children with certain profiles; and
(v) lesbian, gay, bisexual and transgender (LGBT) individuals.
It was also stated that in the light of Sri Lanka's 26 year internal armed conflict, and a record of serious human rights violations and transgressions of international humanitarian law, exclusion considerations under Article 1F of the 1951 Convention Relating to the Status of Refugees may arise in relation to individual asylum seeker claims by Sri Lankan asylum seekers.
68. The BBC reported in March 2010 that the Colombo Police force had opened four special units in Colombo suburbs able to take statements in Tamil, with plans for more. Previously, Tamil-speaking Sri Lankans had to rely on a friend to translate their complaints into Sinhala.
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-77823
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF MARKOSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses award - Convention proceedings
JUDGES: Peer Lorenzen
TEXT: 4. The applicant was born in 1951 and lives in Skopje, in the former Yugoslav Republic of Macedonia.
5. On 10 July 1995 the applicant was laid off by the company “Daka-lift” d.o.o Skopje (“the employer”) where he worked as a lift repairman.
6. On 11 August 1995 the applicant brought an action against his employer, claiming that he had been unlawfully dismissed. He sought to be re-instated to a post corresponding to his qualifications.
7. Of seven hearings, including the preparatory one, scheduled between 8 November 1995 and 17 May 1996, one hearing was adjourned at the judge’s request; two hearings were postponed because of late submission of evidence; one hearing was adjourned without any reasons and one hearing was rescheduled at the employer’s request. The applicant attended all the hearings as scheduled. During this period, the composition of the judicial council (судскиот совет) changed once.
8. On 17 June 1996 the employer requested the court to reinstate the proceedings (враќање во поранешна состојба) as it had failed to appear in court on 17 May 1996 due to a failure of its former representative to inform it about the date of the hearing. On 28 June 1996 the applicant filed an objection against the employer’s request which he had subsequently withdrawn. The hearing of 13 September 1996 was held by another trial judge who had taken over the case.
9. At the hearing of 27 September 1996 the court examined some witnesses.
10. On 14 November 1996 the Skopje Court of First Instance upheld the applicant’s claim and annulled the employer’s decision for termination of his employment. The court found that his dismissal had not been made by a competent body. It held that the applicant had worked with the employer continuously for over 20 years and as such the managing board (управен одбор) should have decided his dismissal, instead of its manager.
11. On 11 March 1997 the employer appealed against the decision.
12. On 4 June 1997 the Skopje Court of Appeal upheld the employer’s appeal, quashed the lower court’s decision and ordered a retrial. It found that the lower court had erred in establishing the facts, in particular concerning the applicant’s uninterrupted work with the employer which had undergone several organisational changes over the time.
13. Of ten hearings scheduled between 21 October 1997 and 5 October 1998, two hearings were adjourned by the trial court to examine the official company’s register concerning the employer; one hearing was postponed due to the trial judge’s absence; two hearings were rescheduled as the court could not locate a witness, whose whereabouts had been provided by the applicant. Within this period, the court heard the applicant and examined some witnesses. The composition of the judicial council also changed once as new lay-judges stepped in the proceedings. The applicant attended all the hearings as listed.
14. On 5 October 1998 the Skopje Court of First Instance dismissed the applicant’s claim as the dismissal decision had been adopted by a competent body and the applicant had infringed working discipline. The court established that the applicant had been initially employed by “David Pajic-Daka” Belgrade (“the company”), a company incorporated outside the former Yugoslav Republic of Macedonia, which had had a subsidiary office in Skopje. When the company had founded “Daka servis” d.o.o. Skopje, as a separate legal entity incorporated in the former Yugoslav Republic of Macedonia, the applicant continued working for this newly created entity. At the last stage, “Daka servis” d.o.o. Skopje was merged with another company “Daka montaza”, creating as a separate legal entity. As stated by the Government, this decision was drawn up on 1 December 1999 and served on the parties after the applicant had paid the court fees.
