ITEMID: 001-23977
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: VAN DER GRAAF v. the NETHERLANDS
IMPORTANCE: 2
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Volkert van der Graaf, is a Netherlands national, who was born in 1969 and is currently serving a prison sentence in the Netherlands. He is represented before the Court by Mr A.A. Franken, a lawyer practising in Amsterdam.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 6 May 2002, the applicant was arrested and taken into custody on suspicion of having shot and killed earlier that day Mr Pim Fortuyn, a well-known Netherlands politician and the first candidate on the list of the LPF party for the imminent parliamentary elections on 15 May 2002. The killing of Mr Fortuyn and the applicant's arrest attracted massive national and international publicity and, in the evening of 6 May 2002, riots broke out in The Hague. Many perceived his killing as a direct attack on democracy.
On 8 May 2002, the applicant – who refused to give any statement – was transferred to the Forensic Observation and Guidance Unit (Forensische Observatie en Begeleidingsafdeling – “FOBA”), a specialised unit, housed in the remand centre (huis van bewaring) Het Veer, for detainees suffering from mental problems. The applicant was placed in solitary confinement in the FOBA, entailing his segregation from other detainees, no contacts with the outside world, with the exception of his lawyers, and no access to newspapers or other media. In addition, the Governor in charge of the remand centre, on 8 May 2002, ordered that, as from 8 May 2002 at 4 p.m. until 15 May 2002 at 4 p.m., the applicant was to be placed under permanent camera surveillance (permanent cameratoezicht), i.e. 24 hours a day, 7 days a week. The reasons given by the Governor for his decision were as follows:
“The offence of which you are suspected has, more than other offences, caused a shock to society. I therefore consider it of great social importance to ensure that you can spend your pre-trial detention in safety. For this, camera surveillance offers the best guarantees. Moreover, we do not know you and consider it necessary to observe you well, before we can assess to what extent you present a suicide danger.”
Although the applicant could have filed an appeal against this decision with the Complaints Commission (beklagcommissie) of the FOBA's Supervisory Board (Commissie van Toezicht), he did not avail himself of this possibility.
On 16 May 2002, the Governor prolonged the decision to place the applicant under permanent camera surveillance until 29 May 2002 at 4 p.m. The reasons stated were as follows:
“The offence of which you are suspected has, more than other offences, caused a shock to society. I therefore consider it of great social importance to ensure that you can spend your pre-trial detention in safety. For this, camera surveillance offers the best guarantees.”
On 24 May 2002, the applicant filed an appeal against the decision of 16 May 2002 with the Complaints Commission of the FOBA's Supervisory Board. In addition, the applicant requested the President of the Appeals Board of the Central Council for the Application of Criminal Law and Juvenile Protection (Beroepscommissie van de Centrale Raad voor Strafrechtstoepassing en Jeugdbescherming – “the Appeals Board”) to suspend the decision of 16 May 2002.
On 28 May 2002, the President of the Appeals Board accepted the applicant's request and suspended the impugned decision as from 29 May 2002 at 8 a.m. The President held that the Governor's decision was based on a ground that, although in itself understandable, was not contained in Article 33 of Regulation no. 762711/98/DJI, issued by the Minister of Justice on 15 June 1999, on the determination of the rules for stay in and equipment of disciplinary and segregation cells (Regeling houdende vaststelling van regels voor verblijf in en de inrichting van de straf- en afzonderingscel – “the June 1999 Regulation”) and, therefore, was in breach of a legal provision. The President further considered:
“It can be deduced [from the Governor's submissions] that neither the Governor nor the staff have any concrete indications, on the basis of the applicant's conduct, of the existence of an alarming mental situation. Neither [does the Governor mention] a possible suicide danger [posed by the applicant]. A consultation by [the applicant] with a doctor has not been presented to the President. The President notes that neither the Governor nor the staff is so medically trained that they must be considered capable of forming a sufficient image of [the applicant's] mental condition, also in the light of the nature and seriousness of the suspicion against [the applicant]. It cannot be excluded that a medical examination would throw light on [the applicant's] mental condition, necessitating measures on the part of the institution.
As regards the execution of the suspension the following applies: It is in itself habitual to suspend a decision by the Governor with immediate effect. This does not appear to be justified in the present case. In order to enable the institution to adjust the measures currently in force, the decision of the Governor will be suspended as from tomorrow, Wednesday 29 May 2002 at 8.00 a.m.”
On 29 May 2002, after having obtained the advice of a psychiatrist, the Governor ordered that the applicant be placed under permanent camera surveillance as from 29 May 2002 at 4 p.m. until 5 June 2002 at 4 p.m. The Governor considered that the seriousness of the offence of which the applicant was suspected, and the reaction in society to this offence, justified the prevention of any risk of suicide or other harm to the applicant's physical and mental condition, that it had not been established that such risks did not exist and that camera surveillance, as a preventive measure, was necessary and formed the most adequate tool.
On 31 May 2002, the applicant appealed against this decision to the Complaints Commission of the Supervisory Board, requesting it to examine his appeal together with that brought on 24 May 2002 against the decision of 16 May 2002. On the same day, the applicant requested the President of the Appeals Board to suspend the decision of 29 May 2002.
Also on 31 May 2002, the Governor informed the Appeals Board that the applicant had been transferred to another remand centre that same day and that, therefore, suspension of his decision would no longer serve any purpose.
On 3 June 2002, the President of the Appeals Board rejected the applicant's request of 31 May 2002 because, as a consequence of the applicant's transfer to another remand centre, the validity of the impugned decision had ended on that day. The President considered that, in these circumstances, the applicant no longer had any interest in a positive decision on his request.
In its decision of 10 June 2002, after a hearing held on 3 June 2002, the Complaints Commission declared inadmissible for having been lodged out of time the applicant's complaint against the decision of 16 May 2002, but accepted as well-founded the applicant's appeal against the decision of 29 May 2002. It noted that, according to the psychiatrist's advice to the Governor, the applicant did not present any signs of a mental disorder but that a “balance suicide”, not based on an illness but on a conscious, calculated and personal choice, could not be excluded. It further noted that the Governor had based the impugned decision on this succinct advice without any additional examination having taken place from which it could appear that the risk of a “balance suicide” was actually present. It lastly noted that, in his decision, the Governor had not given any additional reasons demonstrating that, in the applicant's case, there was an increased suicide risk rendering camera surveillance necessary. It held that the reasons stated by the Governor for his decision of 29 May 2002, even if these were understandable, given the reactions in society to the offence at issue, were insufficient for complying with the criterion under Article 33 of the 1999 Regulation that the physical or mental condition of the detainee must render permanent camera surveillance necessary.
On 14 June 2002, the Governor filed an appeal against the decision of 10 June 2002 with the Appeals Board.
On 30 July 2002, after a hearing held on 16 July 2002, the Appeals Board rejected the Governor's appeal and upheld the decision of 10 June 2002. It considered that:
“The second paragraph of Article 33 [of the June 1999 Regulation] provides that an advice of the penitentiary medical officer must be obtained before the Governor decides on camera surveillance. The explanation to this Article states, on this point, that this must take place as only the medical officer is deemed capable of assessing whether visual control is necessary in the interest of the detainee.
Where the Governor wishes to place a detainee under permanent camera surveillance, it must be established that camera surveillance is necessary because of the physical or mental condition of the detainee. The circumstance adduced in the reasoning given by the Governor, that it has not been established that a suicide risk did not exist, is insufficient for assuming that necessity. The circumstance, mentioned in the advice drawn up by the psychiatrist for the purpose of the impugned decision, that “balance suicide” cannot be excluded, is general in nature since it does not refer to the specificities of the [applicant's] physical and mental condition.
The foregoing is in itself insufficient for concluding a necessity for camera surveillance. This is not altered by taking into account the seriousness and particularities of the offence of which [the applicant] is suspected. The Appeals Board declares the appeal unfounded.”
No further appeal lay against this decision.
By decision of 31 May 2002, the Governor of the remand centre to where the applicant had been transferred, and where he was no longer held in solitary confinement but under an individual detention regime, ordered that the applicant be placed under permanent camera surveillance from 31 May 2002 at 5.30 p.m. until 7 June 2002 at 5.30 p.m. The reasons stated for this decision were identical to those given for the decision of 29 May 2002.
On 5 June 2002, the applicant filed an appeal against the decision of 31 May 2002 with the Complaints Commission of the Supervisory Board. On the same day, he requested the President of the Appeals Board to suspend the decision of 31 May 2002.
Also on 7 June 2002, after having heard the applicant and on the basis of the psychiatrist's report, the Governor decided to prolong the order to place the applicant under permanent camera surveillance until 14 June 2002 at 5.30 p.m. The reasons for this decision were stated in the following terms:
“I have noted that you, during the conversation on 6 June 2002 when discussing the topics of prospects for the future and perception of the period until trial, you showed emotion and got watery eyes.
In the conversation with me you stated “that it is maybe also the best for you.” The explanation you gave for making this statement was that you did not refer to yourself but gave it as an example that persons in a particular situation can think that suicide is the best.
