ITEMID: 001-58306
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF DALBAN v. ROMANIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 10;Not necessary to examine Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Luzius Wildhaber;Paul Mahoney
TEXT: 12. Mr Ionel Dalban was a journalist who ran a local weekly magazine called Cronica Romaşcană. He lived in the town of Roman until his death on 13 March 1998.
13. On 23 September 1992 an article by the applicant, headlined “Roman IAS defrauded of tens of millions”, appeared in issue no. 90/1992 of his magazine. The article exposed a series of frauds allegedly committed by G.S., the chief executive of a State-owned agricultural company, FASTROM of Roman (previously known as the Roman IAS or State farm). Citing Fraud Squad reports as the source of his information, the applicant wrote, in particular:
“... a new fraud of incredible proportions has been discovered within the Roman company FASTROM S.A. (the former State farm), the prime suspect being a privileged member of the local communist nomenklatura, Mr G.S. The losses caused by him ... amount, according to Fraud Squad and other expert estimates, to over 23,000,000 lei! The fraud was committed by entering stock in the inventory of [FASTROM of Roman’s] central warehouse – stock that does not appear anywhere in the inventories of the undertakings under its control. It has been established that much of this stock was replaced by goods required by Mr G.S. and his friends and family, or exchanged for cash, which was then shared out in fraternal fashion. It makes one think of the highwaymen of old, who flouted the law both of God and of the land (Jaf ca-n codru)! ...
The people of Roman are asking how this could have happened. Perhaps Senator R.T., who, hitherto, has been the State representative on the board of FASTROM of Roman, will give us an explanation. He was paid hundreds of thousands of lei every month in that capacity. Now we know why – or, to put it another way, how – he has been protecting the State’s interests ...”
14. In an article in issue no. 104/1993 of the magazine, published on 6 January 1993, the applicant wrote:
“A Dacia estate car [belonging to the FASTROM company] was ‘made over’ to Senator R.T. every weekend for a year and a half to take him to and from Bacău Airport (driven by R.M.). This practice may have stopped but it has not been forgotten.”
15. G.S. and R.T. laid an information against the applicant under Article 206 of the Criminal Code on the basis that what he had written was defamatory.
16. On 24 June 1994 the Roman Court of First Instance (judecătoria) convicted the applicant of criminal libel, giving him a suspended sentence of three months’ imprisonment and ordering him to pay 300,000 lei (ROL) to R.T. and G.S., who were claiming damages in the same proceedings. Further, the applicant was banned from practising his profession for an indefinite period.
17. The court found that, although two criminal investigations had been held into G.S.’s conduct, the public prosecutor’s office had decided on 7 September 1990 and 10 December 1992 that he had no case to answer in relation to charges of misappropriation of corporate assets or causing harm to the public interest in the course of his duties as a civil servant (abuzul în serviciu contra intereselor obşteşti), an offence under Article 248 of the Criminal Code.
With regard to R.T., the court found that between June 1991 and July 1992 the salary he had received in his capacity as a member of the board of State representatives had been ROL 55,000 – not “hundreds of thousands” of lei. It also found that, under the Senate’s Standing Orders, “prefects [were to] place a means of transport and a secretary at the disposal of senators in order to facilitate the performance of their duties” and that, in a letter (ref. no. 4849/1991), the prefect’s office in the county of Neamţ had requested FASTROM of Roman to make a car available to the office of the senator for Roman. The court concluded that the applicant’s allegations did not correspond to reality.
18. The applicant appealed against this judgment. According to him, the Fraud Squad reports on the basis of which G.S. had been charged, reports by Ministry of Finance inspectors of 19 and 26 June and 18 December 1992 and statements by members of the board of directors of, and of the trade union operating within, FASTROM of Roman all contained evidence of illegal accounting operations attributed to the chief executive, G.S. According to those documents, the sums involved amounted to more than ROL 23,000,000.
19. As regards R.T., the applicant pointed to the fact that the Court of First Instance had acknowledged in its judgment of 24 June 1994 that R.T. had used a car belonging to FASTROM of Roman. He argued that his assertions concerning the salary received by R.T. had not been defamatory, despite the admitted error as to its amount.
20. In a judgment of 7 December 1994 the Neamţ County Court (tribunalul judeţean) decided by two votes to one to uphold the judgment of 24 June 1994 as regards both the sentence of imprisonment and the compensation order. Noting that the public prosecutor’s office had decided on two occasions not to press charges against G.S., the court found – without examining the police reports produced by the applicant in support of his allegations – that those allegations did not correspond to reality. With regard to Senator R.T., the court found that his use of the car had been lawful.
However, the court did set aside the ban on the applicant working as a journalist, “because of the praiseworthy way in which he had conducted himself during the proceedings”.
21. The dissenting judge, M.C., delivered a minority judgment in which he concluded:
“... Revealing the truth is a sine qua non if shortcomings are to be eliminated and the interests of society defended. Those interests take priority over the defence – at any price – of our reputations. As the active conscience of the nation, a journalist has both the right and the duty to question institutions and those who run them, so as to monitor whether they are working satisfactorily, whether they deserve the authority with which they have been vested and whether the prestige which surrounds them is deserved or not. No one is infallible and no one can claim to be.
It appears to me unjust to convict the journalist Ionel Dalban when all he has done is to fulfil his duty as a journalist in an objective manner, with the aim of contributing to creating a healthier moral climate in the town in which he lives and works ...”
22. Despite his conviction, the applicant continued to publish information concerning the fraud allegedly committed by G.S.
Moreover, he did not pay the damages awarded to G.S. and R.T.
23. As a result of his revelations, the Romanian parliament’s Committee for the Investigation of Abuses requested the Neamţ public prosecutor’s office to look into the matter.
24. A non-governmental organisation, the “Democratic League for Justice”, also took up the revelations, with the result that on 20 July 1994 the Roman public prosecutor’s office opened a new judicial investigation into G.S.’s conduct.
25. Following the applicant’s conviction, other newspapers, including the mass-circulation national daily Adevărul, published articles about the alleged fraud.
26. Many newspapers described the applicant’s conviction as an “attempt to intimidate” the press.
27. On 24 April 1998 the Procurator-General applied to the Supreme Court of Justice to have the applicant’s conviction at first instance and on appeal quashed on the grounds that the offence of criminal libel had not been made out.
28. In a judgment of 2 March 1999 the Supreme Court of Justice allowed the application. With regard to the applicant’s conviction for libelling G.S., it acquitted the applicant on the ground that he had acted in good faith. In respect of the libel on R.T., the court quashed the conviction and, while holding that the applicant had been rightly convicted, decided to discontinue the proceedings in view of his death.
29. The relevant provisions of the Criminal Code are as follows.
“Anyone who makes any statement or allegation in public concerning a particular person which, if true, would render that person liable to a criminal, administrative or disciplinary penalty or expose them to public opprobrium, shall be liable to imprisonment for between three months and one year or to a fine.”
“Evidence of the truth of such a statement or allegation is admissible where the statement or allegation was made in order to protect a legitimate interest. Where the truth of the statement or allegation is proved, no offence of insult or defamation will have been committed.”
30. The relevant provisions of the Code of Criminal Procedure read:
“An appeal shall lie in the following circumstances:
...
(10) where the judgment does not deal either with all the charges made against the accused in the committal order, with all the evidence taken or with all applications that are of essential importance to a party in that they may safeguard that party’s rights or have an effect on the outcome of the trial;
... ”
Article 504
“Anyone who has been finally convicted is entitled to compensation from the State for any loss or damage suffered where it is held in a fresh judgment against which no appeal lies that he did not commit the offence in question or that the offence was not committed.
…
A person who, at any time during the investigative or trial stage of the case, acting with clear intent and in a gravely culpable manner, hindered or sought to hinder the establishment of the truth shall not be entitled to any such compensation.
Any person designated in sub-paragraphs 1 or 2 above who was in employment at the time of his arrest shall be treated, for the purposes of all allowances and benefits linked to length or continuity of service, as if he had been continuously employed during the period of his imprisonment or penal labour.”
Article 505
“Proceedings under Article 504 for compensation for loss or damage may be brought by any person who has suffered such loss or damage or, after his death, may be brought or pursued by his dependants.
Such proceedings must be commenced within one year of the date of the final acquittal or order discontinuing the proceedings.”
VIOLATED_ARTICLES: 10


ITEMID: 001-86903
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF FEDKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1972 and lives in Uman.
5. In summer 2000 Mr Y. Z., the applicant’s acquaintance, issued the applicant with a power of attorney to represent his interests in connection with criminal proceedings instituted against several individuals, who had stolen his shoes and cash. In this capacity the applicant participated in Mr Y. Z.’s discussions with relatives of Ms Y. V., one of the suspects, who were seeking to negotiate a settlement. Subsequently the relatives of Ms Y. V. accused Mr Y. Z. and the applicant of extorting money from them to pay the law enforcement authorities to discontinue proceedings against Ms Y. V.
6. On 20 July 2000 criminal proceedings were instituted against Mr Y. Z. on suspicion of soliciting a bribe. These proceedings were joined with those concerning the larceny of his possessions.
7. Within the framework of these proceedings, on 1 September 2000 the applicant was charged of being an accomplice to Mr Y. Z. On an unspecified date he was placed under an undertaking not to abscond.
8. In October 2000 the investigation was completed and the applicant was committed to trial before the Uman Court (Уманський міський суд).
