ITEMID: 001-61358
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF TKACIK v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-1;Not necessary to examine Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 9. The applicant was born in 1954 and at the relevant time he lived in Košice. At present he lives in Spain.
10. In the morning of 30 November 1996 the applicant’s wife warned the police by telephone that the applicant intended to drive his car after having drunk alcoholic beverages, that he carried a weapon, that his behaviour was strange and that it was possible that he could cause injury to other persons. Upon this information the police stopped the car driven by the applicant. As the applicant actively resisted his search, the police handcuffed him. A sword was taken away from him. The analysis of his breath indicated that the applicant had alcohol in his blood. According to the applicant, the breath test was forged.
11. The police brought the applicant to a police station, where they withdrew his driving licence. Subsequently he was brought to a psychiatrist. After a short examination the applicant was released. Later on the same day the doctor issued a certificate, at the request of the applicant’s wife, in which the police were requested for assistance in transporting the applicant to a mental hospital.
12. In the afternoon of 30 November 1996 the applicant returned to his home but he could not unlock the door. He asked the police for assistance. Upon the arrival of the police the applicant’s wife opened the door and asked that the applicant be taken away. He was brought to a mental hospital in an ambulance. After he had refused to undergo an examination, the applicant was brought against his will to another hospital. Medicaments were administered to him during three days and he had to undergo psychiatric tests.
13. On 2 December 1996 the administration of the hospital to which the applicant had been brought on 30 November 1996 informed the Košice II District Court about the applicant’s detention on account of the suspicion that he suffered from a mental disorder.
14. On 6 December 1996 the Košice II District Court delivered a decision by which it started proceedings, with reference to Sections 191a (1) and 191b (1) of the Code of Civil Procedure, with a view to determining whether the applicant’s placement in a mental hospital was justified. By another decision delivered on 6 December 1996 the District Court appointed a guardian to defend the applicant’s rights in the proceedings.
15. On 9 December 1996 a record concerning the applicant’s detention in the mental hospital was drawn up in the presence of the applicant, the Košice II District Court judge dealing with the case and the doctor who treated the applicant. Reference was made to statements of the wife according to which the applicant’s behaviour had changed following his return from Venezuela where he had been on business for one year. According to her, the applicant alleged hearing strange voices and that his flat was monitored from outside by means of a fax machine. He had altercations with his colleagues and started carrying weapons. His wife feared that the applicant wanted to drown her in the bath and stated that he had not allowed their children to go to school. The applicant denied such allegations and explained that there had been disagreements between him and his wife. He affirmed that he was not ill and refused examination by psychologists. The record further stated that the applicant was being treated with medicaments and that his brother suffered from paranoid schizophrenia. It concluded that a professor would decide on 10 December 1996 whether further treatment was necessary.
16. In a decision delivered on 9 December 1996 the Košice II District Court found that the applicant’s detention in the mental hospital was lawful. Reference was made to the doctors’ presumption that the applicant suffered from a mental disorder and to the fact that he was treated with medicaments.
17. On 10 December 1996 the applicant was released from the hospital.
18. On 30 April 1998 the president of the Košice II District Court apologised to the applicant for the delay in serving on him the above decision of 9 December 1996.
19. On 13 May 1998 the applicant was allowed to consult the court’s case file. On this occasion he was served with the District Court’s decision of 9 December 1996 concerning the lawfulness of his examination in a mental hospital. On 18 May and on 12 August 1998 the applicant appealed against this decision and also against the decision of 6 December 1996 on the appointment of a guardian. He alleged, in particular, that his arrest had been unjustified, that he had been heard by a judge on 9 December 1996, that is several days after his arrest, and that the court had taken more than five days to decide on the lawfulness of his detention contrary to the relevant law.
20. On 25 September 1998 the Košice Regional Court dismissed the appeal. It found that the applicant’s detention had been justified by his strange behaviour and by the doctors’ presumption that he had suffered from a mental disorder. The Regional Court considered irrelevant the applicant’s objection concerning the delay in deciding on his case at first instance and in serving the District Court’s decision of 9 December 1996.
21. Article 17 (6) provides that a court has to be notified, within twenty-four hours, of a person’s detention in a medical institution without his or her consent. Courts are obliged to decide on such a detention within five days.
22. Section 191a (1) provides that medical institutions are obliged to inform the competent court, within twenty-four hours, of the detention of any person without his or her written consent.
23. Under Section 191b (1), the court shall start proceedings upon such a notification with a view to determining whether the interference was justified.
24. Pursuant to paragraph 2 of Section 191b, the court shall appoint a guardian to the person concerned unless he or she has a representative.
25. Paragraph 3 of Section 191b provides that the court shall take evidence with a view to determining whether the person was placed in a medical institution in accordance with the law. It shall hear both the person concerned and his or her doctor.
26. Pursuant to paragraph 4 of Section 191b, the court shall decide on the lawfulness of the interference within five days from the moment when the person concerned was brought to the hospital.
27. Section 191c (1) provides, inter alia, that a judicial decision under Section 191b (4) shall be served on the person concerned within twenty-four hours after it has been taken and not later than five days from the moment when his or her liberty was restricted unless the doctor indicates that such a person is not capable of understanding its contents.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-111180
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF KHODZHAMBERDIYEV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Extradition);No violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Take proceedings)
JUDGES: Anatoly Kovler;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 5. The applicant was born in 1971 and lives in Saratov.
6. In the 1990s the applicant lived in Uzbekistan and was involved in the activities of Hizb-ut-Tahrir (“HT”), a pan-Islamic organisation banned in Russia. In May 2000 he moved to Russia, leaving behind his wife and two children, born in 1995 and 1997, in Andizhan.
7. On 14 June 2001 the applicant was arrested in Russia on drug-related charges (Article 228-4 of the Russian Criminal Code (“the RCC”)). His Uzbek passport was confiscated upon arrest. On 15 June 2002 the Perovo District Court of Moscow sentenced him to imprisonment. After his release on 27 August 2004, the applicant arrived in Saratov, where he started a relationship with a Belarusian national. It appears that she was residing in Russia unlawfully at the material time. They have two minor children born in 2006 and 2008.
8. On 29 March 2006 the Andizhan Office of the National Security Service of Uzbekistan charged the applicant, in absentia, with attempting to overthrow the existing regime under Article 159-3 (a and b) of the Uzbek Criminal Code (“the UCC”).
9. On the same day the Andizhan regional prosecutor ordered the applicant’s placement in custody and put his name on a search list.
10. On 4 June 2007 the applicant was additionally charged with setting up a criminal group (Article 242-1 of the UCC), producing and disseminating documents containing a threat to national security and public order (Article 244(1)-3 (a and c) of the UCC), and setting up, managing and participating in extremist, separatist, fundamentalist and other banned organisations (Article 244(2)-1 of the UCC).
11. On an unspecified date his name was put on the international wanted list.
12. On 26 February 2010 the applicant was arrested by the police in Saratov as a person wanted by the Uzbek authorities. On 8 March 2010 the Uzbek Prosecutor General’s Office submitted a formal request asking its Russian counterpart to extradite the applicant on criminal charges under Articles 159-3 (a and b), 242-1, 244(1)-3 (a and c) and 244(2)-1 of the UCC. Relying on Article 66 of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (“the Minsk Convention”), the Uzbek authorities provided assurances that the applicant would not be extradited to a third country without the consent of the Russian Federation, that he would not be prosecuted, tried or punished for an offence which was not the subject of the extradition request and that he would be able to freely leave Uzbekistan, once the court proceedings had terminated and the sentence served. On 11 March 2010 the Russian Prosecutor General’s Office received the extradition request.
13. Thereafter, the Russian Prosecutor General’s Office carried out a preliminary check of the extradition request (“an extradition check”) (see paragraph 65 below). It can be seen from the information collected between March and June 2010 by the Federal Migration Service (“the FMS”), the Federal Security Service (“the FSB”) and the Ministry of Foreign Affairs, that the applicant was an Uzbek national who had not applied for Russian citizenship or temporary asylum or registered his residence in Russia. The said authorities saw no obstacle to his extradition to Uzbekistan. Moreover, on 22 June 2010 the FSB submitted that the applicant was “certainly a functionary” of HT and recommended that he be extradited.
14. On 9 August 2010 the deputy Prosecutor General granted the extradition request and issued an extradition order in respect of the applicant. He referred to the charges brought against the applicant, according to which he had been a founding manager and financial supporter of HT, had created a number of sub-groups of the said organisation in Uzbekistan and actively participated in the dissemination of its subversive materials, characterised as extremist, separatist and fundamentalist. The prosecutor decided to extradite the applicant on charges of setting up a criminal group and participating therein (Article 210-1 and 2 of the RCC) and attempting to overthrow the existing regime and constitutional order (Article 278 of the RCC). He noted that the statute of limitations for those offences had not expired either in Russia or in Uzbekistan. The prosecutor further pointed out that, in line with the Minsk Convention and the Russian Code of Criminal Procedure (“the CCrP”), differences in the legal classification of the offences and their elements under Russian and Uzbek criminal law were not sufficient grounds for refusing extradition. Lastly, the prosecutor referred to the information provided by the FMS that the applicant was an Uzbek national who had not applied for Russian citizenship. The prosecutor concluded that there were no obstacles to his extradition to Uzbekistan.
