ITEMID: 001-58460
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF MICHAEL EDWARD COOKE v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (non-exhaustion);Violation of Art. 6-1+6-3-c;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
TEXT: 6. In the early evening of 10 March 1993 the applicant was arrested at Alpbach, Austria, on suspicion of having killed, shortly before, his friend Ms. W. with whom he had gone to Austria on holiday.
7. On 17 November 1993 the applicant's trial commenced before a Court of Assizes (Geschwornengericht) of the Innsbruck Regional Court (Landesgericht), sitting with a jury. The applicant was assisted by his official defence counsel Mr. P. An interpreter was present. At the hearing, the court heard the applicant's statements, the testimony of several witnesses and the explanations of the psychiatric experts Professor P. and Dr. U. Several requests for the taking of further evidence, inter alia as to the victim's personality and behaviour in the past, the applicant's criminal responsibility and his state of mind following the offence, were dismissed.
8. At the end of the hearing, the court put five questions to the jury: a first main question related to the offence of murder, three subsidiary questions concerned the offences of unpremeditated homicide, intentionally inflicted grievous bodily harm resulting in death and grievous bodily harm resulting in death, respectively, and a fifth main question about the applicant's criminal responsibility. The court's directions to the jury covered the jury's duties and the general legal notions of intent and negligence. As regards the questions, the jury was inter alia directed that the offence of murder (Mord) consisted in the intentional killing of a human being and that premeditated homicide (Totschlag) was the intentional killing of a human being in a comprehensible state of emotion (in einer allgemein begreiflichen heftigen Gemütsbewegung).
9. On 18 November 1993 the jury, by a unanimous verdict, found the applicant guilty of murder. The jury also unanimously found that the applicant was criminally responsible. According to the record of their deliberations, the jury relied in particular on the testimony of the hotel owner, as well as on the expert opinion of Professor P.
10. The Court sentenced the applicant to twenty years' imprisonment. In fixing the sentence, the Court considered as a mitigating circumstance the applicant's diminished responsibility (verminderte Dispositionsfähigkeit), although his offence had not been committed upon provocation and did not obviously contradict his previous behaviour. Moreover, he had not made a repentant confession (reumütiges Geständnis), and his statements regarding the offence had not essentially contributed to the establishment of the truth.
11. The applicant, assisted by his official defence counsel Mr. P., filed a plea of nullity (Nichtigkeitsbeschwerde) with the Supreme Court (Oberster Gerichtshof), challenging the order of questions put to the jury, the dismissal of his requests for the taking of further evidence, as well as the conclusiveness of the findings of the jury. He further lodged an appeal (Berufung) complaining about the severity of the sentence, referring to further mitigating circumstances such as his previous reputable life, his feelings of regret and repentance and his emotional state at the time of the offence.
12. The Public Prosecutor's Office (Staatsanwaltschaft) also appealed against the sentence, requesting that a life sentence be imposed. The Office considered that the fact that the applicant's responsibility had been diminished at the time of the offence could not be regarded as a mitigating factor. Rather it showed the applicant's particular dangerousness and aggressiveness towards women intending to terminate their relations with him.
13. On 26 January 1994 the Supreme Court issued a summons for the hearing on the plea of nullity and the appeals, indicating that, at the hearing on the plea of nullity, the applicant, being incarcerated, could only appear through his official defence counsel and that, at the hearing of the appeals, he would not be brought to court as the conditions of section 296 § 3 of the Code of Criminal Procedure were not satisfied.
14. On 3 February 1994 the Vienna Bar Association, upon the request of the senior partner of counsel Mr. P., appointed Mr. S. as the applicant's official defence counsel for the purposes of the proceedings before the Supreme Court. The applicant received the certificate of appointment on 10 February 1994. By letter of the same day, the applicant requested the Supreme Court to allow him to be represented by Mr. P. at the hearings and to attend them as an observer. On 16 February 1994 the Innsbruck Regional Court, upon instructions by the Supreme Court, informed the applicant, with the assistance of an interpreter, that the conditions of section 296 § 3 of the Code of Criminal Procedure were not satisfied, and that his attendance as an observer was not possible.
15. On 17 February 1994 the Supreme Court held the hearing on the plea of nullity and the appeals in the absence of the applicant. He was represented by his new official defence counsel, Mr. S. The Supreme Court rejected the plea of nullity as well as both appeals.
16. The Supreme Court, in its judgment, found that the rejection by the trial court of the applicant's requests for the taking of evidence did not impair the rights of the defence. In particular, the Supreme Court confirmed in detail the reasoning of the trial court that the requests concerned in part irrelevant issues and in part issues which required expert evidence. Moreover, the applicant had failed to show the necessity of a second expert opinion as to his criminal responsibility. The Supreme Court also dismissed the applicant's argument that the order of questions put to the jury had been incorrect. The Supreme Court found that there could be no objection to the findings of the jury. The applicant's allegation of a discrepancy in the statements of one of the main witnesses was unfounded and, in any event, expert evidence had been taken on the relevant issue, namely his mental state at the time of the offence.
17. As regards the appeals, the Supreme Court noted that the applicant's own statements appeared to indicate that he quickly lost his self-control in his contacts with women. Nevertheless, there was no sufficient reason to exclude the mitigating circumstance that he had been previously of good conduct. The Supreme Court further, on the basis of the file, considered that there had been no provocation and that there were no indications of exceptional mental or emotional excitement. Except for the further mitigating circumstance, there was no other reason to amend the evaluation regarding the applicant's character or his mental state at the time of the offence, or his motive. Taking all the circumstances into account, the sentence imposed by the trial court appeared appropriate.
18. The decision was received at the Innsbruck Regional Court on 3 March 1994 and by the applicant's defence counsel, Mr. P., on 10 March 1994.
19. A first-instance court judgment given by a Court of Assizes, at a Regional Court can be challenged by a plea of nullity to the Supreme Court on the specific grounds enumerated in section 345 § 1 of the Code of Criminal Procedure. The Supreme Court's task is mainly to control the acts of the bench and the presiding judge of the Court of Assizes examining, in particular, whether the trial has been conducted in a manner which complies with fundamental procedural principles, whether the right questions have been put and the right directions given to the jury. The Supreme Court may only verify whether the jury has provided unclear, incomplete or contradictory answers to the questions put to it. The Supreme Court supervises the correct application of the criminal law, but in so doing is bound by the jury's findings of fact.
20. In certain cases the Supreme Court may reject a plea of nullity without a public hearing (section 285 (c) of the Code of Criminal Procedure). In all other cases - such as the present - there will be a public hearing which may also be combined with a public hearing on an appeal against sentence.
21. As regards the hearing on a plea of nullity, section 286 of the Code of Criminal Procedure provides:
“1. When the date of the public hearing is being fixed, the accused ... shall be summoned ...
2. If the accused is under arrest, the notice of the hearing given to him shall mention that he may only appear through counsel. ...”
22. Section 344 of the Code of Criminal Procedure applies, in principle, the above rules to nullity pleas arising out of jury trials.
However, if the hearing is a combined one on a plea of nullity and an appeal against sentence, an accused who is present for the latter purpose may also exercise his rights concerning the nullity plea.
23. The sentence as such can be challenged by way of an appeal against sentence. It may concern both points of law (in particular whether mitigating or aggravating circumstances have been correctly taken into account) and factors relating to the assessment of the sentence. Where the substance of an appeal is examined, a public hearing must normally be held.
24. As regards the personal appearance of the accused at a public appeal hearing, section 296 § 3, second sentence, of the Code of Criminal Procedure provides:
“An accused who is detained shall always be summoned and an accused who is detained shall also be brought before the court if he has made a request to this effect in his appeal or counter-statement, or otherwise if his personal presence appears necessary in the interests of justice.”
25. The applicant applied to the Commission on 12 August 1994. He alleged, inter alia, a violation of Article 6 §§ 1 and 3 (c) of the Convention on the ground that, in criminal proceedings against him, he was not present at the hearing before the Supreme Court.
