ITEMID: 001-60732
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF MOUISEL v. FRANCE
IMPORTANCE: 1
CONCLUSION: Violation of Art. 3;Non-pecuniary damage - financial award
JUDGES: Christos Rozakis
TEXT: 7. The applicant was born in 1948 and lives in Fougaron.
8. On 12 June 1996 the Haute-Garonne Assize Court sentenced the applicant to fifteen years' imprisonment for armed robbery carried out as part of a gang, false imprisonment and fraud. He was detained in Lannemezan Prison (département of Hautes-Pyrénées).
9. In late 1998 his health deteriorated.
10. On 8 January 1999 a doctor from the Outpatient Consultation and Treatment Unit (unité de consultation et de soins ambulatoires – “the UCSA”) at Lannemezan Prison issued a medical certificate, which stated:
“This patient has a history of serious [medical] problems ...
He was recently found to have B-cell chronic lymphocytic leukaemia, with some evidence of tumour ...
The leukaemia is currently not accompanied by any alteration of the other cell lines; in particular, there is no sign of anaemia or thrombocytopenia.
However, bilateral axillary adenopathy is present, predominantly on the right-hand side.
This certificate has been issued at the patient's request and handed to him in connection with an application for parole on medical grounds.”
11. On 30 September 1999 a further medical report stated:
“This patient has chronic lymphocytic leukaemia, which has caused severe asthenia. Furthermore, there are signs of orthopaedic disorders as a result of an injury to the left knee and the left ankle causing osteoarthritis of the left patellofemoral and tibiofemoral joints and making it painful for him to remain for long periods in a seated position with his legs bent.
In addition, on account of the orthopaedic disorders observed in his left lower limb, the patient has to use a walking stick to move about.
His condition is not compatible with the use of restraints on his lower limbs.”
12. On 6 December 1999 the UCSA doctor advised against applying restraints to the applicant's lower limbs.
13. The applicant applied to the French President for a pardon on medical grounds, but his application was refused on 7 March 2000.
14. On 31 March 2000 International Prison Watch (IPW) issued the following press release:
On 7 March 2000 the Minister of Justice refused applications for a pardon lodged on behalf of a prisoner suffering from a rapidly progressive disease.
52-year-old Jean Mouisel is currently in Lannemezan Prison. He was diagnosed with chronic lymphocytic leukaemia in November 1998. Jean Mouisel has served two-thirds of his sentence. If remissions of sentence are taken into account, he will be due for release in 2002. On 24 February 2000 a doctor from the UCSA at Lannemezan Prison drew up a certificate attesting that the disease was transforming into lymphoma and that an extended course of cancer treatment involving chemotherapy was therefore necessary. This prisoner is taken to hospital once a week and has to endure his illness while in detention. He is allowed only one visit a week from his relatives, in accordance with the prison's rules.
His doctor and various associations applied for a pardon on his behalf. The Ministry of Justice, which centralises such applications and takes an initial decision, did not see fit to refer his case to the President's Private Office.
IPW wishes to stress that 'no one shall be subjected to torture or to inhuman or degrading treatment or punishment' (Article 3 of the European Convention on Human Rights).”
15. On 12 May 2000 the UCSA doctor drew up a further medical certificate, which stated:
“This patient has chronic lymphocytic leukaemia, which was diagnosed in November 1998 and is currently transforming into lymphoma.
The lymphoma was diagnosed in early February 2000 during a check-up at the haematology department at Purpan Hospital in Toulouse.
Mr Mouisel's condition currently requires him to undergo cancer treatment in the form of chemotherapy sessions as a hospital outpatient every three weeks.
At the moment, he is receiving chemotherapy at Lannemezan Hospital's medical and surgical centre. The patient's haematological condition will need to be reassessed in early August 2000 once he has finished the chemotherapy he is currently receiving.
It is subsequently envisaged that he will begin oral chemotherapy, depending on the reassessment to be carried out at Toulouse University Hospital.
The compatibility of his condition with his continued detention remains to be determined by an expert.”
16. On 3 June 2000 the applicant wrote to tell the prison governor about a chemotherapy session that had taken place at Lannemezan Hospital on 30 May 2000:
“... After an hour and forty-five minutes, the force of my drip was causing me too much pain. My suffering was so great that I had to lower the speed of the drip. That action was not appreciated by the warder in charge of my escort, Mr T., who came into the room red with anger, yelling and screaming. He told me that if the nurse had turned the drip on full, then I was not to touch it. As he put it, 'he and the other member of the escort were not going to spend all day at the hospital'.
I was surprised at how aggressive they were being towards me, and I wanted to pull out the drip. The pain was too intense; it was making me suffer and was becoming unbearable ... The intervention of the doctor and nurse ... persuaded me to end the chemotherapy session. After the doctor had gone, the chief escort officer told me that the matter would be dealt with when we got back to the prison.
At the end of the chemotherapy session, I felt worse than ever as the injection had made me feel much weaker ... I was duly handcuffed and dragged with brute force along the hospital corridors on a chain which the warder was holding, no doubt as a form of retribution. When we got back that morning, I was handcuffed in the usual way without force.
I am being treated for leukaemia, a cancer of the blood which is nothing like a mere case of the flu! In my case, unfortunately, there is no possible cure; the disease I have caught here at Lannemezan Prison is incurable.
I am therefore entitled to conclude that the prison staff who escort me to the hospital regularly ask the nurses to make sure that I am injected as quickly as possible so that they do not have to spend all day waiting around for me.
As there is currently no way of solving the problem on an administrative level, I shall have to give up the chemotherapy sessions for the time being. I am not refusing the treatment, but the conditions in which I am receiving it are not satisfactory ... This has been going on for several months and I cannot stand it any longer. My physical condition cannot allow it and my morale is getting lower every day. I am dying, but I would like to die peacefully and not in an atmosphere of conflict.”
17. Following a further application for a pardon on medical grounds, the Ministry of Justice instructed an expert at the Pau Court of Appeal to assess the applicant's state of health, the treatment he required and the manner in which it should be administered, the likelihood of any changes (for example, regarding life expectancy), and whether his condition and the forms of treatment in progress or envisaged were compatible with detention in a specialist unit. The expert's report, completed on 28 June 2000, read as follows:
“... Recent developments
According to the certificate of 12 May 2000, Mr Mouisel has a form of chronic leukaemia which was diagnosed in 1998 and is currently transforming into lymphoma ...
His condition has necessitated an intensive course of chemotherapy administered following the insertion of a 'portacath'.
His condition has also required him to be taken to hospital in a non-emergency ambulance for chemotherapy sessions (at the outpatient department of Lannemezan Hospital's medical and surgical centre), initially every week and subsequently every three weeks ...
Clinical condition on the date of the examination
Functional symptoms complained of by the patient:
– permanent asthenia and fatigue;
– waking up in pain during the night;
– ...
– muscle fatigue and breathlessness;
– alleged psychological impact of stress on his life expectancy and deterioration of his health (this condition has led to his being prescribed a course of antidepressants, which he is currently taking) ...
It should be noted that these functional symptoms are to a large extent attributable to the chemotherapy he has been undergoing ...
Particular mention should be made of a problem relating to the escort and supervision arrangements during visits to hospital for chemotherapy sessions. Indeed, since 20 June 2000 the patient has not consented to treatment.
Clinical examination
...
It should be noted that, according to the documents produced, Mr Mouisel's current degree of disablement was assessed at 80% by the COTOREP [Occupational Counselling and Rehabilitation Board] in a decision of 6 April 2000, and he was awarded a disabled adult's allowance for the period from 2 February 1999 to 2 February 2001.
Conclusion
By the date of the examination the applicant's health had deteriorated as a result of the progression of his haematological disorder, diagnosed in November 1998 as leukaemia ...
Mr Mouisel is currently undergoing intensive chemotherapy as an outpatient at Lannemezan Hospital, where he is taken for treatment every three weeks by medical transport (a non-emergency ambulance).
The cancer treatment, ... which is already scarcely compatible with imprisonment, is at present causing problems as a result of the position he has adopted recently in not consenting to treatment in the conditions in which he is currently being detained (this has lasted since 20 June 2000, the date scheduled for his treatment).
His not consenting to treatment, in spite of all the information received from the UCSA medical team in Lannemezan, is likely to bring about the rapid progression of the disorder observed recently and a reduction in his life expectancy.
Accordingly, he should be looked after in a specialist unit.”
18. On 19 July 2000 the applicant was transferred as a matter of urgency to Muret Prison (so that he would be nearer to Toulouse University Hospital) and given a cell of his own.
19. On 3 October 2000 the applicant applied to the département of Haute-Garonne's Health and Social Affairs Department for acknowledgment of a vaccination-related accident, claiming that he had contracted cancer as a result of a hepatitis-B vaccination. On 24 October 2000 he received a reply from the Ethics and Law Office of the Ministry of Social Affairs and Solidarity informing him that strict liability could not be imposed on the State except for damage sustained as a result of the compulsory vaccinations provided for in the Public Health Code. Hepatitis-B vaccinations were compulsory only for certain occupational groups exposed to a risk of contamination, and the applicant did not belong to any such group.