15. On 18 August 2010 the extradition order was served on the applicant.
16. On 19 August 2010 the applicant sought judicial review of the extradition order, referring, inter alia, to a fear of torture and inhuman and degrading treatment, in particular, on account of his connections with HT. The applicant’s appeal was supported with his lawyer’s claims of 23 August and 16 September 2010 that torture remained a widespread practice in Uzbekistan, according to reports of numerous international organisations and recent media publications.
17. On 16 September 2010 the Saratov Regional Court upheld the extradition order, relying on the assurances issued by the Uzbek Prosecutor General’s Office that the applicant would be treated in strict compliance with internal procedural norms. It also referred to the dismissal of the applicant’s request for refugee status by the FMS on 14 September 2010 (see paragraph 37 below).
18. On 21 and 23 September 2010 the applicant and his lawyer appealed. On 17 November 2010 the Supreme Court of Russia set aside the judgment of 16 September 2010 and ordered a new judicial review by the first-instance court.
19. On 28 December 2010 the Regional Court re-examined the case and annulled the extradition order of 9 August 2010, mainly because of inconsistencies and mistakes made in the comparative assessment of the relevant criminal offences under Uzbek and Russian law. In addition, the court made the following findings:
“... The allegation of a risk of ill-treatment should be dismissed because the case file contains written assurances made by the deputy Prosecutor General of Uzbekistan who affirmed that prosecution of the applicant would be in strict conformity with the Uzbek Code of Criminal Procedure ... The court has no reason to distrust these guarantees ...
Article 464 of the Russian CCrP prohibits the extradition of a person who has been granted asylum in Russia on account of persecution in the requesting State because of his race, religion, citizenship, ethnic or social origin or political beliefs.
Prior to the date of the extradition order, [the applicant] had applied for refugee status and had subsequently sought judicial review of the refusal of such status in Russia. Such review proceedings have not been completed. Taking into account paragraph 1 and 4 of section 10 of the Refugees Act, a person cannot be extradited before a court decision has been taken on judicial review of a refusal of refugee status. Thus, the extradition order was premature, in breach of the Refugees Act ...”
The applicant was released in the courtroom.
20. The regional prosecutor’s office appealed. On 4 March 2011 the Supreme Court upheld the judgment of 28 December 2010.
21. In view of the above findings, the extradition case against the applicant was not pursued and his removal from Russia to Uzbekistan on that account became impossible.
22. From 26 February to 28 December 2010 the applicant was detained with a view to extradition.
23. On 26 February 2010 the applicant was arrested by the police in Saratov as a person wanted by the Uzbek authorities. He was placed in remand centre no. 64/1. According to the Government, the applicant made no allegation of a risk of ill-treatment in the event of his extradition to Uzbekistan.
24. On the same day, referring to Article 466 of the CCrP the deputy district prosecutor lodged an application asking the Kirovskiy District Court of Saratov to authorise the applicant’s detention. Relying on Article 108 of the CCrP, the district court granted this request and ordered the applicant’s detention until 6 April 2010 with a view to his extradition to Uzbekistan. The court observed that the applicant had been charged with offences punishable under Articles 278, 210-1, 280-1, 282(1)-1 and 282(2)-1 of the RCC; that the statute of limitations for the said offences had not expired either in Russia or in Uzbekistan; that the applicant, an Uzbek national, had not registered his residence in Russia and had absconded there; and that, given the state of the applicant’s health, he was fit for detention. The applicant and his lawyer did not appeal against the detention order of 26 February 2010. It became final on 1 March 2010.
25. After receipt of the Uzbek extradition request and before the expiry of the time-limit set in the detention order of 26 February 2010, the deputy district prosecutor lodged an application asking the district court to extend the applicant’s detention. On 1 April 2010 the district court extended the applicant’s detention until 25 August 2010. The court dismissed the applicant’s argument that his detention would put his underage children in a difficult financial situation and that he had lodged an application for refugee status. The court concluded as follows:
“Under Article 110 of the CCrP a preventive measure may be varied if it is no longer necessary or if the grounds justifying it (see Articles 97 and 99 of the Code) have changed. The available material does not disclose that any such grounds have changed in the present case ...”
26. The applicant and his lawyer appealed on 2 and 5 April 2010. On 14 April 2010 the Saratov Regional Court dismissed the appeals.
27. On 23 August 2010 the district court examined a new extension request from the prosecutor and extended the applicant’s detention until 25 November 2010. The court held as follows:
“[The applicant] sought judicial review of the extradition decision against him ... Articles 109 and 110 of the CCrP provide that a preventive measure may be varied if it is no longer necessary or if the grounds justifying it (see Articles 97 and 99 of the Code) have changed.
Extension of detention beyond six months may be allowed only in respect of persons charged with serious and particularly serious criminal offences and only on account of the exceptional complexity of the case ... The available material discloses that the extradition order could not be enforced, where the previous detention order was in force, because the applicant had applied for judicial review of the extradition order. These are objective circumstances disclosing the particular complexity of the case. Thus, the extension term mentioned in the request is reasonable ...”
28. On 24 and 26 August 2010 the applicant and his lawyer appealed, seeking house arrest instead of detention in a remand centre. On 31 August 2010 the Regional Court upheld the detention order of 23 August 2010.
29. On 17 November 2010 the Supreme Court ordered the applicant’s detention until 17 December 2010, pending the re-examination of the extradition case by the Regional Court.
30. On 22 November 2010 the District Court examined an extension request by the district prosecutor and issued a new detention order extending the applicant’s detention to 25 February 2011 pending judicial review of the extradition order. The court noted that Article 109 of the CCrP allowed the extension of detention up to twelve months in relation to serious and particularly serious charges and on account of the particular complexity of the case. The court was satisfied that the above conditions had been complied with in respect of the applicant. On 2 December 2010 the Regional Court upheld the detention order of 22 November 2010.
31. On 28 December 2010 the applicant was released from detention.
32. On 17 or 24 March 2010 the applicant lodged a request for refugee status with the FMS Office of the Saratov Region (“the regional FMS”).
33. On 29 March 2010 he submitted an additional request, whereby he expressed a fear of being subjected to persecution and torture owing to his previous membership of Hizb-ut-Tahrir. He referred to a number of international reports in support of his allegations.
34. On 6 April 2010, in an interview with a regional FMS officer conducted in the presence of his lawyer, the applicant submitted that he had left Uzbekistan for work-related reasons.
35. On 1 July 2010 the regional FMS rejected the applicant’s request for refugee status. The authority noted that the applicant had left Uzbekistan in 2000 for economic reasons whereas criminal proceedings against him had not been brought until 2006 in his country of origin. He had been prosecuted for having set up a criminal group, which was not a political crime under the UCC. Furthermore, the applicant had not lodged his application for refugee status until 2010. The FMS established that he faced no risk of persecution on account of his origin, religion, nationality or belonging to a particular social group. It concluded that the applicant did not wish to return to Uzbekistan so as to avoid prosecution for the crime with which he had been charged.
36. On 5 July 2010 the applicant was informed of the above-mentioned decision and lodged a hierarchical appeal on 28 July 2010.
37. On 14 September 2010 the FMS Central Office dismissed his appeal. The FMS referred to the decision of the Russian Supreme Court of 14 February 2003 to declare HT a terrorist organisation and ban its activity in Russia. The FMS emphasised the applicant’s involvement in HT in 1999-2000 as a manager and financial supporter. It pointed out that in 2006 at the latest the applicant had learnt from his brother that the Uzbekistan authorities had begun prosecuting HT members. However, it was not until 2010 that the applicant had submitted his request for refugee status. Hence, the FMS concluded that the applicant’s fear of persecution was unsubstantiated.
38. On 16 October 2010 the applicant appealed against the refusal to grant him refugee status to the Basmannyy District Court of Moscow. He reiterated his fear of being subjected to torture in the event of extradition to Uzbekistan and stated that the risk of ill-treatment had not been assessed by the FMS.
39. On 24 December 2010 the District Court upheld the decision of 14 September 2010 on judicial review. Noting that the applicant had confirmed his involvement in HT’s activities between 1997 and 2000, the court also observed that after his arrest in February 2010 the applicant had made no official statement to Uzbek or Russian authorities distancing himself from HT teachings or his previous participation in its activities. The court held as follows:
“After his arrival in Russia the applicant did not apply for refugee status. He first alleged a risk of persecution in Uzbekistan and raised his wish to remain in Russia as a refugee after having been arrested following the request from the Uzbek authorities.
Neither following his arrival in Russia in 2000 nor during criminal proceedings in 2002 did he distance himself from HT teachings or state his refusal to participate in its activities. He did not apply for refugee status when he learnt in 2005-2006 from his younger brother that his fellow HT supporters were being looked for and tortured by the Uzbek authorities ...