I have received a letter from your lawyer in which he expresses concern about your physical and mental well-being. In this respect, he further asks for consideration of the contents of your daytime programme as you have no contact with co-detainees.
The seriousness of the offence of which you are suspected and the reaction in society which this offence has caused, justifies that the realisation of any risk of suicide or other harm to your physical and mental condition must be prevented.
It has not been established that, in your case and noting the emotion shown and statement made by you, as well as the contents of your lawyer's letter, these risks are not at all present.
Camera surveillance for prevention of the realisation of the above-cited risks is necessary and is also the most adequate tool.”
On 12 June 2002, the applicant filed an appeal against this decision with the Complaints Commission of the Supervisory Board and requested it to examine this appeal together with his appeal of 5 June 2002 against the decision of 31 May 2002.
In its decision of 19 June 2002, after a hearing held on 14 June 2002, the Complaints Commission rejected the applicant's appeals of 5 and 12 June 2002, holding:
“Pursuant to Article 5 § 3 of the Prisons Act 1999 (Penitentiare Beginselenwet), taken together with Article 23 of [this] Act, the Governor has the power to order measures (ordemaatregelen), provided these are necessary in the interests of the order or security in the institution or the undisturbed execution of the deprivation of liberty.
Amongst such measures must also be understood that of camera surveillance. Camera surveillance is a very drastic measure, that seriously restricts the freedom of movement of the detainee within the institution and at no moment allows him the possibility of “being on his own”. This measure is thus only to be applied as an ultimate means of guarding a detainee.
The Complaints Commission must now determine whether the decision of the Governor, in balancing all relevant interests and circumstances, must be considered as unreasonable or unfair.
The Complaints Commission puts first the seriousness of the fact of which [the applicant] is suspected and the reaction that fact has caused in society, which lead to the conclusion that a suicide [of the applicant] will (also) affect order and security in the penitentiary institution. This element justifies measures to prevent [the applicant's] suicide. The Board further takes into account that suicide is difficult to predict.
As to the question how far such measures may go, it is true that the applicant has not shown signs indicating a mental disorder [usually] ... associated with an increased suicide risk, but [the applicant's] detention regime has changed on 31 May 2002 in that he can take notice via the media, for the first time since his arrest, of the reactions in society to the act of which he is suspected and he may receive visits.
As it cannot be excluded that the applicant, following this change ... is exposed to great pressure, the possibility of a 'balance-suicide' must be taken into account and the Governor's decision to apply permanent camera surveillance, in balancing all the interests and circumstances involved, cannot be regarded as unreasonable or unfair. The appeal will therefore be declared unfounded in both cases.
The above does not signify that, in unchanged circumstances, camera surveillance will automatically remain justified. When the new situation in which [the applicant] finds himself is stabilised, the conclusion must be that, in unchanged circumstances, camera surveillance is no longer called for, and thus must be considered as unreasonable. ”
On 21 June 2002, the applicant filed an appeal against this decision with the Appeals Board.
In its decision of 30 July 2002, following a hearing held on 16 July 2002, the Appeals Board accepted the applicant's appeal, quashed the decision of 19 June 2002 and declared well-founded the applicant's appeals of 5 and 12 June 2002. It held as follows:
“[The applicant] is detained ... under an individual detention regime. According to the explanatory notice to Article 11 of the Regulation, on the selection, placement and transfer of detainees (Regeling selectie, plaatsing en overplaatsing van gedetineerden) of 15 August 2000, no. 5042803/00/DJI, the individual detention regime is to be considered as a form of detention which lies between segregation and restricted community. As [the applicant] is detained under an individual detention regime, the [June 1999 Regulation] does not apply.
In the absence of a specific statutory basis, the question arises whether the general rules governing measures, and in particular Article 5 § 3 of the Prisons Act 1999 in conjunction with Articles 23 and 24 of the Prisons Act 1999, offer a sufficient statutory basis for camera surveillance against the wishes of the detainee.
Article 5 § 3 of the Prisons Act 1999 provides as follows:
“The Governor is, in so far as this is necessary in the interests of maintaining order or security in the institution or the undisturbed execution of the deprivation of liberty, competent to give orders to detainees. The detainees are obliged to comply with these orders.”
In Part 12 of the Explanatory Memorandum to the Prisons Act 1999 ... in part b) on ordering measures, the following is stated:
“The package of measures at the disposal of the Governor is greater. In the interests of order it can indeed be necessary to give indications to detainees that are less far-reaching in nature than those cited above and therefore do not have to be equipped with extra legal guarantees. The above-cited Article 5 § 3 offers a sufficient basis for taking such measures.”
The general rules governing the ordering of measures offer an insufficient basis for applying camera surveillance. In this context, it is important to note that camera surveillance is a very far-reaching measure of which it cannot be said that this follows more or less from the (nature of the) deprivation of liberty. In this light it is understandable that, to the extent that camera surveillance in a cell is allowed, an explicit legal basis is foreseen [in the June 1999 Regulation]. It goes too far to extend the cases in which camera surveillance is allowed beyond that explicit legal basis. In view of the above, the Appeals Board is of the opinion that, when the Governor took the impugned decisions, the legal basis for imposing and prolonging camera surveillance was lacking. It will therefore declare the appeal founded. It will in a separate decision, after having heard the Governor, determine whether the applicant should be awarded any compensation.”
No further appeal lay against this decision.
By decision of 14 June 2002, the Governor prolonged the camera surveillance order until 28 June 2002 at 5.30 p.m., stating that the considerations and the situation that were decisive for the decision taken on 7 June 2002 had remained unchanged without any prospects of change in the near future.
On 17 June 2002 the applicant filed an appeal with the Complaints Commission of the Supervisory Board against the decision of 14 June 2002 and, on the same day, requested the President of the Appeals Board to suspend the decision of 14 June 2002.
On 20 June 2002 the President of the Appeals Board rejected the applicant's request to suspend the decision of 14 June 2002, considering that the applicant's situation had not materially changed since 7 June 2002.
In a subsequent decision taken on 28 June 2002, the Governor prolonged the camera surveillance order until 12 July 2002 at 5.30 p.m., stating that the considerations and the situation that were decisive in the decision taken on 14 June 2002 had remained unchanged. The Governor further stated that he had received information from the Detainee Intelligence Information Service (Gedetineerde Recherche Informatiepunt – “GRIP”) from which it could be concluded that the applicant might undertake a suicide or escape attempt.
On 1 July 2002 the applicant filed an appeal with the Complaints Commission of the Supervisory Board against the decision of 28 June 2002 and, on the same day, requested the President of the Appeals Board to suspend the decision of 28 June 2002.
On 4 July 2002 the President of the Appeals Board accepted the applicant's request and ordered that the decision of 28 June 2002 be suspended as from 5 July 2002 at 2 p.m. The President held that the Governor's decision did not comply with the legal rules, as the requirement of a regular assessment of the necessity of camera surveillance by a psychologist of the penitentiary institution had not been respected. No such assessment appeared to have been made since 7 June 2002. In the absence of such an assessment, the President considered that he could no longer assume that the applicant's situation had not materially changed. In order to allow the Governor to consider further measures, the President decided that the suspension of the decision of 28 June 2002 was only to take effect on 5 July 2002.
In its decision of 11 July 2002, following a hearing held on 5 July 2002, the Complaints Commission rejected the applicant's appeal against the decision of 14 June 2002, and accepted his appeal against the decision of 28 June 2002, holding as follows:
“At the time of the decision of 14 June 2002 to prolong camera surveillance, the [applicant] has been detained for two weeks under the new [detention] regime. This period is too short to already speak about a stabilised situation, referred to in the decision of 19 June 2002 and, on the same grounds as [that] decision, the appeal [against the decision on 14 June 2002] is declared unfounded. On 28 June 2002, at the time of the second impugned decision, [the applicant] had extensively taken notice of the reactions in society to the deed of which he is suspected, and had received several visits of his family, whom he perceives as a support for him. Since no further facts or circumstances have appeared indicating the contrary, it must be assumed that his situation on 28 June 2002 had stabilised, within the meaning of the decision of 19 June 2002.
To this extent and unlike what is stated in the Governor's decision of 28 June 2002, the situation has changed since 14 June 2002. The other circumstances on 28 June 2002 have, in the opinion of the Complaints Commission, remained the same in comparison with those at the time of the decision of 19 June 2002. There was no other psychiatric report available than that which had already been taken into account in the decision of 19 June 2002. As to the GRIP information, the Complaints Commission ... is of the opinion that this information is too general and vague to enable the conclusion that the [applicant's] physical or mental condition is such that it renders camera surveillance necessary. The information is also not of such a nature that it is possible to speak about changed circumstances as is meant in the decision of 19 June 2002. Therefore it must now be concluded, on the one hand, that the new situation has ... stabilised and that, on the other, the other circumstances have remained the same. Taking account of all pertinent interests and circumstances, as indicated in the decision of 19 June 2002, the conclusion must therefore be that camera surveillance is no longer necessary, and must be considered unreasonable. The appeal [against the decision of 28 June 2002] will therefore be declared wellfounded.”