9. On 6 February 2001 the Uman Court ordered a forensic expert assessment at the applicant’s request and suspended the proceedings pending its outcome. The court further remanded the applicant in custody, finding that he might interfere with the investigation.
10. On 21 June 2001 the expert assessment was produced to the court.
11. On 9 November 2001 the Uman Court convicted the applicant and Mr Y. Z. of fraud and soliciting a bribe, sentencing the applicant to four years’ imprisonment and exempting him from prison under amnesty. On the same day the applicant was released from detention under an undertaking not to abscond.
12. On 15 January 2002 the Cherkasy Regional Court of Appeal (Апеляційний суд Черкаської області) quashed the judgment and remitted the case for fresh consideration.
13. On 13 November 2002 the Uman Court remanded the applicant in custody.
14. On 17 January 2003 the Uman Court remitted the case for additional investigation and released the applicant under an undertaking not to abscond. The prosecution appealed.
15. On 18 March 2003 the Regional Court quashed the ruling of 17 January 2003 and remitted the case to the first-instance court for consideration on the merits.
16. On 6 June 2003 the Uman Court convicted Mr Y. Z. and the applicant of fraud and soliciting a bribe, sentenced them to three years’ restriction of freedom and exempted them from prison under amnesty.
17. On 23 December 2003 the Regional Court quashed the judgment and remitted the case for additional investigation, citing numerous procedural omissions in the course of investigation and trial. In particular, the court pointed out that no formal criminal proceedings had been instituted against the applicant and so the charges brought against him within the framework of proceedings against Mr Y. Z. were unlawful. It further found that the applicant had been placed in custody without sufficient grounds, that the trial court had failed to take due note of several of his requests and that the case file contained unsigned procedural documents. On the same date the court issued a separate ruling bringing the above-mentioned omissions to the attention of the Cherkasy Regional Prosecutor and the President of the Cherkasy Regional Council of Judges. The court ordered that the applicant remain under an undertaking not to abscond.
18. On 2 March 2004 the investigative authorities suspended the investigation concerning the larceny of Mr Y. Z.’s possessions on account of inability to determine the identity of the perpetrators. By July 2007 no further procedural actions had ensued. It is unclear whether the applicant has been released from the undertaking not to abscond.
VIOLATED_ARTICLES: 6


ITEMID: 001-67445
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: CELIK v. TURKEY
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant, Mr Hatip Çelik, is a Turkish national who was born in 1954 and lives in Konya. He was represented before the Court by Mr İ.E. Gencan, a lawyer practising in Diyarbakır.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 11 November 1980 police officers arrested the applicant on suspicion of membership of the PKK.
On 8 January 1981 the Diyarbakır Martial Law Court (sıkıyönetim askeri mahkemesi) ordered the applicant's detention pending trial.
On 14 September 1981 the Military Public Prosecutor filed an indictment with the Diyarbakır Martial Law Court charging the applicant under articles 125 and 168 of the Criminal Code with membership of the PKK and undertaking actions aimed at separating a portion of the territories under the sovereignty of the State from the administration of the State.
On an unspecified date the applicant appointed a lawyer of his own choice to represent him throughout the domestic criminal proceedings.
On 19 February 1985 the Martial Law Court found the applicant guilty of offences under Articles 125 and 168 and sentenced him to 24 years' imprisonment. The applicant appealed.
On 10 April 1990 the Military Court of Cassation (askeri yargıtay) quashed the judgment of 19 February 1985 holding that there was insufficient evidence for the applicant's conviction.
On 18 June 1990 the applicant was released pending trial.
Following promulgation of the Law of 26 December 1994, which abolished the jurisdiction of the martial law courts, the Diyarbakır Assize Court acquired jurisdiction over the case and the case-file was sent to it.
On 13 July 1998 the Diyarbakır Assize Court acquitted the applicant of the charges.
On 5 August 1998 the judgment of the Diyarbakır Assize Court was served on the applicant's representative.
On 10 September 1998 the judgment acquitting the applicant became final as neither the applicant nor the public prosecutor had appealed against it before the statutory time-limit.
On 4 February 1999 the applicant appointed a new lawyer, who is his representative in the proceedings before the Court.
On 19 March 1999 the now final judgment was served on the applicant's new lawyer upon his request.
On 30 April 1999 the applicant filed a claim with the Konya Assize Court under Law no. 466 requesting compensation for his unjustified detention on remand.
On 3 November 2000 the Konya Assize Court awarded compensation to the applicant.
On 14 June 2001 the Court of Cassation upheld the judgment of the firstinstance court.


ITEMID: 001-121828
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: COMMITTEE
DATE: 2013
DOCNAME: CASE OF TSIBULKO AND OTHERS v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible (Article 35-3 - Manifestly ill-founded);Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
JUDGES: Ann Power-Forde;Helena Jäderblom
TEXT: 5. On the dates set out in the appended tables domestic courts delivered decisions according to which the applicants were entitled to various pecuniary amounts or to have certain actions taken in their favour. The decisions became enforceable. However, the applicants were unable to obtain the enforcement of the decisions in due time.
6. Some of the applicants also made submissions concerning factual and legal matters unrelated to the above non-enforcement issues.
VIOLATED_ARTICLES: 13
6
P1
VIOLATED_PARAGRAPHS: 6-1
P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-79375
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF ŠVARC AND KAVNIK v. SLOVENIA
IMPORTANCE: 3
CONCLUSION: Violations of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: John Hedigan
TEXT: 5. Mrs Anita Švarc was born in 1968 and lives in Vuzenica. Ivan Kavnik was born in 1956 and lives in Topolščica.
6. On 30 October 1989 the applicants were injured in a car accident in Austria. The accident resulted in the premature birth of their son, who sustained in utero injuries in the accident. The son died in hospital in Slovenj Gradec (Slovenia) on 28 December 1989. The perpetrator of the accident had taken out insurance with the insurance company Wiener Allianz Versicherungs Aktiengesellschaft (“WA”).
7. On 27 October 1992 the applicants instituted civil proceedings against WA in the then Celje Basic Court, Velenje Branch (Temeljno sodišče v Celju, Enota v Velenju), seeking damages of 3,237,900 Slovenian tolars for the injuries sustained in the car accident and the non-pecuniary damage sustained following the death of their son.
On 4 January 1993 Mr Lojze Ude, a professor at the Faculty of Law in Ljubljana, delivered an expert opinion in the case at the request of WA. He stated that the Slovenian courts had no jurisdiction to examine the applicants' claims. At the time, Mrs Dragica Wedam-Lukić was a work colleague of Mr Ude.
On 6 January 1993 WA lodged preliminary written submissions arguing that the case was not within the court's jurisdiction. They attached the opinion prepared by Mr Ude to the submissions, which were included in the file and served on the applicants.
On 25 May 1993 Mr Ude was appointed as a justice at the Constitutional Court (Ustavno sodišče).
On 22 February 1994 the Celje Basic Court, Velenje Branch, held a hearing.
On 18 and 25 February 1994 the applicants lodged preliminary written submissions contesting Mr Ude's opinion and WA's arguments.
On 22 April 1994 a decision dated 22 February 1994, the date on which the hearing was held, was served on the applicants. The court decided that the case was not within its jurisdiction, but made no explicit reference to Mr Ude's opinion.
8. On 4 May 1994 the applicants lodged an appeal with the Celje Higher Court (Višje sodišče v Celju).
On 28 June 1994 the Convention took effect with respect to Slovenia.
On 23 August 1994, on a request by the Celje Higher Court, the first-instance court delivered a supplementary decision concerning the costs of the proceedings.
On 1 September 1994 the applicants appealed against the decision concerning costs.
On 14 December 1994 the Celje Higher Court dismissed both applicants' appeals.
9. On 14 February 1995 the applicants lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče) against the decision of 14 December 1994.
On 27 February 1997 the Supreme Court dismissed the appeal on points of law against the judgment of 22 February 1994 and rejected the appeal against the decision of 23 August 1994 as inadmissible.
10. On 22 May 1997 the applicants lodged a constitutional appeal with the Constitutional Court (Ustavno sodišče). In their appeal, they made no reference to Mr Ude's opinion.
On 1 April 1998 Mrs Wedam-Lukić was appointed as a justice at the Constitutional Court.
On 24 March 2000 the Constitutional Court declared the appeal inadmissible as manifestly ill-founded. Mr Ude was the president of the three-judge bench which examined the admissibility of the case and Mrs Wedam-Lukić was also a member of that bench. The applicants learned of the composition of the panel on 20 April 2000, the date on which the decision was served on them.
11. The relevant provision of the Constitution of the Republic of Slovenia (Ustava Republike Slovenije) reads as follows:
“Everyone has the right to have any decision regarding his or her rights, obligations and any charges brought against him or her made without undue delay by an independent, impartial court constituted by law.
Only a judge appointed pursuant to rules pre-established by law and in accordance with normal judicial practices shall try such a person.”
12. The relevant provisions of the Constitutional Court Act (Zakon o ustavnem sodišču) read as follows:
“In deciding on a particular case, the Constitutional Court may disqualify a judge of the Constitutional Court by applying, mutatis mutandis, the applicable reasons for disqualification in court proceedings.