Had the applicant’s fears of persecution in Uzbekistan been truly justified, he would have immediately sought asylum in the country of his destination.
The UN Handbook on Procedures and Criteria for Determining Refugee Status indicates that persecution must be distinguished from punishment for a common law offence. Persons fleeing from prosecution or punishment for such an offence are not normally refugees. It should be borne in mind that a refugee is a victim – or potential victim – of injustice, not a fugitive from justice (paragraph 56) ...
The applicant has not adduced convincing arguments concerning religious or political persecution ...”
40. On 28 December 2010 the applicant applied for temporary asylum. It was refused on 25 March 2011.
41. On 18 May 2011 the Moscow City Court upheld the judgment of 24 December 2010, refusing the applicant refugee status. Endorsing the reasoning of the first-instance court, the appeal court added the following:
“The Uzbek Ministry of Foreign Affairs affirms its attachment to their obligations in relation to protecting human rights. The Uzbek legislation provides that every citizen has freedom of religion. Article 18 of the Uzbek Constitution protects equality of citizens before the law irrespective of gender, race, national language, religion, faith or social origin ...
The court dismisses as unconvincing the arguments relating to the individualised status of the applicant on account of criminal prosecution in Uzbekistan. Neither during his residence in Belarus nor immediately after his arrival in Russia did the applicant seek asylum. He first expressed his fears of persecution in Uzbekistan after his arrest because his name had been added to the international wanted list ...
Taking into account the UN Handbook on Procedures and Criteria for Determining Refugee Status (paragraph 66), in order to be considered a refugee, a person must show well-founded fear of persecution. Discrimination may turn into persecution when it becomes impossible to carry out work in specific areas, to receive education or if other freedoms protected in democratic societies are limited ... The applicant has not substantiated any facts concerning unlawful persecution ...”
42. By a letter of 5 July 2011, the Moscow Office of the United Nations High Commissioner for Refugees (UNHCR) Representation informed the applicant’s lawyer that the UNHCR had determined that the applicant met the criteria set out in its Statute in connection with Article 1 A of the 1951 Convention relating to the Status of Refugees. It had been ascertained that the applicant was outside his country of nationality owing to well-founded fear of being persecuted by the authorities of his country for reasons of his religion and imputed political opinion and, owing to such fear, was unable to return to Uzbekistan, where he might be exposed to torture and other inhuman or degrading treatment or punishment. Therefore, the UNHCR considered that the applicant was eligible for international protection under its mandate.
43. Everyone has a right to liberty and security (Article 22 § 1). Detention is permissible only on the basis of a court order. The length of time for which a person may be detained prior to obtaining such an order must not exceed forty-eight hours (Article 22 § 2).
44. The term “court” is defined by the Russian Code of Criminal Procedure (“the CCrP”) of 2002 as “any court of general jurisdiction which examines a criminal case on the merits and delivers decisions provided for by this Code” (Article 5 § 48). The term “judge” is defined by the CCrP as “an official empowered to administer justice” (Article 5 § 54).
45. A district court has the power to examine all criminal cases except for those falling within the respective jurisdictions of a justice of the peace, a regional court or the Supreme Court of Russia (Article 31 § 2).
46. Chapter 13 of the CCrP governs the application of preventive measures. Detention is a preventive measure applied on the basis of a court decision to a person suspected of or charged with a criminal offence punishable by at least two years’ imprisonment where it is impossible to apply a more lenient preventive measure (Article 108 § 1). A court request for detention is submitted by an investigator (следователь) with the support of the head of the investigative authority or by a police officer in charge of the inquiry (дознаватель) with the support of a prosecutor (Article 108 § 3). A request for detention should be examined by a judge of a district court or a military court of a corresponding level in the presence of the person concerned (Article 108 § 4). Second-instance courts should examine appeals lodged against judge’s decisions on detention within three days (Article 108 § 11). The period of detention pending investigation of a criminal case must not exceed two months (Article 109 § 1) but may be extended up to six months by a judge of a district court or a military court of a corresponding level. Further extensions up to twelve months may be granted with regard to persons accused of serious or particularly serious criminal offences (Article 109 § 2). Extensions up to eighteen months may be granted as an exception with regard to persons accused of particular serious criminal offences (Article 109 § 3).
47. A measure of restraint can be applied with a view to ensuring a person’s extradition in compliance with the procedure established under Article 466 of the CCrP (Article 97 § 2).
48. Chapter 54 of the CCrP (Articles 460-468) governs the procedure to be followed in the event of extradition.
49. A court is to review the lawfulness and validity of a decision to extradite within a month of receipt of a request for review. The decision should be taken in open court by a panel of three judges in the presence of a prosecutor, the person whose extradition is sought and the latter’s legal counsel (Article 463 § 4).
50. Article 464 § 1 lists the conditions under which extradition cannot be authorised. Thus, the extradition of the following should be denied: a Russian citizen (Article 464 § 1-1) or a person who was granted asylum in Russia (Article 464 § 1-2); a person in respect of whom a conviction became effective or criminal proceedings were terminated in Russia in connection with the same act for which he or she has been prosecuted in the requesting State (Article 464 § 1-3); a person in respect of whom criminal proceedings cannot be launched and a conviction cannot become effective in view of the expiry of the statute of limitations or under another valid ground under Russian law (Article 464 § 1-4); or a person in respect of whom a Russian court established obstacles to extradition, in accordance with the legislation and international treaties of the Russian Federation (Article 464 § 1-5). Finally, extradition should be denied if the act that gave grounds for the extradition request does not constitute a criminal offence under the RCC (Article 464 § 1-6).
51. In the event that a foreign national, whose extradition is being sought, is being prosecuted or is serving a penalty for another criminal offence in Russia, his extradition may be postponed until the prosecution is terminated, the penalty is lifted on any valid ground or the sentence is served (Article 465 § 1).
52. Upon receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court, the Prosecutor General or his deputy is to “take measures” in order to decide on the preventive measure in respect of the person whose extradition is being sought. The preventive measure is to be applied in accordance with the established procedure (Article 466 § 1).
53. Upon receipt of a request for extradition accompanied by an arrest warrant issued by a foreign judicial body, a prosecutor may place the person whose extradition is being sought under house arrest or in custodial detention without prior approval of his or her decision by a court of the Russian Federation (Article 466 § 2).
54. Verifying the compatibility of section 31(2) of the Law on the Legal Status of Foreign Nationals in the USSR of 1981, the Constitutional Court ruled that a foreign national liable to be expelled from Russian territory could not be detained for more than forty-eight hours without a court order.
55. Assessing the compatibility of Article 466 § 1 of the CCrP with the Russian Constitution, the Constitutional Court reiterated its settled case-law to the effect that excessive or arbitrary detention, unlimited in time and without appropriate review, was incompatible with Article 22 of the Constitution and Article 14 § 3 of the International Covenant on Civil and Political Rights in all cases, including extradition proceedings.
56. In the Constitutional Court’s view, the absence of specific regulation of detention matters in Article 466 § 1 did not create a legal lacuna incompatible with the Constitution. Article 8 § 1 of the 1993 Minsk Convention provided that, in executing a request for legal assistance, the requested party would apply its domestic law, that is the procedure laid down in the CCrP. That procedure comprised, in particular, Article 466 § 1 of the Code and the norms in its Chapter 13 (“Preventive measures”), which, by virtue of their general character and position in Part I of the Code (“General provisions”), applied to all stages and forms of criminal proceedings, including proceedings for the examination of extradition requests.
57. The Constitutional Court emphasised that the guarantees of the right to liberty and personal integrity set out in Article 22 and Chapter 2 of the Constitution were fully applicable to detention with a view to extradition. Accordingly, Article 466 of the CCrP did not allow the authorities to apply a custodial measure without complying with the procedure established in the CCrP or in excess of the time-limits fixed in the Code.
58. The Prosecutor General asked the Constitutional Court for official clarification of its decision no. 101-O of 4 April 2006 (see above), for the purpose, in particular, of elucidating the procedure for extending a person’s detention with a view to extradition.
59. The Constitutional Court refused the request on the ground that it was not competent to indicate specific provisions of the criminal law governing the procedure and time-limits for holding a person in custody with a view to extradition. That matter was within the competence of the courts of general jurisdiction.
60. The Constitutional Court reiterated its settled case-law to the effect that the scope of the constitutional right to liberty and personal inviolability was the same for foreign nationals and stateless persons as for Russian nationals. A foreign national or stateless person may not be detained in Russia for more than forty-eight hours without a judicial decision. That constitutional requirement served as a guarantee against excessively long detention beyond forty-eight hours, and also against arbitrary detention as such, in that it required a court to examine whether the arrest was lawful and justified.
61. The Constitutional Court held that Article 466 § 1 of the CCrP, read in conjunction with the Minsk Convention, could not be construed as permitting the detention of an individual for more than forty-eight hours on the basis of a request for his or her extradition without a decision by a Russian court. A custodial measure could be applied only in accordance with the procedure established in the CCrP and within the time-limits fixed in the Code.
