ITEMID: 001-70030
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: AARNIOSALO AND OTHERS v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants are Ms A. Aarniosalo, Mr P. Aarniosalo, Ms H.A. Liljeroos, Ms H.M. Liljeroos, Mr R. Liljeroos, Ms S. Nurminen, Mr M. Nurminen, Mr R.T.J. Nurminen and Mr R.R.K. Nurminen. They are Finnish nationals, born in 1930, 1933, 1928, 1927, 1924, 1915, 1979, 1947 and 1940, respectively, and living in the Island of Onkisalo in Luhanka. They are represented before the Court by Mr T. Kivilaakso, a lawyer practising in Espoo.
The facts of the case, as submitted by the parties, may be summarised as follows.
In the 1980’s construction work was started in order to build a road to the Island of Onkisalo, which has no connection to the mainland. The part of the road (the Kattilaniemi road) which is situated on the mainland, and in the construction of which the applicants also participated, was finished at the end of the 1980’s.
On 16 December 1991, the Water Court (vesioikeus, vattenrätt) of Eastern Finland entitled the applicants to build a bridge from Kattilaniemi to a place called Kiviniemi on the Island of Onkisalo as it was found to be the most advantageous place to build the road with a view to connecting with the network of public roads.
The County Administrative Board (lääninhallitus, länsstyrelsen) of the Central Finland, represented by Ms P.H., appealed against the Water Court’s decision to the Supreme Water Court (vesiylioikeus, vattenöverdomstolen) which, on 1 February 1993, upheld the Water Court’s decision.
On 22 November 1993, the proceedings concerning the construction of the private road to Onkisalo concluded and established the right to the road of those who owned property in the area in which the road was to be built, excluding the owners of such property which was used only for leisure activities and who had objected to the road plan. Three private persons as well as the County Administrative Board appealed against the decision in the road construction proceedings to the Land Court (maaoikeus, jorddomstolen), claiming, inter alia, that the road would, if built as planned, destroy conservable nature values in the area.
The Land Court decided, in its decision of 31 August 1994, not to examine the appeals lodged by the County Administrative Board and one of the private individuals as it found that they were not parties to the road construction proceedings in question. The rest of the appeals were rejected as the Land Court found, inter alia, that there was an important public interest to build a connecting road from the island to the mainland. Some of the private individuals whose appeals had been rejected by the Land Court applied to the Supreme Court (korkein oikeus, högsta domstolen) for leave to appeal. The Supreme Court granted them leave to appeal on 9 May 1995. On 6 March 1996, the Supreme Court rejected the relevant appeals and upheld the Land Court’s decision.
Meanwhile, on 8 September 1994, to prevent the enforcement of the Land Court decision, the County Administrative Board of Central Finland had issued an interim order prohibiting works in the area, for the period of two years, for the purpose of protecting the habitat of the white-backed woodpecker. The County Administrative Board’s decision was signed by, inter alia, Ms P.H. who had represented the County Administrative Board in the appeal proceedings against the Water Court’s decision. The road construction work which had already started was thus discontinued.
One of the applicants and the administrative committee for the maintenance of forest roads in Onkisalo appealed against the order to the Supreme Administrative Court on the grounds that an error had allegedly taken place in the hearing of the parties and that the construction of the road would not endanger the protection of the white-backed woodpecker. On 9 January 1995, the Supreme Administrative Court found that no error had taken place in the hearing of the parties, noting that trees had already been cut down. Insofar as the decision depended on the assessment of the appropriateness of the decision, it transferred the issue to the Council of State.
Following the transfer, the Ministry for Environment (ympäristöministeriö, miljöministeriet) found, on 20 January 1995, that there was no reason to change the decision of the County Administrative Board. The Ministry’s decision was appealed to the Supreme Administrative Court, inter alia on grounds that the Minister for Environment, Ms S. Pietikäinen, was biased as she had already participated in the decision-making before the County Administrative Board in so far as the prohibition was concerned. On 26 May 1995, the Supreme Administrative Court rejected the appeal. The applicants’ request to reopen the proceedings was refused by the Supreme Administrative Court on 19 August 1996.
As the owner of the Kiviniemi estate had refused to sell her real estate to the State, the Council of State granted, on 19 June 1996, permission for the expropriation of the Kiviniemi estate with a view to protecting the white-backed woodpecker even though the municipality of Luhanka had, in its statement of 15 April 1996, objected to the expropriation, taking the view that the prohibition against building the Onkisalo road would render the relevant part of the municipality more and more isolated and deserted as living there would become too difficult and unsafe. According to the Municipal Board, the expropriation would violate the general sense of justice if the interests of a species of a bird were preferred to those of the inhabitants of the municipality. It was also noted in the statement that the Supreme Court had already decided to allow the road to be constructed and that a contrary decision would be surprising and dubious.
The applicants appealed to the Supreme Administrative Court which, on 31 December 1997, dismissed the applicants’ appeal and upheld the expropriation. It held that the land was part of a larger area which was, due to its natural features, a suitable habitat for the white-backed woodpecker and that observations of the species had been made there. Thus the area was, with respect to the protection of the white-backed woodpecker, of such importance that it could be defined as a special protection area within the meaning of section 1, subsection 2 of the 1923 Nature Conservation Act. On 20 April 2004, the applicants asked for the annulment of this decision. The matter is pending.
By letter dated 18 June 1999, the administrative committee of Onkisalo requested the Council of State to lift the expropriation insofar as the right to the road was concerned. By reply dated 24 September 1999, the Ministry stated that it was impossible to establish a right to a road in the area, as it was so small that that no measures changing the nature of the forest could be allowed without endangering the existence of the bird which had been sighted in the area since 1989.
The applicants’ request to reopen the proceedings was refused by the Supreme Administrative Court on 14 July 2000.
The expropriation proceedings concerning the Kiviniemi estate were completed on 20 October 2000. The area concerned 8.5 hectares and was delimited so that, as a biotope, it covered the habitat of the white-backed woodpecker only. The compensation paid to Ms Liljeroos amounted to FIM 715,549 with costs and expenses of FIM 15,649.75.
On 1 March 2001, the executors of the expropriation of the Kiviniemi estate decided, after a vote, to expropriate the right to the road attached to the estate in accordance with the Ministry decision and then to establish a new right to a road for the same area to which the earlier right to a road was attached. In his dissenting opinion, the engineer considered that a right to the road could not be established for the same area as there was an alternative.
On 29 March 2001, the Environmental Authority of Central Finland lodged an appeal with the Kuopio District Court (acting as Land Court), which on 14 August 2001 upheld the decision of the executors. On 24 October 2001, the Supreme Court suspended the execution of the decision of the District Court. On 7 October 2002 the Supreme Court reversed the judgment of the District Court and returned the matter to the executors stating that the right to a road could not be re-established on an area which under a decision of the Council of State had been expropriated. The executors were to take up the matter without delay in order to establish another route. On 20 April 2005, the applicants appealed for the annulment of the Supreme Court’s judgment. The matter is pending.
Meanwhile, the inhabitants of the Island of Onkisalo continued to live on their island without any connection to the mainland during time when there was no open water or the ice was too thin to build an ice-road from the island to the mainland. Such a period could last for weeks each autumn and spring. In the summer time, when the water areas were not frozen, boats were used, for example, for delivering the daily mail and groceries as well as the medication needed by the elderly islanders. There was no medical care nor fire and rescue service available to the islanders. The closest shop was twenty-five (25) kilometres away.