26. The Commission declared the application (No. 25878/94) partly admissible on 10 April 1997. In its report of 20 May 1998 (former Article 31 of the Convention), it expressed by a majority the opinion that there had been a violation of Article 6 §§ 1 and 3 (c) of the Convention.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-4860
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: McGUINNESS v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is an Irish citizen, born in 1950 in Northern Ireland. He is an elected member of the United Kingdom Parliament, representing Sinn Féin. He lives in Derry, Northern Ireland.
The applicant is represented before the Court by Mr Michael Flanigan, a solicitor practising in Belfast.
A.
The facts as submitted by the applicant may be summarised as follows.
In the General Election held on 1 May 1997 the applicant was elected Member of Parliament (“MP”) for the Mid-Ulster constituency in Northern Ireland. His party, Sinn Féin, which polled 16.1% of the votes cast in Northern Ireland in the General Election, is an Irish republican political party committed to the principle that the Irish people have the right to self-determination.
The applicant made known to his constituents during the electoral campaign that, in line with official Sinn Féin policy, he would not take the oath of allegiance (“the oath”) to the British monarchy which MPs are required to swear as a condition of taking their seats in Parliament. The applicant did, however, affirm that he would attend the Palace of Westminster, the seat of Parliament, in order to avail himself of the normal facilities afforded to MPs, namely office accommodation, staff allowances, research facilities, travel allowances, broadcasting services and access to restricted areas for the purpose of making informal contact with other MPs. It was the applicant's understanding that elected members who did not take the oath were nonetheless entitled to benefit from these services.
The oath, as set out in section 1 of the Parliamentary Oaths Act of 1866 (“the 1866 Act”), amended by sections 2, 8 and 10 of the Promissory Oaths Act of 1868, is as follows:
“I [name] do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, her heirs and successors, according to law. So help me God.”
On 14 May 1997 the Speaker of the House of Commons (“the Speaker”) made the following Statement to the House:
“This House has traditionally accommodated great extremes of opinion. I am sure therefore that the House would not wish to put any unnecessary obstacle in the way of Members wishing to fulfil their democratic mandate by attending, speaking and voting in the House. Equally, I feel certain that those who choose not to take their seat should not have access to the many benefits and facilities that are now available in the House without also taking up their responsibilities as Members.
The present position is that under the terms of the Parliamentary Oaths Act 1866, any Member who fails to take the oath or make the affirmation that is required by law and who then votes or sits during any debate after the election of the Speaker is subject to a penalty of [GBP] 500 on each occasion and his or her seat is automatically vacated. In 1924 one of my predecessors ruled that any such Member could not receive a salary and this regulation also applies to allowances.
In the interests of the House and making use of the power vested in the Speaker to control accommodation and services in the Commons parts of the Palace of Westminster and the precincts, I have decided to extend these restrictions. As from the date of the end of the Queen's speech the services that are available to all other Members from the six departments from the House and beyond will not be open for use by Members who have not taken their seats by swearing or by affirmation ... .”
On 19 May 1997 the applicant travelled to Westminster together with Mr Gerry Adams, the other Sinn Féin MP elected at the 1997 General Election and leader of the party. They were officially informed that they would be barred from using any services or facilities if they did not take the prescribed oath.
On 4 July 1997 Mr Adams wrote to the Speaker requesting her to review her decision. The Speaker replied on 8 July 1997 stating that her decision stood for the reasons set out in the Statement.
On 12 August 1997 the applicant applied to the High Court of Justice of Northern Ireland for leave to apply for judicial review of the Speaker's decision and for a declaration that the 1866 Act, in so far as it required him to swear or affirm allegiance to the British monarchy, was incompatible with his constitutional rights as an MP. Mr Justice Kerr heard the application on 1 October 1997.
On 3 October 1997 Mr Justice Kerr refused the application. As to the applicant's challenge to the Speaker's authority to extend the restriction on facilities and services, the judge ruled that the Speaker was acting as a delegate of the House and on behalf of the House. Furthermore, he pointed out that the government of the day decided in March 1965 that the control of the accommodation and services in the House of Commons and its precincts should be vested in the Speaker on behalf of the House. The judge further ruled that he was:
“quite satisfied that ... the Speaker's action lies squarely within the realm of internal arrangements of the House of Commons and is not amenable to judicial review. Control of its own internal arrangements has long been recognised as falling uniquely within Parliament's domain and superintendence from the Court's intervention is excluded ... .”
As to the applicant's challenge to the validity of the 1866 Act Mr Justice Kerr ruled that, being primary legislation, the court did not have jurisdiction to review it.
As to the applicant's claim that the Speaker's action was not a “proceeding” under Article 9 of the Bill of Rights 1869, the judge did not rule on the matter, but he said that if it had been necessary for him to do so, he would have held that the Speaker's decision to introduce the restrictions was a proceeding in Parliament and so could not be challenged by way of judicial review under Article 9 of the Bill of Rights of 1869 (see domestic law and practice below).
The applicant did not appeal to the Court of Appeal, following advice from counsel that an appeal would be to no avail.
On 4 December 1997 the Speaker met with the applicant and Mr Adams, and refused once again to reconsider her decision to restrict facilities and services of Parliament to members who had not taken the oath.
B. Relevant domestic law and practice
Appended to the Official Report for 14 May 1997 following the Statement of the Speaker was a list of services to which the new regulations apply, including: legal services, procedural services (including the tabling of questions, motions and amendments, and public petitions), broadcasting services, Vote Office services, services available from the Parliamentary Office of Science and Technology, the provision of passes, special permits and car parking facilities, access to those areas within the parliamentary precincts which are open only to pass holders, the booking of Committee rooms, conference rooms and interview rooms, office accommodation services for members and their staff, computer services, except those available to the public, the allocation of Gallery tickets, the sponsoring of exhibitions in the Upper Waiting Hall, members' medical services, library and research services, except for those services of the Public Information Office generally available to the public, services provided by the Official Report, payroll and other financial services provided to members and their staff, insurance services, catering services provided for members and their staff, including the sponsoring of banqueting services, police and security advice available within the precincts, services in the members' post offices and travel services.
Article 9 of the Bill of Rights of 1869 provides that:
“... the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”
In Bradlaugh v. Gossett (1884) 12 Q.B.D. 271, also involving a challenge to the Parliamentary Oath Act of 1866, the court held that the matter related to the internal management of the procedure of the House of Commons and that the court had no power to interfere with the MPs' decision to exclude the plaintiff from the House. In the case of Prebble v. Television New Zealand (1995) 1 A.C. 321, the Privy Council ruled:
“In addition to Article 9 itself, there is a long line of authority which supports a wider principle ... that the courts and Parliament are both astute to recognise their respective constitutional roles. So far as the courts are concerned they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges.”


ITEMID: 001-96766
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: CYWONIUK v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: The applicant, Mr Sergiusz Cywoniuk, is a Polish national who was born in 1941 and lives in Warsaw. He was represented before the Court by Ms N. Ołowska-Zalewska, a lawyer practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a retired professional soldier. In 1979 the Military Housing Agency (Wojskowa Agencja Mieszkaniowa) decided to allocate him military accommodation (kwatera) in Białystok. The lease was signed by the applicant, but his wife and three children had the right to live in the flat.
In 1998 the applicant moved out from the flat and started divorce proceedings. It appears that his wife changed the locks in the flat and continued to occupy it with one of their children.
On 16 June 2000 the couple divorced. Afterwards, the applicant officially changed his registered address (wymeldowanie) and moved to Warsaw.
In 2002 the applicant remarried.
On 14 February 2002 the applicant gave notice to the Agency informing it that he wished to terminate the lease.
His former wife and son continued to live in the disputed flat. They refused to leave it and the applicant’s former wife stopped paying the rent. It appears that subsequently the Agency instituted enforcement proceedings against the applicant. Given the debt accumulated by the applicant’s former wife, after she had stopped paying the rent, the Agency attempted to allocate a smaller flat to the applicant so he would vacate the accommodation. However, the applicant’s former wife refused to leave the flat and the decision ordering the occupants to leave the flat was stayed on 17 March 2004.