15. On 6 December 1999 the applicant appealed against the decision.
16. On 10 December 1999 the first-instance court ordered the applicant to pay the court fees within eight days. On 20 December 1999 the applicant complied with this order.
17. On 9 February 2000 the Skopje Court of Appeal upheld the applicant’s appeal and overturned the lower court’s decision. It found that the applicant had worked continuously for over twenty years with the same employer, despite the organisational changes that the latter underwent over time. It therefore declared the applicant’s dismissal null and void and ordered the employer to reinstate him to work.
18. On 3 May 2000 the employer lodged with the Supreme Court an appeal on points of law (ревизија). On 22 May 2000 the applicant submitted his reply to the employer’s appeal on points of law.
19. On 4 May 2000 the employer requested the public prosecutor to submit to the Supreme Court a request for the protection of legality (барање за заштита на законитоста).
20. On 8 May 2000 the employer filed before the Court of First Instance a request for re-opening of the proceedings (предлог за повторување на постапката).
21. On 19 April 2000 the applicant instituted separate enforcement proceedings concerning the reinstatement order and the trial costs. On 27 April 2000 the court granted the applicant’s request (“the enforcement order”). On 22 June 2000 the applicant withdrew his request concerning the reinstatement, as he had meanwhile been reinstated. On 30 June 2000 the court stayed the enforcement proceedings concerning the applicant’s reinstatement and dismissed the employer’s objection concerning the reimbursement of the trial costs. On 12 October 2000 the Court of Appeal upheld the lower court’s decision. On 20 November 2000 the employer requested postponement of the enforcement. On 14 December 2000 the applicant objected to the employer’s request for postponement. It appears that the applicant received the sum due to him.
22. On 12 December 2002 the Supreme Court returned the case-file to the trial court in respect of the employer’s request for re-opening of the proceedings.
23. On 16 December 2002 the Skopje Court of First Instance terminated the proceedings concerning the employer’s request for re-opening of the proceedings and decided to transfer the case-file to the Supreme Court in respect of the employer’s appeal on points of law.
24. On 27 March 2003 the Supreme Court upheld the employer’s appeal on points of law, overturned the Court of Appeal’s decision and upheld the trial court’s decision of 5 October 1998. It departed from the reasoning of the Appeal Court finding that the employer could not be considered the one in which the applicant had been initially employed.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-96565
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF GEORGIEVI v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Violation of P1-1
JUDGES: Georgieva;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Pavlina Panova;Peer Lorenzen;Rait Maruste
TEXT: 7. The applicants were born in 1926 and 1927 respectively. The second applicant lives in Sofia. The two applicants were spouses.
8. In 1966 they bought from the Sofia municipality an apartment of 81 square metres, located in the centre of the city, which had become State property by virtue of the nationalisations carried out by the communist regime in Bulgaria in 1947 and the following years.
9. At the beginning of 1993 the heir of the former pre-nationalisation owners of the property brought proceedings against the applicants under section 7 of the Restitution Law.
10. By judgments of 24 September 1996 and 10 July 1998 the Sofia District Court and the Sofia City Court allowed the claim. They found the applicants’ title to be null and void on two grounds: 1) no decision of the mayor to initiate the sale procedure had been found in the case file; nor had the applicants established that such a decision had existed but had been lost or destroyed; 2) the sale had not been approved by the Minister of Finance, as required by law, but by one of his deputies.
11. The applicants did not submit a petition for review (cassation).
12. On an unspecified date in 1998 they vacated the apartment. In May 1999 they were granted the tenancy of a municipal apartment of 51 square metres.
13. Following the judgment of 10 July 1998 the applicants applied to receive compensation bonds, which could be used in privatisation tenders or sold to brokers. In December 2000 they obtained bonds with a total face value of 62,400 Bulgarian levs (BGN), in accordance with a valuation of the apartment prepared by an expert.
14. On 9 July 2003 the second applicant sold her half of the bonds for BGN 7,434.01, the equivalent of 3,810 euros (EUR).