The applicants referred to a number of incidents as illustrating the risk to human life arising from the lack of proper connection to the mainland. A mailman was drowned in the lake when delivering the mail to the Island of Onkisalo and a father, forced to leave the island by foot to get medicine for his sick child, was also drowned in the lake as the ice was too thin to carry him. On 25 December 1998, a local cabdriver risked his life by driving his cab to the island to fetch an islander to the hospital even though the ice was thin at the time. Allegedly, the islander in question would have died in a matter of hours if he had not been taken to hospital in time. It has also happened that a fire brigade was forced to watch from the other side of the lake when a barn was burned down by lightning as they could not reach the island with their equipment.
On 12 October 1999 a question concerning the justification of the prohibition in terms of the cost of human lives was put in the Parliament by a Member of Parliament, Mr L. Oinonen. The question was answered by the Ministry for Environment at the time, Ms S.Hassi, on 5 November 1999. She referred to the decisions given by the Supreme Administrative Court and found that the road could and should be constructed to the island but through another estate than the Kiviniemi estate. She also noted that the loss to the islanders would be compensated for in accordance with the Act on Expropriation (lunastuslaki, inlösningslag). Mr L. Oinonen and another Member of Parliament, Mr S. Lahtela, repeated the question in Parliament on 9 February 2000, requesting that the Minister for Environment would herself visit the island. The question has been left unanswered. The applicants also sent an invitation to the Minister for Environment to visit the island.
The applicants in addition twice approached the Chancellor of Justice, who on 19 January 1995 and 12 April 1996 rendered decisions rejecting their complaints.


ITEMID: 001-114301
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: ONYEJIEKWE v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 1. The applicant, Mr Ikechukwu Romanus Onyejiekwe, is a Nigerian national, who was born in 1978 and lives in Vienna. He was represented before the Court by Mr H. Pochieser, a lawyer practising in Vienna.
2. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant requested asylum in Austria on 5 September 2003 under a false name, giving a false date of birth. He claimed that he had fled Nigeria after a violent conflict between two neighbouring villages over land. His mother had been killed in a hospital and he had no family left in Nigeria.
5. On 14 September 2004 the Vienna Regional Court (Landesgericht für Strafsachen Wien) convicted the applicant of drug trafficking and attempted drug trafficking, finding that the trafficking had been repeated and large scale in nature, and sentenced him to twenty months’ imprisonment.
6. Thereupon, an exclusion order (Aufenthaltsverbot) was issued against the applicant on 7 October 2004, which became final.
7. On 21 January 2005 the Federal Asylum Office (Bundesasylamt) dismissed the applicant’s asylum request and ordered his expulsion to Nigeria. The Federal Asylum Office found the applicant’s reasons for having fled Nigeria to be vague, lacking substantiation and thus not credible.
8. The applicant appealed against that decision and notified the Independent Asylum Panel (Unabhängiger Bundesasylsenat) on 31 October 2005 of his real name and date of birth.
9. After having served thirteen months of his prison sentence, the applicant was conditionally released from prison on 28 May 2005.
10. On 2 December 2005 the applicant married an Austrian citizen.
11. On 6 October 2006 the Independent Asylum Panel held a hearing, during which the applicant explained that he had given a false name to the Austrian authorities to protect himself, but that he now wanted to disclose the real reasons for his having fled Nigeria. He continued by stating that he had been a driver for a regional minister who had accused him of having been involved in a plot to kill him in 2003. After the failed assassination attempt, corrupt police officers and soldiers had started to round people up and to arrest them. The applicant himself had gone to a friend’s house and had hidden there for a few days until he had heard that his mother had been shot by the minister’s guards because she would not tell them the applicant’s whereabouts. Thereupon, the applicant had left for Lagos, but it had not been safe there either and he had been shot at.
12. On 19 October 2006 the Independent Asylum Panel dismissed the applicant’s appeal, holding that his story was not credible, as what he had told the Panel was entirely different to what he had told the Federal Asylum Office. Furthermore, his “new” reasons for having fled were again very vague, lacking important details and unconvincing. The Independent Asylum Panel made some observations concerning the general situation in Nigeria and with regard to Decree no. 33, a law penalising “harming the reputation of Nigeria abroad”. It held that while Nigerian citizens who were expelled from another country for having committed a drug-related crime were in principle liable to be punished under Decree no. 33 with a prison sentence, no incident in which an expelled asylum seeker had been arrested at the airport for political motives upon returning to Nigeria had been recorded according to a country information report produced by the German Ministry for Foreign Affairs. With regard to Article 8 of the Convention, the Independent Asylum Panel held that the applicant’s expulsion was justified under the second paragraph of that provision in view of his criminal conviction under the Drug Offences Act.
13. The applicant complained to the Constitutional Court (Verfassungsgerichtshof) and the Administrative Court (Verwaltungsgerichtshof), applying for his complaint to have suspensive effect and for legal aid.
14. On 6 December 2006 the Administrative Court granted suspensive effect to the applicant’s complaint.
15. On 16 January 2007 the Constitutional Court refused to grant the applicant legal aid due to the complaint’s lack of prospects of success.
16. Finally, on 9 September 2010 the Administrative Court refused to deal with the applicant’s complaint due to the lack of an important legal issue. That decision was served on the applicant’s counsel on 29 September 2010.
17. The Asylum Act 1997 (Asylgesetz 1997), applicable at the relevant time, governed the conditions under which asylum could be granted to asylum seekers and asylum proceedings. Its Article 8 § 2 provided that after the asylum authority had dismissed an asylum request and had declared expulsion to the asylum seeker’s country of origin permissible, it should combine the dismissal of the request with an expulsion order.
18. Current information on Nigerian Decree no. 33 of 1990 is scarce. The Nigerian National Drug Law Enforcement Agency (“NDLEA”), established by the Decree no. 48 in 1989, points to the National Drug Law Enforcement (Amendment) Decree no. 33 as another measure adopted in dealing with the problem of illegal drugs. As stated on the Agency’s website (www.ndlea.gov.ng), Decree no. 33 prescribes a prison term of five years for persons convicted of trafficking in drugs abroad, and by so doing bringing Nigeria into disrepute.
19. The United Kingdom Border Agency Country of Origin Information Report on Nigeria of 9 July 2010 (“the COI Report”) referred to a BritishDanish fact-finding mission in 2007 and 2008, during which senior officials of the NDLEA were interviewed about the enforcement of Decree no. 33 of 1990. The NDLEA officials had stated that Decree no. 33 had been enforced from 1990 to 2000. Between 1996 and 2000, NDLEA statistical information had shown that 451 Nigerians had been prosecuted and convicted under the provisions of Decree no. 33. The NDLEA officials had further stated that in 2000 the Agency had reviewed the enforcement of Decree no. 33 and had suspended prosecutions under the Decree. This step had been taken in response to public concern that the Agency had prosecuted people who had been convicted of drug offences abroad twice for the same offence. Consequently, since 2001, there had been no prosecutions of returning Nigerians convicted of drug offences abroad under the provisions of Decree no. 33. NDLEA officials had finally explained that immigration officials in Nigeria were normally informed of a deportation before the individual concerned was deported. Once a deportee arrived in Nigeria, NDLEA officers monitored the activities of the individual, but did not take any action to arrest him or her (see page 46 of the COI Report, at paragraphs 13.03 and 13.04).