Both the applicant and the Governor filed an appeal against this decision with the Appeals Board: the applicant against the rejection of his appeal relating to the decision of 14 June 2002, and the Governor against the decision to accept the applicant's appeal relating to his decision of 28 June 2002. The Governor withdrew his appeal on an unspecified date.
On 12 September 2002, after a hearing held on 20 August 2002, the Appeals Board accepted the applicant's appeal against the decision of 14 June 2002 on the same grounds as set out in its decision of 30 July 2002. No further appeal lay against this decision.
On 5 July 2002, the Governor ordered that the applicant be placed under permanent camera surveillance from 5 July 2002 at 2 p.m. until 19 July 2002 at 2 p.m. The reasons stated for this decision were as follows:
“On 5 July 2002 an amendment has been introduced in the Regulation on requirements for accommodation in penitentiary institutions (Regeling eisen verblijfsruimte penitentiaire inrichtingen – “the January 1999 Regulation”) in relation to camera observation. You are suspected of an offence that has caused great social unrest. Social unrest will arise again should you escape or if your health would be harmed. Although I realise that camera observation is a drastic measure, I do wish to avoid every risk of causing social unrest and for this reason do not give you the benefit of the doubt.”
On 8 July 2002, the applicant filed an appeal against this decision with the Complaints Commission of the Supervisory Board. On the same day, he requested the President of the Appeals Board to suspend the decision of 5 July 2002.
On 10 July 2002 the President of the Appeals Board rejected the applicant's request. Having noted the amended provisions of the January 1999 Regulation, the President considered that the decision was not in violation of any legal rule applicable to the remand centre, and it could not be regarded as so unreasonable or unfair that it gave rise to an urgent interest to suspend its further execution.
On 11 July 2002 the applicant started a hunger strike in protest against being placed under permanent camera surveillance.
In its decision of 25 July 2002, following a hearing held on 22 July 2002, the Complaints Commission rejected the applicant's appeal of 8 July 2002. Its decision, in so far as relevant, reads as follows:
“The Complaints Commission does not consider the [January 1999 Regulation as amended on 5 July 2002] to be in violation of Article 3 of the [Convention]. Contrary to the argument raised by [the applicant], observation by means of a camera does not fall under this Article since, according to the prevailing view, such observation may be called for under [certain] circumstances. Also contrary to [the applicant's] argument ..., there is no breach of Article 8 of the [Convention]. It concerns here a measure prescribed by law that, inter alia, has been prompted to prevent great social unrest. Such an aim can be regarded as necessary in a democratic society.
On the above grounds, there is no breach of a rule that applies in the institution.
Balancing of interests
It must first be said that the balancing of interests on the basis of the [January 1999 Regulation as amended on 5 July 2002] is different to ... that carried out in the previous decisions of this Complaints Commission concerning the present subject matter.
In the decision of 5 July 2002, the [Governor] has struck a balance between, on the one hand, the fact that camera surveillance interferes with the private sphere of [the applicant] and, on the other, the social unrest that can arise if [the applicant] would escape or his health harmed. On the basis of this balance, he decided to apply camera surveillance.
Account is taken of the fact that [the applicant] is suspected of a very serious fact, which has caused serious social unrest, which unrest still continues. Given, furthermore, that every development concerning [the applicant] attracts new social attention, whereas, on the other hand, (an attempt to commit) suicide by [the applicant] cannot be wholly excluded, it cannot be said that this decision is unreasonable or unfair. In this, it must also be taken into account that, at present, an infrared camera has been installed in [the applicant's] cell, so that [the applicant] is not disturbed during the night more seriously than is usual for detainees in respect of whom it is expected that a long prison sentence will be demanded. The appeal will therefore be declared unfounded.”
On 30 July 2002, invoking inter alia Articles 3 and 8 of the Convention, the applicant filed an appeal against this decision with the Appeals Board.
On 12 September 2002, following a hearing held on 20 August 2002, the Appeals Board rejected the applicant's appeal and upheld the decision taken by the Complaints Commission. The Appeals Board's decision, in so far as relevant, reads as follows:
“Applying camera surveillance means a considerable interference with the privacy of [the applicant]. For such an interference ... in the light of Article 8 of the Convention, a legal basis is required. ... The manner in which the possibility for the interference with privacy, by means of permanent camera observation, has been given legal shape, is not in breach of any legal rule, including Article 8. Contrary to what has been argued by the applicant, it is not required that a regulation on camera observation must be set out in a formal Act [of Parliament]. The fifth paragraph of Article 16 of [the Prisons Act 1999] offers a sufficient basis for camera observation, as set out in the [amended January 1999] Regulation. ...
The lawfulness of the concrete application of the [amended January 1999] Regulation has been challenged on various grounds. In the first place, the requirements of prior consultation and accompaniment during the camera observation have allegedly not been complied with.
Contrary to what has been argued [by the applicant], Article 10b § 1 (d) of the [amended January 1999] Regulation does not require the prior opinion of a behavioural expert or the institution's medical officer, and it also does not require that a behavioural expert or doctor informs himself once a week of the detainee's condition. This does not affect the desirability of medical supervision.
It has further been argued that camera observation has been ordered without having balanced the interests and, in addition, that there is no necessity to apply camera observation as it is ineffective.
It has been sufficiently established that, in the application of the measure, a balancing of interests has taken place. This is expressed in the reasoning of the decision. Also when taking into account that camera observation signifies a considerable interference with [the applicant's] privacy, decisive importance could be given in the present case to very great social unrest that would entail an escape or harm to health.
In reasonableness it cannot be said that such an observation is ineffective, even when taking into account that camera observation cannot prevent the unavoidable. Camera observation is in so far in any event effective and thereby also necessary in that it shapes the obligation of the penitentiary authorities to strive for the prevention of great social unrest on account of escape or harm to [the applicant's] health.
It has further been argued that the application of camera surveillance would be in violation of Article 3 [of the Convention]. In this connection [the applicant] has argued that it constitutes inhuman and/or degrading treatment as the situation in which he finds himself entails 'mental suffering'. [The applicant] has relied in particular on a letter by [his private] general practitioner S. of 18 August 2002 in which [the applicant's] physical and mental health state is discussed.
It is true that the application of camera observations does signify a considerable interference with [the applicant's] privacy but, in the opinion of the Appeals Board, it does not give rise to inhuman or degrading treatment in the sense of Article 3 [of the Convention]. In this it must be taken into account that, although it is true that [he] is being permanently observed, the applicant is fully provided, within the limits of detention, with the other regular facilities, including for instance the possibility to receive visits.
No further appeal lay against this decision.
On 19 September 2002, after mediation by the President of the Supervisory Board of the remand centre, the applicant ended his hunger strike and, shortly afterwards and in accordance with agreements made, the applicant's surveillance by camera was reduced to the evening and night time.
On 19 November 2002, after having availed himself of his right to remain silent since his arrest on 6 May 2002, the applicant gave a first statement to the investigating judge (rechter-commissaris) in respect of the facts of which he was suspected. He gave further statements to the investigating judge on 20 and 22 November 2002.
On 27 March 2003 the applicant was ordered to appear before the Amsterdam Regional Court (arrondissementsrechtbank) in order to stand trial on charges of, inter alia, murder. The first hearing before the Amsterdam Regional Court was held on 9 August 2002.
In its judgment of 15 April 2003, the Amsterdam Regional Court convicted the applicant of, inter alia, murder and sentenced him to eighteen years' imprisonment. Both the applicant and the public prosecutor filed an appeal with the Amsterdam Court of Appeal (gerechtshof).
By judgment of 18 July 2003, the Amsterdam Court of Appeal quashed the judgment of 15 April 2003, convicted the applicant of, inter alia, murder and sentenced him to eighteen years' imprisonment. In the determination of its sentence, the Court of Appeal considered that the circumstances of the applicant's detention, in particular his having been subjected to camera surveillance for several months and the modalities of his individual detention regime, were to be regarded as extremely burdensome – although these measures were necessary and justified – and were to be taken into account as a mitigating factor in the determination of sentence. It noted certain mitigating factors: the applicant had no criminal record; his conditions of detention were extremely burdensome and certain aspects of the publicity which the applicant and his trial had attracted were unacceptable and had harmed the applicant. However, these factors weighed little against the seriousness of his conviction for having murdered a politician shortly before parliamentary elections and without him having shown insight into the reprehensible nature of this offence.
The applicant did not avail himself of the possibility to file an appeal in cassation against this decision with the Supreme Court (Hoge Raad).
Article 15 § 4 of the Constitution (Grondwet) provides as follows:
“A person who has been lawfully deprived of his liberty may be restricted in the exercise of fundamental rights in so far as the exercise of such rights is not compatible with the deprivation of liberty.”
According to Article 16 § 5 of the Prisons Act 1999 (Penitentiare Beginselenwet), the Minister of Justice is to determine the rules on the provision of accommodation for detainees. On this basis, the Minister of Justice issued the Regulation on the requirements for accommodation in penitentiary institutions (Regeling eisen verblijfsruimte penitentiaire inrichtingen – “the January 1999 Regulation”) which entered into force on 1 January 1999.