20. On 14 November 2000 the applicant was notified of a reply by the Regional Director of the Prison Service to his complaints concerning the application of Article 803 of the Code of Criminal Procedure (“the CCP”) on the use of handcuffs or restraints (see “Relevant domestic law and practice” below):
“... The provisions of the Article do not establish an absolute prohibition on the use of handcuffs or restraints and do not expressly refer to the detainee's health. They leave the matter to the discretion of those responsible for laying down, and enforcing, security measures: gendarmes, police officers or prison warders.
Moreover, Article D 283 CCP provides that handcuffs or restraints are to be used solely in connection with 'precautions against absconding', except where a person is being brought before a judicial authority. Where a long sentence is being served for criminal acts causing bodily harm, the appropriate measures are applied.”
21. On 20 November 2000 the Minister of Justice refused an application for a pardon lodged on the applicant's behalf by the Ligue des droits de l'homme (Human Rights League).
22. On 24 November 2000 the applicant received a letter from the doctor who had treated him in Lannemezan:
“... As regards your condition, there does seem to be a change taking place at the moment ... I think it is always worth fighting an illness, whatever it may be; even if there is no possible cure, a remission in the disease is still possible, especially as Dr N. is offering you a new course of chemotherapy, which I would strongly advise you to agree to ...”
23. A medical certificate issued on 21 February 2001 by a doctor from the haematology department at Toulouse Hospital reads as follows:
“Mr Mouisel has been treated by our department since February 2000 for chronic lymphocytic leukaemia, initially with tonsillar hypertrophy on both sides causing dysphagia, and substantial axillary adenopathy on the right-hand side (15 cm in diameter).
He was initially given chemotherapy once a week using the COP protocol, then once a month with CVP, and subsequently with chlorambucil.
The results obtained were satisfactory, but in November 2000 we noticed a renewed increase in the size of the right axillary adenopathy and therefore resumed monthly chemotherapy using the CVP protocol.
A biopsy of the lymph nodes in January revealed the presence of Hodgkin's disease. Three cycles of chemotherapy using the ABVD protocol are therefore envisaged, followed by additional radiotherapy.”
24. In an order of 22 March 2001 the judge responsible for the execution of sentences at the Toulouse tribunal de grande instance released the applicant on parole until 20 March 2005, subject to an obligation to receive medical treatment or care:
“Admissibility
Mr Mouisel exercises parental responsibility over his daughter, born on 4 September 1993 ..., and no ancillary penalties have been imposed on him entailing the forfeiture of that right.
Article 729-3 CCP empowers the judge responsible for the execution of sentences to decide cases concerning prisoners who have less than four years of their sentence to serve and who exercise parental responsibility over a child under the age of 10.
Merits
It appears from the medical certificates adduced in evidence (dated 7 December 2000 and 3 January and 21 February 2001) that the applicant's condition has become incompatible with his continued detention, on account of the medical care he requires during regular visits to hospital.
It is therefore appropriate, notwithstanding his criminal record, to release the applicant on parole, subject to his staying at his wife's home (see the declaration of 30 January 2001) and receiving treatment in accordance with a medical protocol at Purpan Hospital. ...”
25. French National Assembly – Report drawn up on behalf of the Commission of Inquiry on the situation in France's prisons (vol. I, p. 249, 28 June 2000)
Extract from Part V (“Controlling the prison population: an essential goal”):
“A. Stemming the influx
(1) Limiting the imprisonment of certain groups
...
(e) Sick or elderly prisoners
The increasing number of elderly prisoners has already been noted; at the end of 1999 there were 1,455 prisoners over the age of 60, a figure which has almost doubled in four years. This upsurge is linked, in particular, to the rise in the number of convictions for sexual harassment, rape and incest.
The inadequate provision of care for those prisoners and, more broadly, for prisoners who are seriously ill or dependent has also been discussed.
The presence of such persons in prison raises the very real issue of their dying there. Warders and other inmates are not prepared for that eventuality and no proper arrangements are in place for assisting prisoners in their final moments. Dying in prison means experiencing a feeling of hopeless solitude. It amounts to an admission of failure and waste for families unable to be present as the end approaches.
All prison staff try, wherever possible, to transfer inmates to hospital in their final days; however, this again raises the issue of escort officers and the difficulty of calling on the services of the police or the gendarmerie. Mention has also frequently been made of the attitude of doctors, who all too often send patients back to prison once the alert is over, just as easily as though they were returning home. One case in Caen where a doctor sent the patient back to prison only for him to die two days later seems to have had a particularly profound effect on prison staff.
There is no dignity in dying in prison. The question therefore arises whether the sick or the elderly should continue to be detained. Currently, the President alone is empowered to grant a pardon on medical grounds. However, it appears that this measure is recommended sparingly and granted even more cautiously; in 1998 twenty-seven such applications were referred to the President and pardons were granted in fourteen cases, while in 1999 eighteen out of thirty-three proposals resulted in a pardon.
...
Indeed, a review of the procedure for granting pardons on medical grounds would appear necessary; there is no reason why such decisions should continue to be left to the President. Responsibility for the procedure should be vested in the judge for the execution of sentences, who could base his decision on expert medical assessments in which it was concluded that the prisoner was suffering from a life-threatening illness.”
26. The Code of Criminal Procedure (CCP)
(i) Since the Law of 18 January 1994 came into force the provision of treatment for prisoners has been the responsibility of the public hospital service. Accordingly, prisoners receive treatment from medical units that are set up within prisons and are directly attached to the nearest public hospital (Article D 368).
(ii) The CCP contains the following provisions on parole:
“At each prison the judge responsible for the execution of sentences shall determine the principal terms of detention for each convicted person. Subject to the limits and conditions prescribed by law, he shall grant ... parole ... Except in urgent cases, he shall give his decision after hearing the opinion of the Sentences Board ...
...”
(Law no. 2000-516 of 15 June 2000, applicable from 1 January 2001) “Measures entailing ... parole shall be granted, deferred, refused, withdrawn or revoked in a reasoned decision by the judge responsible for the execution of sentences, who shall examine the case of his own motion, at the request of the convicted person or on an application by the public prosecutor ...”
(Law no. 2000-516 of 15 June 2000) “Parole is designed to encourage the rehabilitation of convicted prisoners and prevent them from reoffending. Convicted persons serving one or more prison sentences may be granted parole if they have made serious efforts to readjust to society, particularly if they can show that they have engaged in occupational activities, or regularly attended an education or vocational training course, or have taken part in a work-experience scheme, or had a temporary contract of employment with a view to their social integration, or that their presence is essential to the life of their family, or that they have to undergo treatment ...”
(Law no 92-1336 of 16 December 1992) “Subject to Article 132-23 of the Criminal Code, parole may be granted if the length of the sentence already served by the prisoner is at least equal to that remaining to be served. However, reoffenders ... may only be granted parole if the length of the sentence already served is at least double that remaining to be served. ...”
(Law no. 2000-516 of 15 June 2000) “Parole may be granted to any person who has been sentenced to a term of imprisonment of four years or less, or who has four years or less of his or her sentence to serve, where the person exercises parental responsibility over a child under the age of 10 who habitually lives with him or her.
...”
“Where a prison sentence of ten years or less has been imposed, or where, regardless of the length of the sentence initially imposed, the portion remaining to be served amounts to three years or less, parole shall be granted by the judge responsible for the execution of sentences, in the manner prescribed in Article 722.
In other cases, parole shall be granted by the regional parole court, in the manner prescribed in Article 722-1.
...”
A circular of 18 December 2000 (CRIM 00-15 F1), outlining the provisions of the Law of 15 June 2000 on reinforcing the presumption of innocence and victims' rights in relation to the enforcement of sentences, states:
“Under the new Article 729-3 ..., parole may be granted to any person who has been sentenced to a term of imprisonment of four years or less, or who has four years or less of a sentence to serve, where that person exercises parental responsibility over a child under the age of 10 who habitually lives with him or her. ...
Those provisions do not invalidate the general requirement in Article 729 whereby the judge responsible for the execution of sentences must assess whether serious efforts have been made to readjust to society. They do not therefore imply that the granting of parole for which they provide is systematic.
However, depending on the length of the initial sentence, they may allow prisoners to be released at an earlier stage than would be possible under that Article. ...”
The provisions in question increase the powers of the judge responsible for the execution of sentences with regard to parole and are designed to counter long-standing criticism of the fact that French law previously made no provision for the early release of terminally ill prisoners, other than by means of an application for a pardon on medical grounds at the discretion of the French President (Articles 17 and 19 of the Constitution).
