ITEMID: 001-57428
LANGUAGEISOCODE: ENG
RESPONDENT: PRT
BRANCH: CHAMBER
DATE: 1987
DOCNAME: CASE OF BARAONA v. PORTUGAL
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: C. Russo
TEXT: 9. The applicant, a Portuguese national born in 1930, is a businessman resident at Vitoria in Brazil.
Until May 1975, he lived with his wife and their five children at Cascais (in Portugal). On 17 May 1975, the chairman of the "Commission for co-ordinating the disbandment of the PIDE/DGS (the International Political Police for the Protection of the State/Directorate-General of Security) and the LP (the Portuguese Legion)" ordered the applicant’s immediate arrest on the grounds that he was a "dangerous reactionary" and that it was necessary to "investigate his reactionary activities". At the time, following the attempted coup of 11 March 1975, Portugal was going through a difficult period, which lasted until the adoption of the new Constitution on 25 April 1976.
Having learned that he was about to be arrested, the applicant fled to Brazil with his family and did not return to Portugal until September 1978, after the warrant for his arrest had been revoked.
10. In his absence the employees of his civil-engineering firm took over the company and other assets of his, including his house, furniture and bank accounts. On 31 May 1976, the Cascais District Court declared the applicant’s business insolvent. Furthermore, the Cofre da Previdência, a public bank from which the applicant had bought his house, repossessed the house for default on payment and sold it to someone else.
The applicant was later able to reach a friendly settlement and recover possession of the house on payment of certain sums to the bank and to the other person involved.
11. On 30 July 1981, the applicant brought a civil action in the Administrative Court (auditoría administrativa) of Lisbon seeking damages from the State under Legislative Decree no. 48.051 of 21 November 1967 on the State’s non-contractual liability for acts of public administration (see paragraph 30 below). He contended that the warrant for his arrest had been illegal as it did not specify an offence and did not have a "proper purpose". The applicant claimed 8,800,000 escudos in compensation for pecuniary and non-pecuniary damage.
The next day, the court registered the originating application (petição inicial) and issued a summons to the defendant - represented by State Counsel’s Office (ministério público) - requesting a reply within twenty days, in accordance with Article 486 § 1 of the Code of Civil Procedure (see paragraph 32 below).
12. On 28 October 1981 and again on 27 January 1982, the Administrative Court granted a three-month extension of time applied for by State Counsel under Article 486 § 3 of the aforementioned Code (see paragraph 32 below).
13. On 26 April 1982, State Counsel again applied for an exceptional thirty-day extension on the ground that he needed more information in order to prepare his submissions in reply (contestação). The court granted the application on 28 April 1982. Two further applications for exceptional thirty-day extensions were made by State Counsel on 8 June and 21 July 1982, on the ground that he did not yet have all the material with which to prepare his reply. The court granted these applications on 14 June and 27 July respectively.
14. On 30 July 1982, the applicant complained to the court of this series of extensions and requested copies of some of the documents in the file in order to complain to the Supreme Council of the Judiciary and to the European Commission of Human Rights of a breach of Article 6 § 1 (art. 6-1) of the Convention.
15. On 29 September 1982, he lodged notice of an appeal against an interlocutory order (de agravo - "interlocutory appeal") to the Supreme Administrative Court (Supremo Tribunal Administrativo) in respect of the Lisbon Administrative Court’s decision of 27 July in allowing State Counsel more time. He lodged the appeal with the lower court, with a request that it should be forwarded immediately to the higher court.
On 15 October 1982, the Administrative Court declared the interlocutory appeal admissible but ordered that it should be placed on the file with the main appeal and not separately forwarded to the Supreme Administrative Court straightaway. It added that the interlocutory appeal had no suspensive effect.
16. In his statement of grounds of appeal (alegações) dated 26 October 1982, the applicant contended that the Administrative Court had infringed Article 486 § 3 of the Code of Civil Procedure in extending the time allowed to State Counsel to file his pleadings by more than six months without exceptional cause, and that State Counsel had failed to specify what evidence and information he still needed. Such an extension of time could not be granted by the court arbitrarily, but only on exceptional grounds, and it could not exceed six months. Yet on this occasion more than a year had passed without State Counsel submitting his pleadings or giving valid reasons for not doing so.