62. The Constitutional Court dismissed as inadmissible a request for a review of the constitutionality of Article 466 § 2 of the CCrP, stating that this provision “does not establish time-limits for custodial detention and does not establish the reasons and procedure for choosing a preventive measure, it merely confirms a prosecutor’s power to execute a decision already delivered by a competent judicial body of a foreign state to detain an accused. Therefore the disputed norm cannot be considered to violate constitutional rights of [the claimant] ...”
63. In Ruling no. 22, adopted by the Plenary Session of the Supreme Court of the Russian Federation on 29 October 2009 (“the Ruling of 29 October 2009”), it was stated that, pursuant to Article 466 § 1 of the CCrP, only a court could order the placement in custody of a person in respect of whom an extradition check was pending and where the authorities of the country requesting extradition had not submitted a court decision remanding him or her in custody. The judicial authorisation of placement in custody in that situation was to be carried out in accordance with Article 108 of the CCrP and following a prosecutor’s request for that person to be placed in custody (paragraph 34 of the Ruling). In deciding to remand a person in custody a court was to examine if there were factual and legal grounds for the application of that preventive measure. If the extradition request was accompanied by a detention order of a foreign court, a prosecutor was entitled to remand the person in custody without a Russian court’s authorisation (Article 466 § 2 of the CCrP) for a period not exceeding two months, and the prosecutor’s decision could be challenged in the courts under Article 125 of the CCrP.
64. In extending a person’s detention with a view to extradition a court was to apply Article 109 of the CCrP.
65. On 18 October 2008 the Russian Prosecutor General’s Office issued Direction no. 212/35 concerning the “extradition check” procedure for dealing with requests for extradition. According to the Direction, district and town prosecutors should interview a person who has been detained with a view to extradition, submit the interview record to the Prosecutor General’s Office within twenty-four hours and take measures to ensure this person’s placement in custody for forty-eight hours. Having received confirmation from the requesting State of their intention to seek extradition, these officials should take measures for authorising the person’s detention, in compliance with Russia’s international treaties and the applicable national legislation. These public officials should also interview the detainee in order to ascertain the purpose of his arrival in Russia, his residence, nationality and intention to seek asylum in Russia; to verify the authenticity of the documents relating to his identity and nationality; and to verify the existence and veracity of information relating to the possible refusal or postponement of extradition. The information and documents collected during the extradition check should be submitted, within three days of the person’s arrest, to the regional prosecutor.
66. The Russian Federation is a party to the Convention relating to the Status of Refugees, adopted on 28 July 1951 by the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons convened under General Assembly resolution 429 (V) of 14 December 1950. Article 33 of this Convention reads as follows:
“1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”
67. In 2007 the Office of the United Nations High Commissioner for Refugees issued an Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol; it provides the following clarification [internal footnotes are omitted]:
“7. The prohibition of refoulement to a danger of persecution under international refugee law is applicable to any form of forcible removal, including deportation, expulsion, extradition, informal transfer or “renditions”, and non-admission at the border in the circumstances described below. This is evident from the wording of Article 33(1) of the 1951 Convention, which refers to expulsion or return (refoulement) “in any manner whatsoever”. It applies not only in respect of return to the country of origin or, in the case of a stateless person, the country of former habitual residence, but also to any other place where a person has reason to fear threats to his or her life or freedom related to one or more of the grounds set out in the 1951 Convention, or from where he or she risks being sent to such a risk.
8. The principle of non-refoulement as provided for in Article 33(1) of the 1951 Convention does not, as such, entail a right of the individual to be granted asylum in a particular State. It does mean, however, that where States are not prepared to grant asylum to persons who are seeking international protection on their territory, they must adopt a course that does not result in their removal, directly or indirectly, to a place where their lives or freedom would be in danger on account of their race, religion, nationality, membership of a particular social group or political opinion. As a general rule, in order to give effect to their obligations under the 1951 Convention and/or 1967 Protocol, States will be required to grant individuals seeking international protection access to the territory and to fair and efficient asylum procedures.”
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1
5-4
NON_VIOLATED_BULLETPOINTS: 5-1-f


ITEMID: 001-78179
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: KOCAROVA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mrs Vera Kocarova, is a citizen of the former Yugoslav Republic of Macedonia who was born in 1926 and lives in Strumica. She is represented before the Court by Mr T. Koshevaliski and Mr J. Madzunarov, lawyers practising in Stip, in the former Yugoslav Republic of Macedonia.
In or about August 1994 Mr P.S., the applicant’s brother, instituted civil proceedings before the then Strumica Municipal Court (Општински Суд Струмица) for termination of a care agreement (“the agreement”) that he had concluded on 16 October 1975 with Mr G.P. Mr P.S. claimed that Mr G.P. had not provided him with a regular financial assistance, as specified by the agreement. Under the agreement, Mr G.P. was authorised to collect the rent obtained from Mr P.S.’s movable and immovable property, which would then have been transferred in his possession after Mr P.S.’s death.
On 8 May 1995 the Strumica Municipal Court granted Mr P.S.’s application and terminated the 1975 agreement. After examining considerable evidence, namely several witnesses, the parties to the proceedings and the correspondence between them, the court found that the agreement had not been carried out, as Mr P.S. had sufficient financial means and it had been he who had actually given money to Mr G.P, contrary to what had been agreed.
On 14 February 1996 the then Stip District Court upheld Mr G.P.’s appeal and quashed the lower court’s decision, as it had not properly established whether the latter had fulfilled his obligations under the agreement.
On 25 June 1996 the Strumica Municipal Court upheld Mr P.S.’s claim and terminated the agreement. After examining other witnesses and additional correspondence between the parties, the court held that Mr G.P. had not provided Mr P.S. with a regular financial maintenance as agreed.
On 11 January 1997 the Stip Court of Appeal upheld Mr G.P.’s appeal and remitted the case for a fresh consideration. It held that the trial court had not been established by law, as the case had been tried by a single judge instead of by a panel of judges.
On an unspecified date in January 1997 Mr P.S. passed away. The latter’s heirs, including the applicant, instituted inheritance proceedings concerning his property. By a court decision of 24 April 1997, they were instructed to institute separate civil proceedings to determine the ownership of the property at stake and to take over Mr P.S.’s case. It appears that this decision was subsequently overturned by the Court of Appeal’s decision of 26 August 1997, by which the inheritance proceedings had been stayed. Mr P.S.’s heirs, including the applicant, took over the case and joined the proceedings complained of.
On 17 September 1999 the Strumica Court of First Instance upheld Mr P.S.’s claim and terminated the agreement. The court held that the number of contacts between Mr G.P. and Mr P.S. had diminished over time and stopped some years before the latter’s death; that Mr G.P. had not given the monthly financial support to Mr P.S. as agreed and that it was the applicant who had started caring for him instead. It established that the applicant, despite prior misunderstandings with her late brother, had endeavoured to improve their personal relationships. The court also found that Mr P.S., as recognition of the applicant’s efforts, had vowed that after his death all his property should be transferred in her possession.
On 31 August 2000 the Stip Court of Appeal dismissed Mr G.P.’s appeal and upheld the lower court’s decision. It overturned it in part concerning the trial costs entitling the applicant and the other heirs of Mr P.S. to collect the reduced award.
On 13 October 2000 Mr G.P. submitted to the Supreme Court an appeal on points of law (ревизија).
On 8 March 2001 the applicant states that she was provided with a copy of it.
On 7 March 2001 Mr G.P. lodged with the Strumica Court of First Instance a request for re-opening of the proceedings (предлог за повторување на постaпката). He claimed that the courts had wrongly accepted the applicant and the others as claimants in the instant proceedings, as there had been no court decision ascertaining them as Mr P.S.’s heirs. He further claimed that the courts had wrongly considered Mr P.S. as a party to the proceedings after his death. He also referred to another care agreement of 1969 concluded between the same parties and to the Supreme Court’s decision of 17 January 2001, adopted in different set of proceedings, by which he had been allegedly recognised as an owner of the property on the basis of the 1969 agreement.
On 14 September 2001 the Strumica Court of First Instance dismissed Mr G.P.’s request for re-opening of the proceedings. It found that the Supreme Court’s decision of 17 January 2001 had been made in administrative contentious proceedings (управен спор) concerning administrative decisions for payment of personal income tax related to Mr P.S.’s property. The Supreme Court had referred in this decision to the Court of Appeal’s decision of 1997 by which the inheritance proceedings concerning Mr P.S.’s property had been stayed, as it had already been transferred into Mr G.P.’s ownership by virtue of the 1969 and 1975 agreements. The court held that the facts, which the Supreme Court had referred to in its decision of January 2001, could not be regarded as a new evidence that had been unknown to Mr G.P. during the proceedings and that consequently, they could not be considered as a proper ground for re-opening of the proceedings. The court used the same reasoning to dismiss the other arguments for re-opening of the proceedings.
On 10 December 2001 the Stip Court of Appeal upheld Mr G.P.’s appeal and overturned the lower court’s decision. It granted his request for re-opening of the proceedings and quashed the decisions of 17 September 1999 and 31 August 2000, respectively, by which the 1975 agreement had been terminated. It held that the evidence provided by Mr G.P. had been new and that he could not have used it in the previous proceedings.