The following shall not serve as reasons for disqualification from the proceedings:
- participation in legislative procedures or in adoption of other general acts (including those issued for exercise of public powers) that have been challenged prior to election as a judge of the Constitutional Court,
- expressing a scientific opinion on a legal matter which may be relevant for the proceedings.”
“Immediately after a judge of the Constitutional Court learns of any reasons for his or her disqualification in accordance with the preceding section, he or she must cease ... work on the case and notify the president of the Constitutional Court.”
“A request for disqualification may be submitted by the parties to the proceedings up until the start of a public hearing, if such hearing is due to be held, or until the beginning of the in camera session of the Constitutional Court at which the matter is to be decided. The request must be substantiated.
The judge of the Constitutional Court whose disqualification is sought shall have the right to comment on the statements in the request, but may not participate in the decision on his or her disqualification. The Constitutional Court shall decide in camera upon the disqualification of a judge. If the number of votes for and against is equal, the president shall have the casting vote.”
“Anyone who believes that his or her human rights and basic freedoms have been infringed by a particular act of a state body, local body or statutory authority may lodge a constitutional appeal with the Constitutional Court, subject to compliance with the conditions laid down by this Act. ...”
“A constitutional appeal may be lodged only after all legal remedies have been exhausted.
Before all special legal remedies have been exhausted, the Constitutional Court may exceptionally hear a constitutional appeal if a violation is probable and the appellant will suffer irreparable consequences as a result of a particular act.”
“A decision on whether to accept a constitutional complaint and begin proceedings shall be taken by the Constitutional Court, sitting in a three-judge bench, at an in camera session...”
13. The relevant provisions of the Civil Procedure Act (Zakon o pravdnem postopku) read as follows:
“A judge or a lay judge shall be prohibited from exercising judicial functions:
(1) if he or she is a party to the civil proceedings, is a representative or an advocate of a party... or was heard as a witness or an expert in the same proceedings...
(5) if he or she participated in the same proceedings before a lower court...
(6) if other circumstances raise doubt about his or her impartiality.”
“The parties to the proceedings may also seek the disqualification of a judge.
A party must seek the disqualification of a judge or a lay judge as soon as he or she learns of the reason for disqualification, but no later than by the end of the hearing in the competent court or, when no hearing was held, by the time the decision is rendered.
In the disqualification request, the party must state the circumstances on which his or her request for disqualification is based.”
“As soon as a judge or a lay judge learns of the request for his or her disqualification, he or she must cease any activity in the proceedings concerned; if the challenged is lodged under point 6 of section 70, he or she may continue examination of the case.
If a judge is disqualified in accordance with point 6 of section 70 of this Act, the procedural activities he or she performed after the request for disqualification was lodged shall have no legal effect. ”
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-104265
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF RTBF v. BELGIUM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Violation of Art. 10;Pecuniary and non-pecuniary damage - finding of violation sufficient
JUDGES: Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Ireneu Cabral Barreto
TEXT: 5. The applicant company, a public broadcasting corporation serving the French Community in Belgium, produced a long-running monthly news and investigation programme called Au nom de la loi (“In the name of the law”), focusing in particular on legal matters in the broad sense of the term. The programme was described as follows on the RTBF website:
“Right from the start, Au nom de la loi sought to operate on the basis of two main principles: standing up for the underdog, so that ordinary citizens were always given a say, and looking for the hidden agenda, so that its journalists’ investigative skills came to the fore.”
6. In 1999 Dr D.B., a specialist neurosurgeon, ran a neurosurgery practice together with a colleague, including an on-call service at Jolimont Hospital. A number of Belgian newspapers, both regional (La Nouvelle Gazette in December 2000 and May 2001) and national (Le Soir in December 2000 and La Dernière Heure in four articles between 7 and 28 December 2000), reported on complaints by various patients who had been operated on by Dr D.B. Only two of the articles mentioned his name. According to information provided by the parties, none of the articles prompted any reaction on the doctor’s part.
7. The applicant company subsequently decided to devote a segment of its programme Au nom de la loi to medical risks and, more generally, communication and information problems encountered by patients and the rights available to them, using as an example the complaints by Dr D.B.’s patients as reported in the press.
8. While preparing the programme, journalists from the applicant company contacted a number of patients, medical specialists, representatives of the Council of the Medical Association (Ordre des médecins) and Dr D.B. himself. The doctor refused to give a televised interview but agreed to answer questions from the applicant company’s journalists during a series of meetings lasting several hours, in the presence of his lawyers. The programme was scheduled to be broadcast on 24 October 2001.
9. By a summons served on 3 October 2001, Dr D.B. instituted proceedings against the applicant company before the President of the Brussels Court of First Instance, as the judge responsible for hearing urgent applications. He sought an injunction preventing the broadcast of the programme in question, with a penalty of five million Belgian francs each time it was shown on a television channel. In the alternative, should the injunction not be granted immediately, he sought an order requiring a videotape of the programme to be made available for advance viewing.
10. On 24 October 2001 the President of the Court of First Instance granted an interim injunction preventing the programme in question from being broadcast, with a penalty of two million Belgian francs each time it was shown on a Belgian television channel; the injunction was to remain in place until a decision was given on the merits, provided that the claimant himself instituted proceedings on the merits within one month of the injunction, failing which it would cease to have effect.
11. The injunction stated that there was no cause, on the face of it, to doubt the good faith and professionalism of the applicant company’s journalists or the objective nature of their investigations, and that the claimant had a number of remedies by which to seek redress ex post facto for the damage sustained. It concluded that an application for prior restraint should not be granted unless it was established with certainty that the scheduled broadcast would damage the claimant’s honour and reputation.
12. The injunction noted that it was not disputed that the complaints of the patients whom the applicant company intended to feature in the programme had yet to be considered by any court. As matters stood, no judicial proceedings had even been brought in respect of most of the complaints. Furthermore, professional confidentiality, which Dr D.B. had cited as his reason for refusing an interview, meant that he would be unable to give adequate answers, and his silence would at the very least raise doubts among the public as to his professional ability.
13. The injunction further pointed out that neurosurgery and the post-operative complications to which it might lead were complex matters and that, as a result, regard should be had to the difficulty in conveying an understanding of the subject to a non-specialist audience in a feature lasting well under an hour.
14. The court did not view the programme before giving its ruling. Dr D.B. had requested that a videotape of the programme be made available for viewing by the court’s President, but the applicant company, in both its written and oral submissions, refused to accede to the request.
15. Dr D.B. arranged for the injunction of 24 October 2001 to be served the same day at 4.40 p.m.
16. In the event, the programme was not in fact cancelled, but the feature on the alleged medical errors by Dr D.B. was replaced by a discussion between a journalist and the programme’s producer. During the discussion and the preceding news broadcast, the applicant company commented at length on the injunction of 24 October 2001, describing it as judicial censorship of press freedom. Dr D.B.’s name was mentioned several times. On 25 October 2001 Dr D.B. requested a right of reply, but the applicant company refused his request in a registered letter of 31 October 2001.
17. On 5 November 2001 the applicant company appealed to the Brussels Court of Appeal against the injunction.
18. On 6 November 2001 Dr D.B. instituted proceedings on the merits against the applicant company in the Brussels Court of First Instance, concerning the same subject matter as his urgent application. At the preliminary hearing the case was adjourned until further notice with a view to its preparation. By the date on which the application was lodged with the Court, the proceedings were still pending.
19. In an interlocutory judgment of 21 December 2001, the Court of Appeal, ruling on the appeal against the injunction, held that Article 25 of the Constitution was not applicable in the case as it related only to the print media and not the audio-visual media, and that neither Article 19 of the Constitution nor Article 10 of the Convention prohibited restrictions on the exercise of freedom of expression, provided that they had a basis in law. It observed that Article 22 of the Constitution and Article 8 of the Convention, which guaranteed the right to respect for private life, together with Articles 584 and 1039 of the Judicial Code, constituted the law in this regard and empowered the urgent-applications judge to order restrictions on freedom of expression as a preventive measure in “cases of flagrant violations of the rights of others”. In the present case the press release announcing the programme had given reason to believe that the broadcast might damage Dr D.B.’s honour and reputation and interfere with his private life.
20. The Court of Appeal also ordered the resumption of the proceedings and directed the applicant company to produce the recording of the programme in issue.
21. It noted in that connection that “since prior restraints on freedom of expression entail considerable dangers, intervention by the urgent-applications judge will have ... democratic legitimacy only if it is limited to cases of flagrant violations of the rights of others”, and held that the way in which the applicant company had “announced and described the programme in question indicated its intention to cause unnecessary harm to the honour, reputation and private life of [the respondent] through public disclosure of information that was inaccurate, unverified or lacking in objectivity”.
22. A screening of the programme took place at a hearing on 10 January 2002. Besides the extracts from interviews with five patients who considered that they had reason to complain about Dr D.B., the programme comprised: an interview with a medical specialist, who explained the medical problem encountered and the anomalies found in the patients’ medical records; Dr D.B.’s replies to these comments; extracts from interviews with specialists (a doctor belonging to the Council of the Medical Association, a lawyer specialising in medical law, and a Ministry of Health official); and, lastly, footage of a neurosurgical operation, with comments by another doctor.
23. In a second judgment, delivered on 22 March 2002, the Court of Appeal declared the applicant company’s appeal unfounded. It held that broadcasting the scheduled programme would be likely to damage Dr D.B.’s honour and reputation, thereby causing him serious non-pecuniary harm and, as a result, significant pecuniary loss. It concluded that the preventive measure of a ban had met a pressing social need, had been proportionate to the legitimate aim pursued and had been based on relevant and sufficient grounds.