15. On 17 February 2004 the first applicant sold his half of the bonds for BGN 7,387.68, the equivalent of EUR 3,780.
16. The relevant background facts, domestic law and practice have been summarised in the Court’ s judgment in the case of Velikovi and Others v. Bulgaria, nos. 43278/98, 45437/99, 48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01, and 194/02, 15 March 2007.


ITEMID: 001-76731
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF MIZINA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Peer Lorenzen
TEXT: 5. The applicant was born in 1940 and resides in the town of Novogrodovka, Donetsk region, Ukraine.
6. The applicant instituted proceedings in the Novogrodovskiy Town Court of the Donetsk Region against the Novogrodovskaya Mining Company No. 1/3 - a State-owned enterprise - to recover salary arrears.
7. On 18 December 2002 the Novogrodovskiy Town Court found in favour of the applicant (Решение Новогродовского городского суда Донецкой области) and awarded her UAH 1,810.24. On 28 January 2003 the Novogrodovskiy Town Bailiffs’ Service (Отдел Государственной исполнительной службы Новогродовского городского управления юстиции) initiated the enforcement proceedings.
8. In February 2003 the Novogrodovskaya Mining Company was reorganised and became a structural subdivision of the Selidovugol Mining Company. As the latter thereby became the debtor, in December 2003 the enforcement proceedings were transferred to the Selidovskiy Town Bailiffs’ Service (Отдел Государственной исполнительной службы Селидовского городского управления юстиции).
9. In January 2004 the applicant instituted proceedings in the Novogrodovskiy Town Court of the Donetsk Region against the Novogrodovskiy Town Bailiffs’ Service for failure to enforce the court decision in her favour. On 11 March 2004 the Town Court rejected the applicant’s claim, finding that no fault had been committed by the Bailiffs’ Service. The court stated that the Bailiffs’ Service had acted properly in taking steps to enforce the decision of 18 December 2002. However, by a number of decisions of the Commercial Court of the Donetsk Region, the Bailiffs’ Service had been prohibited from selling the property of the Mining Company, due to the bankruptcy proceedings which had been initiated against the company. The court also stated that, according to the Law on the Introduction of a Moratorium on the Forced Sale of Property, on 26 December 2001 a ban on the forced sale of assets belonging to undertakings in which the State held at least 25% of the share capital had been introduced. On 10 June 2004 the Appellate Court of the Donetsk Region upheld the decision of the first instance court of 11 March 2004. The applicant appealed in cassation to the Supreme Court of Ukraine. The proceedings are still pending.
10. In August-October 2004 the applicant has received UAH 1,681.03, the rest of the debt remains unpaid.
11. The applicant instituted proceedings in the Selidovskiy Town Court against the Selidovskiy Town Bailiffs’ Service claiming compensation for material and moral damage caused by a lengthy non-enforcement of the judgment in her favour. On 22 November 2004 the court found against the applicant. On 8 April 2005 the Court of Appeal of the Donetsk Region upheld this judgment. On 10 May 2005 the Selidovskiy Town Court provided the applicant a time-limit until 20 May 2005 for lodging her cassation appeal in compliance with procedural requirements prescribed by law. The parties did not submit any further information about these proceedings.
12. The relevant domestic law is summarised in the judgment of Sokur v. Ukraine (no. 29439/02, § 17-22, 26 April 2005).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-4730
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: HARPER v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a British citizen born in Craigavon, Northern Ireland, and currently detained in HM Prison Maze, Northern Ireland. He is represented before the Court by Mr R. Monteith, a solicitor practising in Northern Ireland.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 14 October 1992 the manager of a factory, Denny and Sons Ltd., received a telephone call from an individual who said that he was speaking on behalf of the Ulster Volunteer Force, an illegal organisation. The manager was instructed to pay a substantial amount of money under threat. The manager informed the police and a surveillance operation was mounted.
The police provided the factory manager with green paper towels to be used to simulate bank notes. In accordance with the blackmailer's instructions, the factory manager went to a shop to obtain a white plastic bag in which to put the money. He purchased a packet of cream cracker biscuits to provide a reason for obtaining the bag. He then went to the location specified by the blackmailer and deposited the white plastic bag containing the paper towels and the packet of biscuits in the place agreed.