On 10 April 2002 the public prosecutor lodged with the Supreme Court a request for the protection of legality (барање за заштита на законитоста) against the appeal court’s decision, as it had been incoherent and had lacked sufficient reasoning as to how the newly discovered evidence could have been beneficial for the party concerned if admitted in the previous proceedings.
On 26 December 2002 the Supreme Court upheld the public prosecutor’s request and quashed the Appeal Court’s decision of 10 December 2001.
On 21 February 2003 the Stip Court of Appeal dismissed Mr G.P.’s appeal against the court’s decision of 14 September 2001. It reiterated the lower court’s reasoning to dismiss Mr G.P.’s request for re-opening of the proceedings.
On 24 March 2004 the Supreme Court rejected (отфрла) the appeal on points of law of 13 October 2000 submitted against the Appeal Court’s decision of 31 August 2000. The court considered it as inadmissible as the value of the dispute fell below the statutory threshold. It accordingly rejected Mr G.P.’s appeal on points of law filed against the Appeal Court’s decision of 21 February 2003.


ITEMID: 001-23828
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: YILDIRIM v. ITALY
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Huseyin Yildirim, is a Turkish national who was born in 1950. He was represented before the Court by Mr H. Kaplan, a lawyer practising in Istanbul.
The applicant was the owner of a bus capable of transporting forty-eight persons. On 23 September 1999 the applicant hired his vehicle for one year to L., a company which was authorised under the rental agreement to take passengers to Turkey and all countries of Europe and Asia. L. further undertook to comply with “all limits and prohibitions imposed by Turkish and international legislation”.
On 25 September 1999 the drivers of the bus, X and Y, were arrested in Brindisi (Italy) while illegally transporting thirty-two clandestine immigrants of Iraqi nationality. The applicant’s bus was seized and was entrusted to a security guard.
In a judgment of 20 October 1999 the Brindisi District Court imposed on X and Y a sentence, negotiated with the prosecution, of one year and four months’ imprisonment, suspended. Under Article 12 of Legislative Decree no. 286 of 25 July 1998, as amended by Article 2 of Legislative Decree no. 113 of 13 April 1999, the court ordered the confiscation of the bus.
On 8 February 2000 the applicant requested the return of his vehicle. He pleaded his good faith, declaring that he was not aware of the fact that X and Y had used his bus to commit an offence.
In a decision of 21 March 2000 the Brindisi District Court rejected the applicant’s application. It observed that in the light of the principles of the Constitution and by analogy with what was provided in the general provision on confiscation (Article 240 of the Criminal Code) Article 12 of Legislative Decree no. 286 of 25 July 1998 was to be interpreted as excluding any deprivation of property where the object seized belonged to a person not linked to the offence (se la cosa appartiene a persona estranea al reato). It noted that in the case concerned the applicant had produced documents establishing that he was the owner of the bus seized. However, he had not duly proved his good faith, since there was at least a doubt about his participation in the offence committed by X and Y. In that connection the District Court noted that the rental agreement between the applicant and L. indicated that the bus was to be used “to take passengers abroad”, a fact which did not exclude the possibility that the owner was aware that the vehicle might be used for unlawful purposes. Moreover, two dates (23 September and 23 October 1999) appeared at the end of the document, so that it could not be asserted with certainty that the agreement had existed before the date of the offence (25 September 1999). Lastly, the applicant had not proved that vehicle hire was part of his normal occupation. In view of the use that had been made of it, the District Court considered that the vehicle’s availability constituted a danger, and that justified its confiscation.
On 12 April 2000 the applicant appealed on points of law. He argued in particular that the District Court had wrongly reversed the burden of proof, obliging him to establish that he did not know about the unlawful use of his bus, with any doubt working to his detriment.
On 14 April 2000 the applicant asked the President of the Brindisi District Court to stay the destruction of his bus pending the decision of the Court of Cassation. That application was allowed on 17 April 2000.
In a judgment of 31 October 2000, deposited with its registry on 29 January 2001, the Court of Cassation dismissed the applicant’s appeal. It observed that a person who had obtained pecuniary advantages as a result of the commission of an offence could not be considered to have had nothing to do with it (estraneo al reato). However, the case-law of the plenary division of the Court of Cassation protected “non-wrongful trust” (affidamento incolpevole) and affirmed the principle that the owner of the confiscated object could always prove his good faith by establishing that by exercising the diligence normally required in such matters he could not have known that his property was to be used illegally, and that he had done everything in his power to prevent such use. But the District Court had correctly taken the view that the applicant had not adduced the evidence in question, regard being had in addition to the fact that the local situation, characterised by frequent cases of clandestine immigration, called for special diligence on the part of the owner of a vehicle intended to take passengers abroad.
On 12 December 2000 the applicant’s bus was destroyed.


ITEMID: 001-67776
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: SPENCE v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicant, Mr John Spence, is a United Kingdom national, who was born in 1952 and currently being held in HM Prison Lindholme. He was represented before the Court by Mr M. Ferrer, solicitor and Mr J. Lennon, barrister, practising in Leeds.
On 3 September 1976, the applicant was convicted of murder and sentenced to mandatory life imprisonment. The applicant and two others had tied up an 83 year old woman during the course of a burglary; she had died from strangulation. The offence had taken place some hours after drinking alcohol and he had substantial previous convictions including breach of the peace and assault.
In or about 1979, the applicant was diagnosed as having nervous traits and persecutory delusions, which led him to spending some time in hospital.
In 1990, the applicant was released on licence. While on release, in July 1993, he was the victim of a serious stabbing incident and then a witness in an attempted murder case. He received death threats and moved from Scotland to England. The applicant stated that this had a significant impact on him; he became depressed and dependent on alcohol and was diagnosed with post-traumatic stress disorder. This led to his admission to hospital. From hospital he was referred to an alcohol treatment unit for further treatment and counselling. He was discharged from the unit in August 1994.
On 2 September 1994, after becoming aware that the applicant had been questioned by the police for three separate offences of suspected robbery, burglary and assault, the Scottish Home and Health Department revoked his licence and recalled him to prison. On 5 September 1994, he returned to prison.
In June 1995, the applicant was convicted of assault occasioning actual bodily harm and affray; he was acquitted of burglary.
In April 1996, the applicant was transferred to a lifer-designated prison in England, his current prison, where he took advantage of course-work, including attending Alcoholics Anonymous meetings.
In April 1997, the Parole Board recommended his release to Addulum Homes, a complex of staffed, probation-approved, hostel-type accommodation. The Secretary of State accepted the recommendation.
On 27 August 1997, the applicant was released on licence on this basis.
On 30 December 1998, the applicant, now living at a hostel in Stockport, was walking with his niece near to the hostel when he met one of the other hostel residents (a registered child abuser). According to the applicant, there was a minor altercation. The other resident reported to hostel staff that the applicant had assaulted him, breaking his dentures, and threatened to kill him. He was told to report the incident to the police, which he duly did and the applicant was arrested and remanded into custody.
On 14 January 1999, the applicant's licence was revoked and he was formally recalled to prison. He denied any wrongdoing and pleaded not guilty when the charges came before the courts. In May 1999, the Crown Prosecution Service dropped the charges.
In June 1999, the applicant was released a third time.
On 25 October 1999, he returned to his hostel inebriated and before he could be interviewed, he left the hostel. The police were informed and the Probation Service recommended immediate recall the same day. It had also been alleged that the applicant had repeatedly breached curfew at the hostel and that there had been an earlier incident in which he had returned drunk to the hostel.
On 31 March 2000, the Parole Board decided not to recommend the applicant's release but did recommend that his next review take place in 12 months' time to permit the development of a realistic release plan and the preparation of a psychiatric report.
On 12 October 2001, the Parole Board considered his case again. It did not recommend release for the following reasons:
"The Panel concluded that there is evidence suggestive of a pattern of difficulty in coping with social stress and difficulty in complying with supervision requirements, together with alcohol abuse which has significance in the light of the circumstances of the index offence. Supervision is necessary both to support him and to manage risk. That he has difficulty in accepting this, as reported in the psychiatric assessment, was of concern to the panel since it reduces the capacity to manage risk, itself heightened by the possibility of disinhibition and poor judgment if he has recourse to alcohol.
There is opinion that the risk of re-offending violently is low. The Panel noted however his reported observation that, in the index offence, he acted without thought and did not foresee the consequences. The same clearly applies to behaviour and interractions, which in recent years has caused concern. Mr Spence is said to assert that he had no problem with alcohol use and does not envisage getting into trouble when drinking. Though in his representations he states that he sees no problem in reasonable social drinking, he also accepts the psychologist's comments and that he himself could identify nothing putting him at risk of future heavy drinking and that he needs to develop a relapse prevention plan. He himself notes in his representations that he assaulted an ambulance driver, whose role is of course to care for and assist others, when he had been drinking heavily.