24. More specifically, the Court of Appeal observed that the programme included footage of a series of interviews with patients on whom Dr D.B. had performed surgery, involving a total of five operations. The interviews were interspersed with explanatory comments: Dr Y.T. discussed the specific cases, the journalist who had spoken to Dr D.B. conveyed the answers he had received from him, a Medical Association representative discussed patients’ rights and the difficulties faced by doctors working at several different sites in remaining available to see them, a lawyer explained patients’ legal rights, and a senior adviser to the Minister of Health outlined the legislative initiatives being taken to ensure better protection for patients.
25. The Court of Appeal considered that the part of the programme concerning the five operations and their consequences was significantly more important than the part informing the audience about patients’ rights vis-à-vis their doctor. It took the view that the clarification provided by the journalist during the programme, namely “[s]o, was there a medical error or not? ... We can only ask the question; we cannot give the answer”, was unlikely to draw the audience’s attention to the fact that there was no conclusive proof of a medical error. It further noted that there had been no mention of the experience of satisfied patients, and that there was no evidence that the five situations discussed were representative of the experiences of Dr D.B.’s patients as a whole. It observed that the applicant company had not referred to any other “serious” complaint registered by the Medical Errors Association (Erreurs Médicales), and held that the five experiences perceived as failures by the patients did not represent a sufficient number to justify targeting Dr D.B. in a programme relating to patients’ rights in the event of medical errors or negligence. This number appeared all the more insufficient as only one lawsuit had been brought against the doctor concerned. In addition, the Court of Appeal noted that the operations referred to had been very different in nature, so that it was unreasonable to consider them all together, causing the audience to think that they revealed a common pattern of malpractice, which the average viewer, not being aware of the complexity of each individual case, might have tended to do.
26. Lastly, the Court of Appeal acknowledged that the programme in issue raised serious matters of public concern since it discussed the rights which patients could assert vis-à-vis their doctor, and since there was nothing to suggest that the interviewees had not given an accurate account of their own experiences. However, it considered that the applicant company had lacked objectivity and had not taken into account the manner in which the average viewer was likely to perceive the information, and concluded that the applicant company could not rely on freedom of the press in arguing that the surgery performed by Dr D.B. deserved to be brought to the public’s attention for consumer-protection purposes by giving dissatisfied patients the opportunity to air their views in a programme concerning patients’ rights. In particular, it stated the following:
“While it is clear that the programme in issue raises serious matters of public concern since it discusses the rights which patients may assert vis-à-vis their doctor, complaints by patients concerning the quality of treatment provided by a particular surgeon cannot be of interest to the community as a whole unless it can be established with sufficient certainty from the evidence available that the activities of the doctor in question entail serious health consequences.
Quite apart from the fact that there do not, on the face of it, appear to be a significant number of complaints against [Dr D.B.], it has not been established that they are legitimate.
There is nothing in the material produced to date by RTBF to support the conclusion that the interviewees have reasonable grounds to believe that they were not given the necessary or appropriate treatment, or that their accounts correspond to the objective truth; this is not disputed by RTBF.
The brief report by the medical adviser on the complaints submitted to the Medical Errors Association, which contains more questions than answers, cannot serve as proof.
No other investigative measures appear to have been taken or to have produced results.
...
Although there is nothing to suggest that the interviewees did not give an accurate account of their own experiences as perceived by them, the credibility that can be attached to the patients’ or their relatives’ accounts is not sufficient, in the absence of conclusive evidence of medical errors or negligence, to justify putting these complaints together to form the main theme of a programme that places [Dr D.B.] in the spotlight and accuses him of professional incompetence and negligence in all respects of his practice (pre-operative counselling, quality of the operation, post-operative follow-up).
It should also be noted that the programme lacks objectivity in that the journalist’s comments are systematically aimed at reinforcing or provoking criticism of [Dr D.B.].
...
Public confidence in a doctor’s ability can be destroyed by a television programme that conveys the experiences of a few of his patients or their relatives where, as in the present case, all the experiences reported on are perceived negatively, the opinions expressed during the programme by medical specialists suggest that the surgery performed was unnecessary or inappropriate, there is no coverage of the experiences of satisfied patients and no mention of whether the surgery was of a delicate or routine nature, the degree of risk each operation entailed and the number of operations carried out by the doctor during the relevant period, and no information is provided as to the average failure rates of the types of surgery concerned.
The damage that could potentially be caused by broadcasting the programme would be exacerbated by the fact that the programme is broadcast during prime time, it ... enjoys a serious reputation and, as a result, the audience will naturally be inclined to believe not only that the interviewees have objective reasons to complain about [Dr D.B.] but also that they represent a significant sample of his patients.”
27. On 12 May 2003 the applicant company appealed on points of law against the two judgments of the Court of Appeal. It alleged a violation of Articles 8, 10 and 17 of the Convention and Articles 19, 22 and 25 of the Constitution.
28. In its first ground of appeal it contended that the judgment appealed against, in finding that the first paragraph of Article 25 of the Constitution did not apply to television programmes, had breached the provision in question. It submitted that at a time when radio and television reached a much wider audience than the print media, excluding the former from the scope of Article 25 of the Constitution amounted to depriving that Article of its essential element, namely protection of the freedom to impart ideas as opposed to the instrument used for that purpose. It added that, while it was true that freedom to express opinions was not absolute, it could not be subject to prior restraints but only to punitive measures. There should at the very least have been an opportunity to express the opinion, as the actual wording of Article 19 of the Constitution indicated (“when this freedom is used”). The applicant company inferred from this that Article 19 did not allow the authorities to subject the free expression of opinions on any subject to prior scrutiny, or to prohibit the broadcast of a television programme in advance.
29. The applicant company submitted a second ground of appeal in the alternative, should it be found that Article 19 of the Constitution did not prohibit all prior restraints on the exercise of freedom of expression and that Article 18, second paragraph, Article 19, second paragraph, and Articles 584 and 1039 of the Judicial Code, read in conjunction with Article 8 of the Convention and Article 22 of the Constitution, constituted a “law” within the meaning of Article 10 § 2 of the Convention. It argued that although Article 10 did not guarantee unrestricted freedom of expression, even with regard to media coverage of matters of serious public concern, and although the exercise of that freedom carried with it duties and responsibilities which were also applicable to the press and were liable to assume significance when there was a risk of undermining the reputation of private individuals or the rights of others, the mere interest – albeit undeniable – of the respondent in protecting his honour and professional reputation was not sufficient to prevail over the important public interest in preserving the freedom of the press to impart information on matters of legitimate public concern.
30. In his submissions, the Advocate-General recommended that the Court of Appeal’s judgments be quashed. Following a thorough analysis of the case-law of the Court of Cassation, the Conseil d’Etat and the Administrative Jurisdiction and Procedure Court (Cour d’arbitrage), he submitted that Article 19 of the Constitution guaranteed freedom of expression in general, which could not be hindered by prior censorship. He nevertheless pointed out that such freedom was not absolute and could be limited by general restrictions prescribed by law, provided that the imperative requirements of Article 10 § 2 of the Convention were satisfied. However, the wording of that Article made it impossible in his view to prohibit the dissemination of information on the basis of prior scrutiny, as such a measure would impair the very essence of freedom of expression. The Advocate-General observed that, in the particular context of freedom of expression, the courts’ powers were limited by observance of the Constitution, which prohibited any preventive measure entailing prior restrictions on freedom of expression.
31. Nevertheless, the Advocate-General added that since freedom of expression was not an absolute right, it could not prevail over or negate respect for the other rights and freedoms safeguarded by the Constitution and international instruments. He noted in that connection that prior restrictions of a general nature could be framed in law, provided that they satisfied the requirements set forth in Article 10 § 2 of the Convention. Lastly, he expressed the view that Articles 1382 and 1383 of the Civil Code and Articles 18, 19, 584 and 1039 of the Judicial Code satisfied the accessibility and foreseeability requirements laid down by the Court.
32. In a judgment of 2 June 2006, the Court of Cassation dismissed the appeal on points of law.
33. Firstly, it upheld the Court of Appeal’s judgment as regards the inapplicability of Article 25 of the Constitution, finding that television programmes were not forms of expression by means of printed matter. It held that the requirement for the applicant company to produce the recording of the programme in issue did not breach Article 19 of the Constitution since the urgent-applications judge had provisionally postponed the broadcast of the programme in order to ensure effective protection of the honour, reputation and private life of others. It further held that Articles 22 and 144 of the Constitution, Articles 8 and 10 of the Convention and Articles 584 and 1039 of the Judicial Code, which it had interpreted consistently, allowed the restrictions provided for in Article 10 § 2 of the Convention and were sufficiently precise to enable anyone, if need be with appropriate legal advice, to foresee the legal consequences of his or her acts.
34. In particular, the Court of Cassation held as follows:
“Under Article 144 of the Constitution, the judiciary is competent both to prevent and to redress unlawful infringements of civil rights.
Similarly, the judge dealing with urgent applications, as in the present case, is empowered under Articles 584 and 1039 of the Judicial Code to take any provisional measures in respect of the person responsible for such an infringement that may be necessary to protect personal rights if there are prima facie legal grounds for doing so.