On several occasions the applicant complained to the Military Housing Agency and he received replies on 29 August 2001, 19 February 2002 and 17 February 2003. In each of those letters the Agency referred to section 28 of the Armed Forces of the Republic of Poland Accommodation Act of 22 June 1995 (Ustawa z dnia 22 czerwca 1995 o zakwaterowaniu Sił Zbrojnych RP) (“the Armed Forces Accommodation Act”) and informed the applicant that the Agency was not competent to terminate the lease of the flat in question.
On 26 September 2001 the applicant received a letter from the Ombudsman. In his extensive reply the Ombudsman stated that the legal situation of divorced spouses who occupied military accommodation together was governed by section 28 of the Armed Forces Accommodation Act. This section provided that in case of divorce the former spouses could still live in the accommodation, with the exception of accommodation located in the buildings specified in Article 55(2)(1-3). The Ombudsman then stated:
“If the military accommodation occupied by the divorced spouses belongs to one of the [categories listed in section 55(2)(1-3)], it is possible to terminate their lease (rozkwaterowac) under section 28(2) of the Armed Forces Accommodation Act. However, in cases outside [the above categories] the divorced spouses cannot, under the rules, seek to terminate the lease....
In the above-cited law there is no provision for the removal of a troublesome divorced spouse. In particular, in the cases examined above, there are no provisions that would authorise the Agency to issue an administrative decision terminating a lease. There is also no legal ground for requesting the eviction of a former spouse from the flat they occupied together....
In the Ombudsman’s opinion such a situation, in which the legislator has excluded a certain group of citizens from the judicial system by not granting them active procedural rights (czynna legitymacja procesowa), infringes the constitutional right of access to a court (Article 45 § 1 of the Constitution of the Republic of Poland) and the right to a fair trial guaranteed by the [Convention] (Article 6 § 1)..”
The Ombudsman further informed the applicant that, according to the Supreme Court’s resolution of 28 June 2000, section 33(3) of the Law of 2 July 1994 on the Lease of Dwellings and Housing Allowances (Ustawa o najmie lokali mieszkalnych i dodatkach mieszkaniowych), (“the 1994 Act”) applied to the eviction of a divorced spouse from military accommodation. The Ombudsman stated as follows:
“The particular regulation of the situation of the spouse of a professional soldier, similarly to that of a lease in civil law, is such that his or her entitlement does not terminate with the divorce. It means that the loss of this entitlement [to use the military accommodation granted to the professional soldier] can occur only under section 33(3) of [1994 Act]. Under this provision, a tenant may institute proceedings for eviction of a divorced spouse if his or her excessively reprehensible behaviour (rażąco naganne zachowanie) makes cohabitation impossible... It is for a court examining a particular claim for eviction to interpret this provision ...”
Apparently in 2002 the applicant instituted civil proceedings against his former wife in which he sought reimbursement of the rent she had failed to pay since 1998 but which had been deducted from his old-age pension. It is not clear what transpired in those proceedings.
On 24 June 2003 the Agency allocated to the applicant a smaller flat and requested him to vacate the military accommodation which his former wife had been occupying. The applicant’s wife appealed against the decision. It was finally upheld by the Supreme Administrative Court on 8 May 2007.
In August 2007 the applicant’s former wife paid the Agency the debt for the rent for the flat she had been occupying.
On 12 December 2007 the Agency evicted the applicant’s wife and their son from the flat in question. Apparently the eviction was carried out under sections 44 and 45 of the New Armed Forces Accommodation Act. The flat has been vacated. Subsequently, the Agency offered the applicant a substitute flat. However it appears that to date he has not accepted one.
Section 28 of the Armed Forces Accommodation Act provides:
“1. In the event of divorce, spouses living in military accommodation can continue living in the accommodation, with the exception of accommodation in the buildings described in section 55(2)(1-3).
2. When the accommodation occupied is in a building as described in section 55(2)(1-3):
(1) the divorced spouses are entitled to:
(a) military accommodation for a professional soldier or a military pensioner,
(b) a flat in exchange, within the meaning of the Law on the Lease of Dwellings and Housing Allowances, for a former spouse of the person described in (a) ...
3. Separate military accommodation will not be given to a divorced professional soldier or to a military pensioner ... who on the date when the divorce becomes final is occupying accommodation not located in the buildings listed in section 55(2)(1-3) unless there are circumstances as set out in paragraph 4.
4. If the living area of the accommodation occupied is smaller than the minimum area to which the person is entitled, the head of the local branch of the Agency, on the date the divorce becomes final, shall assign in exchange to the divorced spouses accommodation that reflects their joint entitlement, or pay a monetary equivalent ... in an amount which reflects the lack of ... living space.
5. In the cases described in 3 and 4 above the accommodation occupied may be exchanged by the parties themselves. In such cases, the head of the local branch of the Agency shall assign the military accommodation or enter into a lease with a designated person.”
Section 55(2)(1-3) of the Armed Forces Accommodation Act listed three categories of military accommodation in which it was possible to terminate the lease under section 28 (2). Those are:
1. accommodation in buildings on closed military land,
2. accommodation which is allocated, by a decision of the director of the district office of the Military Housing Agency, to the whole or a part of the staff of a certain military unit,
3. function-related accommodation.
On 28 June 2000 the Supreme Court gave a resolution III CZP 15/00 in which it considered that section 33 (3) of the 1994 Act should apply to a civil action for eviction against a former spouse of a professional soldier. The 1994 Act was repealed by the Act of 21 June 2001 on the Protection of the rights of tenants, housing resources of municipalities and amendments to the Civil Code (Ustawa o ochronie praw lokatorów, mieszkaniowym zasobie gminy i o zmianie Kodeksu cywilnego) (“the 2001 Act”). However, it contains an analogous regulation in section 13 (2) which allows eviction of a divorced spouse if his or her excessively reprehensible behaviour makes cohabitation impossible.
On 1 July 2004 the Armed Forces Accommodation Act was substantially amended and section 28 was repealed (the “new Armed Forces Accommodation Act”). Sections 44 and 45 of the new Armed Forces Accommodation Act open the possibility of the forcible eviction of a person who has not been a soldier but who has remained in military accommodation. They also provide for the possibility of seeking a court ruling in cases where the person subject to eviction belongs to one of the protected categories (for example a pregnant woman or a disabled person).
The new Armed Forces Accommodation Act also explicitly excludes the application of the 2001 Act to matters related to military accommodation.
On 21 December 2006 the Supreme Court gave a resolution IIICZP 131/2006 in which it found that a civil action by a professional soldier against his former wife was possible if the soldier had been granted the military accommodation prior to the date on which section 28 of the Armed Forces Accommodation Act lost its force and if the civil action had been brought after that date. The court however refused to specify which provision of the domestic law should be the legal basis for such an action, finding that the question put to it had been worded too vaguely.


ITEMID: 001-80348
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: MYROSHNYCHENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mr Oleksiy Andriyanovych Myroshnychenko, is a Ukrainian national who was born in 1928 and lives in Jena, Germany. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1988 the applicant retired and started receiving an old age pension.
On 12 July 1998 the applicant and his wife immigrated to Germany, where they were granted refugee status. Before their departure, on 3 July 1998, they had been paid their pension for six months in advance (12 July 1998 – 12 February 1999) with consecutive termination of payments in accordance with Article 92 of the Law on Pensions.
In October 2003 the applicant lodged a complaint with the Constitutional Court claiming that the termination of pension payments to him was unconstitutional. By letter of 23 October 2003 the Registry of the Constitutional Court replied to the applicant that he had no right to lodge a constitutional appeal.
In October 2003 the applicant raised the same issue with the Parliamentary Ombudsman for Human Rights. By letter of 29 April 2004, the Ombudsman’s Secretariat replied that the only possible solution to the applicant’s problem was the introduction of legislative changes since the termination of pension payments in case of emigration was directly foreseen by the law.
According to the applicant, in January 2004 he lodged a complaint with the Poltava Kievsky District Court, but received no reply.
By letter of 9 December 2003, the Supreme Court of Ukraine informed the applicant, in reply to his letter, that it had no competence to act as a first instance court in respect of the applicant’s complaint.