(iii) A law of 4 March 2002 on patients' rights and the quality of the health system supplements the CCP and adds a new Article 720-1-1 providing for the possibility of suspending a sentence “regardless of the nature of the sentence or the portion remaining to be served ... where it has been established that the prisoner has a life-threatening illness or that his or her state of health is incompatible in the long term with continued detention, save in cases where persons detained in a psychiatric institution are admitted to hospital”. The judge may direct that the sentence be suspended indefinitely. He must arrange for two expert assessments in order to determine whether a sentence should be suspended or whether a suspension should be lifted.
(iv) Article 803 CCP provides:
“No one may be forced to wear handcuffs or restraints unless he is considered either a danger to others or to himself, or likely to attempt to abscond.”
A general circular on that Article (C 803 of 1 March 1993) states:
Except in special circumstances, persons being detained by the police after voluntarily surrendering to custody, persons whose mobility is impaired on account of their age or health and persons sentenced to only a short term of imprisonment are unlikely to pose the dangers referred to in the Law. ...”
27. Report to the Government of the French Republic on the visit to France by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 14 to 26 May 2000
Although the quality of the material conditions of detention at Lannemezan Prison was found to be high (see paragraph 78 of the report), transfers to outside hospitals continued to cause the CPT concern during its prison visits:
“In spite of the recommendations made by the CPT in paragraph 144 of its report on the 1996 visit, the delegation that carried out the visit in 2000 has again obtained information (especially in Lyons) suggesting that the conditions in which detainees are transferred to hospital and examined and treated there are in breach of medical ethics: patients are systematically handcuffed with force, regardless of their state of health or age, are examined and treated in the presence of law-enforcement officials, and are physically attached to their hospital beds.
In this connection, the French authorities have pointed out that they have drawn up a draft circular to promote the application of the principle that handcuffs or restraints are to be used in exceptional cases only.
The CPT recommends that the adoption of the circular be expedited and that the document contain express reference to the recommendations set out in paragraph 144 of its report on the 1996 visit, namely:
– that all medical check-ups, examinations and treatment in public hospitals take place out of the hearing and – unless the medical staff concerned request otherwise in a given case – out of the sight of law-enforcement officials;
– that the practice of attaching prisoners to their hospital beds for security reasons be prohibited. ...
The CPT calls upon the French authorities to complete the implementation of the national hospitalisation scheme as soon as possible in order to ensure that, throughout the country, prisoners are provided with hospital treatment in conditions that comply with medical ethics and respect human dignity.” (paragraph 105 of the report)
28. Third General Report on the CPT's activities covering the period 1 January to 31 December 1992 (Section III – Health care services in prisons)
“(iv) prisoners unsuited for continued detention
Typical examples of this kind of prisoner are those who are the subject of a short-term fatal prognosis, who are suffering from a serious disease which cannot be properly treated in prison conditions, who are severely handicapped or of advanced age. The continued detention of such persons in a prison environment can create an intolerable situation. In cases of this type, it lies with the prison doctor to draw up a report for the responsible authority, with a view to suitable alternative arrangements being made.”
29. Recommendation No. R (98) 7 of the Committee of Ministers of the Council of Europe concerning the ethical and organisational aspects of health care in prison (adopted on 8 April 1998)
“C. Persons unsuited to continued detention: serious physical handicap, advanced age, short term fatal prognosis
50. Prisoners with serious physical handicaps and those of advanced age should be accommodated in such a way as to allow as normal a life as possible and should not be segregated from the general prison population. Structural alterations should be effected to assist the wheelchair-bound and handicapped on lines similar to those in the outside environment.
51. The decision as to when patients subject to short term fatal prognosis should be transferred to outside hospital units should be taken on medical grounds. While awaiting such transfer, these patients should receive optimum nursing care during the terminal phase of their illness within the prison health care centre. In such cases provision should be made for periodic respite care in an outside hospice. The possibility of a pardon for medical reasons or early release should be examined.”
30. Recommendation Rec(2000)22 of the Committee of Ministers to the member States on improving the implementation of the European rules on community sanctions and measures
Appendix 2: guiding principles for achieving a wider and more effective use of community sanctions and measures:
“Legislation
1. Provision should be made for a sufficient number of suitably varied community sanctions and measures of which the following are examples:
...
– suspension of the enforcement of a sentence to imprisonment with imposed conditions;
...”
VIOLATED_ARTICLES: 3


ITEMID: 001-57441
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 1987
DOCNAME: CASE OF BODÉN v. SWEDEN
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
JUDGES: Gaukur Jörundsson
TEXT: 7. The applicant, Mr. Gunnar Bodén, was born in 1939. He is a Swedish citizen resident in Falun and a car driver by profession. He owned, together with his brother Mr. B. Bodén, the properties Källviken 1:18, 1:25 and 1:26.
8. On 30 June 1977, the Falun Municipal Council (kommunfullmäktige) adopted an area plan (områdesplan) with a view to the development of a housing estate in an area including the applicant’s properties. On 9 February 1978, the Municipal Council decided to apply to the Government for an expropriation permit for this area.
9. The applicant objected to the expropriation in respect of two of the three properties concerned, because, as he submitted to the Government, he doubted that they were needed for the development contemplated and, further, he wanted to live with his mother in his parents’ home situated on one of the properties. He claimed that, when working out and adopting the area plan, the Municipal Council had not taken his interests sufficiently into account, something that would have been possible within the framework of a somewhat modified plan. However, the Government, taking the view that the Municipal Council had shown the need to include the applicant’s properties, concluded that the conditions laid down in the Expropriation Act 1972 (expropriationslagen 1972:719 - "the 1972 Act") were satisfied. On 1 March 1979, they issued an expropriation permit.
10. The decision indicated that the issue of the permit had to be followed by the institution of proceedings by the Municipality before a real estate court not later than 3 March 1980. An action, the object of which was to settle the terms of the expropriation (see paragraph 15 below), was commenced on 28 February 1980 before the Real Estate Court at the Falun District Court (tingsrätten).
11. The applicant, his brother and the Municipality were involved in negotiations for a settlement until 2 July 1984. On that date, before the main hearings started, they finally concluded an agreement: the applicant and his brother were to sell the properties to the Municipality, which was to lease back to the applicant for a period of five years, with a possibility of prolongation, a house situated thereon. On 17 August, the Real Estate Court struck the case off its list since, as a result of the settlement, the Municipality had withdrawn its claim for expropriation.
12. On 17 December 1986, after the present case had been brought before the European Court of Human Rights, the Municipality of Falun concluded an agreement with the applicant for the repurchase by him of the properties for 235,000 Swedish crowns, the same amount as it had paid for them in 1984.
13. The Building Act 1947 (byggnadslagen 1947:385 - "the 1947 Act") is the main legal instrument governing planning in respect of the use of land for construction and urban development. It provides for the drawing up of a master plan (generalplan), which establishes within a municipality the framework for other and more detailed plans, namely city plans (stadsplaner) and building plans (byggnadsplaner).
As in the present case, a municipal council may draw up an area plan, instead of a master plan. The manner in which area plans are elaborated and their content are not expressly governed by the 1947 Act but general principles of administrative law are, of course, applicable.
14. The issue of expropriation permits is governed by the 1972 Act. Under Chapter 3, section 1, such a permit is normally granted by the Government.
For cases like the present, the grounds justifying the issue of a permit are stated in Chapter 2, section 1, of the 1972 Act (as amended by the Act of 1976:46), which reads as follows (translation from Swedish):
"Expropriation is allowed in order to enable a municipality to acquire rights over land which is needed, as a result of future societal requirements, for urban development (tätbebyggelse) or constructions in connection with such development. ... Within areas of urban development expropriation is allowed only if there is reason to assume that, within a foreseeable time, the area will be subject to building or other construction activities which are deemed important in the general interest, or if there is an urgent necessity for the municipality to acquire rights over the land for the furthering of planned building or for any other similar reason. ..."
However, a permit must not be granted if the purpose of the expropriation can be attained by other appropriate means, or if the disadvantages of the expropriation would outweigh, from general and individual points of view, its advantages (Chapter 2, section 12, of the 1972 Act).
15. Under Chapter 3, section 4, of the 1972 Act, the sole effect in law of the issue of an expropriation permit is to confer on its holder an entitlement to acquire the designated property. Consequently, the issue of a permit leaves legally intact the owner’s right to use, sell, let or mortgage his property (see also paragraph 17 below), and does not automatically lead to expropriation.
Before the expropriation can be finalised, its terms - such as the compensation to be paid to the owner and the boundaries of the expropriated area - have to be settled in proceedings before a real estate court. Moreover, the expropriation is not completed until the compensation - in principle equivalent to the market value - has been paid.
16. The proceedings before the real estate court have to be instituted by the holder of the permit within the time-limit which it specifies, failing which the permit will lapse (Chapter 3, section 6, of the 1972 Act).