Pursuant to Article 24 § 7 of the Prisons Act 1999, the Minister of Justice must also determine further rules on the stay in and equipment of disciplinary and segregation cells, which rules must deal in particular with the rights of detainees during their stay in a segregation cell. On this basis, the Minister of Justice issued the relevant rules on 15 June 1999 (Regulation no. 762711/98/DJI - Regeling houdende vaststelling van regels voor verblijf in en de inrichting van de straf- en afzonderingscel – “the June 1999 Regulation”).
Article 33 of the June 1999 Regulation, in so far as relevant, reads as follows:
“1. The Governor can, if the physical or mental condition of the detainee renders this necessary, order that the detainee will be observed day and night by means of a camera.
2. Before taking a decision to this effect, the Governor will seek the advice of the penitentiary medical officer, unless this advice cannot be awaited. In that case, the Governor will obtain that advice as soon as possible after his decision. ...”
On 5 July 2002 the Minister of Justice issued an amendment, with immediate effect, to the January 1999 Regulation, introducing the possibility to place detainees, who are not being held under a disciplinary or segregation regime but under an individual detention regime, under permanent camera surveillance. The new provisions, in so far as relevant, read as follows:
“Article 10a
1. Accommodation may be equipped with an observation camera.
2. The camera will be fitted in such a manner that observation of the entire room is possible.
Article 10b
1. The Governor can decide that the detainee, who is being held under an individual detention regime within the meaning of Article 22 of the [1999 Prisons] Act or who is being held in an extra security institution within the meaning of Article 13 § 1 (e) of the [1999 Prisons] Act, will be observed day and night by means of a camera:
a. where this is necessary in the interests of maintaining order or security in the institution;
b. where this is necessary for the undisturbed execution of deprivation of liberty;
c. where this is necessary in connection with the mental or physical condition of the detainee;
d. if escape or harm to the detainee's health could give rise to great social unrest, or where this could cause serious damage to the relations between the Netherlands and other States or with international organisations.
2. Before deciding to apply camera observation under the first paragraph (c), advice on this matter must be obtained from a behavioural expert or the institution's medical officer, unless this advice cannot be awaited. In that situation the Governor shall obtain the advice as soon as possible after his decision.
3. The camera observation, referred to in the first paragraph, shall last for two weeks at most. The Governor may prolong camera observation by periods of two weeks each time, if he has concluded that the necessity thereof continues to exist.
4. Articles 57 [obligation to hear the detainee] and 58 [decision must be in writing and contain reasons] of the [1999 Prisons] Act apply by analogy. The institution's Supervisory Board and the institution's medical officer will be informed without delay of a decision to apply camera observation or a prolongation thereof.
Article 10c
The institution's medical officer or the behavioural expert attached to the institution shall inform himself, at least once a week, of the condition of the detainee who is being observed day and night by means of a camera.”
The explanatory notice to the new Article 10a, b and c states as follows:
“The general part of the explanatory notice to the original Regulation states that, for the detainee, the cell is the place where during his detention his private life takes place and where he should thus be provided with a minimum of comfort and, in so far as possible within the context of detention, guarantees for his privacy. The placement of an observation camera, rendering possible observation of the entire cell for 24 hours a day, forms a serious interference with the privacy of the detainee. Nevertheless, situations may be envisaged in which such interference is justified.
In the [June 1999 Regulation], camera observation during a stay in a disciplinary or segregation cell is rendered possible if the physical or mental condition of the detainee renders this necessary. The necessity in view of the physical or mental condition of the detainee then applies as an extra requirement, in addition to the grounds that can justify a stay in the disciplinary or segregation cell. These grounds are set out in Article 24 § 1 taken together with Article 23 § 1 of the [1999 Prisons] Act.
It has appeared in practice that camera observation may also be necessary when the detainee does not stay in a disciplinary or segregation cell. The [present] Regulation limits those situations to those in which the detainee is being held under an individual detention regime or in an extra security institution. In these cases camera observation may be applied where this is necessary in the interests of maintaining order and security in the institution or the undisturbed execution of the deprivation of liberty. Furthermore, the physical or mental condition of the detainee may give cause for observing him by means of a camera.
Moreover, circumstances that do no directly flow from the detainee or his behaviour or physical condition may give cause for camera observation, in particular situations in which the offence of which the detainee is suspected or has been convicted has caused great public unrest, or has caused a stir in the relations of the Netherlands with other States and with international organisations. To be envisaged are serious violent or sexual crimes, as well as offences against the security of the State, royal dignity, heads of friendly States and other internationally protected persons, offences concerning the exercise of State obligations and powers, and terrorist offences. Political crimes may be concerned, but the crimes do not necessarily have to have been committed with a political aim. The decisive element is that the social unrest or stir in the relations of the Netherlands with other States and with international organisations caused [by the offence] transposes the maintenance of public order or the security in the institutions and the undisturbed execution of the deprivation of liberty to [another level]. Something happening to the detainee during detention, or his escape, could have unforeseen and serious consequences for public order, the democratic legal order or for relations with other States or international organisations. The legal position of a detainee, in particular his right to privacy already subjected to restrictions by the detention, should in this light be balanced against the interests of preventing escape or possible harm to his health in whatever form.
This balancing of interests should be set off against the knowledge that research has shown that there are different circumstances open to objectification that can be considered as risk moments for suicide. For example, apart from segregation, the first period of detention is indicated as a risk moment, as well as not being allowed to have contacts with codetainees on grounds of restrictions imposed by the investigating judge. It is also of importance that by far not all cases show prior signals that a detainee wants to commit suicide. Literature indicates that suspects or persons convicted of violent and sexual crimes are overrepresented in the suicide statistics, as well as persons having been found guilty or who are suspected of murder or manslaughter and who are facing life imprisonment. The social unrest or stir in the relations of the Netherlands with other States and international organisations caused [by the offence] can entail a certain pressure on the detainee that can and may play a role in balancing the interests involved. The threat of possible harm [to the detainee] may also come from outside. Then information from the Detainee Intelligence Information Service can play an important role in the considerations for camera observation.
The decision [to place a detainee under camera observation] is valid for a period of two weeks, but can be prolonged by the Governor for periods of the same duration each time. It is conceivable that the camera observation will place a great psychological pressure on the detainee. For this reason, the institution's medical officer or behavioural expert must see the detainee at least once a week.”


ITEMID: 001-60416
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF YAZAR AND OTHERS v. TURKEY
IMPORTANCE: 1
CONCLUSION: Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Matti Pellonpää
TEXT: 9. At the material time the first applicant, Feridun Yazar, was chairman of the People's Labour Party (Halkın Emeği Partisi – “the HEP”), the second applicant, Ahmet Karataş, was its vice-chairman and the third applicant, İbrahim Aksoy, was its general secretary.
10. On 7 June 1990 the HEP was founded and its constitution was filed with the Ministry of the Interior.
11. On 3 July 1992 Principal State Counsel at the Court of Cassation applied to the Turkish Constitutional Court to have the HEP dissolved. In his application he accused the party of having undermined the integrity of the State. He submitted that certain statements made at meetings and to the press by the party's leaders and senior officials at both central and local level had infringed the Constitution and the Law on the regulation of political parties. He also accused the HEP of assisting and protecting those of its members who had committed illegal acts.
12. On 8 July 1992 the President of the Constitutional Court sent Principal State Counsel's application to the chairman of the HEP, inviting him to submit his preliminary observations in reply.
13. On 3 September 1992 the HEP's lawyer filed his preliminary written observations and requested a hearing. In his observations he submitted, in particular, that the Law on the regulation of political parties contained provisions that were contrary to the fundamental rights guaranteed by the Constitution. He also maintained that the dissolution of the party, as called for by Principal State Counsel, would contravene international instruments such as the European Convention on Human Rights, the United Nations International Covenant on Civil and Political Rights, the Helsinki Final Act and the Charter of Paris for a New Europe. In addition, he argued that there was insufficient evidence of the links between the HEP and the PKK (Workers' Party of Kurdistan). He further contended that Principal State Counsel's application referred to statements made by individuals, for which the HEP could not be held liable, pursuant to section 101(b) of the Law on the regulation of political parties.
14. On 22 January 1993 the HEP's lawyer submitted his observations on the merits. He again requested a hearing. He also sought leave, should that request be refused, for the HEP's chairman and his predecessors to give evidence to the Constitutional Court.
15. The Constitutional Court acceded to the latter request. Accordingly, the former chairman and the chairman of the HEP made oral submissions to the court on 1 March 1993.
16. On 14 July 1993 the Constitutional Court decided to dissolve the HEP. Its judgment was served on Principal State Counsel, the Speaker of the National Assembly and the Prime Minister's Office.
17. The Constitutional Court's judgment was published in the Official Gazette on 18 August 1993.
18. In its judgment the Constitutional Court began by reiterating the main constitutional principles of relevance to the case, to the effect that all persons living within Turkish territory, whatever their ethnic origin, formed a whole united by their common culture. Accordingly, the sum of the persons who made up the Republic of Turkey was called the “Turkish nation”. The different ethnic groups making up the “nation” were therefore not divided into a majority or minorities. The Constitutional Court pointed out that, under the Constitution, no political or legal distinction based on ethnic or racial origin could be made between citizens. All Turkish nationals could avail themselves of all civil, political and economic rights without discrimination.