In 2005 the applicant again submitted his complaint to the Constitutional Court, as well as to the General Prosecutor’s Office and the President of Ukraine. By letter of 3 March 2005, the Constitutional Court replied to the applicant along the same lines as in its letter of 23 October 2003. The applicant’s complaints to the General Prosecutor’s Office and the President of Ukraine were redirected to the Constitutional Court, which in reply to the applicant referred to its previous letters of 23 October 2003 and 3 March 2005.
On 12 January 2006 the applicant lodged an administrative complaint with the Pechersky District Court of Ukraine against the Supreme Court and the Constitutional Court, the Ombudsman, the General Prosecutor’s Office and the President of Ukraine for failure to protect elderly people who emigrated from Ukraine and failure to consider his complaints. On 27 January 2006 the court rejected this complaint for failure to comply with procedural requirements.
The relevant provisions read as follows:
“... The norms of the Constitution of Ukraine are norms of direct effect. Appeals to the court in defence of the constitutional rights and freedoms of the individual and citizen directly on the grounds of the Constitution of Ukraine are guaranteed.”
“Citizens have equal constitutional rights and freedoms and are equal before the law.
There shall be no privileges or restrictions based on race, colour of skin, political, religious and other beliefs, sex, ethnic and social origin, property status, place of residence, linguistic or other characteristics...”
“The Constitutional Court of Ukraine is the sole body of constitutional jurisdiction in Ukraine.
The Constitutional Court of Ukraine decides on issues of conformity of laws and other legal acts with the Constitution of Ukraine, and provides the official interpretation of the Constitution of Ukraine and the laws of Ukraine.”
“The jurisdiction of the Constitutional Court of Ukraine encompasses:
1) deciding on issues of conformity with the Constitution of Ukraine (the constitutionality) of the following:
- laws and other legal acts of the Verkhovna Rada of Ukraine;
- acts of the President of Ukraine;
- acts of the Cabinet of Ministers of Ukraine;
- legal acts of the Verkhovna Rada of the Autonomous Republic of Crimea.
These issues are considered on the appeals of: the President of Ukraine; at least forty-five National Deputies of Ukraine; the Supreme Court of Ukraine; the Authorised Human Rights Representative of the Verkhovna Rada of Ukraine; the Verkhovna Rada of the Autonomous Republic of Crimea;
2) the official interpretation of the Constitution of Ukraine and the laws of Ukraine;
On issues envisaged by this Article, the Constitutional Court of Ukraine adopts decisions that are mandatory for execution throughout the territory of Ukraine, that are final and shall not be appealed.”
Article 92. Payment of pensions to the citizens who left abroad.
“Pensions shall not be granted to citizens who left for permanent residence abroad.
The pensions granted in Ukraine before the leave for permanent residence abroad shall be paid for 6 months in advance before departure for abroad. During the stay of these citizens abroad only pensions granted for professional disability or illness shall be payable.
The procedure of transferring the pensions granted for professional disability or illness to other countries shall be established by the Cabinet of Ministers of Ukraine.”
Article 51 of the Law contains provisions similar to those of second paragraph of Article 92 of the Law on Pensions, cited above. It further foresees that while abroad the person concerned should be paid pension, if such pension payments are foreseen by the international treaty ratified by the Parliament.
There is no treaty on social welfare between Ukraine and Germany.


ITEMID: 001-77837
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF VOLOKHY v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 8;Violation of Art. 13;Non-pecuniary damage - financial award
JUDGES: Peer Lorenzen
TEXT: 5. The applicants were born in 1933 and 1961 respectively and live in the city of Poltava.
6. In May 1996 the Poltava Regional Police Department (hereinafter – the PRPD) instituted criminal proceedings for tax evasion against Mr V., who is, respectively, the son of the first applicant and the brother of the second applicant. On 28 May 1996 the investigator placed Mr V. under an obligation not to abscond.
7. On 4 September 1996, following the failure of Mr V. to appear for interrogation and in the absence of information about his whereabouts, an arrest warrant for Mr V. was issued.
8. On 6 August 1997 the PRPD investigator issued an order for interception and seizure of the postal and telegraphic correspondence of the applicants (hereinafter – “the interception order”) on the following grounds:
“The private entrepreneur Mr V., during the period between 1 January 1994 and 1 January 1996, intentionally did not pay taxes to the State budget in the amount of UAH 12,889, having caused damage and substantial losses to the State.
On 28 May 1996 the preventive measure – obligation not to abscond – was ordered in respect of Mr V., but, having been summoned by the investigator, Mr V. did not come to him, and his whereabouts at the present are unknown. On 4 September 1996 the preventive measure – detention – was ordered in respect of Mr V.
... Mr V. may inform his mother and brother about his whereabouts, using the postal and telegraphic correspondence.”
No time-limit for the interception had been fixed in the order.
9. On 11 August 1997 the President of the Zhovtnevyy District Court approved the interception order by having signed it. The applicants maintained that they had learned about this order by chance at the end of 1998.
10. On 4 May 1998 the criminal case against Mr V. was terminated as being time-barred.
11. According to the applicants, Mr V. had appeared in summer 1998 and met with the investigator in his case. During this meeting he found out about the interception order.
12. On 28 May 1999 the PRPD investigator cancelled the interception order on the grounds that the criminal case against Mr V. had been closed and there were no further need to intercept the applicants’ correspondence. This cancellation was approved and signed by the President of the Zhovtnevyy District Court the same day.
13. By letter of 19 July 1999, the Poltava Regional Prosecutor’s Office, in reply to their complaint, informed the applicants that the interception of their correspondence had been ordered lawfully and therefore the law-enforcement officers incurred no liability.
14. On 14 November 1999, according to the Government, the whereabouts of Mr V. were established by the investigation.
15. By letter of 6 January 2000 to Mr V., in reply to his complaints about the criminal proceedings against him, the General Prosecutor’s Office (hereinafter “the GPO”) noted, inter alia, that the interception order was not well-founded.
16. By letter of 1 February 2000, the first applicant was informed that on 15 August 1997 (15 September 1997 according to the Government) a letter addressed to her had been intercepted by the police but, as it contained no information about the whereabouts of Mr V., it was not seized but was forwarded to her.
17. On 20 January 2000 the applicants claimed compensation from the Head of the PRPD for the damage caused by ordering the interception of their correspondence.
18. By letter of 27 January 2000, the Head of the PRPD informed the second applicant that the interception order had been lawful and that, therefore, there were no grounds to award damages.
19. By letter of 19 November 2000, the Head of the PRPD informed the second applicant that the seizure of correspondence had been in compliance with the law and that the applicant had no right to compensation, given that the criminal case against his brother had been terminated on non-exonerative grounds.
20. By letter of 21 November 2000, the Poltava Regional Prosecutor’s Office informed the second applicant that the issue of compensation was within the competence of the courts.
21. On 18 February 2000 the applicants lodged a claim with the Leninsky District Court of Poltava against the PDPR seeking compensation for the moral damage caused by the interference with their correspondence. In support of their claim, they referred to the letter of the GPO of 6 January 2000, where it was acknowledged that the interception order lacked grounds.
22. On 11 October 2001 the Leninsky District Court found against the applicants. The court concluded that the interception order had been lawful and well-founded, the criminal proceedings against Mr V. having been terminated on non-exonerative grounds (нереабілітуючі обставини), and that the applicants did not prove that they had suffered any moral damage due to the interference with their correspondence. The court held that the applicants’ claim was unsubstantiated and that the GPO’s letter of 6 January 2000 could not be a ground for awarding them any damages. It, therefore, rejected the applicants’ claim in full.
23. On 8 January 2002 the Appellate Court of Poltava Region upheld the decision of the first instance court.
24. On 9 February 2004 the panel of three judges of the Supreme Court rejected the applicants’ request for leave to appeal in cassation.
25. The relevant extracts of the Constitution of Ukraine (first published in the Gazette of the Verkhovna Rada of Ukraine of 23 July 1996, No. 30, article 141) read as follows:
Article 31
“Everyone shall be guaranteed privacy of mail, telephone conversations, telegraph and other correspondence. Exceptions shall be established only by a court in cases envisaged by law, with the purpose of preventing crime or ascertaining the truth in the course of the investigation of a criminal case, if it is not possible to obtain information by other means.”
“Human and citizens’ rights and freedoms shall be protected by the courts.