ITEMID: 001-111553
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF A.A. AND OTHERS v. SWEDEN
IMPORTANCE: 3
CONCLUSION: No violation of Article 2 - Right to life (Article 2 - Extradition) (Conditional) (Yemen);No violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Yemen)
JUDGES: André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: 7. The first applicant is born in 1966, the second applicant is her oldest daughter, born in 1988, the third and fourth applicants are her sons, born in 1989 and 1990, and the fifth and sixth applicants are her youngest daughters, born in 1993 and 1999. They are currently in Sweden.
8. On 14 February 2006 the first and fifth applicants arrived in Sweden and, two days later, they applied for asylum and residence permits. The second, third, fourth and sixth applicants arrived in Sweden on 17 August 2006 and applied for asylum and residence permits on the same day. The Migration Board (Migrationsverket) held three interviews with the first applicant and two interviews with the fifth applicant. The applicants’ legal representative was present at the third interview with the first applicant and at the second interview with the fifth applicant. The legal representative also submitted written submissions to the Board concerning all of the applicants.
9. During the three interviews held by the Migration Board on 16 February, 6 March and 5 October 2006, the first applicant essentially told the Board the following. She was from Sana’a in Yemen where she had lived with her husband, X, and their five children. She and X came from the same clan and he worked in industry. In her view, they had been poor. Her mother, one brother and two sisters lived in Yemen and another brother lived in London. Her father was deceased. She had travelled with the fifth applicant to Sweden, via Paris, using their passports and with French visas. She had thrown the passports away upon arrival in Sweden for fear of being sent back. They had paid about 2,000 US dollars (USD) for their tickets and about USD 1,000 for the visas. She had paid for this by selling gold that she owned. A friend of hers had helped to obtain the visas from the French Embassy in Sana’a in January 2006. Her brother had obtained their passports without X’s knowledge. The second, third, fourth and sixth applicants had travelled to Sweden illegally with the help of smugglers.
10. The first applicant claimed that her biggest problem was X who had abused her for many years. They had married when she was 14 years old and he had been very strict and had hit her, burnt her and threatened her with a knife. She had back problems caused by the violence and had received an injection at a hospital in Sana’a a few months before leaving the country to alleviate the back pain caused by a slipped disc. She had tried to obtain a divorce but the judge at the court had told her that she should solve her private problems with her husband. She had not contacted a lawyer as she had no money and she had not reported the violence to the police because they did not interfere in family matters.
11. However, the first applicant alleged that the main reason for leaving Yemen had been to protect her daughters. The second applicant had been forced to marry an older man when she was 14 years old and forced to leave school because of it. X had also planned to marry off the fifth applicant to a much older man when she was only thirteen years old. The first applicant had petitioned the courts to stop the marriage but the courts had decided that X, as the head of the family, was entitled to make that decision. She claimed that women had no freedom in Yemen and that X would kill her if she were returned since she had dishonoured him by leaving the country with their daughter and without his permission. No one would be able to protect her and her daughter.
12. The fifth applicant supported her mother’s claims, stating that X had wanted to marry her off to an older man against her will. The court case to stop the marriage had taken about six months and the outcome had favoured X for which reason she and the first applicant had left the country. Her uncle had helped them to obtain travel documents so they could leave the country legally. She also stated that X had worked at a ministry and that he had been very strict with her and her mother.
13. The second applicant also supported her mother’s claims and submitted that X had married her off, at the age of 14, to a much older man who had eight children and a disabled first wife. He had treated the second applicant like a servant but had agreed to divorce her if he was reimbursed the USD 4,000 that he had paid as a dowry for her to X. After her mother and sister had left the country, the second applicant alleged that X had made her other siblings leave the house but that they had been able to stay with a friend of hers until they could travel to Sweden. She submitted that, if they were to return to Yemen, they would all risk being killed since they had dishonoured X. She also risked being killed by her husband since she had left him without his permission.
14. In a later submission, the second applicant added that X would never allow her to return home even if she did obtain a divorce from her husband. Moreover, when X had made her siblings leave their home, she had exceptionally been allowed by her husband to house them.
15. On 9 May 2007 the Migration Board rejected the applications. It first noted that the applicants had not submitted their passports or any other documents to prove their identity or to support their story. It then observed that Yemen is a tribal society dominated by a patriarchal social order where women are subject to discriminating treatment and where they have to obey their husbands. Turning to the applicants’ personal situation, the Board first pointed out that the first applicant’s brother had failed according to the “honour rules” by helping her to obtain a passport. Moreover, it considered that the mere fact that the first applicant had left the country, and by doing so allegedly dishonoured her husband, was not sufficient to create a need for protection in Sweden. In this respect, the Board observed that the first applicant’s clan could protect her against X. Concerning the fifth applicant, the Board considered that X’s actions had been motivated by financial gain and that, by paying the necessary sum to X, the fifth applicant could solve any problems that might arise. Here, it noted that the applicants’ contention that they were poor was contradicted by the fact that they had been able to afford to travel to Sweden since the cost of the journey would have been a fortune to a poor person. Turning to the second applicant, the Board observed that her husband had consented to divorce her if she reimbursed him the sum he had originally paid X. Again, the Board considered that the problem was mainly a financial matter which could be solved by paying the required amount. In regard to the remaining applicants, the Board found that they would be able to stay with their maternal grandparents or other relatives in the clan.
16. Thus, the Board concluded that the family’s problems were related to financial matters rather than to honour and, consequently, they could not be considered refugees or otherwise in need of protection in Sweden. Since the situation in Yemen was not such as to call for an automatic grant of residence permits, the applicants’ requests were rejected. In reaching this conclusion, the Board had regard to the fact that some of the applicants were minors.
17. The applicants appealed against the decision to the Migration Court (Migrationsdomstolen), maintaining their claims and adding that they had disgraced the head of their family as well as the clan by fleeing. Since they were members of the same clan as X and, since the clan always took the side of the man, it would not protect them. On the contrary, the clan, which was very large and powerful, had blacklisted them and they were convinced that the clan would kill them to save its honour. Moreover, the first applicant’s brother had helped them in secret and had risked his own life by doing so. He would not be able to help them again. According to the applicants, there was no one in Yemen who would be able to protect them. Furthermore, the applicants insisted that their need for protection was honour-related and not economic in nature. The second and fifth applicants did not have the money necessary to buy their freedom and, in any event, nothing would hinder X from marrying them off to someone else later on. The first applicant added that she had been a member of a women’s association which had met on Thursdays and Fridays and that she had told the women in the association about her problems and they had lent her some money to pay for travel. The remainder of the cost, she had paid by selling her jewellery. As concerned the other applicants, the second applicant had helped to pay for that trip.
18. In support of their claims, the applicants submitted an e-mail, dated 26 December 2007, and sent by a programme officer for “Sisters of Arab Forum for Human Rights”. It stated that, if the applicants were sent back to Yemen, their lives would be in danger since the first and fifth applicants had disgraced their husband/father when they had run away instead of accepting his decision that the fifth applicant marry the man X had chosen for her. It further stated that honour crimes were common in Yemen and that Yemeni law encouraged it; for example, a man who killed his wife because of infidelity would only be sentenced to six months’ imprisonment.