The 1972 Act is silent as to the length of this time-limit and as to the criteria upon which it is to be fixed. However, Chapter 3, section 6, provides that it may be extended in special circumstances, or reduced if the owner so requests and establishes that the inconvenience for him in the expropriation remaining pending has increased significantly. No decision to reduce the time-limit can be taken until one year has elapsed since the issue of the expropriation permit.
17. Some reasons for restricting the time-limit and, hence, the duration of the validity of expropriation permits were stated in the Bill 1972:109, page 227, which led to the 1972 Act (translation from Swedish):
"Naturally, the mere issue of an expropriation permit often places [the owner] in a state of uncertainty. In practice, his opportunities for disposing of his property by selling it, assigning the use thereof or having premises erected thereon are considerably restricted. He may also have difficulty in deciding whether to incur expenditure on upkeep or modernisation. The disadvantages resulting from an expropriation permit are evidently increased if the judicial proceedings are not set in motion for a long time."
18. Generally speaking, the Swedish administration is not subject to supervision by the ordinary courts. Those courts entertain proceedings against the State only in contractual matters, on questions of extra-contractual liability and, under some statutes, in respect of administrative decisions.
Judicial review of the administration’s acts is therefore primarily a matter for administrative courts. These courts comprise three levels: the county administrative courts (länsrätterna); the administrative courts of appeal (kammarrätterna); and the Supreme Administrative Court (regeringsrätten). They are composed of independent judges and enjoy, as a rule, wide powers which enable them not only to set aside administrative acts but also to vary or substitute them. There is, however, an important exception to this principle, in that no appeal may be made against decisions of the Government (see paragraph 20 below).
19. Chapter 7, section, 1 of the Municipal Act of 1977 (kommunallagen 1977:179) provides for and regulates, in a general way, the right to appeal (kommunalbesvär) against decisions by municipalities. This Act enables residents of the municipality to challenge, for instance, a municipal council’s decision to adopt an area plan or apply for an expropriation permit.
At the relevant time, this remedy was exercisable before the County Administrative Board (länsstyrelsen), but only on the following grounds: failure to observe the statutory procedures, infringement of the law, ultra vires conduct, violation of the complainant’s own rights, or other unfairness. The appeal had to be filed within three weeks from the date on which approval of the minutes of the decision had been announced on the municipal notice-board. The County Administrative Board’s decision could, within three weeks from its notification to the complainant, be the subject of an appeal to the Supreme Administrative Court.
These provisions were slightly amended in 1980, with effect from 1 January 1981, in that the first appeal now has to be made to the Administrative Court of Appeal and not to the County Administrative Board.
20. Swedish law contains no provision for appeals to the ordinary or the administrative courts against the Government’s decisions to issue expropriation permits. Accordingly, such decisions are in principle not subject to court review.
However, there is a limited possibility to file a petition before the Supreme Administrative Court for re-opening of the proceedings (resningsansökan). Further particulars of this remedy appear in the Sporrong and Lönnroth judgment of 23 September 1982 (Series A no. 52, pp. 19-20, § 50).
21. The 1972 Act does not in principle provide for compensation for prejudice resulting from the length of the validity of, or failure to utilise, an expropriation permit. It does, however, contain one exception (Chapter 5, section 16): compensation is payable for prejudice occasioned by the issue of an expropriation permit if the authority or person to whom it was granted has instituted, but subsequently abandoned, proceedings before a real estate court (see paragraphs 15-16 above).
22. According to Chapter 3, section 2, of the Civil Liability Act 1972 (skadeståndslagen 1972:207), acts of public authorities may give rise to an entitlement to compensation in the event of fault or negligence. However, under section 7, an action for damages will not lie in respect of decisions taken by Parliament, the Government, the Supreme Court, the Supreme Administrative Court or the National Social Security Court.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22541
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: ASSOCIATION OF THE VICTIMS OF TERRORISM v. SPAIN
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant is a Madrid association that was formed in 1980 to protect the interests of victims and relatives of victims of acts of terrorism. It was represented before the Court by Mr Trias Sagnier and Mr Murcia Quintan, lawyers practising in Madrid.
judgment of 29 November 1997 to which reference is made below, may be summarised as follows.
On 26 April 1995 the terrorist organisation ETA released a communiqué entitled “Democratic alternative” (Alternativa Democrática) through a newspaper, Egin.
A decision was taken by the Mesa Nacional de Herri Batasuna (MNHB), the executive body of the political movement, Herri Batasuna, to take active steps to disseminate the communiqué from May 1995 onwards. The decision was taken by a differently composed MNHB from that which was subsequently prosecuted.
In December 1995 the newly composed MNHB drafted a document entitled “Presentation of the democratic alternative to the people” (Presentación Popular de la Alternativa Democrática), in which it set out a strategy for disseminating pro-ETA propaganda through advertisements placed in the press, in particular with the Egin newspaper, and through other channels of communication with the general public in the Basque Country.
At the end of January 1996, shortly before the general election on 3 March 1996, unidentified members of ETA sent the MNHB two videocassettes on “Alternativa Democrática”. During a meeting on 5 February 1996 and in accordance with Articles 3, 14 and 15 of its articles of association which defined it as the executive body of the Herri Batasuna party with responsibility for representing the political movement, the MNHB agreed to adopt the content of the cassettes and to arrange for their dissemination, and also to allow ETA to use advertising slots that, as a legally recognised political party, had been reserved to Herri Batasuna free of charge for its party political broadcasts. The cassettes presented ETA’s “Alternativa Democrática” programme, with its logo, symbols and weapons, and called, inter alia, for the independence and self-determination of the Basque people, an unconditional general amnesty and the withdrawal of the Spanish Armed Forces from the territory claimed.
On 15 February 1996 the public prosecutor lodged a complaint with central investigating judge no. 5, who started an investigation (diligencias previas).
On 16 February the central investigating judge issued an injunction prohibiting the dissemination of the material in slots reserved for free party political broadcasts and of radio announcements intended for that purpose.
By a decision of 8 March 1996, the central investigating judge agreed to permit the applicant to join the proceedings against the twenty-five members of the MNHB concerned as a third-party prosecutor.
On 13 June 1996 the Supreme Court held that it had jurisdiction to hear the case, which had been assigned to it as some of those allegedly involved in the matters complained of were members of the parliaments of the autonomous communities of the Basque Country and Navarre.
On 3 April 1997 the public prosecutor lodged his submissions. The applicant did likewise on 9 May 1997. It argued that the defendants’ acts should be classified as the offence of membership of an armed and the continuing offence of aiding and abetting an armed organisation or, in the alternative, of aiding and abetting an armed organisation and the continuing offence of vindication of offences under Articles 174 bis (b) and 216 bis (a) § 2 of the Criminal Code, or the continuing offence of vindication of terrorism, contrary to Article 216 bis (c) of the Criminal Code. The MNHB lodged its defence submissions on 24 June 1997.
By a judgment of the Supreme Court on 29 November 1997, the members of the MNHB were acquitted of the offences of being members of an armed organisation and of vindicating acts of terrorism, but convicted under Article 174 bis (a) of the Criminal Code of aiding and abetting an armed organisation. They were sentenced to seven-years’ imprisonment.
The MNHB lodged an amparo appeal with the Constitutional Court based on their rights to a fair trial and to have their case heard by an independent and impartial court established by law, their right not to incriminate themselves, their rights to respect for freedom of expression and information, to respect for freedom of thought and to take part in politics, and lastly the presumption of innocence and the principle of equality.
On 22 April 1998 the public prosecutor lodged his pleading setting out his reasons for contesting the grounds relied on by those seeking amparo relief. The applicant followed suit on 25 April.
By a judgment of 20 July 1999, which was served on the applicant on 26 July 1999, the Constitutional Court, sitting as a full court composed of twelve judges, granted the MNHB amparo relief and quashed the judgment appealed against. It held that the MNHB’s right protected by the rule requiring that offences and punishments shall be strictly defined by law had been infringed by the application of Article 174 bis (a) 1° and 2° of the Criminal Code, in that the penalty imposed was disproportionate on the facts of the case. Three dissenting opinions and four concurring opinions were annexed to the judgment.
Basic law on the Constitutional Court
“The Constitutional Court may at any time before adopting its decision inform the parties that other grounds exist, apart from those that have been relied on, that are of relevance to admissibility and, if applicable, to the merits. In such cases a single hearing shall be held for the parties within no more than ten days and the period for delivery of the decision shall be extended accordingly.”
Third-party prosecution
In Spanish law the right to bring a criminal prosecution is public. In addition to the public prosecutor, private citizens are entitled to institute criminal proceedings. Citizens may bring a private prosecution (for offences that may be prosecuted by the injured party); these take the form of a special prosecution or a third-party prosecution, the latter being for offences for which a prosecution lies ex officio (Article 125 of the Constitution, section 19 of the Institutional Law on the Powers of the Judiciary and Article 101 of the Code of Criminal Procedure). By Articles 270 and 783 of the Code of Criminal Procedure, third-party prosecutions, unlike special prosecutions, are commenced by a criminal complaint (querella) lodged by someone other than the victim of the crime.