Everyone shall be guaranteed a right to challenge in court the decisions, actions or omissions of bodies of State power, bodies of local self-government, officials and officers. ...
Everyone shall have a right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.”
Article 56
“Everyone shall have a right to compensation from public or municipal bodies for losses sustained as a result of unlawful decisions, acts or omissions by public or municipal bodies or civil servants in the performance of their official duties.”
“13. The existing procedure for the arrest, custody and detention of persons suspected of committing an offence, and the procedure for carrying out an examination and search of a person’s home and other property, shall be retained for five years after the entry into force of the present Constitution.”
26. At the material time Article 187 of the Code in the wording of 16 April 1984 (the relevant Amendment Law first published in the Gazette of the Verkhovna Rada of the Ukrainian SSR, 1984, No. 18, article 351) read as follows:
The interception of correspondence and its seizure in postal and telegraphic establishments
“The interception of correspondence and its seizure in postal and telegraphic establishments shall be conducted with the approval of the prosecutor or his deputy, or upon the resolution of a court.
The investigator shall issue an order for interception and seizure of postal and telegraphic correspondence. In that order, the investigator shall propose that a postal and telegraphic establishment intercept the correspondence defined in the order and inform him about it. The examination of correspondence shall be conducted in the presence of two representatives of the post office, and minutes are drawn up to this end.
The interception of correspondence shall be cancelled by an order of the investigator, when the application of this measure is no longer required.”
(This Article was substantially re-worded in June 2001)
27. The relevant provisions of the Law (first published in the official newspaper “Golos Ukrainy”, 27 March 1992, No. 56) provided as relevant:
“The grounds for conduct of the search and seizure activities are:
1) presence of sufficient information, about ...
- persons who are preparing or have committed a crime;
- persons who are hiding from the investigative bodies, court or are evading the application of criminal sanctions; ...
It is prohibited to make decisions on the conduct of search and seizure activities for other purposes than the ones established by this Article.”
“Operational units when executing their tasks in connection with operational searches (...) have the following rights:
10) to survey selectively, in accordance with particular characteristics, telegraphic and postal correspondence.”
Article 9
Guarantees of lawfulness during the conduct of search and seizure activities
“...During the search and seizure activities violation of rights and freedoms of individuals and legal persons shall not be allowed. Any limitation of these rights and freedoms shall be of an exceptional and temporary nature ... in the situations stipulated by the legislation of Ukraine with the aim of protecting the rights and freedoms of other persons, the safety of the society...
During the search and seizure activities, officers of the operational units shall be obliged to take into account their proportionality to the level of social danger of criminal attempts and the danger to the interests of the society and the State.
In case of violation of rights and freedoms of individuals and legal persons ...the Ministry of Internal Affairs... shall restore the violated rights and compensate for the material and moral damage which had occurred.”
28. The relevant provisions of the Law (first published in the Gazette of the Verkhovna Rada of Ukraine of 3 January 1995, No. 1, article 1) read as follows:
Article 1
“Under the provisions of this Law a citizen is entitled to compensation for damages caused by:
...3) unlawful conduct of search and seizure activities ...
Article 2
“The right to compensation for damages in the amount of and in accordance with the procedure established by this Law shall arise in cases of:
acquittal by a court;
the termination of a criminal case on grounds of the absence of proof of the commission of a crime, the absence of corpus delicti, or a lack of evidence of the accused’s participation in the commission of the crime;
the refusal to initiate criminal proceedings or the termination of criminal proceedings on the grounds stipulated in sub-paragraph 2 of paragraph 1 of this Article;
the termination of proceedings for an administrative offence.”
Article 3
“In the cases referred to in Article 1 of this Law the applicant shall be compensated for...
5) moral damage.”
Article 4
“...Compensation for moral damage shall be given in cases in which unlawful actions of bodies of inquiry, pre-trial investigation, prosecutors and courts caused moral losses to a citizen, led to disruption of his usual life relations and required additional efforts for organisation of his or her life.
The moral damage shall be considered suffering caused to a citizen due to physical or psychological influence which led to deterioration or deprivation of possibilities to follow his or her usual habits and wishes, deterioration of relations with people around, other negative impacts of moral nature.”
VIOLATED_ARTICLES: 13
8


ITEMID: 001-114939
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF ZOFIA SIKORA v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
JUDGES: David Thór Björgvinsson;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1956 and lives in Boguchwala.
6. The applicant is a single mother of three children. Prior to her application for an earlyretirement pension she had been employed by the same company for twentyfive years and paid social security contributions to the State.
7. On 6 November 2001 the applicant filed an application with the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) to be granted the right to an earlyretirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the socalled “EWK” pension”.
8. Along with her application for a pension, the applicant submitted, among other documents concerning her son’s health condition, a medical certificate issued on 31 October 2001 by a specialist medical centre. The certificate stated that the child (born in 1987) suffered from asthma and allergy to pollen and that he had been in need of his parent’s constant care.
9. On 13 November 2001 the Rzeszów Social Security Board (“the SSB”) issued a decision granting the applicant the right to an earlyretirement pension as of 1 November 2001 in the net amount of 713 Polish zlotys (PLN).
10. The Social Security Board initially suspended the payment of the pension until 1 December 2001 due to the fact that the applicant was still working on the date of the decision. The applicant resigned from her job where she had been working since 1986. Afterwards, the payments of the pension were resumed.
11. On 27 May 2002 the Rzeszów Social Security Board asked the Main Social Security Board’s doctor (Główny Lekarz Orzecznik) to inform it whether the applicant’s daughter required the permanent care of a parent. On 3 June 2002 the doctor stated that, on the basis of the medical documents, the child could not be considered as ever having required such care.
12. On 11 June 2002 the Rzeszów Social Security Board issued simultaneously two decisions in respect of the applicant. By virtue of one decision, the payment of the applicant’s pension was discontinued with immediate effect. By virtue of the other decision, the Board reopened the proceedings, revoked the initial decision granting a pension and eventually refused to grant the applicant the right to an earlyretirement pension under the scheme provided for by the Cabinet’s Ordinance of 15 May 1989 on the right to early retirement of employees raising children who require permanent care (Rozporządzenie Rady Ministrów z dn. 15 maja 1989 w sprawie uprawnień do wcześniejszej emerytury pracowników opiekujących się dziećmi wymagającymi stałej opieki) (“the 1989 Ordinance”).
13. The applicant appealed against the respective decisions divesting her of the right to an earlyretirement pension. She submitted that she should receive the benefit because her child required constant care, as confirmed by the medical certificate attached to the applicant’s original application for a pension. Moreover, the applicant alleged that the revocation of her retirement pension was contrary to the principle of vested rights.
14. On 4 April 2003 the Rzeszow Regional Court (Sąd Okręgowy) dismissed the appeal. The Regional Court concluded on the basis of the evidence, including expert medical opinions, that while indeed the applicant’s child suffered from asthma and allergy he did not require his mother’s permanent care since his health condition did not significantly impair his bodily functions. The domestic court held that the applicant had been rightfully divested of her right to a pension under the scheme provided by the 1989 Ordinance as she did not satisfy the requirement of necessary permanent care.
15. The applicant further appealed against the firstinstance judgment.
16. On 17 October 2003 the Rzeszów Court of Appeal (Sąd Apelacyjny) dismissed the appeal.
17. On 29 April 2004 the Supreme Court (Sąd Najwyższy) refused to entertain the cassation appeal lodged by the applicant.
18. Following the social security proceedings the applicant was not ordered to return her earlyretirement benefits paid by the Social Security Board, despite the revocation of her right to an earlyretirement pension.
19. The applicant submitted that after the revocation of the EWK pension she had not received any unemployment or other benefits from the State. Given her age she had no chance to find a job again. Moreover, all her three children had medical problems which put additional strain on her difficult financial situation. The applicant also submitted that her plot of land was occupied by a small house in which she lived and a vegetable garden.
20. The Government acknowledged that the applicant had been unable to find employment after the revocation of the EWK pension in 2002. However, the applicant received child support benefit for her three children which in 2001 amounted to PLN 10,800. It is not clear how long she has been receiving such payment. Her son K, the child in respect of whom the applicant had been granted the EWK pension, started working in September 2007, aged 20. The applicant’s other son has been employed since 2001. In addition, the Government maintained that the applicant owned a small piece of land (about 0.4 hectare).