19. With particular reference to Turkish citizens of Kurdish origin, the Constitutional Court held that in every region of Turkey these enjoyed the same rights as other Turkish citizens. That did not mean, it added, that the Constitution did not acknowledge the existence of a Kurdish identity, since citizens of Kurdish origin were not forbidden to express their Kurdish identity. The Kurdish language could be used on all private premises, at places of work, in the press and in works of art and literature.
20. The Constitutional Court reiterated the principle that all people were bound to observe the provisions of the Constitution even if they did not agree with them. The Constitution did not preclude the celebration of difference but forbade propaganda that was based on racial difference and was aimed at destroying the constitutional order. The Constitutional Court pointed out that under the Treaty of Lausanne, having a separate language or ethnic origin was not in itself sufficient for a group to qualify as a minority.
21. With regard to the HEP's activities, the Constitutional Court examined, in particular, the written and oral statements made at public and private meetings by the party's leaders and by other officials at various levels. It also considered the content of calendars on sale to the public and slogans shouted at various meetings held on the HEP's premises.
22. The Constitutional Court was particularly critical of the HEP for “seeking to divide the Turkish nation in two, with Turks on one side and Kurds on the other, with the aim of establishing separate States” and for “seeking to destroy national and territorial integrity”. It considered in that connection that the HEP was asserting through its activities that there was a separate Kurdish people with its own culture and language, which the Kurds were not free to practise. The HEP demanded the right to self-determination for the Kurds, advocated the setting up of “Kurdish provinces” and described the terrorist acts committed by the PKK as acts of international war. It regarded PKK terrorists as freedom fighters and claimed that instead of combating them, the security forces were in fact seeking to bring about the mass extermination of the Kurdish people. In all its activities, in which the sole emphasis was on equality between Turks and Kurds, the HEP was calling for the establishment of a State built on racist foundations, thereby jeopardising the concept of the “Turkish nation”, one of the principles on which the State had been founded. In the Constitutional Court's view, “the HEP's aims resembled those of terrorists” and “the use of accusatory and aggressive statements based on falsehoods, which the HEP's leaders constantly repeated as a form of provocation, was likely to promote tolerance of terrorist acts and to justify and encourage their perpetrators”.
23. The Constitutional Court concluded that the HEP's activities were subject, inter alia, to the restrictions referred to in paragraph 2 of Article 11 and to the provisions of Article 17 of the Convention. It pointed out in that connection that the Charter of Paris for a New Europe condemned racism, ethnic hatred and terrorism, and that the Helsinki Final Act guaranteed adherence to the principles of the inviolability of national frontiers and of territorial integrity.
24. The Constitutional Court accordingly ordered the dissolution of the HEP on the ground that its activities were such as to undermine the territorial integrity of the State and the unity of the nation.
25. However, the Constitutional Court dismissed Principal State Counsel's second argument that the HEP implicitly or explicitly tolerated the illegal actions of its members. In that connection, it took into account the fact that the various criminal proceedings instituted against members of the HEP were still pending and that none of its members had yet been found guilty.
26. The main ideas put forward in the HEP leaders' speeches, explanations and statements, as outlined in the Turkish Constitutional Court's judgment, may be summarised as follows.
(a) There is a Kurdish people in Turkey which has its own language and culture and is oppressed.
(b) The Kurds are not allowed to read or write in Kurdish or improve their knowledge of the language and are unable to develop their culture.
(c) The Kurds are fighting for freedom and democracy. A parallel is drawn with the legend of Kawa, who had revolted against the oppressive King Dehhak 2,600 years ago; it is asserted that more and more people are emulating Kawa.
(d) The Kurdish people have the right to self-determination.
(e) The Kurdish people cannot avail themselves of any rights arising from international agreements.
(f) The problems in eastern Turkey are not of an economic nature.
(g) The statutory measures taken against organised terrorism constitute an international war, and the armed organisation (the PKK) is one of the belligerents.
(h) The armed militants belonging to that organisation are freedom fighters. It is therefore natural that the international laws of war should be applied to them, but the Turkish government has not put that into practice.
(i) The Turkish army and the security forces pursue the aim of physically destroying the Kurdish masses from which the Kurdish militants are drawn rather than fighting them.
(j) Since the break-up of the USSR, the course of history has caused Turkish citizens of Kurdish origin to take an interest in that phenomenon, and a parallel has consequently been drawn with the situation of the Palestinian people.
(k) The Republic has been founded by the Turkish and Kurdish peoples. Turks and Kurds should establish a social system based on equality between the two ethnic groups, without taking any others into account.
(l) The government forces stationed in south-eastern Turkey have been deployed not against the terrorists but against the Kurdish people and have appropriated their national rights.
(m) The HEP is also the party of the oppressed Kurds, the workers, other oppressed and exploited ethnic groups, the Arabs, the Circassians, the Laz and the Albanians.
(n) The United Nations should hold a conference on the Kurdish question as soon as possible.
(o) The Kurdish problem is the biggest obstacle to democracy. Until it is solved, democracy cannot be developed in Turkey.
27. At the material time the relevant provisions of the Constitution read as follows.
“The Republic of Turkey is a democratic, secular and social State based on the rule of law, respectful of human rights in a spirit of social peace, national solidarity and justice, adhering to the nationalism of Atatürk and resting on the fundamental principles set out in the Preamble.”
“The State of Turkey shall constitute with its territory and nation an indivisible whole. The official language shall be Turkish.”
“None of the rights and freedoms referred to in the Constitution shall be exercised with a view to undermining the territorial integrity of the State and the unity of the nation, jeopardising the existence of the Turkish State or Republic, abolishing fundamental rights and freedoms, placing the control of the State in the hands of a single individual or group, ensuring the domination of one social class over other social classes, introducing discrimination on the grounds of language, race, religion or membership of a religious sect, or establishing by any other means a State political system based on such concepts and opinions.”
“Citizens shall have the right to form political parties and to join them or withdraw from them in accordance with the lawful procedure laid down for the purpose ...
Political parties shall be an indispensable part of the democratic political system.
Political parties may be formed without prior permission and shall carry on their activities in accordance with the Constitution and the law.
... The constitutions, rule books and activities of political parties shall not be incompatible with the independence of the State, the integrity of State territory and of the nation, human rights, the principles of equality and the rule of law, national sovereignty or the principles of a democratic, secular Republic. No political party may be founded with the aim of advocating and establishing the domination of one social class or group, or a dictatorship in any form whatsoever. ...”
“Political parties shall not engage in activities other than those referred to in their constitutions and programmes, nor shall they disregard the restrictions laid down by Article 14 of the Constitution, on pain of permanent dissolution.
...
The decisions and internal running of political parties shall not be contrary to democratic principles.
...
Immediately a political party is formed, Principal State Counsel shall verify as a matter of priority that its constitution and programme and the legal position of its founding members are consistent with the Constitution and the laws of the land. He shall also monitor its activities.
The Constitutional Court shall give a final ruling on the dissolution of political parties on an application by Principal State Counsel at the Court of Cassation.
Founding members and managers, at whatever level, of political parties which have been permanently dissolved may not become founding members, managers or financial controllers of any new political party, nor shall a new party be formed if a majority of its members previously belonged to a party which has been dissolved ...”
28. At the material time the relevant provisions of Law no. 2820 read as follows.
“Political parties
... shall not aim or strive to or incite third parties to
– change ... the legal provisions concerning the absolute integrity of the Turkish State's territory, the absolute unity of its nation, its official language ...
– jeopardise the existence of the Turkish State and Republic, abolish fundamental rights and freedoms, introduce discrimination on grounds of language, race, colour, religion or membership of a religious sect, or establish, by any means, a system of government based on any such notion or concept. Political parties may not incite third parties to act in pursuit of those aims.”
“Political parties shall not aim to change the principle of the unitary State on which the Turkish Republic is founded, nor carry on activities in pursuit of such an aim.”
“Political parties shall not
(a) assert that there exist within the territory of the Turkish Republic any national minorities based on differences relating to national or religious culture, membership of a religious sect, race or language; or
(b) aim to destroy national unity by proposing, on the pretext of protecting, promoting or disseminating a non-Turkish language or culture, to create minorities on the territory of the Turkish Republic or to engage in similar activities. ...”
“Forfeiture of the status of member
Where the Council of the Presidency of the Grand National Assembly has validated the resignation of members of parliament, the loss of their status as members shall be decided by the Grand National Assembly in plenary session.
A convicted member of parliament shall not forfeit the status of member until the court which convicted him has notified the plenary Assembly of the final judgment.
A member of parliament who continues to hold an office or carry on an activity incompatible with the status of member, within the meaning of section 82, shall forfeit that status after a secret ballot of the plenary Assembly held in the light of the relevant committee's report showing that the member concerned holds or carries on the office or activity in question.