The applicant was seen by a police officer working for the surveillance team approaching the area where the plastic bag had been placed. He was next seen with a white plastic bag containing something that appeared to be green. He was then seen some minutes later without the plastic bag.
At 1.25 p.m. on 15 October 1992 the applicant was arrested pursuant to section 14(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act 1989 (“the 1989 Act”). Following the applicant's arrest a search of the area was carried out in the course of which the box of biscuits was recovered. On subsequent examination of the box, a print of the applicant's left thumb was found on the box.
The applicant was taken to Gough Police Office, Armagh, where over a period of 7 days, from 15 October 1992 until 21 October 1992, he was interviewed on 31 separate occasions. It would appear that all 31 interviews were conducted whilst the applicant was under caution pursuant to Article 3 of the Criminal Evidence (Northern Ireland) Order 1988 (“the 1988 Order”).
On his arrival at the Gough Police Office, at 2.10 p.m. on 15 October 1992, the applicant indicated that he wished to see a solicitor as soon as practical. The police, pursuant to section 45 of the Northern Ireland (Emergency Provisions) Act 1991 (“the 1991 Act”), deferred access to the solicitor nominated by the applicant (Mr Monteith) until 8.45 a.m. on 16 October 1992. On 16 October 1992 the applicant consulted with his solicitor from 3.25 p.m. to 4.40 p.m. He had further consultations with his solicitor on 17 October from 4.50 p.m. to 5.50 p.m., on 18 October from 9.32 p.m. to 10.33 p.m., and on 19 October from 6.39 p.m. to 6.48 p.m.
The applicant was interviewed on 23 occasions in the period from his arrest to the end of Interview no. 23 at 4.02 p.m. on 19 October 1992. Throughout these interviews the applicant denied being involved in any blackmail attempt and refuted the suggestion that he had been in the places in which he had been seen by the police surveillance team.
At Interview no. 24, which began at 10.11 p.m. on 19 October 1992, the police confronted the applicant with evidence that his left thumbprint had been found on the box of biscuits recovered from the scene. When asked for an explanation as to how, in the light of his denials, his thumbprint could have been found on the packet, the applicant replied: “I didn't lift them, they were thrown at me”.
The interview ended at 12.39 a.m. on 20 October 1992. The interviewing officers recorded in their notes at the conclusion of the interview:
“[The applicant] appeared to want to tell the truth but was indecisive about how to approach the matter... [T]he interview laboured between [the applicant] wanting to talk to us but hesitating to do so.”
At 8.30 a.m. on 20 October 1992 the applicant requested facilities to consult with his solicitor, Mr Monteith. At 9.02 a.m. an attempt was made to contact Mr Monteith. Mr Monteith was not at his office. It was noted in the Occurrence Book for Gough Police Office: “Mr Monteith's office contacted 9.02 hours. Mr Monteith to ring back later”.
No time having been given for Mr Monteith's visit, Detective Superintendent C., pursuant to non-statutory guidelines issued by the Secretary of State relating to the questioning of terrorist suspects, authorised the interview to commence without the applicant first having had an opportunity to consult with his solicitor.
Interview no. 25 commenced at 9.24 a.m. on 20 October 1992. In the course of this interview the applicant admitted to the blackmail offence and started to confess to his involvement in various acts of terrorism, including murder and membership of the Ulster Volunteer Force. The applicant went on to make further confessions during the 26th and 27th interviews which commenced at 12.10 p.m. and 2.34 p.m. respectively on 20 October 1992.
At 5.17 p.m. on 20 October 1992, Mr H., a solicitor employed by Mr Monteith's firm, contacted Gough Police Office and arranged a consultation with the applicant for 7.30 p.m. In the interim a further interview, the 28th, was conducted in the course of which the applicant made further admissions. The applicant consulted with Mr H. from 7.50 p.m. until 8 p.m. The applicant informed police officers at Interview no. 27 that his solicitor had told him “not to make statements”.