ITEMID: 001-71123
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF NOGOLICA v. CROATIA (No. 2)
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1962 and lives in Zagreb.
5. On 5 October 1995 the applicant filed a civil action in damages with the Zagreb Municipal Court (Općinski sud u Zagrebu) against the weekly magazine G. (“the defendant”), claiming that it had published a libellous article about him.
6. The court scheduled the first hearing for 1 April 1996. That hearing, as well as the one scheduled for 11 March 1997, were adjourned at the applicant’s request.
7. At the hearing on 17 April 1998 the defendant submitted its reply to the applicant’s claim. On 13 April 1999 the court heard the applicant.
8. The hearings scheduled for 27 September 1999 and 26 November 1999 were adjourned because the witnesses summoned did not appear.
9. On 28 February 2000 the court heard one witness and concluded the main hearing. On the same day, it gave judgment dismissing the applicant’s claim. The judgment was served on the applicant four months later.
10. On 6 June 2000 the applicant appealed against the first-instance judgment.
11. On 28 February 2001 the case-file was transferred to the Zagreb County Court (Županijski sud u Zagrebu) as the second-instance court. On 14 May 2002 that court returned the case-file to the Municipal Court because it lacked the power of attorney. Having obtained the missing document, the case-file was returned to the County Court on 27 September 2002. Subsequently, on 25 March 2003 the County Court quashed the first-instance judgment and remitted the case.
12. In the resumed proceedings, on 12 February 2004 the Zagreb Municipal Court held a hearing and decided to obtain additional witness statements. The hearings scheduled for 16 June and 23 November 2004 were adjourned because of improper summoning of the witnesses. The next hearing was scheduled for 14 April 2005. The proceedings are still pending before the first-instance court.
13. Meanwhile, on 10 December 2002 the applicant filed a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), complaining about the length of the proceedings. On 13 June 2003 the Constitutional Court declared the applicant’s complaint inadmissible since the County Court had already decided on the case.
14. The relevant part of section 63 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002, of 3 May 2002; “the Constitutional Court Act”) reads as follows:
“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the court with jurisdiction fails to decide a claim concerning the applicant’s rights and obligations or a criminal charge against him or her within a reasonable time ...
(2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the court with jurisdiction must decide the case on the merits...
(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.”
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-109231
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: GRANDCHAMBER
DATE: 2012
DOCNAME: CASE OF HIRSI JAMAA AND OTHERS v. ITALY
IMPORTANCE: 1
CONCLUSION: Preliminary objections joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection joined to merits and dismissed (Article 34 - Victim);Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Libya);Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Eritrea) (Somalia);Violation of Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens-{general} (Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Expulsion);Violation of Article 13+P4-4 - Right to an effective remedy (Article 13 - Effective remedy) (Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens-{general};Prohibition of collective expulsion of aliens);Non-pecuniary damage - award
JUDGES: Andreas Zimmermann;Dean Spielmann;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Ireneu Cabral Barreto;Jean-Paul Costa;Josep Casadevall;Kristina Pardalos;Mirjana Lazarova Trajkovska;Nicolas Bratza;Nona Tsotsoria;Paulo Pinto De Albuquerque;Peer Lorenzen;Vincent A. De Gaetano
TEXT: 9. The applicants, eleven Somali nationals and thirteen Eritrean nationals, were part of a group of about two hundred individuals who left Libya aboard three vessels with the aim of reaching the Italian coast.
10. On 6 May 2009, when the vessels were 35 nautical miles south of Lampedusa (Agrigento), that is, within the Maltese Search and Rescue Region of responsibility, they were intercepted by three ships from the Italian Revenue Police (Guardia di finanza) and the Coastguard.
11. The occupants of the intercepted vessels were transferred onto Italian military ships and returned to Tripoli. The applicants alleged that during that voyage the Italian authorities did not inform them of their real destination and took no steps to identify them.
All their personal effects, including documents confirming their identity, were confiscated by the military personnel.
12. On arrival in the port of Tripoli, following a ten-hour voyage, the migrants were handed over to the Libyan authorities. According to the applicants’ version of events, they objected to being handed over to the Libyan authorities but were forced to leave the Italian ships.
13. At a press conference held on 7 May 2009, the Italian Minister of the Interior stated that the operation to intercept the vessels on the high seas and to push the migrants back to Libya was the consequence of the entry into force on 4 February 2009 of bilateral agreements concluded with Libya, and represented an important turning point in the fight against clandestine immigration. In a speech to the Senate on 25 May 2009, the Minister stated that between 6 and 10 May 2009 more than 471 irregular migrants had been intercepted on the high seas and transferred to Libya in accordance with those bilateral agreements. After explaining that the operations had been carried out in application of the principle of cooperation between States, the Minister stated that the push-back policy was very effective in combating illegal immigration. According to the Minister of the Interior, that policy discouraged criminal gangs involved in people smuggling and trafficking, helped save lives at sea and substantially reduced landings of irregular migrants along the Italian coast, which had decreased fivefold in May 2009 as compared with May 2008.
14. During the course of 2009, Italy conducted nine operations on the high seas to intercept irregular migrants, in conformity with the bilateral agreements concluded with Libya.
15. According to the information submitted to the Court by the applicants’ representatives, two of the applicants, Mr Mohamed Abukar Mohamed and Mr Hasan Shariff Abbirahman (nos. 10 and 11 respectively on the list appended to this judgment), died in unknown circumstances after the events in question.
16. After the application was lodged, the lawyers were able to maintain contact with the other applicants, who could be contacted by telephone and e-mail.
Fourteen of the applicants (appearing on the list) were granted refugee status by the office in Tripoli of the Office of the United Nations High Commissioner for Refugees (UNHCR) between June and October 2009.
17. Following the revolution which broke out in Libya in February 2011, forcing a large number of people to flee the country, the quality of contact between the applicants and their representatives deteriorated. The lawyers are currently in contact with six of the applicants:
(i) Mr Ermias Berhane (no. 20 on the list) managed to land, unlawfully, on the Italian coast. On 25 May 2011 the Crotone Refugee Status Board granted him refugee status;
(ii) Mr Habtom Tsegay (no. 19 on the list) is currently at Chucha detention camp in Tunisia. He plans to return to Italy;
(iii) Mr Kiflom Tesfazion Kidan (no. 24 on the list) is resident in Malta;
(iv) Mr Hayelom Mogos Kidane and Mr Waldu Habtemchael (nos. 23 and 13 on the list respectively) are resident in Switzerland, where they are awaiting a response to their request for international protection;
(v) Mr Roberl Abzighi Yohannes (no. 21 on the list) is resident in Benin.
18. Article 4 of the Navigation Code of 30 March 1942, as amended in 2002, provides as follows:
“Italian vessels on the high seas and aircraft in airspace not subject to the sovereignty of a State are considered to be Italian territory.”
19. On 29 December 2007 Italy and Libya signed a bilateral cooperation agreement in Tripoli to combat clandestine immigration. On the same date the two countries signed an Additional Protocol setting out the operational and technical arrangements for implementing the said Agreement. Under Article 2 of the Agreement:
“Italy and the ‘Great Socialist People’s Libyan Arab Jamahiriya’ undertake to organise maritime patrols using six ships made available on a temporary basis by Italy. Mixed crews shall be present on ships, made up of Libyan personnel and Italian police officers, who shall provide training, guidance and technical assistance on the use and handling of the ships. Surveillance, search and rescue operations shall be conducted in the departure and transit areas of vessels used to transport clandestine immigrants, both in Libyan territorial waters and in international waters, in compliance with the international conventions in force and in accordance with the operational arrangements to be decided by the two countries.” (non-official translation)
Furthermore, Italy undertook to cede to Libya, for a period of three years, three unmarked ships (Article 3 of the Agreement) and to encourage the bodies of the European Union to conclude a framework agreement between the European Union and Libya (Article 4 of the Agreement).
Finally, under Article 7, Libya undertook to “coordinate its actions with those of the countries of origin in order to reduce clandestine immigration and ensure the repatriation of immigrants”.
On 4 February 2009 Italy and Libya signed an Additional Protocol in Tripoli, intended to strengthen bilateral cooperation in the fight against clandestine immigration. That Protocol partially amended the Agreement of 29 December 2007, in particular through the inclusion of a new Article, which stated:
“The two countries undertake to organise maritime patrols with joint crews, made up of equal numbers of Italian and Libyan personnel having equivalent experience and skills. The patrols shall be conducted in Libyan and international waters under the supervision of Libyan personnel and with participation by Italian crew members, and in Italian and international waters under the supervision of Italian personnel and with participation by the Libyan crew members.
Ownership of the ships offered by Italy, within the meaning of Article 3 of the Agreement of 29 December 2007, shall be definitively ceded to Libya.