Where the Council of the Presidency of the Grand National Assembly notes that a member of parliament, without valid authorisation or excuse, has failed, for a total of five days in one month, to take part in the work of the Assembly, that member shall forfeit the status of member where by majority vote the plenary Assembly so decides.
The term of office of a member of parliament whose words and deeds have, according to the Constitutional Court's judgment, led to the dissolution of his party, shall end on the date when that judgment is published in the Official Gazette. The Presidency of the Grand National Assembly shall enforce that part of the judgment and inform the plenary Assembly accordingly.”
“The constitution, programme and activities of political parties shall not contravene the Constitution or this Law.”
“The Constitutional Court shall dissolve a political party where
(a) the party's constitution or programme ... is contrary to the provisions of Chapter 4 of this Law; or
(b) its general meeting, central office or executive committee ... takes a decision, issues a circular or makes a statement ... contrary to the provisions of Chapter 4 of this Law, or where the chairman, vice-chairman or general secretary makes any written or oral statement contrary to those provisions ...”
“Where it is found that a political party has become a centre of activities contrary to the provisions of sections 78 to 88 and section 97 of the present Law, the party shall be dissolved by the Constitutional Court.”
“All the assets of political parties dissolved by order of the Constitutional Court shall be transferred to the Treasury.”
VIOLATED_ARTICLES: 11
VIOLATED_PARAGRAPHS: 11-1


ITEMID: 001-87187
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF VASHCHENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1953 and lives in Melitopil.
5. In September 1994 the applicant, as a retired military officer, was granted the social tenancy of two family apartments in a newly erected building, the construction of which had been partly sponsored by the municipal authorities and his former military detachment.
6. On 17 October 1995 the applicant lodged a claim with the Melitopil City Court (Мелітопольський міський суд Запорізької області) alleging that the apartments in question had been provided to him in an uninhabitable condition; he had renovated them at his own expense and was therefore entitled to receive pecuniary and non-pecuniary damages. In the course of the proceedings the applicant adjusted the amount of his claim on some twenty occasions. Military Detachment A-0325 (Військова частина А-0325), the Executive Committee of the Melitopil City Council (Виконавчий комітет Мелітопольської міської ради), the Construction Company “Melitopilbud” (Акціонерне товариство «Мелітопільбуд») and the Melitopil Housing Service (Виробничо-житлове ремонтно-експлуатаційне об’єднання) were summoned into the proceedings as defendants. Subsequently the military detachment was substituted by the Ministry of Defence of Ukraine (Міністерство Оборони України).
7. On 28 May 1997 the Melitopil City Court ordered an expert assessment of the state of the apartments. No hearings were scheduled between May 1997 and May 1998 on account of the pending expert assessment.
8. On 16 March 1999 the court rejected the applicant’s claim. In particular, the court found that the applicant had not shown that the apartments in question had defects which were such as to make them uninhabitable. Moreover, having being aware of the state of the apartments before moving in, the applicant had not taken the opportunity to request alternative housing. Furthermore, he had never properly documented the defects he had repaired and the expenses he had borne.
9. On 29 April 1999 the Zaporizhzhya Regional Court (Запорізький обласний суд)
10. On 27 March 2002, following the applicant’s allegations about deterioration of his family members’ health on account of the state of the apartments, the Melitopil City Court ordered a medical expert assessment.
11. On 17 February 2003 the Melitopil City Court rejected the applicant’s claim on similar grounds as in the judgment of 16 March 1999. Moreover, the court found that the claim had been lodged outside the statute of limitation.
12. Between October 1995 and February 2003 the Melitopil City Court scheduled a total of fifty hearings, forty of which were set up after September 1997, the date, when the Convention entered into force in respect of Ukraine. Some fifteen of them were adjourned on account of the failure of one or more of the defendants to appear or following a defendant’s request for adjournment. Some five hearings were adjourned to allow the court and the defendants to familiarise themselves with adjustments of the applicant’s claims. Three hearings were adjourned on account of the applicant’s requests for adjournments. Seven adjournments were initiated by the court for various reasons. Most hearings were scheduled at intervals from several days to two months. On four occasions the intervals between hearings were between four and six months.
13. On 22 May 2003 the Regional Court upheld the judgment of 17 February 2003. In June 2003 the applicant appealed in cassation.
14. On 1 September 2004 the Supreme Court rejected the applicant’s request for leave to appeal in cassation.
15. On 24 July 2001 the Melitopil District Police (Мелітопільський районний відділ УМВС України в Запорізькій області) filed with the Melitopil City Court an administrative charge against the applicant. In particular, they established that on 18 June 2001 around noon the applicant and Mr V. S. had visited Mr E. Sh., the president of the Melitopil District Court (Мелітопільський районний суд Запорізької області) to discuss Mr V. S.’s civil case. The applicant started arguing with Mr E. Sh. and refused to leave his office when requested to do so. Mr E. Sh. having stepped out into the corridor, the applicant followed and continued to say that the judicial officers were unprofessional and lacked integrity. Several other judges and personnel heard the noise and came to the area seeking to calm the applicant down. The police were called, but the applicant had left the court building before they arrived. The incident lasted for some half an hour.
16. On 16 August 2001 the Melitopil City Court found that the applicant’s conduct could qualify as hooliganism under the Criminal Code of 1960, in force on the date of the incident, discontinued administrative proceedings and transferred the case to the Melitopil Prosecutor (прокурор м. Мелітополя) for a decision on initiating criminal proceedings.
17. On 1 September 2001 the new Criminal Code entered into force.
18. On 30 October 2001 criminal proceedings were instituted against the applicant, who was charged with hooliganism under the old Criminal Code.
19. On 28 November 2001 the investigator discontinued criminal proceedings on account of absence of corpus delicti in the applicant’s conduct.
20. On 23 December 2001 the supervising investigator annulled this decision and transferred the case to another investigator.
21. On 18 April 2002 the new investigator altered the charge, from hooliganism to insult of a judicial officer, pursuant to the provisions of the old Criminal Code. He noted in particular that the charge of hooliganism implied disruption of public order, while in the case at issue there was no evidence that the incident, which had taken place at lunchtime, had in fact disrupted the court’s operation. On the same date the investigator discontinued proceedings in view of the fact that following adoption of the new Criminal Code, insulting a judicial officer was no longer a criminal offence.
22. On 21 August 2002 the prosecutor’s office annulled this decision and reopened the proceedings. The case was transferred to another investigator.
23. On 25 November 2002 the new investigator discontinued proceedings on essentially the same grounds as above.
24. On 16 October 2003 the prosecutor’s office annulled this decision and reopened the proceedings.
25. On 31 October 2003 the investigator altered the charge to that of hooliganism under the new Criminal Code.
26. On 5 November 2003 the applicant was placed under an obligation not to abscond. Subsequently the case was transferred to the Melitopil City Court.
27. On 19 April 2004 the Melitopil City Court remitted the case for additional investigation. In particular, the court found that the case file contained insufficient information on whether the incident had disrupted the normal operation of the Melitopil District Court.
28. On 30 June 2004 the Regional Court upheld this ruling. The case was assigned to a new investigator.
29. On 27 April 2005 the investigator, having found no evidence that the court’s operation had been in fact disrupted by the applicant’s conduct, altered the charge to insulting a judicial officer pursuant to the Criminal Code of 1960 and discontinued the proceedings in view of the decriminalisation of the offence in question.
30. On 20 June 2006 the supervising investigator ordered the reopening of the criminal proceedings.
31. On 20 October 2006 the investigator discontinued the proceedings on account of absence of any appearance of a criminal conduct on the part of the applicant.
32. On 7 November 2006 the prosecutor’s office annulled this decision.
33. On 4 December 2006 the investigator transferred the case to the Melitopil City Court, requesting it to absolve the applicant of criminal liability in view of the decriminalisation of the offence.
34. On 18 January 2007 the Melitopil City Court dismissed this request. In particular, it found that since the formal criminal proceedings against the applicant had been instituted after the entry into force of the new Criminal Code, the applicant could not have been charged under the old Code in the first place. The court returned the case to the investigation authorities for rectification of the formulation of the charges. It further ordered that the applicant remain under an obligation not to abscond.
35. On 12 March 2007 the Regional Court upheld this ruling.
36. By September 2007 no final decision had been taken in respect of the applicant’s case.
VIOLATED_ARTICLES: 13
6


ITEMID: 001-85010
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF FLUX (No. 4) v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 10
JUDGES: Giovanni Bonello;Ján Šikuta;Josep Casadevall;Kristaq Traja;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi
TEXT: 5. On 6 December 2002 Flux published an article entitled “The Sabbath of the parvenus”. It reported the alleged overnight enrichment of the Speaker of Parliament, the President of the Parliamentary Communist faction and the son of the President of Moldova. The idea of the article was that before becoming public figures they had all been simple citizens without any significant fortune; however, their fortunes had considerably increased after the Communist Party had won the elections and they had become public figures.
6. The summary reads as follows:
“The other day I was editing a news item concerning the two luxury cars used by the Speaker of Parliament, E. O., and I became more and more convinced that the term 'parvenu' had Moldovan origins. Our political scene is full of examples.