21. In addition, the Government submitted information as regards the various types of social benefits available in Poland. However, they did not specify which of those benefits, if any, were available in the applicant’s situation.
22. Under the relevant laws currently in force, it appears that the applicant will qualify for a regular retirement pension in 2016.
23. Some 130 applications arising from a similar fact pattern have been brought to the Court. The majority of the applicants form the Association of Victims of the SSB (Stowarzyszenie Osób Poszkodowanych przez ZUS) (“the Association”), an organisation monitoring the practices of the Social Security Board in Poland, in particular in the Podkarpacki region.
24. Out of all applications lodged with the Court, about twentyfour applicants decided not to lodge a cassation appeal against the judgment of the Court of Appeal given in their case.
25. One hundredandfour applicants lodged cassation appeals against the final judgments given in their cases. The Supreme Court entertained and dismissed on the merits fifteen appeals. In eightyone applications the Supreme Court refused to entertain cassation appeals on the ground that they did not raise any important legal issues or require the Supreme Court to give a new interpretation to legal provisions which raised serious doubts or gave rise to ambiguity in the jurisprudence of the domestic courts. In the remaining eight cases cassation appeals were rejected for failure to comply with various procedural requirements.
26. The legal provisions applicable at the material time and questions of practice are set out in the judgment in the case of Moskal v. Poland, no. 10373/05, § 3134, 15 September 2009.
27. The reopening of the proceedings concerning the earlyretirement pension is regulated in section 114 (1) of of the Law of 17 December 1998 on retirement and disability pensions paid from the Social Insurance Fund (Ustawa o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych) (“the 1998 Law”), which at the relevant time read as follows:
“The right to benefits or the amount of benefits will be reassessed upon application by the person concerned or, ex officio, if, after the validation of the decision concerning benefits, new evidence is submitted or circumstances which had existed before issuing the decision and which have an impact on the right to benefits or on their amount are discovered.”
On 1 July 2004 a new subparagraph 114 (1) (a) was added, which reads as follows:
“Section 1 shall apply respectively, if, after the validation of the decision it is discovered that the evidence that had been submitted did not give the right to a pension, disability pension or its amount.”
28. A party to civil proceedings could, at the material time, lodge a cassation appeal with the Supreme Court against a judicial decision of a secondinstance court. A party had to be represented by an advocate or a legal adviser.
29. Article 3931 of the Code of Civil Procedure as applicable at the material time listed the grounds on which a cassation appeal could be lodged. It read as follows:
“The cassation appeal may be based on the following grounds:
1) a breach of substantive law as a result of its erroneous interpretation or wrongful application;
2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.”
30. Pursuant to Article 393¹³ the Supreme Court, having allowed a cassation appeal, could quash the challenged judgment in its entirety or in part and remit the case for reexamination. Where the Supreme Court failed to find nonconformity with the law, it dismissed the cassation appeal. According to Article 39315 if the cassation appeal was wellfounded the Supreme Court could also amend the impugned judgment and adjudicate on the merits.
31. On 22 June 1999 the Ombudsman made an application to the Constitutional Court, asking for section 186 § 3 of the Law of 17 December 1998 on retirement and disability pensions paid from the Social Insurance Fund (Ustawa o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych) (“the 1998 Law”) to be declared unconstitutional in so far as it restricted the application of the 1989 Ordinance to persons born before 1 January 1949. More specifically, the Ombudsman submitted that the introduction of an agelimit in respect of persons taking care of a child, which in essence amounted to a deprivation of the right to a benefit, constituted a violation of the principle of equality set forth in Article 32 § 1 of the Constitution.
32. On 4 January 2000 the Constitutional Court (K18/99) declared the impugned section 186 § 3 of the 1998 Law unconstitutional in so far as it restricted the application of the 1989 Ordinance to persons born before 1 January 1949. The Constitutional Court reiterated among other things the constitutional principle of acquired rights which guarantees particularly strong protection for the right to receive social welfare benefits.
33. On 10 February 2011 the Ombudsman made an application to the Constitutional Court, asking for section 114 (1)(a) of the 1998 Law to be declared unconstitutional in so far as it allowed the SSB to reopen ex officio proceedings relating to the grant of a pension or a disability pension on the basis of a new assessment of evidence which had already been submitted.
34. On 28 February 2012 the Constitutional Court (K5/11) declared the impugned section 114 (1)(a) of the 1998 Law unconstitutional in so far as it allowed the SSB to reopen such proceedings following a new assessment of evidence which had already been submitted.
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-96121
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: O. v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: 1. The applicant, Mr O., was born in 1974. He is a national of Mauritania where he is currently living. He is known to the Netherlands authorities under this and at least two other identities. He was represented before the Court by Mr M. Ferschtman and Ms V. Essenburg, who are both lawyers practising in Amsterdam.
2.
3. On 28 October 1999 the applicant entered the Netherlands, where on 14 November 1999 he applied for asylum. He stated, inter alia, that he had left his passport and identity card behind in Mauritania and that he had travelled as a stowaway on a ship to the Netherlands. His parents and five siblings as well as fifteen half-siblings were all living in Mauritania. He stated that, on account of his Soninké origin, he had been discriminated against in Mauritania where, moreover, his father, his oldest brother and one of his sisters had encountered problems from the side of the Mauritanian authorities. He had also left Mauritania because of problems encountered on two occasions from the side of relatives of his fiancée. They objected to the applicant’s intended marriage.
4. Noting that the applicant did not hold any travel documents and had not immediately applied for asylum upon his arrival in the Netherlands, and finding that no credence could be attached to his asylum account, the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the applicant’s asylum request on 16 November 1999. The applicant did not avail himself of the possibility to appeal against this decision, which thus became final. Although under a formal obligation to leave the country, the applicant continued to reside illegally in the Netherlands.
5. The applicant was arrested on 30 August 2002 and detained on remand on suspicion of, inter alia, participation in a criminal organisation pursuing the aim of prejudicing the Netherlands State by providing assistance to enemy forces who are conducting a holy war against – amongst others – the Netherlands; and which organisation is further involved in drug-trafficking, forgery of documents, providing third persons with forged documents, and/or ordering or inciting others to commit criminal offences. These suspicions were based on the content of various intelligence reports drawn up by the Netherlands national security agency (Binnenlandse Veiligheidsdienst; “BVD”, succeeded on 29 May 2002, pursuant to the 2002 Intelligence and Security Services Act (Wet op de inlichtingen- en veiligheidsdiensten), by the General Intelligence and Security Service (Algemene Inlichtingen- en Veiligheidsdienst; “AIVD”)).
6. The applicant and a number of co-accused were subsequently formally charged and summoned to appear before the Rotterdam Regional Court (rechtbank) in order to stand trial. In its judgment of 5 June 2003, the Regional Court acquitted the applicant of all charges, finding that these had not been legally and convincingly proven, and ordered the applicant’s release from pre-trial detention. The hearing of 5 June 2003 during which the Regional Court’s judgment was delivered was attended by an official of the Mauritanian mission in the Netherlands.
7. The prosecution initially lodged an appeal against this judgment but withdrew it on 6 September 2005, before the trial proceedings on appeal had commenced.
8. On 28 May 2003, the applicant filed a second application for asylum in the Netherlands. He stated, inter alia – contrary to what he had previously asserted –, that he had taken his passport, personal identity card and declaration of nationality with him to the Netherlands in 1999 and that, for the purposes of possibly obtaining a Spanish residence title, he had later sent his passport to Spain where one of his brothers was living. He had not submitted these identity documents in the proceedings on his first asylum request in order to prevent his immediate removal from the Netherlands. On this passport, issued in 1999 shortly before his departure, he had travelled by plane from Senegal to France from where – following brief stays in Italy and the United Kingdom – he had eventually travelled by train to the Netherlands where he had applied for asylum.