Report writers are divided as to his suitability for release. Although the majority of those who make recommendations were in support of release, the panel had considered concern at his previous difficulty in complying with supervision conditions which, in the light of the risk factors described earlier, itself increases the risk. He had previously asserted that he would abstain from alcohol but did not. He now asserts that he will abide by supervisory requirements, but previously has not.
In all the circumstances the panel considers that his ability to comply requires further testing within an open establishment without which it cannot be satisfied that the risk posed is yet compatible with release. In such an environment he will have the opportunity to demonstrate his taking of personal responsibility while complying with imposed requirement and a firm detailed release plan should be drawn up prior to his next review."
It recommended that his next review take place nine months after his arrival.
On 10 May 2002, the applicant was transferred to an open prison. However the Secretary of State did not accept the recommended nine month gap in review, considering in his letter of 17 January 2002, that, for the reasons given by the Parole Board, the applicant required at least two years in open prison in order to be fully tested, assessed and prepared for release. The review process would therefore begin eighteen months after his transfer to open conditions.
On 16 April 2002, the applicant issued judicial review proceedings against the Secretary of State, alleging that the decision was unlawful, inter alia, as a two year delay in review had been applied automatically, without due regard to his individual circumstances and the recommendation of the Parole Board and was too long.
A psychiatric report dated 2 July 2002 prepared following his arrival in the open prison stated inter alia that tests indicated a high probability of an alcohol dependence disorder, that he was likely to have other problems that put him at risk of re-offending and a tendency towards a negative and inappropriate/anti social decision making approach. The doctor expressed concern that his addictive behaviour patterns could prove problematic and recommended that he be referred to alcohol counsellors to formulate a relapse prevention plan. While it was noted that he had successfully completed a number of offending behaviour courses and shown increased awareness in these areas, it was essential that he build on this knowledge and actively applied it to his behaviour. It was recommended that he complete further work in the areas of perspective taking, decision making and coping skills and that his behaviour be carefully monitored in particular relationships with staff and prisoners.
On 11 July 2002, permission to apply for judicial review was granted.
On 17 December 2002, the High Court rejected the applicant's complaints.
On 23 May 2003, the Court of Appeal rejected his appeal. It found that the period of two years imposed by the Secretary of State was reasonable in the circumstances and not a mere mechanical application of policy. The decision about timing of reviews was not one which had to be taken by a court-like body but could be taken by the Secretary of State and was subject to judicial review in which the courts could assess in the particular case whether the requirement of speed in Article 5 § 4 had been complied with. As concerned the complaint about the delay set between reviews, it stated:
"The problem ... is that the EctHR has conspicuously declined to be prescriptive about the length of the detention period which would lead to a violation of Article 5 § 4 in the absence of a review (see Oldham v UK (App No 36273/97) paras 30-37). Strasbourg jurisprudence makes it clear that the question whether such periods comply with the Article 5 § 4 requirement must be determined in the light of the circumstances of each case (Oldham, para. 31) and the evolving Home Office principles... follow the principles set out in that jurisprudence. It is therefore impossible to say on the particular facts of this case that, viewed prospectively, the Home Office's January 2002 decision somehow or other violated Mr Spence's Convention rights ..."
Legal aid for the purpose of petitioning the House of Lords for permission to appeal was refused; the appeal against the refusal was rejected on 8 September 2003.
Murder carries a mandatory sentence of life imprisonment under the Murder (Abolition of Death Penalty) Act 1965. At the time of sentence, a “tariff” is imposed which represents the minimum period that the prisoner will have to serve in order to satisfy the requirements of retribution and deterrence. A life prisoner will not be released on licence until after the tariff period has been completed.
At the relevant time, the Criminal Justice Act 1991 provided in Section 35(2):
“If recommended to do so by the [Parole] Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial judge if available, release on licence a life prisoner who is not a discretionary life prisoner.”
In determining the principles of fairness that apply to the procedures governing the review of mandatory life sentences, the English courts have recognised that the mandatory sentence is, like the discretionary sentence, composed of both a punitive period (“the tariff”) and a security period. As regards the latter, detention is linked to the assessment of the prisoner's risk to the public following the expiry of the tariff (see for example, R. v. Parole Board, ex parte Bradley (Divisional Court) [1991] 1 WLR135; R. v. Parole Board ex parte Wilson (Court of Appeal) [1992] 2 AllER576).
Following the judgment in Stafford v. the United Kingdom (no. 46295/99, ECHR 2002-IV), the Secretary of State announced in the House of Commons on 17 October 2002 his decision to introduce interim measures applicable to the review and release of mandatory life sentence prisoners applicable to reviews from 1 January 2003. This allows for prisoners, whose tariff had expired, to apply for an oral hearing at which they may have representation, receive full disclosure of material relevant to the question of release and be able to examine and cross-examine witnesses.
“If, at the end of the review process, the Parole Board favours the release of a mandatory life sentence prisoner once the minimum period has been served the Home Secretary will normally accept such a recommendation. ...”
If the Parole Board decides not to direct release, it frequently gives a recommendation as to the timing of the next review. That is only a recommendation and the decision whether to accept that recommendation is taken by the Secretary of State. If the prisoner seeks an earlier review, he can make representations to the Secretary of State, whose decision may be challenged by judicial review. The Secretary of State, of his own motion, can direct an earlier review.
The categorisation of prisoners is the function of the Secretary of State. There are four categories of classification of prisoners, namely:
(i) category A prisoners, whose escape would be highly dangerous to the public or to the police or to the security of the nation;
(ii) category B prisoners, for whom the very highest conditions of security are not necessary but for whom escape must be made very difficult;
(iii) category C prisoners, who cannot be trusted in open conditions, but who do not have the ability or the resources to make a determined escape attempt;
(iv) category D prisoners, who can be trusted in open conditions.
On 7 December 1994 the Secretary of State stated:
“In recent years, successive Secretaries of State have recognised that, for the majority of life sentenced prisoners, a period in open prison conditions is generally vital in terms of testing the prisoner's suitability for release and in preparing him for a successful return to the community. It is, therefore, now normally the practice to require the prisoner to spend some time in open conditions before release and to arrange a further review while the prisoner is in an open prison for a formal assessment of his or her progress. I intend to continue with this practice and the first Parole Board review will therefore normally serve the purpose of assessing the prisoner for open conditions.”
On 9 July 1998 the Secretary of State stated:
“... the first Parole Board review in the case of a life sentenced prisoner begins three years before the expiry of tariff. The purpose of this review is normally to enable the prisoner to be assessed for, and, where appropriate, transferred to, open conditions (category D) where he or she may be tested in conditions of lower security, fully assessed by staff and prepared for release. A further Parole Board review is then held to determine whether the level of risk is low enough to enable the prisoner to be safely released on life licence. Where the level of risk is considered to be acceptable, the objective is to release the prisoner on or very shortly after tariff expiry.”
A direction to the Parole Board from the Secretary of State under section 32(6) of the Criminal Justice Act 1991 (which preceded the Crime (Sentences) Act 1997) stated:
“A period in open conditions is essential for most life sentence prisoners (“lifers”). It allows the testing of areas of concern in conditions which are nearer to those in the community than can be found in closed prisons. Lifers have the opportunity to take home leave from open prisons and, more generally, open conditions require them to take more responsibility for their actions.”


ITEMID: 001-58035
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF D. v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 3;Not necessary to examine Art. 2;Not necessary to examine Art. 8;No violation of Art. 13;Costs and expenses partial award - Convention proceedings
JUDGES: C. Russo;John Freeland
TEXT: 6. The applicant was born in St Kitts and appears to have lived there most of his life. He is one of seven children. One sister and one brother moved to the United States in the 1970s and the rest of the family appears to have followed at unspecified dates. The applicant visited the United States in 1989 to try to join his family. During his stay there he was arrested on 5 September 1991 for possession of cocaine and subsequently sentenced to a three-year term of imprisonment. After one year, he was paroled for good behaviour and deported on 8 January 1993 to St Kitts.
7. The applicant arrived at Gatwick Airport, London, on 21 January 1993 and sought leave to enter the United Kingdom for two weeks as a visitor. He was found at the airport terminal to be in possession of a substantial quantity of cocaine with a street value of about 120,000 pounds sterling (GBP). The immigration officer refused him leave to enter on the ground that his exclusion was conducive to the public good and gave him notice that he would be removed to St Kitts within a matter of days.
However, after being arrested and charged, the applicant was remanded in custody and subsequently prosecuted for being knowingly involved in the fraudulent evasion of the prohibition on the importation of controlled drugs of class A. He pleaded guilty at Croydon Crown Court on 19 April 1993 and was sentenced on 10 May 1993 to six years’ imprisonment. He apparently behaved well while in H.M. Prison Wayland and was released on licence on 24 January 1996. He was placed in immigration detention pending his removal to St Kitts. Bail was granted by an adjudicator on 31 October 1996 after the Commission’s report had been made public.
8. In August 1994, while serving his prison sentence, the applicant suffered an attack of pneumocystis carinii pneumonia ("PCP") and was diagnosed as HIV (human immunodeficiency virus)-positive and as suffering from acquired immunodeficiency syndrome (AIDS). The infection appears to have occurred some time before his arrival in the United Kingdom.