For example, the first thing done by E .O. after becoming Speaker of Parliament, was to solve her housing problem. By abusing her position she was able to lay her hands on a huge apartment in downtown Chişinău, paid for by public money. Who was E. O. before becoming Speaker? A modest baker with a modest work history. Who is she now? A big boss! She cannot fit into a BMW and so she also needs a Mercedes Benz. Let's take another example.
Who was Victor Stepaniuc before becoming an MP? A simple schoolteacher in the village of Costeşti with a modest IQ and a little bit hysterical. Who is he now? He is not only a Sulla of the Parliament, namely a dictator without whose approval even the flies do not fly in the Parliament building, but also a prosperous businessman. He is an agent at the Chişinău tobacco factory, he has made enormous profits from the sale of cigarettes, he owns buses, he controls the Chişinău-Ialoveni bus route, and in general he looks like a genuine Moldovan dandy with a silk tie, Italian suits, German shoes and dirt under his nails.
Who was O. V. before his father Vladimir Voronin became the President of Moldova? A novice businessman specialised in the milking of profits from sugar plants in the north of the country. Who is he now? He is the most prosperous businessman in the country. He is the majority shareholder of bank F., the owner of construction company M, has contracts with the State worth millions and does business with Chişinău tobacco factory. He is a star and a VIP of the financial press and is held up as an example to young businessmen....”
7. On 12 December 2006 Mr Stepaniuc, the leader of the Communist parliamentary faction which had, at the time, 71 votes out of a total of 101 in Parliament, lodged an action against the applicant newspaper. He did not pay any court fee when lodging his complaint, nor did he appear in court at any stage of the proceedings or delegate anyone to represent him. He argued, inter alia, that:
“...the defendants disseminated false and defamatory information about me ...
... Both in the title and in the body of the article I am described as follows: 'a dictator without whose approval even the flies do not fly in the Parliament building, but also a prosperous businessman. He is an agent at the Chişinău tobacco factory, he has made enormous profits from the sale of cigarettes, he owns buses, controls the Chişinău-Ialoveni bus-line, and in general he looks like a genuine Moldovan Dandy with a silk tie, Italian suits, German shoes and dirt under his nails.'
None of these accusations is true and they are nothing more than dirty slander.”
Mr Stepaniuc asked the court to declare the above statements defamatory, to make the defendants publish a retraction on the same page of the newspaper and pay him compensation in the amount of the maximum provided for by the Civil Code.
8. The case was put before Judge I.M., the President of the Buiucani District Court at the time for examination.
9. In its defence the applicant newspaper presented the court with copies of open letters addressed to the President of Moldova by a transport company in which Mr Stepaniuc was accused of appropriating several of its bus routes.
10. On 17 February 2003 the applicant newspaper informed the court that the information concerning Mr Stepaniuc's involvement in illegal activities in the tobacco business had been obtained from sources in the Moldovan secret service and submitted that the secret service had prepared a report about the alleged involvement of high-ranking officials in illegal activities at the Chişinău tobacco factory. The applicant newspaper informed the court that it had officially requested a copy of the report and asked that the case be adjourned until the secret service had provided the court with such a copy.
11. On 19 February 2003 Judge I. M. rejected the request to adjourn the case until after the secret service had provided the court with a copy of its report; however, he did order that the examination be postponed until 24 March 2003.
12. On 24 March 2003 the applicant newspaper informed the court that the secret service had failed to reply to its request and that consequently it had commenced a court action seeking an order to provide it with a copy of the report. The applicant newspaper requested that the defamation proceedings be adjourned pending the conclusion of those proceedings.
13. On 24 and 26 March and on 15 April 2003 Judge I. M. held hearings in the case and rejected the request for adjournment pending the conclusion of the other set of proceedings. He decided though to postpone the examination of the case until 30 April 2003.
14. On 30 April 2003 Judge I. M. examined the case in the absence of the parties and ruled in favour of Mr Stepaniuc. He found the statements complained of by the plaintiff (see paragraph 7 above) to be defamatory and ordered the newspaper and the author of the article to pay Mr Stepaniuc 3,600 Moldovan lei (MDL) (228 euros (EUR) at the time) and MDL 1,800 (EUR 114 at the time) respectively. He also ordered the newspaper to issue an apology within fifteen days. The defendants were also ordered to pay the court fees.
15. Judge I.M. gave the following reasons for his findings:
“In the court's view, the title, the text and the meaning of the published information should be qualified as defamatory of the plaintiff because the defendants made statements of facts without adducing any evidence. In particular they submitted that V. Stepaniuc, contrary to the provisions of Article 70 of the Constitution, practises activities which are incompatible with his status of deputy and that he is an agent of the tobacco factory, makes enormous profits from trading cigarettes, and that he controls the Chişinău-Ialoveni bus route.
During the examination of the case, the court had given the defendants the opportunity to present evidence... however, neither the newspaper, nor the author brought any evidence to confirm the truthfulness of the published information. Nor in the article itself did the defendants adduce any evidence.
[a reproduction of Article 10 of the Convention follows]
In the present case the information disseminated by the defendants cannot be treated as a value judgment and accordingly it cannot be protected by the provisions of the Convention stated above. The court also takes into consideration the fact that Mr Stepaniuc is a public figure and that in respect of such persons a higher degree of tolerance is required when it comes to defamation. However, the information spread by the defendants clearly exceeds the limits of any reasonable criticism against public persons in a democratic society.”
16. The applicant newspaper appealed against this judgment, arguing, inter alia, that Judge I. M. had lacked independence and impartiality on the ground of his close ties with Mr Stepaniuc and the Communist Party and his behaviour in other defamation cases between Mr Stepaniuc and Flux. The applicant newspaper also argued that the first-instance court had totally disregarded its arguments, namely the letters addressed to the President of Moldova (see paragraph 9 above) and refused to give it a chance to bring evidence concerning Mr Stepaniuc's involvement in the tobacco business, by refusing to adjourn the case until after the end of the proceedings between Flux and the secret service. The applicant newspaper also argued that its characterisation given to Mr Stepaniuc in the impugned article was a value judgment and that it could not be required to prove its truth.
17. On 26 June 2003 the Chişinău Court of Appeal dismissed the appeal and upheld the judgment of the first-instance court while repeating that the applicant newspaper had not adduced any evidence in support of its statements about Mr Stepaniuc. It did not refer to any of the arguments referred to in the applicant newspaper's appeal.
18. The applicant newspaper lodged an appeal on points of law. It argued, inter alia, that Judge I.M. lacked independence and impartiality and that the lower courts had refused to adjourn the proceedings until after the end of the proceedings between Flux and the secret service, thus affecting the fairness of the proceedings. The applicant newspaper informed the Supreme Court that it had finally managed to obtain a copy of an annex to the report concerning illegal activities at the Chişinău tobacco factory from the secret service and had attached it to its appeal. The annex was entitled “scheme of the criminal interactions between the tobacco gangs” and presented by means of a chart, the alleged interactions between the administration of the Chişinău tobacco factory, two criminal gangs, several companies and various high-ranking officials, including Mr Victor Stepaniuc.
19. On 5 November 2003 the Supreme Court of Justice reduced the compensation to be paid to Mr Stepaniuc by the newspaper and the author of the article to MDL 1,350 and MDL 180 respectively. It argued that Mr Stepaniuc was a public figure and therefore had to be more tolerant towards the press and, moreover, had failed to appear before the courts. The Supreme Court did not, however, depart from the findings of the first two instances in respect of the merits of the case and did not examine any of the applicant newspaper's arguments.
20. The relevant provisions of the Civil Code in force at the material time read:
“(1) Any natural or legal person shall be entitled to apply to the courts to seek the withdrawal of statements which are damaging to his or her honour and dignity and do not correspond to reality, as well as statements which are not damaging to honour and dignity, but do not correspond to reality.
(2) Where the media body which circulated such statements is not capable of proving that these statements correspond to reality, the court shall compel the publishing office of the media body to publish, not later then 15 days after the entry into force of the judicial decision, a withdrawal of the statements in the same column, on the same page or in the same programme or series of broadcasts.”
“(1) Non-pecuniary damage caused to a person as a result of circulation through the media or by organisations or persons of statements which do not correspond to reality, as well as statements concerning his or her private or family life, without his or her consent, shall be compensated by way of a pecuniary award. The amount of the award shall be determined by the court.
(2) The amount of the award shall be determined by the court in each case as an amount equal to between 75 and 200 months' minimum wages if the information has been circulated by a legal person and between 10 and 100 months' minimum wages if the information has been circulated by a natural person.”
VIOLATED_ARTICLES: 10


ITEMID: 001-79267
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF RYCKIE v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-3;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1972 and lives in Gdansk.
5. On 24 May 1999 the applicant was detained on remand on suspicion of having committed numerous offences, inter alia kidnapping and aggravated robbery.
6. The court based its detention order on a reasonable suspicion that the applicant had committed the offences and on the severity of the likely penalty, which gave rise to a fear that the applicant would obstruct the proceedings.