17. On 4 November 1982, State Counsel applied for another exceptional ten-day extension on the ground that the Administrative Court had moved into other premises and that for a time this had halted his office’s work. When invited by the court on 9 November to comment on this application, the applicant replied - on 15 November - that he considered it unjustified; he further demanded that it should be refused and that the time allowed to State Counsel should be declared to have expired.
18. State Counsel’s pleadings were filed with the Administrative Court on 18 November and immediately forwarded to Mr. Baraona by the registrar of the court.
In the belief that the Administrative Court had decided to include these in the file and have a copy served on him, the applicant lodged with that court notice of an interlocutory appeal to the Supreme Administrative Court on 25 November and requested that the appeal should be forwarded immediately to the higher court and should have suspensive effect.
On 30 November, the applicant nevertheless filed his reply (réplica) to the pleadings lodged by State Counsel, who made a rejoinder (tréplica) on 17 December.
19. On 21 December 1982, State Counsel submitted his observations (contra-alegações) on the applicant’s interlocutory appeal of 29 September. As grounds for the requested extensions, he alleged the need not only to assemble evidence but more particularly to decide on the general thrust of his pleadings, especially as regards objections. Moreover, there was no requirement under Article 486 § 3 of the Code of Civil Procedure to give detailed reasons for his application; a general justification was sufficient. Admittedly, Article 266 of the Code of Civil Procedure required the court to remove any hindrance delaying the proceedings, but that was a discretionary power which in the present case could not be usefully exercised.
20. On 11 February 1983, the Administrative Court of Lisbon reversed its decision of 27 July 1982 to allow State Counsel more time and instead refused the application. Relying on Article 486 § 3 of the Code, it ruled that an extension of time could only be granted if State Counsel neither had the necessary information nor could obtain it in the time allowed. In addition, he had to specify the subject on which he needed information and the steps he had taken to obtain it. In the present case he had simply said he needed more information, without giving further particulars.
The court accordingly excluded as having been filed out of time all pleadings submitted by the parties after 27 July 1982, that is to say State Counsel’s pleadings of 18 November 1982, the applicant’s reply of 30 November and the rejoinder of 17 December, and ordered that they be removed from the file.
Noting, lastly, that State Counsel’s pleadings had been sent to the applicant by the registrar and not by the court itself, the court refused to entertain the applicant’s interlocutory appeal of 25 November 1982, as no appeal lay to the higher court against actions by the registrar, and a complaint should be made to the court itself.
21. On the same day, the court ordered a number of investigatory measures, including a search for the warrant issued for Mr. Baraona’s arrest in 1975.
When it became apparent that no trace of the warrant could be found, the Administrative Court gave a preliminary decision (despacho saneador) on 30 December 1983 declaring the case admissible and setting out a list of the facts agreed by the parties (especificação) and a list of matters to be clarified at the hearing (questionário).
22. On 20 January 1984, under Article 511 § 2 of the Code of Civil Procedure, the applicant lodged a complaint against this decision. He argued that, as State Counsel’s pleadings had been withdrawn from the case file, all the allegations he had made in his own statement of claim were to be regarded as admitted, since Article 485 sub-paragraph (b) and Article 490 § 4 of the Code of Civil Procedure (see paragraph 32 below) had been abrogated by Article 6 § 1 (art. 6-1) of the Convention, which laid down the principle of equality of arms. Consequently, all the matters which the court had considered needed clarification at the hearing should have been put in the especificação as having been conceded.
State Counsel’s comments on the complaint were lodged with the court on 27 January.
23. On 2 February 1984, the registrar submitted the file to the court, and on 12 April the judge dismissed the complaint, apologising for the delay caused by his absence abroad on official business from January to March. He acknowledged that the applicant’s arguments were lent support by a learned article and by a court decision at first instance; but the latter had been set aside by the Oporto Court of Appeal on 7 June 1983, and he stated his agreement with that court’s decision: State Counsel’s Office had less opportunity to meet those it represented, particularly where the defendant was a State body. In addition, the law, in order to be fair, sometimes had to treat the parties differently if they were not to be equal on paper only; the principle of equality of arms entailed compensating for initial inequality - for example, by providing legal aid or setting more generous time-limits in the case of persons resident in a distant country or whose whereabouts were unknown.