The two countries undertake to repatriate clandestine immigrants and to conclude agreements with the countries of origin in order to limit clandestine immigration.” (non-official translation)
20. On 30 August 2008 in Benghazi, Italy and Libya signed the Treaty on Friendship, Partnership and Cooperation, Article 19 of which makes provision for efforts to prevent clandestine immigration in the countries of origin of migratory flows. Under Article 6 of that Treaty, Italy and Libya undertook to act in accordance with the principles of the United Nations Charter and the Universal Declaration of Human Rights.
21. According to a statement by the Italian Minister of Defence, the agreements between Italy and Libya were suspended following the events of 2011.
22. Italy has ratified the Geneva Convention, which defines the situations in which a State must grant refugee status to persons who apply for it, and the rights and responsibilities of those persons. Articles 1 and 33 § 1 of the Geneva Convention provide:
“... For the purposes of the present Convention, the term ‘refugee’ shall apply to any person who ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
“No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”
23. In its Note on International Protection of 13 September 2001 (A/AC.96/951, § 16), UNHCR, which has the task of monitoring the manner in which the States Parties apply the Geneva Convention, indicated that the principle of non-refoulement laid down in Article 33, was:
“... a cardinal protection principle enshrined in the Convention, to which no reservations are permitted. In many ways, the principle is the logical complement to the right to seek asylum recognized in the Universal Declaration of Human Rights. It has come to be considered a rule of customary international law binding on all States. In addition, international human rights law has established non-refoulement as a fundamental component of the absolute prohibition of torture and cruel, inhuman or degrading treatment or punishment. The duty not to refoule is also recognized as applying to refugees irrespective of their formal recognition, thus obviously including asylum-seekers whose status has not yet been determined. It encompasses any measure attributable to a State which could have the effect of returning an asylum-seeker or refugee to the frontiers of territories where his or her life or freedom would be threatened, or where he or she would risk persecution. This includes rejection at the frontier, interception and indirect refoulement, whether of an individual seeking asylum or in situations of mass influx.”
24. The relevant Articles of the Montego Bay Convention provide:
“1. Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in ... this Convention, shall be subject to its exclusive jurisdiction on the high seas ...”
“1. Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.”
“1. Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers:
(a) to render assistance to any person found at sea in danger of being lost;
(b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him;
...”
25. Sub-paragraph 3.1.9 of the Annex to the SAR Convention provides:
“Parties shall co-ordinate and co-operate to ensure that masters of ships providing assistance by embarking persons in distress at sea are released from their obligations with minimum further deviation from the ships’ [sic] intended voyage, provided that releasing the master of the ship from these obligations does not further endanger the safety of life at sea. The Pnd guidelines developed by the Organization [International Maritime Organization]. In these cases, the relevant Parties shall arrange for such disembarkation to be effected as soon as reasonably practicable.”
26. Article 19 § 1 of the Palermo Protocol provides:
“Nothing in this Protocol shall affect the other rights, obligations and responsibilities of States and individuals under international law, including international humanitarian law and international human rights law and, in particular, where applicable, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the principle of non-refoulement as contained therein.”
27. On 21 June 2011 the Parliamentary Assembly of the Council of Europe adopted the Resolution on the interception and rescue at sea of asylum-seekers, refugees and irregular migrants, which provides as follows:
“1. The surveillance of Europe’s southern borders has become a regional priority. The European continent is having to cope with the relatively large-scale arrival of migratory flows by sea from Africa, reaching Europe mainly through Italy, Malta, Spain, Greece and Cyprus.
2. Migrants, refugees, asylum-seekers and others risk their lives to reach Europe’s southern borders, mostly in unseaworthy vessels. These journeys, always undertaken illicitly, mostly on board flagless vessels, putting them at risk of falling into the hands of migrant smuggling and trafficking rings, reflect the desperation of the passengers, who have no legal means and, above all, no safer means of reaching Europe.
3. Although the number of arrivals by sea has fallen drastically in recent years, resulting in a shift of migratory routes (particularly towards the land border between Turkey and Greece), the Parliamentary Assembly, recalling, inter alia, its Resolution 1637 (2008) on Europe’s boat people: mixed migration flows by sea into southern Europe, once again expresses its deep concern over the measures taken to deal with the arrival by sea of these mixed migratory flows. Many people in distress at sea have been rescued and many attempting to reach Europe have been pushed back, but the list of fatal incidents – as predictable as they are tragic – is a long one and it is currently getting longer on an almost daily basis.
4. Furthermore, recent arrivals in Italy and Malta following the turmoil in North Africa confirm that Europe must always be ready to face the possible large-scale arrival of irregular migrants, asylum-seekers and refugees on its southern shores.
5. The Assembly notes that measures to manage these maritime arrivals raise numerous problems, of which five are particularly worrying:
5.1. despite several relevant international instruments which are applicable in this area and which satisfactorily set out the rights and obligations of States and individuals applicable in this area, interpretations of their content appear to differ. Some States do not agree on the nature and extent of their responsibilities in specific situations and some States also call into question the application of the principle of non-refoulement on the high seas;
5.2. while the absolute priority in the event of interception at sea is the swift disembarkation of those rescued to a ‘place of safety’, the notion of ‘place of safety’ does not appear to be interpreted in the same way by all member States. Yet it is clear that the notion of ‘place of safety’ should not be restricted solely to the physical protection of people, but necessarily also entails respect for their fundamental rights;
5.3. divergences of this kind directly endanger the lives of the people to be rescued, in particular by delaying or preventing rescue measures, and they are likely to dissuade seafarers from rescuing people in distress at sea. Furthermore, they could result in a violation of the principle of non-refoulement in respect of a number of persons, including some in need of international protection;
5.4. although the European Agency for the Management of Operational Cooperation at the External Borders of the member States of the European Union (Frontex) plays an ever increasing role in interception at sea, there are inadequate guarantees of respect for human rights and obligations arising under international and European Union law, in the context of the joint operations it coordinates;
5.5. finally, these sea arrivals place a disproportionate burden on the States located on the southern borders of the European Union. The goal of responsibilities being shared more fairly and greater solidarity in the migration sphere between European States is far from being attained.
6. The situation is rendered more complex by the fact that these migratory flows are of a mixed nature and therefore call for specialised and tailored protection-sensitive responses in keeping with the status of those rescued. To respond to sea arrivals adequately and in line with the relevant international standards, the States must take account of this aspect in their migration management policies and activities.
7. The Assembly reminds member States of their obligations under international law, including the European Convention on Human Rights (ETS No. 5), the United Nations Convention on the Law of the Sea of 1982 and the 1951 Geneva Convention relating to the Status of Refugees, and particularly reminds them of the principle of non-refoulement and the right to seek asylum. The Assembly also reiterates the obligations of the States Parties to the 1974 International Convention for the Safety of Life at Sea and the 1979 International Convention on Maritime Search and Rescue.
8. Finally and above all, the Assembly reminds member States that they have both a moral and legal obligation to save persons in distress at sea without the slightest delay, and unequivocally reiterates the interpretation given by the Office of the United Nations High Commissioner for Refugees (UNHCR), which states that the principle of non-refoulement is equally applicable on the high seas. The high seas are not an area where States are exempt from their legal obligations, including those emerging from international human rights law and international refugee law.
9. Accordingly, the Assembly calls on member States, when conducting maritime border surveillance operations, whether in the context of preventing smuggling and trafficking in human beings or in connection with border management, be it in the exercise of de jure or de facto jurisdiction, to:
9.1. fulfil without exception and without delay their obligation to save people in distress at sea;
9.2. ensure that their border management policies and activities, including interception measures, recognise the mixed make-up of flows of individuals attempting to cross maritime borders;
9.3. guarantee for all intercepted persons humane treatment and systematic respect for their human rights, including the principle of non-refoulement, regardless of whether interception measures are implemented within their own territorial waters, those of another State on the basis of an ad hoc bilateral agreement, or on the high seas;
9.4. refrain from any practices that might be tantamount to direct or indirect refoulement, including on the high seas, in keeping with the UNHCR’s interpretation of the extraterritorial application of that principle and with the relevant judgments of the European Court of Human Rights;
9.5. carry out as a priority action the swift disembarkation of rescued persons to a ‘place of safety’ and interpret a ‘place of safety’ as meaning a place which can meet the immediate needs of those disembarked and in no way jeopardises their fundamental rights, since the notion of ‘safety’ extends beyond mere protection from physical danger and must also take into account the fundamental rights dimension of the proposed place of disembarkation;
9.6. guarantee access to a fair and effective asylum procedure for those intercepted who are in need of international protection;
9.7. guarantee access to protection and assistance, including to asylum procedures, for those intercepted who are victims of human trafficking or at risk of being trafficked;
9.8. ensure that the placement in a detention facility of those intercepted – always excluding minors and vulnerable categories – regardless of their status, is authorised by the judicial authorities and occurs only where necessary and on grounds prescribed by law, that there is no other suitable alternative and that such placement conforms to the minimum standards and principles set forth in Assembly Resolution 1707 (2010) on the detention of asylum-seekers and irregular migrants in Europe;
9.9. suspend any bilateral agreements they may have concluded with third States if the human rights of those intercepted are not appropriately guaranteed therein, particularly the right of access to an asylum procedure, and wherever these might be tantamount to a violation of the principle of non-refoulement, and conclude new bilateral agreements specifically containing such human rights guarantees and measures for their regular and effective monitoring;
9.10. sign and ratify, if they have not already done so, the aforementioned relevant international instruments and take account of the International Maritime Organization (IMO) Guidelines on the Treatment of Persons Rescued at Sea;
9.11. sign and ratify, if they have not already done so, the Council of Europe Convention on Action against Trafficking in Human Beings (CETS No. 197) and the so-called ‘Palermo Protocols’ to the United Nations Convention against Transnational Organised Crime (2000);
9.12. ensure that maritime border surveillance operations and border control measures do not affect the specific protection afforded under international law to vulnerable categories such as refugees, stateless persons, women and unaccompanied children, migrants, victims of trafficking or at risk of being trafficked, or victims of torture and trauma.