9. On 3 March 1995, the applicant was granted a period of compassionate leave to be with his mother whose air fare to the United Kingdom to visit him had been covered by charitable donations.
10. On 20 January 1996, immediately prior to his release on licence, the immigration authorities gave directions for the applicant’s removal to St Kitts.
11. By letter dated 23 January 1996, the applicant’s solicitors requested that the Secretary of State grant the applicant leave to remain on compassionate grounds since his removal to St Kitts would entail the loss of the medical treatment which he was currently receiving, thereby shortening his life expectancy (see paragraphs 13 and 14 below). This request was refused on 25 January 1996 by the Chief Immigration Officer. In his letter of refusal addressed to the applicant’s solicitors the Chief Immigration Officer stated:
"In reaching this decision full account was taken of paragraph 4 of the Immigration and Nationality Department B Division Instructions regarding AIDS and HIV-positive cases. You will be aware that paragraph 4 of this instruction which relates to persons whose applications are for leave to enter the United Kingdom states [see paragraph 27 of the judgment below]... While we are saddened to learn of Mr D[...]’s medical circumstances we do not accept, in line with Departmental Policy, that it is right generally or in the individual circumstances of this case, to allow an AIDS sufferer to remain here exceptionally when, as here, treatment in this country is carried out at public expense, under the National Health Service. Nor would it be fair to treat AIDS sufferers any differently from others suffering medical conditions ..."
12. On 2 February 1996, the applicant applied unsuccessfully to the High Court for leave to apply for judicial review of the decision to refuse him leave to enter. On 15 February 1996, the Court of Appeal dismissed his renewed application. It found that section 3 of the Immigration Act 1971 drew a distinction between leave to enter and leave to remain. It held that the Chief Immigration Officer had correctly treated Mr D.’s application as an application for leave to enter and was not required to take into account paragraph 5 of the Home Office guidelines which applied to applications for leave to remain (see paragraphs 27 and 28 below). As to the applicant’s argument that the Home Office acted unreasonably or irrationally in not acceding to the compassionate circumstances of his plea, Sir Iain Glidewell stated in his judgment:
"Nobody can but have great sympathy for this applicant in the plight in which he finds himself. If he is to return to St Kitts it seems that he will be unable to work because of his illness. His expectation of life, if the medical evidence is correct, may well be shorter than it would be if he remained under the treatment that he is receiving in the United Kingdom, and in many ways his plight will be great. On the other hand he would not be here if he had not come on a cocaine smuggling expedition in 1993; and if he had not been imprisoned he would have gone back to St Kitts, if he had ever come here at all, long before his AIDS was diagnosed. Taking account of the fact that the Court must give most anxious scrutiny to a decision which involves questions particularly of life expectancy, as this one apparently does, nevertheless I cannot find that an argument in this case that the decision of the Chief Immigration Officer was irrational is one that has any hope of success at all. Putting it the opposite way, it seems to me to be one which was well within the bounds of his discretion, and thus is not one with which the Court can properly interfere."
13. Since August 1995, the applicant’s "CD4" cell count has been below 10. He has been in the advanced stages of the illness, suffering from recurrent anaemia, bacterial chest infections, malaise, skin rashes, weight loss and periods of extreme fatigue.
14. By letter dated 15 January 1996, Dr Evans, a consultant doctor, stated:
"His current treatment is AZT 250 mgs. b.d. and monthly nebulised pentamidine, he occasionally takes mystatin pastilles and skin emollients. In view of the fact that [the applicant] has now had AIDS for over 18 months and because this is a relentlessly progressive disease his prognosis is extremely poor. In my professional opinion [the applicant’s] life expectancy would be substantially shortened if he were to return to St Kitts where there is no medication; it is important that he receives pentamidine treatment against PCP and that he receives prompt anti-microbial therapy for any further infections which he is likely to develop ..."
15. In a medical report provided on 13 June 1996, Professor Pinching, a professor of immunology at a London hospital, stated that the applicant had suffered severe and irreparable damage to his immune system and was extremely vulnerable to a wide range of specific infections and to the development of tumours. The applicant was reaching the end of the average durability of effectiveness of the drug therapy which he was receiving. It was stated that the applicant’s prognosis was very poor and limited to eight to twelve months on present therapy. It was estimated that withdrawal of the proven effective therapies and of proper medical care would reduce that prognosis to less than half of what would be otherwise expected.
16. By letter dated 20 April 1995, the High Commission for the Eastern Caribbean States informed the doctor treating the applicant in prison that the medical facilities in St Kitts did not have the capacity to provide the medical treatment that he would require. This was in response to a faxed enquiry of the same date by Dr Hewitt, the managing medical officer at H.M. Prison Wayland. By letter of 24 October 1995, Dr Hewitt informed the Home Office of the contents of the letter from the High Commission, which had also been sent to the Parole Unit on 1 May 1995. He stated that the necessary treatment was not available in St Kitts but was widely and freely available in the United Kingdom and requested that due consideration be given to lifting the deportation order in respect of the applicant. By letter dated 1 August 1996, the High Commission for the Eastern Caribbean States confirmed that the position in St Kitts had not changed.
17. By letter dated 5 February 1996, the Antigua and Barbuda Red Cross informed the applicant’s representatives that they had consulted their officer on St Kitts who stated that there was no health care providing for drugs treatment of AIDS.
Results of enquiries made by the Government of the authorities in St Kitts suggest that there are two hospitals in St Kitts which care for AIDS patients by treating them for opportunistic infections until they are well enough to be discharged, and that an increasing number of AIDS sufferers there live with relatives.
18. The applicant has no family home or close family in St Kitts other than, according to information provided by the Government, a cousin. His mother, who currently lives in the United States, has declared that her age, bad health and lack of resources prevent her from returning to St Kitts to look after her son if he were to be returned there. She has also stated that she knew of no relatives who would be able to care for him in St Kitts.
19. When granted bail on 31 October 1996 (see paragraph 7 above) the applicant was released to reside in special sheltered accommodation for AIDS patients provided by a charitable organisation working with homeless persons. Accommodation, food and services are provided free of charge to the applicant. He also has the emotional support and assistance of a trained volunteer provided by the Terrence Higgins Trust, the leading charity in the United Kingdom providing practical support, help, counselling and legal and other advice for persons concerned about or having AIDS or HIV infection.
20. In a medical report dated 9 December 1996 Dr J.M. Parkin, a consultant in clinical immunology treating the applicant at a London hospital, noted that he was at an advanced stage of HIV infection and was severely immunosuppressed. His prognosis was poor. The applicant was being given antiretroviral therapy with "D4T" and "3TC" to reduce the risk of opportunistic infection and was continuing to be prescribed pentamidine nebulisers to prevent a recurrence of PCP. Preventative treatment for other opportunistic infections was also foreseen. Dr Parkin noted that the lack of treatment with anti-HIV therapy and preventative measures for opportunistic disease would hasten his death if he were to be returned to St Kitts.
21. The applicant was transferred to an AIDS hospice around the middle of January 1997 for a period of respite care. At the beginning of February there was a sudden deterioration in his condition and he had to be admitted to a hospital on 7 February for examination. At the hearing before the Court on 20 February 1997, it was stated that the applicant’s condition was causing concern and that the prognosis was uncertain. According to his counsel, it would appear that the applicant’s life was drawing to a close much as the experts had predicted (see paragraph 15 above).
22. The regulation of entry into and stay in the United Kingdom is governed by Part 1 of the Immigration Act 1971. The practice to be followed in the administration of the Act for regulating entry and stay is contained in statements of the rules laid by the Secretary of State before Parliament ("the Immigration Rules").
23. Section 3 (1) provides that a person who is not a British citizen shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of the Act. Leave to enter may be granted for a limited or for an indefinite period.
24. Under section 4 (1) of the Act the power to grant or refuse leave to enter is exercised by immigration officers whereas the power to grant leave to remain in the United Kingdom is exercised by the Secretary of State. These powers are exercisable by notice in writing given to the person affected.
25. A person, such as the applicant, who has been refused leave to enter but is physically in the United Kingdom pending his removal and seeks to be allowed to stay there does not fall to be treated as applying for leave to remain. Since no leave to enter had been granted to the applicant, it was right according to the judgment of Sir Iain Glidewell in R. v. Secretary of State for the Home Department, ex parte D. (Court of Appeal, 15 February 1996) for the immigration officer to treat his application as an application for leave to enter rather than for leave to remain.
26. The Immigration and Nationality Department of the Home Office issued a policy document (BDI 3/95) on this subject in August 1995. Paragraph 2 of the guidelines specifies that the fact that a person is suffering from AIDS or is HIV-positive is not a ground for refusing leave to enter or leave to remain if the person concerned otherwise qualifies under the Immigration Rules. Equally, this fact is not in itself a sufficient ground to justify the exercise of discretion where the person concerned has not met the requirements of the Rules.
The policy guidelines distinguish between applications for leave to enter and applications for leave to remain.