19. They also submitted a copy of a police report, dated 19 January 2008, from which it appeared that X had reported to the Yemeni Ministry of the Interior that the third and fourth applicants had stolen 1,500,000 Yemeni rial (approximately EUR 5,300) from him. He stated in the report that he had hidden the money in his wardrobe about two months previously and had discovered that it had gone two days before. He had asked his wife about it but she had not known anything and thus he suspected that his two sons had stolen the money since they had been out a lot lately. The sons had now run away from home and he wanted them arrested. It appeared from the report that a regional arrest warrant had been issued for the third and fourth applicants. The applicants claimed that this was a method for X to get the authorities’ help to locate the family in order for him to have his revenge. They had received the report from the first applicant’s brother, who had heard about it and requested a copy from the Ministry of the Interior. He had received a copy since he was the boys’ uncle.
20. Lastly, the applicants submitted the children’s birth certificates in original which their uncle had also acquired and sent to them.
21. On 19 August 2008 the Migration Court rejected the applicants’ appeal. The court first observed that the general situation for women in Yemen was not a sufficient ground for them to be granted refugee status. An individual assessment had to be made in each case. It then observed that the reasons referred to by the applicants in support of their need for protection mainly concerned problems within the personal sphere caused, inter alia, by the country’s traditions. The court further noted that, other than the first applicant’s petition to a court to stop the fifth applicant’s marriage, the applicants had not turned to the Yemeni authorities to obtain protection against X or the second applicant’s husband. The court reiterated that, before international protection could be considered for problems of violence and reprisals within the family, all avenues of mediation and protection by the national authorities should have been tried. With regard to X’s police report against the third and fourth applicants, the court considered that it would be no problem for them to prove that they were innocent since they were in Sweden at the time of the alleged crime. Therefore, they did not risk being arrested or imprisoned. The court concluded that the applicants could not be considered refugees, that they were not in need of protection and that there were no exceptional circumstances to grant them leave to remain in Sweden, even though some of them were still minors. In reaching this conclusion, the court also had regard to the fact that the family was united, that several of them were adults and that they had family and friends in Yemen who supported them.
22. On 22 October 2008, with one of the judges being of a dissenting opinion, the majority of the Migration Court of Appeal (Migrationsöverdomstolen) refused leave to appeal. This decision was final and the deportation order thus became enforceable.
23. However, in January 2009, the applicants lodged an application with the Migration Board to stay the enforcement of the deportation order and to reconsider their case due to new circumstances. They maintained their previous claims and submitted a copy of a document in Arabic that they claimed was a copy of a summons, dated 22 December 2008, and which had been issued by a Yemeni court. According to the applicants, it stated that the first applicant had taken her and X’s five children and had moved to Sweden, following a dispute between her and X regarding whether or not the fifth applicant should be married to an older man. According to the document, X requested the court to order the return of the applicants to Yemen so that the children would be with their father and to imprison the first applicant because she had disobeyed her husband and to stop her from leaving Yemen again. Moreover, X requested the court to decide that the fifth applicant should marry the man that he had chosen. The applicants contended that this, together with the other information in the case, showed clear discrimination against women and that there could be no doubt that, should they be returned to Yemen, they would be subjected to persecution because they had dishonoured the head of the family.
24. On 20 January 2009 the Migration Board rejected the new application and decided that the measures to enforce the deportation order should continue. The Board found that the grounds invoked by the applicants had already been examined earlier in all essential parts and that no new circumstances had been presented which could lead to a stay of the enforcement of the deportation order. Furthermore, it considered that the applicants had invoked no other new circumstances which could lead to granting them residence permits in Sweden.
25. The applicants appealed against the decision to the Migration Court, insisting that the evidence showed that inhuman treatment awaited them if they were returned to Yemen. However, on 13 February 2009, the court upheld the Board’s decision and reasoning in full and rejected the appeal.
26. Upon further appeal, the Migration Court of Appeal, on 5 March 2009, refused leave to appeal
27. On 24 March 2009, upon request by the applicants, the Court applied Rule 39 of the Rules of Court until further notice. On the same day and on the basis of the Court’s request, the Migration Board stayed the enforcement of the deportation order until further notice.
28. The basic provisions mainly applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the Aliens Act (Utlänningslagen, 2005:716 – hereafter referred to as “the Aliens Act”), as amended on 1 January 2010. The following refers to the Aliens Act in force at the relevant time.
29. Chapter 5, Section 1, of the Aliens Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, Section 1, of the Aliens Act, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, Section 2, of the Aliens Act).
30. Moreover, if a residence permit cannot be granted on the above grounds, such a permit may be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances (synnerligen ömmande omständigheter) to allow him or her to remain in Sweden (Chapter 5, section 6 of the Aliens Act).
31. As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, Section 1, of the Aliens Act). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, Section 2, of the Aliens Act).
32. Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This applies, under Chapter 12, Section 18, of the Aliens Act, where new circumstances have emerged that mean there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced. If a residence permit cannot be granted under this provision, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, Sections 1 and 2, of the Aliens Act, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, Section 19, of the Aliens Act).
33. Under the Aliens Act, matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances; the Migration Board, the Migration Court and the Migration Court of Appeal (Chapter 14, Section 3, and Chapter 16, Section 9, of the Aliens Act).
34. On 22 March 2011 the Head of the Legal Department of the Migration Board issued an instruction concerning the enforcement of deportation orders to Yemen. He noted that the already unstable situation in Yemen had rapidly deteriorated due to protests against the regime and that there was increased violence from various groups, including by government forces. Having regard to the difficulties in evaluating the situation in the country and how it would develop, the Head of the Legal Department considered that no deportation orders to Yemen should be enforced until further notice.
35. A second instruction was issued on 10 February 2012 by the Head of the Legal Department of the Migration Board in which he considered the developments in Yemen since the issuance of the first instruction. He first noted that the security situation in Yemen was affected by a number of internal conflicts, such as conflicts between clans, between the regime and various clan militias in the north and the south of the country as well as the regime fighting Al-Qaida in the Arab Peninsula (AQAP). These conflicts had been accentuated by the growing protests and opposition against the regime by civil society, weakening the central government and its control over the country. During the autumn of 2011, in particular, there had been violent clashes in the bigger cities of Sana’a and Taiz. Following the agreement brokered by the Gulf Cooperation Council and sanctioned by the United Nations, where President Ali Abdullah Saleh agreed to hand over power to Vice-President Abdel Rabbo Mansour Hadi, the situation in Yemen continued to be marked by political unrest, an unstable security situation and continued internal conflicts. However, the country-wide protests had diminished in intensity and no longer paralysed the big cities of Sana’a and Taiz. Thus, the general security situation in Sana’a and other big cities had improved. In view of this, the Head of the Legal Department found that the situation in the country was generally very serious but that the violence was not so serious or indiscriminate as to give well-founded grounds to assume that civilians, through their mere presence in the parts of the provinces where the violence occurred, were at a real risk of being exposed to serious and personal threats to life or limb.
36. In conclusion, the Head of the Legal Department noted that Yemen was still marked by major political instability and occasionally armed fighting between various entities in essentially all parts of the country. The Government had little if any power in certain parts of the country and the judicial system could currently not be considered to be capable of impartially protecting the population’s basic rights. In these circumstances, he considered that there were severe conflicts (svåra motsättningar) within the meaning of the Aliens Act in all of Yemen. It was important to point out that the severe conflicts, and consequently the security situation, were more serious in some parts of the country than in others and that this had to be taken into account in each individual case. He further noted that vulnerable groups in Yemen, such as women and children, should be given special attention when their need for protection was considered. Through this instruction, the first instruction was repealed and thereby the stay on deportation orders was also ended.