10. The Assembly is concerned about the lack of clarity regarding the respective responsibilities of European Union States and Frontex and the absence of adequate guarantees for the respect of fundamental rights and international standards in the framework of joint operations coordinated by that agency. While the Assembly welcomes the proposals presented by the European Commission to amend the rules governing that agency, with a view to strengthening guarantees of full respect for fundamental rights, it considers them inadequate and would like the European Parliament to be entrusted with the democratic supervision of the agency’s activities, particularly where respect for fundamental rights is concerned.
11. The Assembly also considers it essential that efforts be made to remedy the prime causes prompting desperate individuals to risk their lives by boarding boats bound for Europe. The Assembly calls on all member States to step up their efforts to promote peace, the rule of law and prosperity in the countries of origin of potential immigrants and asylum-seekers.
12. Finally, in view of the serious challenges posed to coastal States by the irregular arrival by sea of mixed flows of individuals, the Assembly calls on the international community, particularly the IMO, the UNHCR, the International Organization for Migration (IOM), the Council of Europe and the European Union (including Frontex and the European Asylum Support Office) to:
12.1. provide any assistance required to those States in a spirit of solidarity and sharing of responsibilities;
12.2. under the auspices of the IMO, make concerted efforts to ensure a consistent and harmonised approach to international maritime law through, inter alia, agreement on the definition and content of the key terms and norms;
12.3. establish an inter-agency group with the aim of studying and resolving the main problems in the area of maritime interception, including the five problems identified in the present resolution, setting clear policy priorities, providing guidance to States and other relevant actors, and monitoring and evaluating the use of maritime interception measures. The group should be made up of members of the IMO, the UNHCR, the IOM, the Council of Europe, Frontex and the European Asylum Support Office.”
28. Article 19 of the Charter provides:
“1. Collective expulsions are prohibited.
2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.”
29. Article 17 of the Agreement provides:
“In regard to the movement of persons, the Parties shall endeavour to abolish the controls at the common frontiers and transfer them to their external frontiers. To that end, they shall endeavour to harmonise in advance, where necessary, the laws and administrative provisions concerning the prohibitions and restrictions which form the basis for the controls and to take complementary measures to safeguard security and combat illegal immigration by nationals of States that are not members of the European Communities.”
30. Regulation (EC) No. 2007/2004 contains the following provisions:
“(1) Community policy in the field of the EU external borders aims at an integrated management ensuring a uniform and high level of control and surveillance, which is a necessary corollary to the free movement of persons within the European Union and a fundamental component of an area of freedom, security and justice. To this end, the establishment of common rules on standards and procedures for the control of external borders is foreseen.
(2) The efficient implementation of the common rules calls for increased coordination of the operational cooperation between the Member States.
(3) Taking into account the experiences of the External Borders Practitioners’ Common Unit, acting within the Council, a specialised expert body tasked with improving the coordination of operational cooperation between Member States in the field of external border management should therefore be established in the shape of a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (hereinafter referred to as the Agency).
(4) The responsibility for the control and surveillance of external borders lies with the Member States. The Agency should facilitate the application of existing and future Community measures relating to the management of external borders by ensuring the coordination of Member States’ actions in the implementation of those measures.
(5) Effective control and surveillance of external borders is a matter of the utmost importance to Member States regardless of their geographical position. Accordingly, there is a need for promoting solidarity between Member States in the field of external border management. The establishment of the Agency, assisting Member States with implementing the operational aspects of external border management, including return of third-country nationals illegally present in the Member States, constitutes an important step in this direction.”
31. Article 3 of Regulation (EC) No. 562/2006 provides:
“This Regulation shall apply to any person crossing the internal or external borders of Member States, without prejudice to:
(a) the rights of persons enjoying the Community right of free movement;
(b) the rights of refugees and persons requesting international protection, in particular as regards non-refoulement.”
32. The Annex to the Council Decision of 26 April 2010 states:
“Rules for sea border operations coordinated by the Agency [Frontex]
1.1. Measures taken for the purpose of the surveillance operation shall be conducted in accordance with fundamental rights and in a way that does not put at risk the safety of the persons intercepted or rescued as well as of the participating units.
1.2. No person shall be disembarked in, or otherwise handed over to the authorities of, a country in contravention of the principle of non-refoulement, or from which there is a risk of expulsion or return to another country in contravention of that principle. Without prejudice to paragraph 1.1, the persons intercepted or rescued shall be informed in an appropriate way so that they can express any reasons for believing that disembarkation in the proposed place would be in breach of the principle of non-refoulement.
1.3. The special needs of children, victims of trafficking, persons in need of urgent medical assistance, persons in need of international protection and other persons in a particularly vulnerable situation shall be considered throughout all the operation.
1.4. Member States shall ensure that border guards participating in the surveillance operation are trained with regard to relevant provisions of human rights and refugee law, and are familiar with the international regime on search and rescue.”
33. On 7 May 2009 UNHCR published the following press release:
“UNHCR expressed deep concern Thursday over the fate of some 230 people who were rescued Wednesday by Italian patrol boats in the Maltese Search and Rescue Region (SAR) of responsibility and sent back to Libya without proper assessment of their possible protection needs. The rescue took place about 35 nautical miles south-east of the Italian island of Lampedusa, but within the Maltese SAR zone.
The diversion to Libya followed a day of heated discussions between Maltese and Italian authorities about who was responsible for the rescue and disembarkation of the people on the three boats, which were in distress. Although closer to Lampedusa, the vessels were in the Maltese search and rescue area of responsibility.
While no information is available on the nationalities of those aboard the vessels, it is likely that among them are people in need of international protection. In 2008, an estimated 75 percent of sea arrivals in Italy applied for asylum and 50 percent of them were granted some form of protection.
‘I appeal to the Italian and Maltese authorities to continue to ensure that people rescued at sea and in need of international protection receive full access to territory and asylum procedures,’ UN High Commissioner for Refugees António Guterres said.
The incident marks a significant shift in policies by the Italian government and is a source of very serious concern. UNHCR deeply regrets the lack of transparency which surrounded the event.
‘We have been working closely with the Italian authorities in Lampedusa and elsewhere to ensure that people fleeing war and persecution are protected in line with the 1951 Geneva Convention,’ said Laurens Jolles, UNHCR’s Rome-based representative. ‘It is of fundamental importance that the international principle of non-refoulement continues to be fully respected.’
In addition, Libya has not signed the 1951 UN Refugee Convention, and does not have a functioning national asylum system. UNHCR urges Italian authorities to reconsider their decision and to avoid repeating such measures.”
34. On 15 July 2009 Mr Jacques Barrot wrote to the President of the European Parliament Committee on Civil Liberties, Justice and Home Affairs in response to a request for a legal opinion on the “return to Libya by sea of various groups of migrants by the Italian authorities”. In that letter, the Vice-President of the European Commission expressed himself as follows:
“According to information available to the Commission, the migrants concerned were intercepted on the high seas.
Two sets of Community rules must be examined concerning the situation of nationals of third countries or stateless persons attempting to enter, unlawfully, the territory of member States, some of whom might be in need of international protection.
Firstly, the Community acquis in the field of asylum is intended to safeguard the right of asylum, as set forth in Article 18 of the Charter of Fundamental Rights of the European Union, and in accordance with the 1951 Geneva Convention relating to the Status of Refugees and with other relevant treaties. However, that acquis, including the 2005 Asylum Procedures Directive, applies only to asylum applications made on the territory of Member States, which includes the borders, transit areas and, in the context of maritime borders, territorial waters of Member States. Consequently, it is clear from a legal standpoint that the Community acquis in the field of asylum does not apply to situations on the high seas.