At the 29th interview, which was conducted on 20 October 1992 from 8.45 p.m. until 11.30 p.m., the applicant made further admissions of his involvement in various terrorist offences. The 30th and 31st interviews were conducted in the course of the following day, on 21 October 1992. During these final two interviews the applicant made further admissions.
On 29 March 1995 the applicant was convicted before a single judge sitting without a jury at Belfast Crown Court on 22 counts alleging various offences of terrorism including murder, blackmail, possession of firearms and membership of the Ulster Volunteer Force. The applicant was sentenced to life imprisonment. The confession evidence obtained in the course of the police interviews sustained the charges against the applicant.
The applicant, who did not dispute that the evidence before the court accurately recorded admissions which he made in the course of being interviewed, submitted through his counsel on the voir dire to determine the admissibility of the confession evidence that the evidence should be excluded under section 11(2) of the 1991 Act, on the grounds that it had been obtained by violence and threats of violence; alternatively under section 11(3) of the 1991 Act, in order to avoid unfairness to the applicant or as otherwise being in the interests of justice.
It was submitted on behalf of the applicant by his counsel that the confession evidence had been obtained in circumstances where:
(1) threats had been made by the police that they would arrest and harass members of his family and put out the word that the applicant was a “tout” if he did not confess, together with express or implied promises that the police would help him if he confessed. The applicant further stated that in the course of being interviewed the police had fed him details of the various offences to which he subsequently admitted;
(2) he was suffering from ill-health and confusion which manifested itself, inter alia, in a severe loss of weight, namely 13 pounds; and
(3) there were breaches by the police of their duty to permit the applicant to consult with a solicitor.
The interviewing officers as well as the applicant gave evidence in the voir dire and were cross-examined on their evidence. The interviewing officers denied that they had threatened the applicant or fed him with information in earlier interviews about the crimes to which he later confessed. They testified that they had confined their questions during the first 23 interviews to the blackmail offence.
In respect of (1), the trial judge rejected the applicant's evidence that he had been threatened, or that he had been given promises and inducements to persuade him to confess, or that he had been fed information of crimes which he had then repeated to the police. The trial judge ruled that he was:
“... satisfied beyond reasonable doubt ... that [the applicant's] evidence of threats made, and promises and inducements given to him, by the police, and the feeding of information to him about crimes other than the ... blackmail which he then repeated back to the police, are completely untrue.”
He gave as his reasons, inter alia, that the evidence of the interviewing officers was to be believed, that the applicant's evidence and demeanour in the witness box showed him to be a completely untruthful witness, and that his version of events was “a concoction”. Further, the trial judge held that the fingerprint evidence was “a very damaging piece of evidence” and that it was that, rather than the alleged threats, which had caused the applicant to confess and “make a clean breast of matters”.
In respect of (2), the trial judge found that whilst the applicant probably suffered some weight loss, it was not of the order of 13 pounds and that his weight had probably been inaccurately recorded when he first arrived. Furthermore, the trial judge accepted, in any event, the evidence of the various doctors, who had made routine examinations of the applicant during the period he was being interviewed, that the applicant was not in such a state of ill health or confusion such as to render him unfit to be interviewed.
In respect of (3), the applicant's counsel contended that the police had acted unfairly and in breach of section 45 of the 1991 Act, and paragraph 33 of the non-statutory guidelines issued by the Secretary of State, in authorising the continuation of interviewing on 20 October 1992 without the applicant first having had an opportunity to consult with his solicitor. While admitting to having certain misgivings about Detective Superintendent C.'s testimony, the trial judge found that that police officer had reasonable grounds for believing that waiting for the applicant's solicitor to arrive, when no time had been specified for his visit, would cause unreasonable delay to the process of investigation. The trial judge found, accordingly, that in authorising the interviews to continue, Detective Superintendent C. had not acted in breach of the guidelines.