In particular, where there is a serious threat of a violation of a right, the urgent-applications judge is authorised by Article 18 § 2 of the Judicial Code to order measures aimed at preventing such a violation.”
35. Secondly, the Court of Cassation held as follows in relation to the objection that the applicant company’s second ground of appeal was inadmissible in that it had failed to allege a violation of Article 584 of the Judicial Code:
“In upholding the respondent’s claim, the impugned judgment of 22 March 2002 finds that the respondent ‘has made out ... a sufficient prima facie case for obtaining an interim injunction prohibiting the broadcast of the programme in issue, which clearly and needlessly undermines his honour and reputation’.
The urgent-applications judge may order interim measures if there are prima facie legal grounds for doing so.
In merely examining the parties’ prima facie rights without applying legal rules that could not form a reasonable basis for the interim measures ordered by him, the judge has not overstepped the limits of his powers.
The appellant cannot challenge the Court of Appeal’s provisional assessment unless it alleges a violation of Article 584 of the Judicial Code, which it has not done.”
36. Articles 19, 22, 25 (former Article 18) and 144 of the Constitution are worded as follows:
“Freedom of worship, its public practice and freedom to manifest one’s opinions on all matters are guaranteed, but offences committed when this freedom is used may be punished.”
“Everyone has the right to respect for his private and family life, except in the cases and conditions provided for by law. ...”
“The press is free; censorship can never be introduced; no payment of security can be demanded of authors, publishers or printers.
Where the author is known and resident in Belgium, neither the publisher, nor the printer nor the distributor may be prosecuted.”
“Disputes about civil rights fall exclusively within the competence of the courts.”
37. The relevant provisions of the Civil Code are worded as follows:
“Any act that causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it.”
“Everyone shall be liable for the damage he has caused not only by his own acts, but also by his negligence or carelessness.”
38. Articles 18, 19, 584, 1039 and 1080 of the Judicial Code provide as follows:
“The interest in bringing an action must be vested and present.
An action may be allowed where it has been brought, even for declaratory purposes, with a view to preventing a violation of a right that is seriously threatened.”
“A judgment is final when it exhausts the jurisdiction of the court in respect of a question in dispute, save for appeals provided for by law.
The judge may, before passing judgment, order a preliminary measure aimed at investigating the application or settling the parties’ situation on an interim basis.”
“The President of the Court of First Instance shall, in respect of all matters except those which the law excludes from the jurisdiction of the courts of justice, give a provisional ruling in cases which he recognises as being urgent.
...
The matter shall be brought before the President by means of an urgent application or, in cases of absolute necessity, an ex parte application.
He may, among other things:
(1) appoint administrators;
(2) order certificates or expert reports for any purpose, even including the assessment of damage and the investigation of its causes;
(3) order any measures that are necessary for the protection of the rights of those who are unable to ensure such protection themselves, including the sale of movable property that has been neglected or abandoned;
(4) order the examination of one or more witnesses where one of the parties can show that this is of prima facie interest, even with a view to future litigation, provided that it is established that any delay in the hearing will necessarily prompt concerns that it will not be possible to take the evidence at a later stage.”
“Orders for interim measures shall be made without prejudice to the merits. They shall be enforceable immediately, notwithstanding an application to set aside or an appeal, and without payment of a security, if the court has not ordered such payment.
If a party not appearing in court applies to have the order set aside, it shall not be entitled to appeal against the order made in absentia.”
“The appeal on points of law, of which both the original and a copy must be signed by a lawyer authorised to practise in the Court of Cassation, shall include the appellant’s grounds of appeal and submissions, together with an indication of the statutory provisions alleged to have been breached; failure to include any of the above shall render the appeal null and void.”
39. In a judgment of 9 December 1981, the Court of Cassation held:
“Neither television programmes nor cable broadcasts are forms of expression by means of printed matter ... Article 18 of the Constitution [current Article 25] is therefore inapplicable to them.”
40. The judgment further stated:
“Although Article 14 [current Article 19] of the Constitution, like Article 10 [of the Convention], guarantees freedom to manifest one’s opinions on any subject and accordingly does not allow the authorities to make the exercise of these freedoms subject to prior scrutiny of the opinions in question, these provisions nevertheless do not safeguard this freedom to an unlimited extent and, in particular, do not preclude the regulation, or prohibition, of commercial advertising in cable television broadcasts, where such regulation or prohibition is compatible with the requirements of supranational law.
...
There is no basis in law for the ground of appeal to the effect that Articles [19] and [25] of the Constitution prohibit all censorship, prior authorisation or advance prohibition of the expression of a particular opinion and its dissemination by any means whatsoever (Article [19] of the Constitution) or, more specifically, through the press (Article [25] of the Constitution).”
41. In a judgment of 29 June 2000, the Court of Cassation ruled on the power of the ordinary courts to prevent, restrict or regulate the distribution of press publications. It held that this power was, in principle, acceptable on the basis of Article 144 of the Constitution, Articles 584 and 1039 of the Judicial Code and Article 1382 of the Civil Code. In the case before it, the urgent-applications judge had issued an injunction – subsequently upheld both on an application by a third party to set it aside and on appeal – ordering the withdrawal from sale of all copies of the weekly magazine Ciné Revue which had published notes confiscated from a judge by the chairman of a parliamentary commission of inquiry on child disappearances; the Court of Cassation held that this did not amount to censorship because the publication had already been in circulation.
42. In an order of 17 November 1981, the President of the Brussels Court of First Instance held that “where individual freedoms are concerned, in particular freedom of expression, prohibition of all preventive measures is the rule. Accordingly, the application for an injunction banning, postponing or altering a broadcast is unfounded”. That approach was confirmed in an order made by the same judge on 3 May 1985.
43. Three years later, in an order of 16 November 1988, while not expressly referring to Article 10 of the Convention, the President of the Brussels Court of First Instance relied on Article 584 of Judicial Code to justify prohibiting part of a programme from being broadcast.
44. On 25 October 1989 an ex parte injunction prohibited a broadcast without giving any further details as to the legal basis for that decision. In an order of 12 October 1990 the Brussels urgent-applications judge dismissed an application for an injunction banning a book, relying in particular on Articles 19 and 25 of the Constitution and Article 10 of the Convention while also noting that, depending on the circumstances, he would be entitled under Article 584 of the Judicial Code to take the necessary steps to prevent any irreparable damage. Several weeks later, in an order of 18 December 1990, the urgent-applications judge held that Article 584 of the Judicial Code in itself constituted a “law” within the meaning of Article 10 of the Convention. Conversely, in an order of 22 August 1991 he held that there was no basis in Belgian law, as it currently stood, for the judiciary to take preventive measures restricting freedom of expression.
45. In an order of 12 February 1992, while acknowledging that “it is true that no preventive measures as such exist in Belgian law in this sphere” (television), the urgent-applications judge nevertheless held again that Article 584 of the Judicial Code formed a sufficient basis for preventive intervention on his part. Conversely, in an order of 8 January 1993 the urgent-applications judge of the Brussels Court of First Instance held that, in accordance with Article 10 of the Convention, the Belgian legal system prohibited prior restraints.
46. However, six months later, on 16 June 1993, the same urgent-applications division ordered restrictions on a broadcast as a preventive measure.
47. On 12 September 1994 the urgent-applications judge held that Article 584 of the Judicial Code and Article 1382 of the Civil Code, read in conjunction, formed a sufficiently precise legal basis for the purposes of Article 10 of the Convention. On 16 November 1994 the President of the Brussels Court of First Instance issued an ex parte injunction prohibiting a broadcast on the basis of Article 584 of the Judicial Code.
48. Two months later, in an order of 24 January 1995, the President of the Brussels Court of First Instance held, in complete contradiction to his previous decisions, that “as rightly argued by the defendant, Article 584 of the Judicial Code is a general provision conferring jurisdiction”, which could not justify empowering the urgent-applications judge to take the measure sought, and that “the applicant is mistaken in basing ... the application on Article 1382 of the Civil Code, which concerns redress for existing damage”. He nevertheless considered that Belgian law did indeed contain a “law” within the meaning of Article 10 of the Convention, namely “the other individual rights and freedoms protected by law”. In an order of 6 April 1995 the same judge confirmed his previous decision, while taking care once again to point out that “it is true that, as regards restrictions on freedom of expression, Belgian law provides only for measures entailing retrospective sanctions”.
49. Two weeks later, on 25 April 1995, the urgent-applications judge found that Article 22 of the Constitution, “by way of exception”, constituted the “law” within the meaning of Article 10 of the Convention.
50. Ten days later, on 3 May 1995, the same judge held that “on account of the balance to be struck between respect for freedom of expression and respect for the other individual rights and freedoms protected by the law (in the broadest sense), these other rights and freedoms, being enshrined in ‘law’, could be taken to be accessible to the citizens concerned by them and framed in precise terms, and their safeguarding and hence protection could be deemed to constitute restrictions prescribed by law within the meaning of Article 10 [of the Convention]”. He pointed out that Article 8 of the Convention, Article 22 of the Constitution and section 10 of the Copyright Act of 30 June 1994 were all “laws” for the purposes of Article 10 of the Convention.