37. The U.K. Foreign & Commonwealth Office’s Travel Advice for Yemen, as updated on 5 March 2012, sets out the following about the political situation in Yemen:
“Following the signing on 23 November 2011 of the Gulf Cooperation Council’s Initiative by President Saleh, political transition in Yemen is now underway. Much progress has since been achieved with the appointment of a new prime minister, a National Unity Government comprising ministers from the former ruling party and opposition, and approval by parliament of the government’s programme. Interim presidential elections were held on 21 February 2012 and President Abd Rabbuh Mansour Hadi was inaugurated on 25 February as Yemen’s new head of state. The second phase of transition has now begun, leading to greater participation in the political process by all Yemenis, constitutional reform and parliamentary elections. The situation remains uncertain in Yemen, with some seeking to disrupt the new political process and others dissatisfied with the pace of change. Yemen faces tough political, humanitarian and economic challenges. Violent clashes continue across Yemen, particularly in Sana’a and Taiz. The long period of political impasse in 2011 has resulted in the withdrawing of effective state control over parts of the country, especially in the north in Sadah and the south in Abyan. Dialogue is ongoing to achieve political transition and the situation remains extremely tense.”
38. The volatile and tense situation in Yemen, as set out above by the Head of the Legal Department of the Migration Board and the U.K. Foreign & Commonwealth Office, is reflected and supported by other international sources, such as the United Nations.
39. The United States Department of State “2010 Human Rights Report: Yemen”, of 8 April 2011, states among other things:
“Women
The law, rarely enforced, provides women with protection against violence, but there were no laws specifically prohibiting domestic violence, including spousal abuse. Although spousal abuse occurred, it generally was undocumented. Violence against women and children was considered a family affair and usually went unreported to police. Due to social norms and customs, an abused woman was expected to take her complaint to a male relative (rather than to authorities) to intercede on her behalf or provide sanctuary to avoid publicizing the abuse and shaming the family ... The law criminalizes rape, although spousal rape is not criminalized because a woman may not refuse sexual relations with her husband ... The law does not address other types of honour crimes, including beatings, forced isolation, imprisonment, and forced early marriage. The law regarding violence against women states a convicted man should be executed for killing a woman ... Social custom and local interpretation of Shari’a discriminated significantly against women ... Men were permitted to take as many as four wives. A husband may divorce a wife without justifying the action in court. Under the formal court system, a woman has the legal right to divorce, but she must provide a justification, and there were practical, social, and financial considerations that impeded women from obtaining a divorce. However, in some regions under tribal customary law, a woman has the right to divorce without justification... Women also faced discrimination in courts, where the testimony of one man equals that of two women ... Governmental mechanisms to enforce equal protection were weak or nonexistent. According to the Ministry of Social Affairs and Labour (MSAL), there were more than 170 NGOs working for women’s advancement. The Arab Sisters Forum for Human Rights worked with other NGOs, the government, and donor countries to strengthen women’s political participation. The Yemeni Women’s Union and Women’s National Committee (WNC) conducted workshops on women’s rights. The Arab Sisters Forum, with funding from the Netherlands and in cooperation with the MSAL, established projects aimed at providing protection against violence for women and children.
Children
The law does not define or prohibit child abuse, and there was no reliable data on its extent. Child marriage was a significant problem in the country. There was no minimum age of marriage, and girls were married as young as age eight. A February 2009 law setting the minimum age for marriage at age 17 was repealed. According to a 2009 MSAL study, a quarter of all girls were married before they were 15 years old. The law has a provision that forbids sex with underage brides until they are "suitable for sexual intercourse," an age that is undefined. An Oxfam International study calculated that among 1,495 couples, 52 percent of women and 7 percent of men were married at an early age. The report also highlighted that 15-16 years was generally considered the appropriate age of marriage for girls, depending on region and socioeconomic status.”
40. The Amnesty International report “Yemen’s Dark Side - Discrimination against Women and Girls”, of November 2009, and the Human Rights Watch report “How Come You Allow Little Girls to Get Married? Child Marriage in Yemen”, of December 2011, support the abovementioned findings concerning women and children by the U.S. Department of State.
41. The Human Rights Watch report further states that:
“The provisions in Yemen’s Personal Status Law on marriage and divorce create particular hardships for women and girls. ... A man may divorce his wife by pronouncing his repudiation three times. A woman may ask for separation from her husband on certain conditions, for example if the husband fails to provide financially for his family even though he is capable of doing so; if he abandons his wife for more than one year with no compensation, or for more than two years with compensation; if he is imprisoned for more than three years; or if he marries more than one woman and is unable to provide financially for his wives. The wife must provide proof of these allegations before being granted a divorce. A wife who wishes to divorce her husband for other reasons may file for khul’a, or no-fault divorce, under which she is required to pay back her dowry and forego claims to maintenance. Given women’s economic dependence on their husbands, this requirement makes it difficult for women to seek and obtain a divorce.”
42. The Country of Origin Information Centre (Landinfo), an independent human rights research body set up to provide the Norwegian immigration authorities with relevant information has, in a note concerning marriage in Yemen dated 20 July 2010, observed that, according to the Yemeni Personal Status Law no. 20 of 1992, as amended in 1997 and 1999, there is no requirement that a bride be physically present when she is married. It is enough that her guardian agrees and shows his identity card or family book. Moreover, it notes that the mother of the bride has no legal authority to decide about her daughter’s marriage, since she is also under the authority of her husband and has to follow his decisions. The note further states that every year there are girls who flee their forced marriages and seek refuge with NGOs and human rights activists. In this respect, it observes that NGOs run a few shelters in Sana’a and one in Aden where these girls and other women in vulnerable situations can receive protection, counselling and training in various skills.
43. Landinfo has in another note focusing on Yemeni women’s possibilities to support themselves, dated 20 March 2009, observed that it is not acceptable for a Yemeni woman to live alone without a family network. Although women, formally, have some civil and political rights, in reality, they are hindered from using them due to poverty and religious and cultural values. However, there are working women and they are to a certain extent visible on the work market. Roughly 25% of all university students are women and women are allowed to work within the health care and education system, as well as in the agricultural sector, private business or for NGOs.
44. The Freedom House’s report “Women’s Rights in the Middle East and North Africa 2010- Yemen”, of 3 March 2010, sets out:
“Yemen is a tribal and traditional country where prevailing cultural attitudes, patriarchal structures, and Islamic fundamentalism accord women low status in the family and community and limit their participation in society. ...
Women face additional difficulties obtaining justice because police stations and courts – which are always crowded with men – are commonly considered to be inappropriate places for "respected women". Moreover, the lack of female judges, prosecutors, and lawyers discourages women from turning to the courts. Given the social discrimination experienced by women, they hesitate to approach male legal consultants, particularly for issues such as abuse or rape. Instead, women often rely on male relatives to go to court in their place, or turn to them to solve their problem rather than taking the matter to the judiciary.
Domestic violence in cases related to honor is a concealed phenomenon in Yemen. Normally such cases are handled discreetly within the family and rarely reach police records. If the parties to the problem are not relatives, it is often resolved amicably through tribal mechanisms. Cases of honor-related homicide perpetrated against women are usually not reported, and no health certificate is required for a burial, particularly in rural areas. As a result, such deaths are often attributed to natural causes.”