The judge further noted that even if Detective Superintendent C. had breached paragraph 33 of the non-statutory guidelines in authorising interviews to continue on 20 October 1992, he would not have excluded the evidence obtained since he considered, with reference to the wording of section 11(3) of the 1991 Act, that “it would not have been appropriate to do so in order to avoid unfairness to the accused or otherwise in the interests of justice”. The trial judge gave as his reasons:
“In this case [the applicant] had had the benefit of four consultations with his solicitor between 16 and 19 October. It is therefore clear that he had been fully advised as to his legal rights when being questioned by the police. It is also apparent from the interviews which took place between 15 and 19 October that [the applicant] was fully capable of declining to answer questions from the police and was fully capable of refusing to make admissions. It was common case that this was not the first time that [the applicant] had been interviewed whilst in police custody and it is clear that he was familiar with being interviewed by the police. Moreover the evidence which I heard on the voir dire satisfied me that nothing was said or done in the course of the interviews which was likely to make unreliable the confessions which were made by [the applicant]. A further important consideration is that I am satisfied that [the applicant] began to make confessions, not because of improper behaviour by the police in the course of the interviews, but because the police quite properly put to him a new and very damaging piece of evidence, which was that his fingerprint had been found on the packet of cream crackers. I am satisfied that this was the factor which caused him to begin to confess. Against those considerations and that background I do not consider that considerations of fairness to [the applicant] or other considerations in the interests of justice make it appropriate for the court to exclude his confessions in the exercise of its discretion.”
The trial judge's overall conclusion in the light of all the evidence adduced at the voir dire was as follows:
“In this case [the applicant] confessed to crimes of the utmost gravity on behalf of a terrorist organisation (including involvement in very brutal murders of a nature which have terrorised and horrified entire communities) in circumstances where:
(1) there was no impropriety by the police in the course of the interviews;
(2) there was nothing in the course of the interviews to give rise to a concern that the confessions were unreliable;
(3) the accused was caused to confess because the police quite properly put to him that they had received new and very damaging evidence against him, namely his fingerprint on the packet of cream crackers; and
(4) the accused had already consulted with his solicitor on 16th, 17th, 18th and 19th October and on the 20th the police properly and promptly at 9.02 a.m. informed his solicitor that the accused wished to see him.
I consider that having regard to these circumstances neither considerations of fairness to the accused nor the interests of justice operate to cause the court to exclude the confessions in exercise of its discretion on the ground that he did not consult with his solicitor on 20 October before the interviews on that day in which he made confessions.”
Following the voir dire the applicant declined in cross-examination to answer any questions as to whether the admissions which he had made of the various terrorist offences with which he was charged were true. The judge, in concluding that the confession evidence was true and reliable and that he could properly act on it in convicting the applicant, drew very strong inferences under Article 4 of the Criminal Evidence (Northern Ireland) Order 1988 from the applicant's refusal to give any evidence that would raise as a possibility that his admissions of involvement in various terrorist offences were untrue.
The applicant appealed against conviction. On appeal the applicant challenged, inter alia, the exercise by the trial judge of his discretion in not excluding the confession evidence. In doing so, the applicant relied on each of the three grounds which had been raised before the trial judge. The applicant, through his counsel, disputed the trial judge's findings of fact in respect of each of the first two grounds. In respect of the third ground the applicant's counsel submitted in addition that even if there had been no breach of section 45 of the 1991 Act or paragraph 33 of the non-statutory guidelines issued by the Secretary of State, the judge should have ruled that it was unfair to interview the applicant on 20 October 1992 pending the arrival of his solicitor, as he had every reason to want, indeed need, a solicitor at that stage.
Following a review of the transcript of the evidence before the trial judge, the Court of Appeal, upheld the judge's findings of fact in respect of the first two grounds. In respect of the third, the Court of Appeal held that there had not been any breach of the rules covering the conduct of police interviews. As regards the applicant's contention that it was unfair to continue to interview the applicant before he had had an opportunity to consult with his solicitor, the Court of Appeal found:
“The reality in the present case was that the police were investigating a serious blackmail case, additional information or admissions might be forthcoming, [the applicant] had already had four visits from his solicitor and had been accompanied by him at the identification parade when R. had not picked him out, he had been interviewed before, he did not demur at the absence of his solicitor, he did not remain silent until he arrived instead he chose to reveal his part in a series of serious crimes which disclosed that he was an active terrorist assisting in the activities of a proscribed organisation – the Ulster Volunteer Force. [The applicant's counsel] submitted that his solicitor might have advised him to say nothing. That is so but equally he might have told his solicitor that he was going to confess – it is idle to speculate what might pass between a solicitor and his client. What we do know is that after he saw his solicitor he repeated his account of his criminal activities and went so far as to sign the notes.”