51. However, less than a year later, in an order of 10 April 1996 on an ex parte application, the President of the Brussels Court of First Instance held, on the basis of Articles 19 and 25 of the Constitution, that the courts were precluded from taking any preventive measures in matters concerning freedom of expression. A fortnight later, on 24 April 1996, the urgent-applications judge, while expressly ruling out the application of Article 584 of the Judicial Code, held that he was entitled to take preventive measures under Article 22 of the Constitution and Article 8 of the Convention, which together constituted the “law” within the meaning of Article 10 of the Convention. In an order of 18 September 1996 he confirmed that position and again justified his power to intervene on a preventive basis under Article 22 of the Constitution and Article 8 of the Convention.
52. Several weeks later, in an order of 6 November 1996, the same judge relied on the two above-mentioned provisions, but nevertheless added that regard should also be had to the right to protection of one’s image, as established by the courts, and to Article 584 of the Judicial Code as to the means of exercising that right.
53. In the meantime, in an order of 18 October 1996, the urgent-applications judge had stated that where there was a risk of a flagrant breach of fundamental rights, there was nothing to prevent the urgent-applications judge from taking interim measures. However, in an order of 9 January 1997, the same urgent-applications division ruled that an application for an injunction prohibiting the publication of information from an ongoing criminal investigation was at variance with Article 25 of the Constitution and declared it unfounded.
54. In a judgment of 30 June 1997, the Brussels Court of First Instance held that “the law is formed by a combined reading of Article 584 of the Judicial Code (which is a law conferring jurisdiction rather than a substantive law for the purposes of Article 10 of the Convention) and Article 8 of the Convention, which provides that everyone has the right to respect for his private and family life, his home and his correspondence”. After noting that “on several occasions ... the urgent-applications judge has held that Belgian domestic legislation did indeed contain a ‘law’ allowing freedom of expression to be restricted for the purposes of Article 10 [of the Convention]”, it nevertheless acknowledged that “the reasoning in decisions supporting intervention by the urgent-applications judge is not unequivocal as regards the provisions constituting the law”.
55. In an order of 12 November 1997, the urgent-applications judge developed this argument further, holding that “intervention by the urgent-applications judge as a preventive measure ... is possible under Article 584 of the Judicial Code (a rule of jurisdiction empowering him to intervene in any matter), in conjunction with the provisions relating to the rights and freedoms which would be infringed as a result of freedom of expression, such as, in this instance, Article 8 [of the Convention], Article 19 of the International Covenant on Civil and Political Rights and Article 22 of the Constitution ... [and] the right to protection of one’s image”.
56. In an order of 26 May 1999, the Brussels urgent-applications judge dismissed an application for an injunction banning a book, although neither the parties nor the judge took Article 25 of the Constitution or Article 10 of the Convention into consideration.
57. In an order of 18 October 2001, the urgent-applications judge observed that Article 25 of the Constitution prohibited any prior restraints on freedom of expression, including in audio-visual matters. Lastly, in an order of 4 June 2003, the Brussels urgent-applications judge ruled that Article 25, which prohibits censorship, was also applicable to the audio-visual media and therefore precluded the courts from taking any kind of preventive measures restricting freedom of expression.
58. In a judgment delivered on 14 January 2005 in the case of Greenpeace Belgium v. Baggerwerken De Cloedt & Zoon and Others, the Court of Cassation explicitly accepted that Article 6 of the Convention was in principle applicable to proceedings concerning urgent applications heard by the President of the Court of First Instance in accordance with Article 584 of the Judicial Code. In a second judgment delivered on the same day, the Court of Cassation did not give an explicit ruling on this issue but nevertheless did not declare a ground of appeal alleging a violation of Article 6 § 1 of the Convention inadmissible on this account.
59. In a judgment of 28 August 2000, the Conseil d’Etat held that Articles 19 and 25 of the Constitution prohibited any prior scrutiny of the use of freedom of expression and freedom of the press. The judgment stated as follows:
“The provisions of the Constitution relied on by the applicant [Articles 19 and 25] do not preclude the punishment of press offences or offences committed in connection with the use of freedom of expression. They do, however, prohibit prior scrutiny of the use of these freedoms; in other words ... where printed matter cannot be distributed or opinions expressed until a public authority or other third party has determined whether they are lawful.
In the instant case, the Post Office does in fact reserve the right to examine the content of certain forms of election material from the standpoint of the Racism Act and to refuse to distribute them where it concludes that there has been an offence, whether or not it has sought the opinion of the Centre for Equal Opportunities and Combating Racism. It therefore carries out prior censorship. Freedom of the press and freedom of expression are devoid of meaning unless they are accompanied by the possibility of distributing printed matter or imparting opinions.”
3. The Administrative Jurisdiction and Procedure Court
60. In a judgment of 6 October 2004 on an application to set aside certain provisions of the Anti-Discrimination Act of 25 February 2003, the Administrative Jurisdiction and Procedure Court – which became the Constitutional Court on 7 May 2007 – held that the prohibition of preventive measures in general and of censorship in particular meant that intervention by the courts in banning the distribution of a publication was possible only where distribution had already begun. It considered that in such cases, the court should ascertain whether the restriction of freedom of expression that might result from the application of section 19(1) of the Act of 25 February 2003 was necessary in the specific circumstances, whether it met a pressing social need and whether it was proportionate to the aim pursued by that provision. In accordance with section 19(1) of the Act in question, restrictions could therefore not be imposed on the right of citizens to express their opinions, even in the polemical tone that could typify public debate on social phenomena, and even where such opinions offended, shocked or disturbed the State or any sector of the population.
VIOLATED_ARTICLES: 10
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-109007
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: S.S. v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: 1. The applicant, Mr S.S., is an Afghan national who was born in 1983 and lives in the United Kingdom. He was represented before the Court by Ms U. Sood, counsel. The United Kingdom Government (“the Government”) were represented by their Agent, Mr M. Kuzmicki of the Foreign and Commonwealth Office.
2. The facts of the case may be summarised as follows.
3. The applicant arrived in the United Kingdom on 25 July 2002 and claimed asylum the following day on the basis of his fear of General Dostum (a warlord of Uzbek ethnicity also referred to as “General Dostam” who currently holds the position of the Chief of Staff to the Commander in Chief of the Afghan National Army, President Hamid Karzai), his commanders and their sons. The applicant claimed that his father had worked as a local police commissioner in Saripool province in northern Afghanistan and as an adviser to General Malik (another warlord of Uzbek ethnicity who is considered to be General Dostum’s rival). The applicant claimed that in 1997, with his father’s assistance, General Malik had helped the Taliban attack General Dostum thereby killing many of his commanders and removing General Dostum from his position as the dominant power holder in the central area of northern Afghanistan.
4. The applicant also claimed that, in April 1998, he had been arrested by the Taliban and then released after the payment of a bribe.
5. Most significantly, the applicant claimed that, after he had been reappointed as military commander of most of the northern provinces of Afghanistan in January 2002, General Dostum had arrested and ill-treated the applicant and his father. The applicant had managed to escape but General Dostum had killed his father. The applicant had fled Afghanistan in fear not only of General Dostum but also his troops and the sons of the commanders who had previously been killed in 1997 by General Malik. He claimed that, while General Malik had security in Afghanistan as a member of the new Afghan Government, in contrast he would have no similar protection.
6. On 30 August 2002, the Secretary of State refused the applicant’s asylum application. The applicant appealed against the refusal of his asylum claim claiming that his return to Afghanistan would violate, inter alia, Articles 2 and 3 of the Convention.
7. In a determination of the 10 January 2003, his appeal was allowed by an Adjudicator at the then Immigration Appellate Authority (“IAA”) who found that the applicant’s account of events had been consistent and that the applicant was a credible witness. The Adjudicator accepted that his father had been a high-ranking member of the military and that the applicant and his father had both faced difficulties and suffered ill-treatment in Afghanistan as a result of his father’s political opinion and activities for General Malik. The Adjudicator found that, given the objective country information and the fact that the applicant’s father had been a conspicuous high-ranking officer, the applicant would be at risk in Sheberghan (the capital of Jowzan province in northern Afghanistan and the most important Uzbek city in Afghanistan) from General Dostum and that the Afghan authorities would not be able to offer him adequate protection there. The Adjudicator also stated that, given the general insecurity and lawlessness of local warlords, he was minded to believe that there was, albeit marginally, a likelihood that the applicant would also be at risk in Kabul. Finally, he found that, even if no such risk arose in Kabul, given the applicant’s age and the general circumstances there it would be unduly harsh to expect him to relocate there upon return to Afghanistan.
8. The Secretary of State subsequently sought permission to appeal to the then Immigration Appeal Tribunal (the “IAT”).
9. On 5 December 2003, the IAT allowed the Secretary of State’s appeal and found that the Adjudicator’s findings on internal flight had been unsustainable. In coming to that conclusion, the IAT had before it a report prepared by Dr Antonio Giustozzi, an expert on Afghanistan, which had predicated the applicant’s safety in Kabul on the basis of his ability to maintain a low profile there. Dr Giustozzi had considered that, while it was not possible to establish with certainty that the applicant would be targeted by his father’s enemies, the applicant would have to take that possibility seriously. Dr Giustozzi had concluded that it was unlikely that the applicant would experience a serious threat from General Dostum or his political party but had considered that “some local commanders might [have an interest in him], depending on the past actions of [the applicant’s] father and especially if it was not possible to target the father directly, because he is already dead or because he has sought refuge elsewhere.”