45. There have been some recent changes as observed by Human Rights Watch in its report of December 2011, cited above, pp. 8-9:
“Women played an important role in anti-Saleh protests, despite beatings, harassment, and, in some cases, the condemnation of relatives. President Saleh in April 2011 admonished women demonstrators, saying “divine law does not allow” public intermingling of the sexes. Women responded with further protests. In October 2011, Tawakkol Karman, a prominent woman journalist and human rights activist who has played a pivotal role in the protests, won the Nobel Peace Prize along with two women leaders from Liberia. In recent years, Karman has defied conservatives in her political party Islah, or the Islamists Congregation for Reform, by calling for a minimum age for child marriage.”
46. The important role played by women in the protests against the Yemeni Government during 2011 has also been highlighted by other sources, such as Amnesty International and the media.
47. Yemen is a State Party to a number of international treaties and conventions that explicitly prohibit discrimination against women and protects the rights of women and children, such as the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriage, the International Covenant on Civil and Political Rights as well as the International Covenant on Economic, Social and Cultural Rights.
48. The United States Department of State’s 2010 Report on Yemen, cited above, states:
“The law provides for freedom of movement within the country, foreign travel, emigration, and repatriation, and the government generally respected these rights with some restrictions. The government limited the movement of women, foreign tourists, and other foreigners ... According to the law, government officials required women to have the permission of a male relative before applying for a passport or leaving the country. A women’s rights NGO asserted that a husband or a male relative could bar a woman from leaving the country and that authorities strictly enforced this requirement when women travelled with children. During the year authorities reportedly turned back several women at the airport because they did not have the permission of a male relative.”
49. Landinfo has in a thematic note of 2 November 2010 concerning Yemeni travel and identity documents concluded that the notoriety of Yemeni documents was low, partly as a result of a weak central government, widespread corruption and incomplete registration procedures and archives. Thus, it was reported that it was easy to obtain forged documents through bribery or personal connections.
50. The note further stated that passports were issued and renewed by the Ministry of the Interior. In order to get a passport, the applicant would have to present a valid identity card or family book as well as two photographs and leave his or her fingerprints. For a woman to obtain a passport, she had to have the permission of her husband or, if she was unmarried, that of her father or other male relative. Children were normally registered in their parents’ passport until the age of 16. However, if necessary, a child could get a passport if the child’s birth certificate and the father’s passport were submitted to the issuing authority. As concerned leaving the country, the note observed that there was different information available. According to the U.S. Department of State, a woman needed permission from her husband, or father if unmarried, to leave the country. However, the Women’s National Committee (a Yemeni government-affiliated body working to empower women) and a Yemeni lawyer had informed Landinfo that, once a married woman had obtained a passport, she did not need formal permission from her husband to leave the country.
NON_VIOLATED_ARTICLES: 2
3


ITEMID: 001-61271
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF EUGENIA MICHAELIDOU DEVELOPMENTS LTD AND MICHAEL TYMVIOS v. TURKEY
IMPORTANCE: 3
CONCLUSION: Preliminary objections dismissed (ratione temporis, ratione loci, victim, non-exhaustion of domestic remedies);Violation of P1-1;Not necessary to examine Art. 14;Not necessary to examine Art. 8;Just satisfaction reserved;Costs and expenses award - Convention proceedings
JUDGES: Georg Ress
TEXT: 10. The first applicant is a private company incorporated under Cypriot law and registered in Nicosia on 3 July 1986. It has one director and two shareholders. The second applicant is a Cypriot national of Greek-Cypriot origin, born in 1948 and living in Nicosia. He is the director of the first applicant and also its principal shareholder. The second shareholder of the company is the second applicant's wife. From the date of the incorporation of the first applicant until 28 November 1986, the second applicant owned 1,960 shares and his wife 40 shares. However, since 29 November 1986 the applicant has been the owner of 1,999 shares and his wife the owner of one share.
11. In April 1988 the first applicant became the co-owner of a substantial amount of property by way of gift. The property is situated in the village of Tymvou, in the northern district of Nicosia, located in the “Turkish Republic of Northern Cyprus” (“TRNC”). It consists of 51 plots of land with registration numbers A174, A194, A195, B245, B121, B238, B321, E262, E266, E268, E279, E291, E292, F221, F222, F301, F308, F314, F318, G102, G162, G193, G246, G288, G298, G299, G407, G411, G414, G415, G418, H17, H18, H26, H76, H87, H90, H98, H109, H112, H117, H130, H136, H144, H179, J12, J13, J32, J38, J46 and J55.
12. The first applicant owned the property in equal shares with another company also registered in Nicosia. However, on 3 April 1996 the first applicant and the other co-owner transferred their shares in the above property by way of gift to the second applicant. As from 3 April 1996 the second applicant became the exclusive owner of that property.
13. The applicants state that they are prevented by the Turkish armed forces from having access to their property and using and enjoying possession of it.
14. On 30 June 2003 the “Parliament of the Turkish Republic of Northern Cyprus” enacted the “Law on Compensation for Immovable Properties Located within the Boundaries of the Turkish Republic of Northern Cyprus”, which entered into force on the same day.


ITEMID: 001-102685
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF DARVAS v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Article 5-1-c - Reasonably necessary to prevent fleeing)
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
TEXT: 5. The applicant was born in 1985 and lives in Ajka.
6. On 5 December 2004 the applicant was arrested on charges of drug abuse. On 7 December 2004 the Veszprém District Court held a hearing and ordered his house arrest. On appeal, on 15 December 2004 the Veszprém County Regional Court changed this decision and ordered the applicant's pre-trial detention for fear of collusion and reoffending. However, on 13 April 2005 he was released.
7. In another case, on 20 May 2005 the applicant was arrested on charges of aggravated drug trafficking, essentially because substantial amounts of various drugs and packaging material had been found in a garage of which he had been the tenant. On 22 May 2005 his pre-trial detention was ordered at a court hearing, for fear of collusion with members of the presumed drug network. His detention was subsequently prolonged at the statutory intervals in decisions which included rather stereotypical references to the risks of his absconding and collusion without any detailed reasoning in regard to his individual circumstances or the evidence obtained against him.
8. On 9 February 2006 the applicant made a request for release on bail, pledging a substantial sum of money as a security. On 16 February 2006 the request was rejected. His appeal was dismissed on 24 February 2006.
9. On 12 June 2006 the investigation was terminated.
10. On 19 July 2006 the Komárom-Esztergom County Regional Court prolonged the applicant's detention until 22 August 2006. The court rejected the arguments of the applicant's lawyer to the effect that the results of the investigation did not support a reasonable suspicion against the applicant. It was satisfied that his continued detention was necessary for fear of his absconding and could not be substituted by home arrest as suggested. It held that there was a well-grounded suspicion that the applicant had participated in the storage and dispatch of drugs which constituted an offence punishable with very severe sanctions. On 27 July 2006 the Győr Court of Appeal dismissed the applicant's appeal, holding that the potential sanctions justified the fear of the applicant's absconding.
11. On 10 August 2006 a bill of indictment was preferred concerning twenty-one defendants, including the applicant. It combined the facts of the two criminal proceedings outlined above. The applicant was charged with complicity in aggravated drug trafficking.