7. His pre-trial detention was extended by decisions of 15 July 1999, 20 October 1999, 24 January 2000, 27 June 2000, 10 November 2000, 3 January 2001, 26 March 2001, 30 April 2001, 21 November 2001, 25 April 2002, 16 July 2002, 8 July 2003, 20 January 2004, 13 July 2004, 28 July 2004, 6 August 2004, 20 August 2004, 27 August 2004, 3 September 2004, 12 October 2004, 11 January 2005, 19 July 2005 and 27 October 2005.
8. In all the above-mentioned decisions the courts relied on the same grounds for detention as those given in the first detention order. In some the courts also referred to the complexity of the case, the need to conduct further investigations, the probability of collusion between the applicant and the co-accused and exertion of unlawful pressure on witnesses by the applicant and the fear that the applicant would go into hiding.
9. On many occasions the applicant requested release or that a more lenient preventive measure be applied. Each time his requests were dismissed.
10. The applicant appealed against the decisions extending his detention on several occasions. Only one of his appeals was allowed to the effect that the period of extension of his detention was reduced by two months (the Gdańsk Court of Appeal decision of 17 August 2005).
11. On 24 January 2000 the prosecution service filed with the Gdańsk Regional Court a bill of indictment. The applicant was charged with twelve offences, including aggravated robbery, kidnapping and illegal possession of a weapon.
12. The first hearing planned for 10 April 2000 was adjourned. Subsequent hearings were held on 26 May 2000, 27 June 2000, 7 August 2000, 6 October 2000, 10 November 2000, 3 January 2001, 2 February 2001 and 26 March 2001. The hearing of 17 April 2001 was adjourned. As a consequence of the court’s exceeding the permissible period of the length of intervals between hearings, the proceedings had to be conducted anew.
13. Subsequent hearings were held on 6 June 2001, 8 June 2001, 13 June 2001, 3 July 2001, 18 September 2001, 24 September 2001, 10 October 2001 and 15 October 2001. The hearing of 31 October 2001 was adjourned due to a lay judge’s illness. Subsequent hearings were held on 7 November 2001, 13 November 2001, 20 November 2001, 10 December 2001, 14 December 2001 and 17 December 2001. A hearing of 21 December 2001 was adjourned due to the absence of witnesses. The next hearings took place on 27 December 2001, 7 January 2002, 14 January 2002 and 21 January 2002.
14. On 28 January 2002 the Gdańsk Regional Court convicted the applicant of nine offences, acquitted him of the remaining three and sentenced him to 15 years’ imprisonment. The applicant and other accused appealed.
15. On 9 April 2003 the Gdańsk Court of Appeal quashed the judgment and remitted the case as it found that the judges deciding on the case had not been impartial.
16. The hearings of 22 August 2003, 7 October 2003, 18 November 2003 and 19 December 2003 were adjourned since the applicant had so requested and since one of the accused had been absent.
17. A subsequent hearing was held on 24 February 2004. A hearing of 6 April 2004 was postponed due to the absence of a lawyer representing one of the accused. Hearings were held on 6 July 2004, 28 July 2004, 6 August 2004, 20 August 2004, 27 August 2004, 3 September 2004, 7 September 2004, 12 October 2004, 3 December 2004, 7 December 2004 and 14 December 2004.
18. On 28 December 2004 the Court of Appeal found that the length of proceedings had been excessive in the applicant’s case and awarded him compensation. In its reasoned grounds the court stated that as a result of the fact that the trial court had exceeded the permissible length of time between the hearings of 26 March 2001 and 6 June 2001, the proceedings had to be conducted anew. It also noted that the adjournment of the hearing of 17 April 2001 had been unjustified.
19. Subsequent hearings were held on 11 January 2005, 25 January 2005, 11 February 2005, 18 March 2005, 5 April 2005, 12 April 2005, 17 May 2005, 28 June 2005, 3 July 2005, 19 July 2005, 19 August 2005, 6 September 2005, 11 October 2005, 4 November 2005, 25 November 2005, 9 December 2005 and 20 December 2005.
20. In the course of the proceedings the applicant and other accused lodged numerous requests for exclusion of several judges from the case, hearing of additional witnesses, commissioning expert opinions, transfer of the case to a different court, rereading of the bill of indictment, drawing up a new bill of indictment, the appointment of a new legal-aid lawyer, correction of the record of a hearing, etc.
21. On 27 December 2005 the Gdansk Regional Court sentenced the applicant to 15 years’ imprisonment. The reasoned grounds for this judgment are being drawn up. The applicant expressed his intention to lodge an appeal.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-99033
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: GASHI v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: The applicants, Mr Besim Gashi, Ms Sylvana Osmanis and their four children are Serbian nationals of Roma origin, born 1981, 1981, 2002, 2003, 2005 and 2007. It appears that the first applicant was born in Kosovo. The applicants currently live in Ryd, Sweden.
s, may be summarised as follows.
The applicant spouses and their two eldest children entered Sweden in September 2004 and requested asylum. In support of their application they maintained that, being Roma, they would be harassed and discriminated against upon return to Serbia. Their request was refused by the Migration Board (Migrationsverket) on 11 April 2005.
The spouses re-applied and included their other two children, who were born in Sweden in 2005 and 2007.
Their request was refused by the Migration Board on 29 June 2007 and this decision was upheld on appeal by the Migration Court (Migrationsdomstolen) on 13 July 2007. At some point, leave to appeal was refused by the Migration Appeal Court (Migrationsöverdomstolen).
Their request was also refused by the Migration Board on 28 February 2008, and this decision was upheld on appeal by the Migration Court on 22 October 2008 and by the Migration Appeal Court on 26 November 2008.
On 9 December 2008 the Migration Board refused to revoke the deportation order in respect of the first applicant.
Originally, the applicants were to be deported to the then State Union of Serbia and Montenegro.
On 28 May 2009 the Swedish Government informed the Court that the applicants had said that they were willing to cooperate in their return to Serbia. They had not, however, submitted any documents regarding their identity. They had visited the Embassy of Serbia in order to obtain travel documents, but Serbia is not prepared to receive them as it cannot find the applicants in its registers and the applicants have no identity papers which show that they are from Serbia. The enforcement of the expulsion order will therefore be turned over to the police. To sum up, it was not possible to be more exact as regards the destination to which the applicants would be deported, but the efforts will be focused on Serbia, unless the applicants show that some other country is prepared to receive them.
The basic provisions applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the 2005 Aliens Act (Utlänningslagen, 2005:716 – hereafter referred to as “the 2005 Act”).
Chapter 5, Section 1, of the 2005 Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, Section 1, of the 2005 Act, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, Section 2, of the 2005 Act).
Moreover, if a residence permit cannot be granted on the above grounds, such a permit may be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances (synnerligen ömmande omständigheter) to allow him or her to remain in Sweden (Chapter 5, section 6 of the 2005 Act). During this assessment, special consideration should be given to, inter alia, the alien's health status. In the preparatory works to this provision (Government Bill 2004/05:170, pp. 190-191), life-threatening physical or mental illness for which no treatment can be given in the alien's home country could constitute a reason for the grant of a residence permit.
As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, Section 1, of the 2005 Act). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, Section 2, of the 2005 Act).
Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This applies under Chapter 12, Section 18, of the 2005 Act, where new circumstances have emerged that mean there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced. If a residence permit cannot be granted under this provision, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, Sections 1 and 2, of the 2005 Act, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, Section 19, of the 2005 Act).
Under the 2005 Act, matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances; the Migration Board, the Migration Court and the Migration Court of Appeal (Chapter 14, Section 3, and Chapter 16, Section 9, of the 2005 Act).
In the UNHCR's Eligibility Guidelines for Assessing the International Protection Needs of Individuals from Kosovo, 9 November 2009, the UN High Commissioner for Refugees states as follows:
“III. Eligibility for International Protection
All claims by asylum-seekers from Kosovo should be considered on the basis of their individual merits according to fair and efficient refugee status determination procedures.
Some of the claims lodged by asylum-seekers from Kosovo may give rise to possible exclusion from refugee status. UNHCR considers that groups set out in this section face a particular risk of persecution or serious harm in Kosovo, including through cumulative discriminatory acts. This listing is not to be construed as exhaustive and is based on information available to the UNHCR at the time of writing.
A. Main Groups at Risk
1. Serbs and Albanians in Minority Situations, and Roma
Kosovo Serbs and Kosovo Albanians inhabiting areas where they are in the minority, and Kosovo Roma inhabiting any part of Kosovo, continue to face serious restrictions to their freedom of movement and the exercise of fundamental human rights, including serious societal and sometimes administrative discrimination that would limit in particular their ability to exercise their political, social and economic rights. Furthermore, there are reports of threats and physical violence perpetrated against these communities. The Ashkali and Egyptian minorities, due to their racial and ethnic characteristics, may be confused with Kosovo Roma. Similarly to the Kosovo Roma, the Ashkali and Egyptian minorities often lack identity papers and are therefore placed in difficult circumstances with regard to access to social services, health care and education. Asylum applications from members of these communities should be assessed carefully in order to evaluate whether there is a need for international protection, based on a risk of persecution on grounds of actual or perceived race or nationality.”