27. On applications for leave to enter (paragraph 4 of the guidelines), where the person is suffering from AIDS, the policy and practice is to adhere to the provisions of the Immigration Rules in the normal way. Where such a person does not qualify under the Rules, entry is refused.
28. On applications for leave to remain (paragraph 5 of the guidelines), the application should be dealt with normally on its merits under the applicable Rules. However, there is a discretion outside the Rules which can be exercised in strong compassionate circumstances. Paragraph 5.4 states that:
"... there may be cases where it is apparent that there are no facilities for treatment available in the applicant’s own country. Where evidence suggests that this absence of treatment significantly shortens the life expectancy of the applicant it will normally be appropriate to grant leave to remain."
29. Among the documentary materials submitted by the applicant, are the following.
30. International concern about AIDS has resulted in the adoption of several international texts which have addressed, inter alia, the protection of the human rights of the victims of the disease. Thus, the United Nations Commission on Human Rights adopted a resolution on 9 March 1993 on the protection of human rights in the context of human immunodeficiency virus or acquired immunodeficiency syndrome in which it called upon "all States to ensure that their laws, policies and practices introduced in the context of AIDS respect human rights standards".
31. At a Summit of Heads of Government or Representatives of forty-two States meeting in Paris on 1 December 1994, a declaration was adopted in which the participating States solemnly declared their obligation "to act with compassion for and in solidarity with those with HIV or at risk of becoming infected, both within [their] societies and internationally".
32. "Health and living conditions ... there are a number of serious environmental problems, such as inadequate disposal of solid and liquid waste - especially untreated sewage - into coastal lands and waters, resulting in coastal zone degradation, fish depletion and health problems (gastroenteritis) ..."
33. According to this publication, there are two general hospitals in St Kitts, one with 174 beds and the other with 38. There is also a "cottage" hospital with 10 beds. There are two homes providing geriatric care.
34. This guide describes the three medical strategies available for treating HIV infection and AIDS: using anti-HIV drugs which attack HIV itself to delay or prevent damage to the immune system, treating or preventing opportunistic infections which take advantage of damage to the immune system and strengthening and restoring the immune system. Amongst the first category, several drugs can be used, including AZT (also known as Zidovudine or its tradename Retrovir). This belongs to a family of drugs called nucleoside analogues which inhibit an enzyme produced by HIV called reverse transcriptase (RT). If RT is inhibited, HIV cannot infect new cells and the build-up of virus in the body is slowed down. However, the existing drugs are only partially effective and at best can only delay the worsening of HIV-related disease rather than prevent it.
35. As regards the second category, persons whose immune systems have been significantly damaged are vulnerable to a range of infections and tumours known as opportunistic infections. These commonly include cytomegalovirus (herpes virus), Kaposi’s sarcoma, anaemia, tuberculosis, toxoplasmosis and PCP. PCP is a form of pneumonia which in people infected with HIV may affect the lymph nodes, bone marrow, spleen and liver as well as the lungs. Steps to avoid such infections include taking care with food and drink and prophylactic treatment by drugs. In the case of PCP, which was a common cause of death during the first years of the epidemic and is still one of the commonest AIDS illnesses, options include the long-term taking of antibiotics such as cotrimoxazole and the use of nebulised pentamidine which is intended to protect the lungs.
36. In relation to the third category, treatment which strengthens or restores the immune system, research has yet to produce any clear results.
VIOLATED_ARTICLES: 3
NON_VIOLATED_ARTICLES: 13


ITEMID: 001-97871
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: COMMITTEE
DATE: 2010
DOCNAME: CASE OF SINKOVEC  v. GERMANY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Karel Jungwiert;Mark Villiger;Renate Jaeger
TEXT: 4. The applicant was born in 1942 and lives in Velenje.
5. On 18 December 2000 the applicant requested the Regional Pension Office (Landesversicherungsanstalt Niederbayern-Oberpfalz) (“the Pension Office”) to grant him a pension on account of his reduced earning capacity (Rente wegen verminderter Erwerbsfähigkeit).
6. On 9 March 2001 the Pension Office dismissed his request.
7. On 26 April 2001 the Pension Office dismissed the applicant's administrative appeal lodged on 2 April 2001.
8. On 4 July 2001 the applicant appealed to the Landshut Social Court.
9. On 2 August 2001 the Pension Office made its submissions. However, it sent the required medical records only on 5 November 2001.
10. Between 5 November 2001 and 21 March 2003 no progress was made in the proceedings.
11. In the meantime, on 17 January 2003, the applicant had applied to the Pension Office for an early old age pension for disabled persons (Altersrente für Schwerbehinderte); this was refused on 21 March 2003. Subsequently, the applicant lodged an administrative appeal against this decision. The Social Court decided to await the outcome of the administrative appeal proceedings, as the administrative authority likewise had to examine the applicant's potential occupational invalidity. On 2 June 2003 his administrative appeal was dismissed. These proceedings were the object of application no. 847/04 (see “II. Proceedings before the Court” below).
12. In May 2004 the Social Court resumed the proceedings.
13. On 8 June 2004 the Social Court commissioned an expert report on the applicant's earning capacity. On 15 June 2004 the expert gave his report.
14. On 27 July 2004, after holding an oral hearing, the Social Court dismissed the applicant's action, as it could not be established that his earning capacity had been reduced at the time when he had made the required number of contributions to the statutory pension insurance (gesetzliche Rentenversicherung).
15. On 9 October 2004 the judgment was served on the applicant.
16. On 18 December 2004 the applicant appealed to the Bavarian Social Court of Appeal. In his appeal he informed the court for the first time that he had previously applied for a pension from the Slovenian pension authorities. On 30 December 2004 the court received the appeal and requested the Pension Office to submit its observations. On 10 February 2005 the Pension Office requested information from the Slovenian pension authorities in respect of the applicant's former pension requests.
17. On 27 April 2005 the Pension Office received the information from the Slovenian authorities. However, they were translated only on 27 June 2005 and submitted to the court on 28 June 2005. On the same day the Pension Office requested additional information from the Slovenian pension authorities which it received on 26 July 2005. On 26 September 2005 it translated them and submitted the information to the court on 4 October 2005.
18. On 11 October 2005 the Social Court of Appeal sent the applicant's file to the Pension Office for an examination of the question whether the criteria for the requested pension had been met on the basis of the information given by the Slovenian pension authorities.
19. On 20 December 2005 the Pension Office replied that the requirements for the requested pension had not been fulfilled.
20. On 30 December 2005 the Social Court of Appeal requested the applicant to indicate who his employers in Germany had been and what work he had done there.
21. On 4 August 2006 the court received the requested information after sending the applicant two reminders, in May and July 2006.
22. On 18 January 2007 the court requested the Pension Office to make its submissions on the information given by the applicant.
23. On 8 February 2007 the Pension Office submitted its comments.
24. On 3 April 2007 the Social Court of Appeal ordered an orthopaedic expert report. On 22 May 2007 it commissioned the expert report, which the court received on 12 June 2007. On 15 June 2007 the court requested the Pension Office to make its comments on the report.
25. On 25 June 2007 the Pension Office requested the Social Court of Appeal to transmit the case files, which the court did on 10 August 2007. On 22 November 2007 the Pension Office submitted its comments.
26. On 28 November 2007 the Social Court of Appeal forwarded these comments to the applicant.
27. On 29 January 2008, after holding an oral hearing, the Bavarian Social Court of Appeal dismissed the applicant's appeal, mainly endorsing the judgment of the Social Court.
28. On 5 March 2008 the judgment was served on the applicant.
29. The present case was initially registered under application no. 847/04. In his application form the applicant merely complained about the refusal of the Pension Office to grant him an early pension for disabled persons and a pension on account of his reduced earning capacity.
30. On 4 January 2006 the applicant submitted that it had been incomprehensible for him why it took the Social Court of Appeal and the Pension Office such a long time to decide his application. In his view there had been too many delays in the whole case. Due to these delays he had now been suffering for several years from a financial distress. He further maintained that he had been “cheated” for many years by the Pension Office.
31. On 6 October 2007 the Court decided to sever the proceedings in so far as they concerned the proceedings regarding a pension on account of the applicant's reduced earning capacity and to conduct them under the instant application no. 46682/07.
32. By letter of 7 November 2007 the applicant informed the court that his proceedings concerning the pension on account of his reduced earning capacity were still pending and that he was very impatient because he “has now been fighting for his rights for eight years”.
33. On 20 November 2007 the Court declared application no. 847/04 concerning the disability pension inadmissible for being manifestly illfounded.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-82370
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF ARKWELL v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: No violation of Art. 14+P1-1
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: 5. The applicant was born in 1957 and lives in Gloucestershire.
6. His wife died in March 1998, leaving two children born in 1984 and 1988. His claim for widows' benefits was made on 14 March 1998 and was rejected on 15 September 1998 on the ground that he was not entitled to widows' benefits because he was not a woman. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no security benefits were payable to widowers under United Kingdom law.
7. The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 14-26, ECHR 2002-IV.
NON_VIOLATED_ARTICLES: 14
P1
NON_VIOLATED_PARAGRAPHS: P1-1