12. On 21 August 2006 the Győr-Moson-Sopron County Regional Court prolonged the applicant's pre-trial detention. The court held that the sanction which the applicant was potentially facing entailed the danger of his absconding.
13. The applicant's lawyer appealed, arguing that no specific reasons, as required by the Court's case-law, had been given for the applicant's continued detention. In particular, he maintained that nothing in the case file supported the applicant's involvement in selling drugs. In the light of the jurisprudence of the courts, no such sanction was, in his view, to be envisaged as automatically justifying detention for fear of absconding. To refute this point, the lawyer submitted that the applicant's personal circumstances were decent: he was being supported by his family with which he had good relations and he had been fulfilling his educational and professional duties diligently before his arrest. The lawyer proposed that the applicant's detention be replaced by house arrest.
14. On 21 September 2006 the Court of Appeal dismissed the appeal, observing that part of the offences with which the applicant was charged was punishable with very severe sanctions including life imprisonment, which justified the fear of absconding.
15. On 22 November 2006 the applicant again requested his release on bail. On 30 November 2006 he was released on bail and his house arrest was ordered. This measure was lifted on 21 May 2007.
16. On 29 April 2008 the applicant was found guilty of the charge relating to the offence for which he had been arrested on 5 December 2004, and acquitted in respect of the remainder of the charges.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
VIOLATED_BULLETPOINTS: 5-1-c


ITEMID: 001-23002
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: MICHALIKOVA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mrs Helena Michalíková, is a Slovakian national, born in 1951 and living in Banská Bystrica, Slovakia. The respondent Government were represented by Mr P. Vršanský, their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1991 the applicant initiated judicial proceedings before the Banská Bystrica District Court seeking protection of her personality rights.
On 18 July 1994 the action was dismissed. On 24 June 1997 the Regional Court returned the case file to the District Court for a decision on the applicant’s petition for exemption from the obligation to pay court fees. On 18 August 1997 the District Court exempted the applicant from the obligation to pay court fees. Subsequently the case file was mistakenly placed in the District Court’s archive.
On 1 June 2001 the case file was transmitted to the Regional Court for a decision on the applicant’s appeal. On 19 September 2001 the Banská Bystrica Regional Court quashed the District Court’s judgment of 18 July 1994.
The proceedings are pending at first instance.
Article 48 (2) of the Constitution provides, inter alia, that every person has the right to have his or her case tried without unjustified delay.
As from 1 January 2002, the Constitution has been amended in that, inter alia, individuals and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to Article 127 the relevant part of which reads as follows:
“1. The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by the Slovak Republic ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.
2. When the Constitutional Court finds that a complaint is justified, it shall deliver a decision stating that a person’s rights or freedoms set out in paragraph 1 have been violated as a result of a final decision, by a particular measure or by means of any other interference. It shall quash such a decision, measure or other interference. When the violation found is the result of a failure to act, the Constitutional Court may order that [the authority] which violated such rights or freedoms shall take the necessary action. At the same time the Constitutional Court may return the case to the authority concerned for further proceedings, order that such an authority abstain from violating fundamental rights and freedoms ... or, where appropriate, order that those who violated the rights or freedoms set out in paragraph 1 restore the situation to that existing prior to the violation.
3. In its decision on a complaint the Constitutional Court may grant adequate financial satisfaction to the person whose rights under paragraph 1 have been violated.” ...
The implementation of the above constitutional provisions is set out in more detail in Sections 49 - 56 of Act No. 38/1993 (the Constitutional Court Act), as amended with effect from 20 March 2002.
After 20 March 2002 the Constitutional Court delivered a number of decisions in which it found a violation of Article 48 (2) of the Constitution, ordered the general court concerned to avoid any further delays in the proceedings and awarded the successful complainants financial compensation in respect of delays which had already occurred.


ITEMID: 001-93448
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF CAHİT DEMİREL v. TURKEY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1972 and lives in Batman.
5. On 1 April 1996 the applicant was arrested by gendarmerie officers while he was leaving Batman. He was then transferred to the Anti-Terrorist Branch of the Batman Police Headquarters on suspicion of involvement in the activities of the PKK (the Workers’ Party of Kurdistan), an illegal organisation.
6. On 18 April 1996 the applicant was brought before the Batman public prosecutor and the judge at the Batman Magistrates’ Court. The judge remanded the applicant in custody.
7. On an unspecified day the Batman public prosecutor issued a decision of non-jurisdiction and sent the case file to the public prosecutor’s office at the Diyarbakır State Security Court.
8. On 22 May 1996 the public prosecutor filed a bill of indictment against the applicant, along with other persons, charging him with membership of the PKK under Article 168 § 2 of the former Criminal Code.
9. On 30 July 1996 the Diyarbakır State Security Court held the first hearing on the merits of the case.
10. On 25 December 2001 the Fourth Chamber of the Diyarbakır State Security Court convicted the applicant as charged and sentenced him to twelve years and six months’ imprisonment.
11. Throughout the proceedings, the applicant and his representative requested several times that the applicant be released pending trial. At the end of each hearing the State Security Court rejected the applicant’s requests, having regard to the nature of the offence, the state of the evidence and the content of the case file.
12. On 9 October 2002 the Court of Cassation quashed the judgment of the first-instance court. The case was subsequently remitted to the Diyarbakır State Security Court.
13. On 13 May 2003 the Diyarbakır State Security Court ordered the applicant’s release pending trial.
14. On 23 March 2004 the State Security Court once again convicted the applicant under Article 168 § 2 of the former Criminal Code and sentenced him to twelve years and six months’ imprisonment.
15. On 19 October 2004 the Court of Cassation quashed the judgment of 23 March 2004.
16. Pursuant to Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, abolishing State Security Courts, the case against the applicant was transferred to the Diyarbakır Assize Court.
17. On 2 May 2005 the Diyarbakır Assize Court decided that the proceedings against the applicant should be terminated on the ground that the statutory timelimit under Article 102 of the Criminal Code had expired. This decision to terminate the case became final as neither the applicant nor the public prosecutor appealed.
18. The relevant domestic law and practice in force at the material time are outlined in Çobanoğlu and Budak v. Turkey (no. 45977/99, §§ 29-30, 30 January 2007).
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-3
5-4
6-1


ITEMID: 001-122663
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: KREMPL v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger
TEXT: The applicant, Mr Anton Krempl, is a Slovenian national, who was born in 1960 and lives in Križevci Gornja Radgona. He is represented before the Court by Odvetniška Družba Matoz D.O.O., a law firm practising in Koper.
The Slovenian Government (“the Government”) are represented by their Agent, Mrs N. Aleš Verdir, State Attorney.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant has been serving a sentence in the closed section of Dob Prison since 5 May 2007.
As regards the facilities available to the applicant in the cells and common areas, as well as the health care regime in the prison, the conditions imposed on the applicant regarding activities outside the cells and contact with the outside world in general, see the Court’s decision in the case of Lalić and Others v. Slovenia (dec.), nos. 5711/10, 5719/10, 5754/10, 5803/10, 5956/10, 5958/10, 5987/10, 6091/10, 6647/10 and 6893/10, 27 September 2011.
Between 23 May 2007 and 15 July 2010 the applicant was held in a cell no 1, Block 3 which measured 59.89 square metres and held fifteen inmates (3.99 square metres of personal space available to each inmate). Afterwards he was moved to a single cell no 17, Block 3 which measured 7.17 square metres.