The Court of Appeal accordingly held that the trial judge had properly exercised his discretion in not excluding the confession evidence, that this evidence sustained the charges upon which the applicant had been convicted, and, on 28 June 1996, confirmed the sentences which had been imposed.
B. Relevant domestic law and practice
1. Provisions governing inferences which may be drawn from an accused's silence
Article 3 of the Criminal Evidence (Northern Ireland) Order 1988 provides in so far as relevant:
“Circumstances in which inferences may be drawn from accused's failure to mention particular facts when questioned, charged etc.
(1) Where in any proceedings against a person for an offence, evidence is given that the accused
(a) at any time before he was charged with the offence, on being questioned by a constable trying to discover whether or by whom the offence was committed, failed to mention any fact relied on in his defence in those proceedings; or
(b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact,
being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, paragraph (2) applies.
(2) Where this paragraph applies ...
(c) the court ... in determining whether the accused is guilty of the offence charged, may
(i) draw such inferences from the failure as appear proper;
(ii) on the basis of such inferences treat the failure as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the failure is material.”
2. Provisions governing access to a solicitor
The relevant provisions at the time of the applicant's trial governing the right of access to legal advice as a terrorist suspect were contained in section 45 of the Northern Ireland (Emergency Provisions) Act 1991 which, in so far as material, provides:
“(1) A person who is detained under the terrorism provisions and is being held in police custody shall be entitled, if he so requests, to consult a solicitor privately.”
Section 45 of the Act does not prohibit the police interviewing a terrorist suspect once a request has been made pending the arrival of his solicitor; nor is a person suspected of terrorist offences entitled – as provided for under paragraph 6.5 of Code C of the Criminal Evidence (Northern Ireland) Order 1989 in respect of non-terrorist offences – to have his solicitor present whilst he is interviewed. In this connection, section 66(12) of the 1989 Order provides, in so far as relevant:
“Nothing in a code of practice ... applies to the exercise of powers conferred by or under [the Prevention of Terrorism (Temporary Provisions) Act 1989] or to a person arrested or detained under those provisions.”
Non-statutory guidelines issued by the Secretary of State for Northern Ireland in respect of the detention of persons suspected of terrorist offences, current at the time of the applicant's arrest, provided, in so far as relevant, at paragraph 33:
“A person who asks for legal advice may not be interviewed or continue to be interviewed until he has received it unless:
...
(b) an officer of the rank of superintendent or above has reasonable grounds for believing that:
(i) delay will involve an immediate risk of harm to persons or serious loss of, or damage to, property; or
(ii) where a solicitor has been contacted and has agreed to attend, awaiting his arrival would cause unreasonable delay to the process of investigation; or
(c) the solicitor nominated by the person, or selected by him from a list:
(i) cannot be contacted;
(ii) has previously indicated that he does not wish to be contacted;
(iii) having been contacted, has declined to attend; or
(d) the person has given his agreement in writing that the interview may be started at once.”
The admissibility of confession evidence is governed by section 11 of the Northern Ireland (Emergency Provisions) Act 1991 which provides, inter alia, for the exclusion of confession evidence under section 11(2)(b) where that evidence has been obtained by violence or threat of violence, or under section 11(3):
“... in the case of any statement made by the accused and not obtained by so subjecting him as mentioned in subsection (2)(b) above, the court ... has a discretion to [exclude the statement] if it appears to the court that it is appropriate to do so in order to avoid unfairness to the accused or otherwise in the interests of justice.”