9. His new asylum request was based, inter alia, on the criminal proceedings that had been taken against him in the Netherlands. The applicant claimed that these proceedings had attracted the attention of the Mauritanian authorities as illustrated by the presence of an official of the Mauritanian mission during the Rotterdam trial. Despite the fact that he had been acquitted, his relatives in Mauritania continued to be questioned about him. Further emphasising the general situation in Mauritania, the applicant submitted that he feared treatment in breach of Article 3 of the Convention as he was a person marked for life as a terrorist.
10. On 5 June 2003, immediately after his release from pretrial detention following his acquittal, the applicant was placed in aliens’ detention for expulsion purposes (vreemdelingenbewaring).
11. In a letter of 7 July 2003 sent to the applicant’s lawyer, Amnesty International (Netherlands Branch) stated that it was likely that the applicant had attracted the negative attention of the Mauritanian authorities on account of the nature of the suspicions that had arisen against him in the Netherlands. As the Mauritanian authorities had been engaged since April 2003 in a campaign of oppression directed against all persons suspected of having links with religious groups considered “extremist” and as Amnesty International received regular reports of torture of persons detained in Mauritania, it feared that the applicant’s expulsion to Mauritania could expose him to a risk of treatment proscribed by Article 3 of the Convention.
12. On 11 July 2003, the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie; “the Minister”) rejected the applicant’s second asylum application, but withdrew this decision on 18 July 2003.
13. On 24 July 2003, an individual official report (ambtsbericht) on the applicant was drawn up by the AIVD. According to this report, the applicant was involved in a network of extremist Muslims engaged in the material, financial and logistic support of international jihad, as well as in the propagation of, planning of and incitement to use violence for the purposes of such jihad.
14. On 7 August 2003 the Regional Court of The Hague sitting in Dordrecht concluded that the applicant should have been released from aliens’ detention on 18 July 2003. The applicant was released on the same day.
15. On 5 March 2004 the applicant filed an appeal with the Regional Court (rechtbank) of The Hague against the Minister’s failure to determine his second asylum application. On 18 October 2004, the Regional Court accepted the applicant’s appeal and ordered the Minister to determine the applicant’s asylum request within six weeks.
16. In a fresh decision taken on 26 November 2004, the Minister again rejected the repeat asylum request, finding that it had not been established that the applicant, if expelled to Mauritania, would be exposed to a risk of treatment proscribed by Article 3 of the Convention. The applicant filed an appeal with the Regional Court of The Hague on 21 December 2004.
17. On 16 March 2006, following a hearing held on 20 October 2005, the Regional Court of The Hague sitting in Amsterdam accepted the applicant’s appeal, quashed the decision of 26 November 2004 and ordered the Minister to take a fresh decision within six weeks. The Regional Court rejected the Minister’s request to take into account the effects of the military coup d’état in Mauritania of 3 August 2005 in which the regime of President Maaouya Ould Taya had been overthrown, including reports in the press that after this coup many opposition members had returned to Mauritania and that many detainees, including Islamic extremists, had been released. Although the Regional Court accepted that the regime change could, as such, be seen as a new fact or circumstance which could be taken into account in accordance with article 83 of the Aliens Act 2000 (Vreemdelingenwet 2000), it also found that the Minister had failed to indicate in a targeted and concrete manner what consequences this should entail in respect of the appeal at hand. Furthermore, it did not find that the effects of the regime change had become fully crystallised yet. Consequently, the requirement of article 83 § 2 of the 2000 Aliens Act that new facts and circumstances can only be taken into account if relevant to the decision at issue was not met in the instant case. The Regional Court therefore decided to ignore what had happened on or after 3 August 2005 in Mauritania.
18. The Regional Court further agreed with the parties that the appeal concerned a repeat request within the meaning of article 4:6 of the General Administrative Law Act which should be based on relevant newly emerged facts or altered circumstances. It held that the applicant’s arrest and prosecution on charges of participation in a terrorist organisation in the Netherlands, his acquittal by the Rotterdam Regional Court and the public attention these proceedings had attracted were new facts unknown on 16 November 1999 when the applicant had filed his first asylum request. The question which remained was whether these new facts warranted a revision of the negative decision on that first asylum request. On the basis of the contents of Amnesty International’s letter of 7 July 2003 and other materials concerning the suppressive attitude of the regime of the Mauritanian President Maaouya Ould Taya as regards Islamic extremists, the Regional Court found that there were sufficient concrete indications that the Mauritanian authorities, in particular since 2001, pursued an increasingly repressive policy towards perceived Islamic fundamentalists. It could therefore not be considered excluded that the applicant would risk persecution within the meaning of the 1951 Geneva Convention Relating to the Status of Refugees. The Regional Court further accepted as sufficiently plausible that the Mauritanian authorities had become aware of the suspicions that had arisen against the applicant in the Netherlands. Also noting that the most recent official report (ambtsbericht) on Mauritania had been drawn up by the Minister of Foreign Affairs as long ago as May 2000, the Regional Court concluded that the Minister’s conclusion in the impugned decision lacked adequate reasoning on specific points. Having reached this conclusion, the Regional Court did not find it necessary to examine and determine the parties’ arguments on the AIVD individual official report on the applicant of 24 July 2003.
19. On 13 April 2006 the Minister filed an appeal with the Administrative Jurisdiction Division of the Council of State (Administrative Jurisdiction Division of the Council of State).
20. On 14 September 2006, the Administrative Jurisdiction Division accepted the Minister’s appeal, quashed the Regional Court’s judgment of 16 March 2006 and rejected the applicant’s appeal against the Minister’s decision of 26 November 2004. Referring to the general principles under Article 3 of the Convention as defined by the Court in its judgments in the cases of Vilvarajah and Others v. the United Kingdom, (judgment of 30 October 1991, Series A no. 215) and Venkadajalasarma v. the Netherlands, (no. 58510/00, 17 February 2004), the Administrative Jurisdiction Division held:
“The [asylum] application, rejected in the above-cited decision of 26 November 2004, was based on the claim that [the applicant] must now fear that, in view of the criminal trial proceedings taken against him, the Mauritanian authorities have become aware of the suspicions having arisen against him in the Netherlands as to his involvement in a terrorist organisation and that this is not altered by the fact that he has been acquitted.
[The Administrative Jurisdiction Division considers that], even if such awareness has to be assumed to exist, the Minister did not have to find – on the basis of the [applicant’s] mere reference to the suspicions having arisen against him, the subsequent prosecution which ended in his acquittal and speculation about the possible consequences of this upon his return to his country of origin – that it had been established by the [applicant] that he, if expelled, would be exposed to a real risk of being subjected to treatment within the meaning of Article 3 of the Convention. The general information submitted by the [applicant] concerning the attitude of the Mauritanian authorities towards terrorism offers no basis for the conclusion that the Minister was incorrect in finding no reasons for considering that the criminal proceedings will lead to asylum-related problems. It was not for the Minister to demonstrate that this alleged risk did not in fact exist. The appeal succeeds.”
No further appeal lay against this decision.
21. On 21 September 2006 the Minister informed the applicant of the intention (voornemen) to declare him an undesirable alien entailing the imposition of an exclusion order (ongewenstverklaring), as the applicant was considered to pose a threat to national security, which conclusion was based on an individual official report drawn up on the applicant by the AIVD on 24 July 2003, according to which the applicant was involved in a network of extremist Muslims involved in the material, financial and logistic support of international jihad, and in the propagation of, planning of and incitement to use violence for the purposes of such jihad. According to a subsequent official AIVD report of 20 September 2006, this information remained pertinent.
22. On 5 October 2006, the applicant filed written comments on the intention with the Minister, arguing inter alia that such an exclusion order would be in violation of his rights under Article 3 of the Convention and that the intended decision to impose an exclusion order lacked adequate reasoning. The applicant relied, inter alia, on a letter dated 4 October 2006 from Amnesty International (Paris Research Office), stating that the applicant, given his past, was at risk of being arrested and tortured if returned to Mauritania.
23. At the time of the introduction of the application, these proceedings were still pending before the Minister. No further information about these proceedings has been submitted to the Court.
24. In October 2006, the applicant was expelled from the Netherlands to Mauritania. He travelled on his own, authentic and valid passport which had been issued for all countries in Nouakchott (Mauritania) in 1999. In March 2004, the validity of this passport had been prolonged in Nouakchott by three years. The applicant had applied for that prolongation by correspondence.