The applicant had his initial psychological examination on 10 May 2007 where he was informed of the option to ask for psychological help at any time. Since then he was treated by a psychologist on 2 September 2008 and 10 February 2009. According to the report by the prison clinic dated 13 August 2010 the applicant was from 9 May 2007 treated on ninety-three occasions for different health problems. According to the medical report dated 7 December 2010 he received psychiatric assistance on five occasions from 9 April 2010 to 15 September 2010 and was receiving antidepressants due to his chronic depression; however he refused to attend an examination on 11 November 2010. He often underwent psychiatric control due to his suicidal thoughts. As he was suspected of being a suicide risk, he was intensively monitored in August 2009, invited to a session with a psychologist and was referred to a psychiatrist. He was offered to be placed in a clinic room, however he refused that. According to the Government’s submissions dated 17 June 2011 he never asked for a dental examination.
For the relevant domestic law and practice, see paragraphs 33-35 and 38-47 of the Court’s judgment in the case of Štrucl and Others v. Slovenia (nos. 5903/10, 6003/10 and 6544/10, 27 September 2011), and paragraphs 34-36 of Mandić and Jović v. Slovenia (nos. 5774/10 and 5985/10, 27 September 2011), Lalić and Others, cited above, as well as Mešić v. Slovenia (no. 5767/10, 22 November 2011) and Ferenc v. Slovenia (no. 6682/10, 13 March 2012).


ITEMID: 001-70899
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: PERRIN v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicant, Mr Stephane Laurent Perrin, is a French national, who was born in 1971 and lives in Hove, the United Kingdom. He was represented before the Court by J. Welch, a lawyer practising in London.
On 25 October 1999 an officer with the Obscene Publications Unit of the Metropolitan Police used, in the course of his duties, a computer at a police station in the United Kingdom to access a web page which he found on the internet. When he viewed that page he saw people covered in faeces, coprophilia, coprophagia and men involved in fellatio. The page was in the form of a preview for other material that could be viewed on payment of a subscription. Anyone wanting more of that type of material could click on to a link marked “subscription to our best filthy sites.” The officer did that and provided his name, address, and credit card details. He was then given access to a second web page which contained similar material to the first. On 12 November 1999 the officer visited the web site again and viewed a third web page.
The applicant was subsequently arrested and interviewed by police officers about his involvement in the publication of internet sites. He stated in his interviews with the police that the internet site viewed by the officer was operated and controlled by Metropole News Group, a company based in the United States of America that complied with all the local laws and of which the applicant was a majority shareholder.
The applicant was charged with three counts of publishing an obscene article, contrary to section 2 of the Obscene Publications Act 1959 (“the 1959 Act”). The three counts related to the three respective web pages which the officer had viewed.
The matter came for trial before Southwark Crown Court in October 2000. At the start, the applicant entered an admission, through his counsel, that he was legally responsible for the publication of the web pages viewed by the police officer. The issue for the jury was whether those pages were obscene within the meaning of section 2 of the 1959 Act. The trial judge directed them as to the definition of “obscene” provided by section 1(1) of the 1959 Act (see below).
On 16 October 2000 the applicant was convicted on the first count, which related to the preview page, and acquitted him on the two other counts. On 6 November 2000 he was sentenced to thirty months imprisonment.
The applicant sought leave to appeal to the Court of Appeal on the ground, inter alia, that his conviction violated Article 10 of the Convention. He submitted that it was an interference with his right to freedom of expression which was neither prescribed by law, nor proportionate. His main point was that the 1959 Act was not sufficiently foreseeable because the major steps towards publication of the web pages had taken place outside the jurisdiction: he maintained that English courts should only be able to convict when the major steps towards publication took place within their jurisdiction. He further submitted that section 2 of the 1959 Act was not sufficiently clear. As to proportionality, he pointed out that similar material was readily available on the internet and that there were better means of inhibiting access, such as industry self-regulation, blockage by service providers and steps taken at home.
On 22 March 2002 the Court of Appeal dismissed his appeal against conviction. It relied on Handyside v. the United Kingdom (judgment of 7 December 1976, Series A no. 24, § 44) and Hoare v. the United Kingdom (no. 31211/96, Commission decision of 2 July 1997) in holding that section 2 of the 1959 Act was sufficiently precise for the interference in question to be prescribed by law.
In regard to proportionality, it reviewed the Convention case law and observed that there was a margin of appreciation in relation to judgments about morality. It held that the interference with the applicant’s freedom of expression was limited in that he was only convicted on the first count. It considered that, even if the 1959 Act only provided limited protection to vulnerable people, there is no reason why a responsible government should abandon that protection in favour of the limited remedies advocated by the applicant. Finally, it noted, on the jurisdictional point, that the applicant’s suggestion, that conviction should only be possible where major steps had been taken towards publication in a place over which the court had jurisdiction, would undermine the aim that the law was intended to protect by encouraging publishers to take the steps towards publication in countries where they were unlikely to be prosecuted. It concluded that the interference in question was justified under Article 10 § 2.
His appeal against sentence was also dismissed, the Court of Appeal finding as follows:
“It is pointed out that this was material that had to be sought out. That, of course, is true. As [counsel for the applicant] accepts, it was available to the young but they had to seek it. On the other hand, it is precisely the sort of material which some young would seek in the privacy of their own bedrooms and it is they who have to be protected, so far as is possible, by the law. There is, as [counsel for the applicant] submits, difficulty with the worldwide web, but it is through the worldwide web that people are able to make very substantial profits....
Finally, it is submitted that, if one looks at the authorities, sentences passed in relation to other offences were not of this magnitude, at any rate where the offence was not, on the face of it, relating to child pornography. That is true so far as it goes, but again the danger in relation to this type of offence was its accessibility to the young and vulnerable. In those circumstances it seems to us that, bearing in mind the statutory maximum of three years, the judge adopted the right approach in this case, and we see no reason to interfere with the sentence which he imposed.”
On 30 October 2002 the House of Lords refused the applicant leave to appeal.
The 1959 Act (as amended by the Obscene Publications Act 1964, the Criminal Law Act 1977, the Cinema Act 1985, the Broadcasting Act 1990 and the Criminal Justice and Public Order Act 1994) provides in so far as relevant:
“1. Test of obscenity
(1) For the purposes of this Act an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.
(2) In this Act “article” means any description of article containing or embodying matter to be read or looked at or both, any sound record, and any film or other record of a picture or pictures.
(3) For the purposes of this Act a person publishes an article who –
(a) distributes, circulates, sells, lets on hire, gives, or lends it, or who offers it for sale or for letting on hire; or
(b) in the case of an article containing or embodying matter to be looked at or a record, shows, plays or projects it, or, where the matter is data stored electronically, transmits that data....
2. Prohibition of publication of obscene matter
(1) Subject as hereinafter provided, any person who, whether for gain or not publishes an obscene article or who has an obscene article for publication for gain (whether gain to himself or to another) shall be liable –
(a) ...
(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding three years or both ...
4. Defence of public good
(1) Subject to subsection (1A) of this section [which is concerned with moving picture films or soundtracks] a person shall not be convicted of an offence against section two of this Act, and an order for the forfeiture shall not be made under the foregoing section, if it is proved that publication of the article in question is justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern.”