10. After examining Dr Giustozzi’s report, the IAT found that “as the son of a person whose father was involved with General Malik, the risk today is very low unless General Dostum was unable to exact revenge on his father.” Due to the fact that the applicant’s father had already been killed by General Dostum, the IAT considered that revenge had been exacted, and the applicant would not therefore be at risk.
11. Furthermore, noting that General Malik himself was resident in Kabul, the IAT considered that the applicant could also safely internally relocate to Kabul where single young men would be relatively safe. The IAT found that the possibility of an attack upon the applicant by General Dostum or his followers in Kabul was “remote” and that anyone in Kabul on General Dostum’s behalf would not be interested in pursuing his former enemies because they were defending his office and leading members of his political party in the city.
12. Finally, the IAT did not accept that there was any evidence that General Dostum or his commanders would be interested in pursuing the family members of his former enemies.
13. On 16 January 2004, the applicant was refused permission to appeal to the Court of Appeal.
14. On 28 February 2006, the applicant was detained at Dungavel Immigration Removal Centre pending his removal from the United Kingdom. Removal directions to Afghanistan were cancelled for unknown reasons. On 30 May 2006, the applicant was admitted to hospital before being released to his home address.
15. On 8 July 2009, the applicant submitted further representations to the Secretary of State based upon a report dated 5 June 2009 by Dr Peter Marsden MBE, an expert on Afghanistan. That report summarised the background to and the security situation prevailing in Afghanistan at that time. In respect of the risk from General Dostum, the report stated, inter alia, that:
“...the primary risk to S.S arises from the fact that his father may have facilitated the successful entry of General Malik into Mazar-e-Sharif through the provision of strategic, logistics and technical support, drawing on his experience gained while working within the Defence Ministry of the former People’s Democratic Party of Afghanistan Government of 1979-1992. General Dostam may, therefore, have good reason to continue to feel aggrieved over the actions of S.S.’s father and may, subject to considerations of his own power and influence within the current Afghan government, have an interest in targeting S.S., notwithstanding that S.S.’s father may already have been killed by his militia. It is important to note, in this regard, that General Dostam has a reputation for serious human rights abuses and for particular ruthlessness. He would, therefore, have no hesitation in killing S.S. if other considerations did not dictate otherwise. It should be noted in this regard that, although President Karzai has maintained a certain distance from General Dostam because of his human rights record, Dostam has sought respectability and this has been rewarded through various defence-related posts of a largely honorary nature. It is therefore difficult to assess whether General Dostam would risk undermining this by actively seeking S.S. It should nonetheless be noted that his decision to imprison hundreds of Taliban prisoners, in the autumn of 2001, in conditions which were likely to lead to their deaths and to do so under the watch of US forces showed little regard for his international reputation. It would also not be difficult for General Dostam to arrange for S.S. to be killed without this being traced back to him.
On the other hand, some of his commanders may be influenced solely by their desire to avenge [General] Malik’s treachery and, while [General] Malik may be too well protected to represent an easy target, may see an opportunity through S.S.’s inability to protect himself, to act out their revenge. It should be stressed that it would be difficult for S.S. to escape detection if he was being actively targeted.”
16. The report commented that the applicant would be entirely vulnerable in Kabul if General Dostum or his supporters were to actively target him. In addition, the report commented upon the IAT’s findings of 5 December 2003 and did not agree that Dr Giustozzi’s report had necessarily indicated that the risk to S.S. was a low one. The report stated:
“...it should be noted that there has been, for many decades, a pronounced labelling process in Afghanistan so that people have been identified with members of their families who have taken particular political positions or brought harm to others by virtue of the power they wielded. The individual is thus identified by association with his relatives and it is common practice for revenge attacks to be undertaken against male relatives if the original perpetrator of the action is no longer alive or to be found. It is also important to note that the desire to take revenge can pass through the generations, particularly if the original action which led to such a desire was especially serious. Given that the technical, logistics and strategic support provided by S.S.’s father may have been of significant benefit in enabling General Malik to capture and subsequently facilitate the entry of the Taliban into Mazar-e-Sharif, those who may seek to avenge his role may regard it as sufficiently serious to take revenge against S.S., as his son. I do not regard paragraph 7 of Dr Giustozzi’s report as necessarily indicating that the risk to S.S. of being actively targeted by some local commanders is a low one. As he notes, the wishes of such commanders to actively target S.S. is dependent on the past actions of his father. As these actions were of a potentially very serious nature, the risk to S.S. may be a high one.”
17. The report also set out that, in Dr Marsden’s view, S.S. may be at risk from the Taliban on account of the thousands of Taliban fighters who had died in Mazar-e-Sharif after General Malik had withdrawn his allegiance from the Taliban. However, Dr Marsden clarified that the possibility of a revenge attack upon the applicant from the Taliban had to be set against the fact that the Taliban had not killed him when he claimed that they had arrested him and imprisoned him during their period of control of Mazar-e-Sharif between 1998 and 2001.
18. On 20 January 2010, the Secretary of State refused the applicant’s representations as not amounting to a fresh asylum claim because some of the points he had raised had already been considered in his earlier claim and the remaining points would not have created a realistic prospect of success before an immigration judge. It was not accepted that the applicant had shown that the Taliban would have the motivation, means or opportunity to target him in Kabul, an area outside of their control, particularly in light of the fact that they had not harmed him when they had detained him in 1998.
19. It was further not accepted that General Dostum would still be interested in actively targeting the applicant due to, inter alia, the manner of his escape from detention in 2002; the passage of seven years since his arrest by General Dostum; the fact that General Dostum would now have other priorities; and the fact that General Dostum had already gained revenge by killing the applicant’s father. Furthermore, it was noted that the IAT had, six years earlier, assessed the risk to the applicant as low and it was considered that the risk to him six years later would be even lower.
20. In addition, relying on the reasoning of the IAT determination, the Secretary of State did not accept that, even if General Dostum was interested in the applicant, he would be able to harm him in Kabul. In particular, as General Malik reportedly lived in Kabul and was able to protect himself there, there was no reason to suggest that the applicant would not be able to do the same. It was therefore considered that the applicant had failed to show that his circumstances were more likely to cause him to be harmed than any other ordinary citizen.
21. Finally, it was not accepted that the applicant would be destitute in Kabul as he was no more vulnerable than any other citizen and had shown great resourcefulness in the United Kingdom where he had picked up transferable skills which would be of benefit to him upon return to Afghanistan.
22. On 1 February 2010, the High Court refused to grant the applicant permission to apply for judicial review, stating that it was not arguable that the Secretary of State’s decision not to treat the applicant’s further submissions as a fresh claim was unlawful or irrational, or that those submissions had not been given anxious scrutiny.
23. On 3 February 2010, the United Kingdom Border Agency’s Case Resolution Directorate, set up to consider unresolved asylum cases, gave further consideration to the applicant’s case and decided that it would not be appropriate for the applicant to be granted leave to remain in the United Kingdom bearing in mind, inter alia, his age (because it was not unreasonable to expect the applicant at 25 years of age to adapt to life back in Afghanistan); the fact that, even though he had been in the United Kingdom for seven years, he had been without valid leave to remain throughout that period; his lack of strong ties or family in the United Kingdom; his past failure to maintain contact with immigration authorities; and the lack of any compassionate or compelling circumstances in his case.
24. On 22 February 2010, the Secretary of State set removal directions to Afghanistan for the applicant scheduled to take place on 2 March 2010. Those removal directions were deferred when, on 1 March 2010, the High Court granted the applicant an injunction to prevent his removal from the United Kingdom, pending the hearing of his renewed application for judicial review at the High Court.
25. On 18 March 2010, the High Court refused permission to apply for judicial review further to the renewed permission hearing, thus discharging the injunction. Beatson J noted that there was no new evidence other than Dr Marsden’s report which was of a qualified nature and demonstrated only the conditional nature of the risk to which the applicant would be subject in Afghanistan. In that regard, he stated:
“In particular, it was only a risk if General Dostum or his senior supporters decided to target the [applicant] in Kabul. [The applicant’s counsel] relied on the passage of time since the [IAT]’s decision, but it is significant that there is nothing in Dr Marsden’s report to suggest that what was said in the [IAT]’s decision about the risk being low, unless the General had been unable to exact revenge on the father, was changed. What Dr Marsden states is that he does not accept Dr Giustozzi’s report as necessarily indicating that the risk of actively being targeted by local commanders is a low one, and the risk of being targeted may be a high one. These are examples of the qualified nature of his report.
Given those qualifications, and the limited extent to which the recent report departs from the earlier expert report submitted on behalf of the claimant, I do not consider that the Secretary of State’s decision that there was no realistic prospect of success before the Tribunal...was Wednesbury unreasonable or otherwise flawed on public law grounds.”
26. On 29 March 2010, the applicant lodged an application before the Court and requested an interim measure under Rule 39 of the Rules of Court to stop his removal to Afghanistan the following day.
27. On 30 March 2010, the Acting President of the Section to which the application was allocated decided to apply Rule 39 of the Rules of Court and to indicate to the Government that the applicant should not be expelled until further notice.
28. It appears that, on 30 March 2010, the day after the applicant lodged his application before the Court, he applied to the Court of Appeal for an injunction to prevent his removal and permission to appeal against the High Court’s refusal to grant permission to apply for judicial review. On 30 March 2010, the Court of Appeal refused his application for an urgent injunction to stop his removal.