Secondly, the Schengen Borders Code (SBC) requires that Member States conduct border surveillance to prevent, inter alia, unauthorised border crossings (Article 12 of EC Regulation No. 562/2006 (SBC)). However, that Community obligation must be fulfilled in compliance with the principle of non-refoulement and without prejudice to the rights of refugees and other people requesting international protection.
The Commission is of the opinion that border surveillance activities conducted at sea, whether in territorial waters, the contiguous zone, the exclusive economic zone or on the high seas, fall within the scope of application of the SBC. In that connection, our preliminary legal analysis would suggest that the activities of the Italian border guards correspond to the notion of ‘border surveillance’ as set forth in Article 12 of the SBC, because they prevented the unauthorised crossing of an external sea border by the persons concerned and resulted in them being returned to the third country of departure. According to the case-law of the European Court of Justice, Community obligations must be applied in strict compliance with the fundamental rights forming part of the general principles of Community law. The Court has also clarified that the scope of application of those rights in the Community legal system must be determined taking account of the case-law of the European Court of Human Rights (ECHR).
The principle of non-refoulement, as interpreted by the ECHR, essentially means that States must refrain from returning a person (directly or indirectly) to a place where he or she could face a real risk of being subjected to torture or to inhuman or degrading treatment. Furthermore, States may not send refugees back to territories where their life or freedom would be threatened for reasons of race, religion, nationality, membership of a particular social group or political opinion. That obligation must be fulfilled when carrying out any border control in accordance with the SBC, including border surveillance activities on the high seas. The case-law of the ECHR provides that acts carried out on the high seas by a State vessel constitute cases of extraterritorial jurisdiction and may engage the responsibility of the State concerned.
Having regard to the foregoing concerning the scope of Community jurisdiction, the Commission has invited the Italian authorities to provide it with additional information concerning the actual circumstances of the return of the persons concerned to Libya and the provisions put in place to ensure compliance with the principle of non-refoulement when implementing the bilateral agreement between the two countries.”
35. From 27 to 31 July 2009 a delegation from the CPT visited Italy. During that visit the delegation looked into various issues arising from the new governmental policy of intercepting at sea, and returning to Libya, migrants approaching Italy’s southern maritime border. In particular, the delegation focused on the system of safeguards in place to ensure that no one was sent to a country where there were substantial grounds for believing that he or she would run a real risk of being subjected to torture or ill-treatment.
36. In its report, made public on 28 April 2010, the CPT expressed the opinion that Italy’s policy of intercepting migrants at sea and obliging them to return to Libya or other non-European countries violated the principle of non-refoulement. The Committee emphasised that Italy was bound by the principle of non-refoulement wherever it exercised its jurisdiction, which included via its personnel and vessels engaged in border protection or rescue at sea, even when operating outside its territory. Moreover, all persons coming within Italy’s jurisdiction should be afforded an appropriate opportunity and facilities to seek international protection. The information available to the CPT indicated that no such opportunity or facilities were afforded to the migrants intercepted at sea by the Italian authorities during the period examined. On the contrary, the persons who were pushed back to Libya in the operations carried out from May to July 2009 were denied the right to obtain an individual assessment of their case and effective access to the refugee-protection system. In that connection, the CPT observed that persons surviving a sea voyage were particularly vulnerable and often not in a condition in which they should be expected to declare immediately their wish to apply for asylum.
According to the CPT report, Libya could not be considered a safe country in terms of human rights and refugee law; the situation of persons arrested and detained in Libya, including that of migrants – who were also exposed to being deported to other countries – indicated that the persons pushed back to Libya were at risk of ill-treatment.
37. In a lengthy report published on 21 September 2009 and entitled “Pushed Back, Pushed Around: Italy’s Forced Return of Boat Migrants and Asylum Seekers, Libya’s Mistreatment of Migrants and Asylum Seekers”, Human Rights Watch condemned the Italian practice of intercepting boats full of migrants on the high seas and pushing them back to Libya without the required screening. That report was also based on the results of research published in a 2006 report entitled “Libya: Stemming the Flow: Abuses Against Migrants, Asylum Seekers and Refugees”.
38. According to Human Rights Watch, Italian patrol boats towed migrant boats from international waters without determining whether some might contain refugees, sick or injured persons, pregnant women, unaccompanied children, or victims of trafficking or other forms of violence. The Italian authorities forced the boat migrants onto Libyan vessels or took the migrants directly back to Libya, where the authorities immediately detained them. Some of the operations were coordinated by Frontex.
The report was based on interviews with ninety-one migrants, asylum-seekers, and refugees in Italy and Malta, conducted mostly in May 2009, and one telephone interview with a migrant detainee in Libya. Representatives of Human Rights Watch visited Libya in April and met with government officials, but the Libyan authorities would not permit the organisation to interview migrants privately. Moreover, the authorities did not allow Human Rights Watch to visit any of the many migrant detention centres in Libya, despite repeated requests.
UNHCR now has access to Misrata Prison, at which clandestine migrants are generally held, and Libyan organisations provide humanitarian services there. However, there is no formal agreement, and thus no guaranteed access. Furthermore, Libya has no asylum law. The authorities make no distinction between refugees, asylum-seekers and other clandestine migrants.
39. Human Rights Watch urged the Libyan government to improve the deplorable conditions of detention in Libya and to establish asylum procedures that conformed to international refugee standards. It also called on the Italian government, the European Union and Frontex to ensure access to asylum, including for those intercepted on the high seas, and to refrain from returning non-Libyans to Libya until the latter’s treatment of migrants, asylum-seekers and refugees fully met international standards.
40. A team from Amnesty International carried out a fact-finding visit to Libya from 15 to 23 May 2009, the first such visit to the country by the organisation that the Libyan authorities had permitted since 2004.
During that visit, Amnesty International visited Misrata Detention Centre, some 200 km from Tripoli, in which several hundred irregular migrants from other African countries were held in severely overcrowded conditions, and briefly interviewed several of those held there. Many had been detained since they were intercepted while seeking to make their way to Italy or other countries in southern Europe which look to Libya and other north African countries to staunch the flow of irregular migrants from sub-Saharan Africa to Europe.
41. Amnesty International considered it possible that detainees at Misrata might include refugees fleeing persecution and stressed that, as Libya had no asylum procedure and was not a party to the Refugee Convention or its 1967 Protocol, foreigners, including those in need of international protection, might find themselves outside the protection of the law. There was also virtually no opportunity for detainees to lodge complaints of torture and other ill-treatment with the competent judicial authorities.
In its meetings with Libyan government officials, Amnesty International expressed concern about the detention and alleged ill-treatment of hundreds, possibly thousands, of foreign nationals whom the authorities assumed to be irregular migrants and urged them to put in place proper procedures to identify asylum-seekers and refugees and afford them appropriate protection. Amnesty International also urged the Libyan authorities to cease forcible returns of foreign nationals to countries in which they were at risk of serious human rights violations and to find a better alternative to detention for those foreigners whom they were not able to return to their countries of origin for this reason. Some of the Eritrean nationals who comprised a sizeable proportion of the foreign nationals detained at Misrata told Amnesty International that they had been held there for two years.
42. In addition to those cited above, numerous reports have been published by national and international organisations and by non-governmental organisations, condemning the conditions of detention and the living conditions of irregular migrants in Libya.
The principal reports are:
(i) Human Rights Watch, “Stemming the Flow: Abuses Against Migrants, Asylum Seekers and Refugees”, 13 September 2006;
(ii) United Nations Human Rights Committee, “Concluding Observations. Libyan Arab Jamahiriya”, 15 November 2007;
(iii) Amnesty International, “Libya – Amnesty International Report 2008”, 28 May 2008;
(iv) Human Rights Watch, “Libya: Rights at Risk”, 2 September 2008;
(v) US Department of State, “2010 Human Rights Report: Libya”, 8 April 2010.
43. The main international documents concerning the situation in Somalia were submitted in Sufi and Elmi v. the United Kingdom (nos. 8319/07 and 11449/07, §§ 80-195, 28 June 2011).
44. Various reports condemn human rights violations perpetrated in Eritrea. They detail serious human rights violations by the Eritrean government, namely arbitrary arrests, torture, inhuman conditions of detention, forced labour and serious restrictions on the freedom of movement, expression and religion. Those documents also analyse the difficult situation of Eritreans who manage to escape to other countries such as Libya, Sudan, Egypt and Italy and are subsequently forcibly repatriated.
The principal reports are:
(i) UNHCR, “Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Eritrea”, April 2009;
(ii) Amnesty International, “Eritrea – Amnesty International Report 2009”, 28 May 2009;
(iii) Human Rights Watch, “Service for Life – State Repression and Indefinite Conscription in Eritrea”, April 2009;
(iv) Human Rights Watch, “Libya: Don’t Send Eritreans Back to Risk of Torture”, 15 January 2010;
(v) Human Rights Watch, “World Report 2010: Eritrea”, January 2010.
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