25. The applicant arrived unaccompanied in Mauritania. He passed the passport and customs control with the help of a related customs officer who had been informed of the arrival by the applicant’s family. This customs officer shepherded him through the checkpoints as the border guards were allegedly on alert for the applicant and would have arrested and questioned him. Since his return to Mauritania, the applicant has been living in hiding in order to avoid persecution by the Mauritanian authorities.
26. Until 1 April 2001, the admission, residence and expulsion of aliens were regulated by the 1965 Aliens Act (Vreemdelingenwet). Further rules were laid down in the Aliens Decree (Vreemdelingenbesluit), the Regulation on Aliens (Voorschrift Vreemdelingen) and the Aliens Act Implementation Guidelines (Vreemdelingencirculaire). The General Administrative Law Act (Algemene Wet Bestuursrecht) applied to proceedings under the 1965 Aliens Act, unless indicated otherwise in this Act.
27. On 1 April 2001, the 1965 Aliens Act was replaced by the 2000 Aliens Act. On the same date, the Aliens Decree, the Regulation on Aliens and the Aliens Act Implementation Guidelines were replaced by new versions based on the 2000 Aliens Act. Unless indicated otherwise in the 2000 Aliens Act, the General Administrative Law Act continued to apply to proceedings on requests by aliens for admission and residence.
28. Under article 29 of the 2000 Aliens Act, an alien is eligible for a residence permit for the purposes of asylum if, inter alia,
he or she is a refugee within the meaning of the Convention relating to the Status of Refugees of 28 July 1951, or
he or she has established that he or she has well-founded reasons to assume that he or she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment if expelled to the country of origin.
29. Article 4:6 of the General Administrative Law Act provides that an applicant must adduce newly emerged facts or altered circumstances (nieuw gebleken feiten of veranderde omstandigheden) if a repeat request is filed following a decision in which the original request is, either totally or partially, rejected. When no such facts or altered circumstances have been adduced, the administrative authority may reject the new request with reference to the decision on the original request. Article 4:6 thus embodies the res iudicata principle in administrative law. Nevertheless, an exception has been made in this particular area of the law, in that an alien may adduce exceptional facts and circumstances relating to him or her personally, on the basis of which the new request may be assessed outside the framework of article 4:6. In the case of a repeat asylum application in which the risk of treatment contrary to Article 3 of the Convention is also invoked, an assessment by the court outside the framework of article 4:6 is therefore possible.
30. On 16 August 2009, the Immigration and Refugee Board of Canada issued “Mauritania: The country’s situation, including the human rights situation and the political situation (August 2005 - August 2006)”. It reads, in so far as relevant (references omitted):
“In August 2005, a military coup d’état led by Colonel Ely Ould Mohamed Vall "put an end to the totalitarian practices" of President Maaouiya Ould Taya, who had been in power since 1984. The Military Council for Justice and Democracy (Conseil militaire pour la justice et la démocratie, CMJD), headed by Colonel Vall, now runs the country. ...
In September 2005, Colonel Vall allowed "a general, full and complete amnesty to all Mauritanians condemned for political crimes or offences, in order to permit them to participate in the work of building the country in complete freedom". However, approximately 20 "Islamists" have been imprisoned since April 2005; accused of being part of terrorist cells, they have not been given a trial as of July 2006. “
31. On 28 August 2006, the Immigration and Refugee Board of Canada published the “query response” entitled “Mauritania: National identity documents in use in Mauritania, including the passport, identity card, birth certificate and marriage certificate; description of those documents; procedures for obtaining those documents (August 2006)”, which reads in respect of passports (references omitted):
“Passport
In correspondence, the First Counsellor at the Embassy of Mauritania ... indicated that the Mauritanian passport is issued by the national security branch. In order to obtain a passport, a person must submit a valid birth certificate and recent police record and report in person to receive his or her passport. No additional information on the documents that a person must produce or on the procedures he or she must follow to obtain a Mauritanian passport could be found among the sources consulted by the Research Directorate within the time constraints for this Response.
According to the First Counsellor at the Embassy of Mauritania, a passport is valid for three years and contains the following information: the holder’s given name, family name, date and place of birth; the card’s period of validity; the name of the issuing authority; and a photograph.
Keesing Reference Systems provides information on two types of Mauritanian passports. The first type has a six-digit number, preceded by a letter. The number appears as perforations at the top of all pages and is printed on the first page. Other information on the passport includes the following:
Passport 1
validity 3 years, page 5
a 3-year extension possible
booklet c. 153 x 103 mm / 6.0 x 4.1 in.
32 pages
laminate pages 1 and 3, clear laminate, sewn in
photo glued, with an ink stamp.
The second type of passport has a seven-digit number, preceded by a letter. The number appears as perforations at the top of all pages and is printed on the first page under the title. Other information about the passport includes the following:
Passport 2
validity 5 years, page 5 entry ‘It expires on’
extension possible
booklet c. 125 x 88 mm / 4.9 x 3.5 in.
32 pages
laminate pages 1 and 3, matt laminate with print, sewn in
photo glued, with an ink stamp.
No information on why Mauritania has two types of passports could be found among the sources consulted by the Research Directorate within the time constraints for this Response. ...”
32. The Annual Report on International Religious Freedom for 2006 on Mauritania, released by the U.S. Department of State on 15 September 2006 and covering the period between 1 July 2005 and 30 June 2006, states in its relevant part:
“The constitution establishes the country as an Islamic republic and recognizes Islam as the religion of its citizens and the state. However, a military junta took power on August 3, 2005, overthrew the elected president, dissolved parliament, suspended parts of the constitution, and formed a transitional government. The transitional government maintained laws regarding human rights and religious freedom and made some advances in both areas. ...
Following the 2003 crackdown on Islamic activists, the former government closed a number of Saudi-funded and Gulf-funded Islamic schools and charities. These organizations remained closed at the end of the period covered by this report. The former government also closed an Islamic charity association in 2003 for its alleged connections to local Islamic activists. The government-funded Institute for Islamic Science, Studies, and Research (ISERI), remained open and fully funded.
From March to July of 2005, the former government detained approximately eighty Islamists, including Islamist leaders Cheikh Mohamed El Hacen Ould Dedew and Moctar Ould Mohamed Moussa, who it claimed were tied to terrorism. On May 28, 2005, the former government charged thirty-seven with membership in unrecognized groups or for inciting violence and making harmful political statements at mosques. The former government released fourteen others, leaving sixty-six in prison (thirty-seven of whom had been charged). A majority of the arrests appeared to be based on alleged political activities rather than religious beliefs. The transitional government released twenty-one of the sixty-six Islamists soon after assuming power, and on September 2, 2005, released an additional twenty-four for lack of evidence, leaving twenty-one in prison. Three prisoners escaped April 27, 2006, leaving eighteen in prison. The transitional government stated that it had sufficient evidence to hold the remaining eighteen for terrorist activities and was preparing its case against them at the end of the reporting period.
Unlike in the previous reporting period, there were no reports of former or transitional government officials searching mosques, seizing Qur’anic texts or arresting mosque officials. As in the previous reporting period, both the former and transitional governments restricted the use of mosque loudspeakers exclusively for the call to prayer and Friday service, in accordance with a 2003 law that prohibits the use of mosques for any form of political activity, including the distribution of propaganda and incitement to violence. ...
Excluding the Islamists previously mentioned, there were no additional reports of religious prisoners or detainees.”
33. On 11 March 2008, the U.S. Department of State released the “2007 Country Reports on Human Rights Practices – Mauritania”, which states inter alia:
“Mauritania, with an estimated population of three million, is a highly centralized Islamic republic governed by President Sidi Mohamed Ould Cheikh Abdallahi, whose April 19 [2007] inauguration highlighted the country’s first successful transition to democracy in its 50 years of independence. President Abdallahi replaced Colonel Ely Ould Mohammed Vall, who had taken power in the August 2005 coup that ended the 23-year presidency of Maaouya Ould Sid’Ahmed Taya. The presidential elections were judged free and fair by international and national observers. The civilian authorities generally maintained effective control of the security forces. ...”