29. In support of his application, the applicant’s representatives had obtained a supplementary expert report from Dr Marsden dated 12 April 2010. Dr Marsden set out examples of human rights abuses committed by General Dostum and concluded that, if he sought to avenge the actions of an individual who had acted against his interests, he would have no hesitation in killing him or members of his family.
30. The report further set out the power struggle between General Dostum and General Malik and the significance of General Malik’s actions in removing General Dostum from his position of power in 1997. The report went on to state:
“Whilst there is no objective documentation to establish whether S.S.’s father was instrumental in [General] Malik’s successful entry into Mazar-e-Sharif in May 1997, any such involvement, if it was significant to the final outcome would, in my view, be sufficient to justify a very considerable desire on [General] Dostum’s part for revenge. Given this, I would regard it as a reasonable possibility that [General] Dostum would seek to take revenge against S.S., even though revenge has already been exacted against the father.
...
...it should be noted that S.S. has provided evidence of a direct link, by virtue of his position as the son of his father, to a serious grievance which [General] Dostum will inevitably hold against [General] Malik. While it is never possible to provide evidence that the potential perpetrator of targeted violence will opt to give expression to a grievance that he hold, there is a reasonable probability in this case, based on the severity of the original grievance that, subject to S.S.’s father having played a significant role in facilitating the entry of [General] Malik into Mazar-e-Sharif in May 1997, [General] Dostum would have an interest in targeting S.S., who is clearly identified with a specific grievance, albeit indirectly through his father.
...it is not my experience, in monitoring developments in Afghanistan, that the passage of time will necessarily lessen the desire to exact vengeance.”
31. The report also considered that, in Dr Marsden’s view, the applicant would be particularly exposed to targeted violence from the Taliban if, as was likely, he was unable to afford accommodation in Kabul. It further stated that the Taliban may have an additional interest in the applicant given his association with General Malik.
32. On 30 July 2010, the Court of Appeal dismissed the applicant’s application for permission to appeal on the papers, taking the view that the supplementary expert report did not undermine Beatson J’s decision. Hallett LJ stated that:
“The issue for me is whether Beatson J, in the light of the information then (and arguably now) available was wrong to refuse permission to review judicially the SSHD [Secretary of State for the Home Department]’s decision to certify.
Unfortunately, to my mind, Dr Marsden’s latest report does not truly seem to be providing new material, post dating or undermining Beatson J’s decision. Rather this proposed appeal is an attempt to reargue the material available before Beatson J in a different form.”
33. On 18 January 2011, the Court of Appeal dismissed his renewed application for permission to appeal further to an oral hearing. Tomlinson LJ, with whom both Elias LJ and Ward LJ agreed, stated that he had given both Dr Marsden’s first and supplementary reports anxious scrutiny but did not consider that the supplementary report was any different in substance to his first report. He stated that:
“It is true that later in the report...Dr Marsden uses the expression “reasonable probability” rather than “reasonable possibility”, but, looking at the substance of the matter, Dr Marsden is in my view doing no more than to repeat in different language the assessment of the risk that he had proffered in his first report. He relies upon no new developments in Afghanistan from which it is to be inferred that the enthusiasm of General Dostum to exact vengeance upon the applicant for the activities of his father is likely to have increased over time, rather than, as would perhaps be expected, to have waned as other priorities and imperatives have emerged.
...
In my judgment Dr Marsden’s second report contains no material which could properly lead this court to reach a conclusion different from that reached by Beatson J.”
34. Section 82(1) of the Nationality, Immigration and Asylum Act 2002, provides a right of appeal against an immigration decision made by the Secretary of State for the Home Department.
35. Appeals in asylum, immigration and nationality matters were, until 4 April 2005, heard by Adjudicators at the IAA. Section 101 of the Nationality, Immigration and Asylum Act 2002 provided that, with the permission of the IAT, a party to an appeal could apply to the IAT against an Adjudicator’s determination on a point of law. Section 103 of the Nationality, Immigration and Asylum Act 2002 provided that where the IAT had determined an appeal under section 101, a party to the appeal could bring a further appeal on a point of law to the Court of Appeal.
36. Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. Section 6(1) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.
37. Country guidance determinations of both the former IAT and Asylum and Immigration Tribunal (“AIT”) are to be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the IAT or AIT that determined the appeal. Unless expressly superseded or replaced by a later country guidance determination, country guidance determinations are authoritative in any subsequent appeals so far as that appeal relates to the country guidance issue in question and depends upon the same or similar evidence.
38. In the country guidance determination of PM and Others (Kabul – Hizb-i-Islami) Afghanistan CG [2007] UKAIT 00089, the AIT held, inter alia, that, subject to an individual’s personal circumstances, it was unlikely to be unduly harsh (or unreasonable) to expect them to relocate to Kabul if they had established a real risk of serious harm in (and restricted to) areas outside Kabul.
39. In the country guidance determination of RQ (Afghan National Army – Hizb-i-Islami – risk) Afghanistan CG [2008] UKAIT 00013, the AIT held, amongst other matters, that:
“Where the risk to a particular appellant is confined to his home area, internal relocation to Kabul is in general available. It would not be unduly harsh to expect an appellant with no individual risk factors outside his home area to live in Kabul and assist in the rebuilding of his country.
If an appellant establishes a wider risk, extending beyond the home area, internal relocation is not necessarily available and sufficiency of protection will depend on his individual circumstances and characteristics. In particular
(a) internal relocation outside Kabul is unlikely to provide sufficiency of protection as the areas outside Kabul remain under the control of local warlords, and the population is suspicious of strangers; and
(b) the safety of internal relocation to Kabul is a question of fact based on the particular history of an individual appellant and of the warlord or faction known to be seeking to harm him.”
40. In the country guidance determination of GS (Article 15 (c): Indiscriminate violence) Afghanistan CG [2009] UKAIT 00044, promulgated on 15 October 2009, the then AIT held that there was not in Afghanistan such a high level of indiscriminate violence that substantial grounds existed for believing that a civilian would, solely by being present there, face a real risk which threatens the civilian’s life or person, such as to entitle that person to the grant of humanitarian protection, pursuant to Articles 2(e) and 15(c) of Council Directive 2004/83/EC.
41. Section 1(4) and 3(2) of the Immigration Act 1971 provide for the making of Immigration Rules by the Secretary of State. Paragraph 353 of the Immigration Rules provides as follows:
“When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”
42. As regards the scrutiny of fresh asylum claims and the power of the courts to review such scrutiny, the Court of Appeal in WM (DRC) v SSHD [2006] EWCA Civ 1495 (paragraphs 10-11) has held:
“Accordingly, a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters. First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return ... The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State’s decision.”
43. Thus, an applicant making fresh representations must establish that they have a realistic prospect of success to establish a “fresh claim” which, even if then refused by the Home Office, will nonetheless generate a fresh right of appeal to be considered on the merits.
44. On 17 December 2010, UNHCR issued the most recent Eligibility Guidelines for Assessing the International Protection needs of Asylum-Seekers from Afghanistan (“the December 2010 UNHCR Guidelines”) and set out the categories of Afghans considered to be particularly at risk in Afghanistan in view of the security, political and human rights situation in the country at that time.
45. Those Guidelines observed:
“UNHCR considers that individuals with the profiles outlined below require a particularly careful examination of possible risks. These risk profiles, while not necessarily exhaustive, include (i) individuals associated with, or perceived as, supportive of the Afghan Government and the international community, including the International Security Assistance Force (ISAF); (ii) humanitarian workers and human rights activists; (iii) journalists and other media professionals; (iv) civilians suspected of supporting armed anti-Government groups; (v) members of minority religious groups and persons perceived as contravening Shari’a law; (vi) women with specific profiles; (vii) children with specific profiles; (viii) victims of trafficking; (ix) lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals; (x) members of (minority) ethnic groups; and (xi) persons at risk of becoming victims of blood feuds.
...
UNHCR generally considers internal flight as a reasonable alternative where protection is available from the individual’s own extended family, community or tribe in the area of prospective relocation. Single males and nuclear family units may, in certain circumstances, subsist without family and community support in urban and semi-urban areas with established infrastructure and under effective Government control. Given the breakdown in the traditional social fabric of the country caused by decades of war, massive refugee flows, and growing internal migration to urban areas, a case-by-case analysis will, nevertheless, be necessary.”
46. The December 2010 Guidelines further stated:
“The well-established practice of blood feuds is rooted in traditional Afghan culture. Blood feuds are conflicts between opposing families, tribes and armed factions, and are often initiated in reaction to perceived violations to the honour of women, property rights, and land or water issues. According to the practice, individuals associated with the family or tribe of the individual seen as the wrongdoer are targeted by the victim’s tribe or family members. Revenge is sought through killing, physically injuring or publicly shaming the perpetrator or individuals related by family or tribe.
Blood feuds can be long-running conflicts, lasting for generations, with a cycle of retaliatory violence between parties. Solving a dispute through a formal justice mechanism does not normally put an end to a blood feud. Particularly among Pashtuns, blood feuds can be settled through a formal decision of a jirga – generally an all-male community-based dispute resolution mechanism. A peaceful compromise, such as a bad dadab marriage, may sometimes prevent a dispute from spiralling into a blood feud.
In light of the foregoing, UNHCR considers that persons involved in, or targeted because of, a blood feud may, depending on the circumstances of the individual case, be at risk on account of membership of a particular social group. Claims by persons with the aforementioned profiles may, however, give rise to the need to examine possible exclusion from refugee status.”