24. On 8 May 1984, this decision was communicated to Mr. Baraona, who on 10 May 1984 lodged notice of an interlocutory appeal against it to the Supreme Administrative Court.
On 17 May, the Administrative Court decided to forward the appeal to the higher court together with the entire case file and to give it suspensive effect.
In his statement of grounds of appeal dated 5 June, the applicant put forward substantially the same arguments as in the complaint he had made to the Administrative Court of Lisbon on 20 January. On 20 and 24 July 1984, State Counsel and the latter court submitted their observations on the appeal.
25. The file reached the Supreme Administrative Court in October 1984, whereupon State Counsel was asked to submit his opinion, and two judges of the court then drew up their report.
On 21 March 1985, the Supreme Administrative Court dismissed both interlocutory appeals, of 29 September 1982 and 10 May 1984.
With regard to the first appeal, against the Administrative Court’s decision of 27 July 1982, the Supreme Court found that on 11 February 1983 the judge below had himself rectified the situation by rescinding the impugned decision and excluding all pleadings submitted after 27 July 1982 as being out of time.
With regard to the second appeal, against the Administrative Court’s decision of 12 April 1984, the Supreme Court ruled that, contrary to the applicant’s contention, Article 485 sub-paragraph (b) of the Code of Civil Procedure had not been abrogated by Article 6 § 1 (art. 6-1) of the Convention. The State was in any case differently placed from private companies. Accordingly, not all Mr. Baraona’s submissions as to the facts were to be regarded as having been conceded; it was for the Administrative Court to consider them in the light of evidence adduced at the hearing.
26. On 8 April 1985, the applicant appealed against this decision (acordão) to the Constitutional Court, asking it to rule whether Article 485 sub-paragraph (b) was still in force.
The Constitutional Court registered the appeal on 16 April 1985. The applicant and State Counsel filed their pleadings on 15 July and 24 October 1985 respectively. State Counsel submitted that the court had no jurisdiction, as no breach of the Constitution had been alleged by the applicant either at first instance or before the Supreme Administrative Court. Mr. Baraona replied on 12 November 1985 that a breach of the principle of equality of arms was contrary both to the Convention and to the Constitution.
On 5 March 1986, the Constitutional Court dismissed the objection and proceeded to consider the question of the principle of equality of arms. In a judgment on 19 November 1986, it dismissed the appeal, and the applicant immediately challenged the judgment as being null and void; but it was confirmed on 14 January 1987.
27. The proceedings in the Administrative Court of Lisbon have since resumed and are at the preliminary stage.
28. Following the revolution of 25 April 1974, the "Armed Forces Movement" promulgated Law no. 3/74, of 14 May, which upheld the existing schedule of basic rights and freedoms in the 1933 Constitution and also laid down fundamental principles concerning judicial independence and defence rights. Article 8 § 17 of the 1933 Constitution recognised "the right to reparation for actual infringements of rights"; as to non-pecuniary damage, statutory provision could be made for financial compensation.
Most of the existing provisions of civil and criminal law were retained, in particular Legislative Decree no. 48.051 of 21 November 1967 on the State’s non-contractual liability.
By Legislative Decree no. 36/75 of 31 January 1975, the powers of the "Commission for co-ordinating the disbandment of the PIDE/DGS and the LP" - a commission which had been set up pursuant to an order (despacho) issued by the Army Chief of Staff on 7 June 1974 - cover the preparation of proceedings against individuals who belonged to the relevant police forces or collaborated with them (Article 2 § 3); the chairman of the Commission had the same powers as those conferred on commanding officers of the military regions under the Military Criminal Code (Article 2 § 4).
29. By Article 21 of the Constitution of 25 April 1976:
"1. The State and other public bodies shall be jointly and severally liable in civil law with the members of their agencies, their officials or their agents for actions or omissions in the performance of their duties, or caused by such performance, which result in violations of rights, freedoms or safeguards or in prejudice to another party.
2. Wrongly convicted persons shall have a right to retrial and to compensation for damage sustained, on conditions to be laid down by law."
The Constitution was amended by Constitutional Law no. 1/82 of 27 September 1982, Article 22 of which reproduces the foregoing Article 21 § 1 unchanged, however.
30. The Civil Code of 1966, which is still in force, deals with the State’s civil liability but only in respect of acts of "private administration" (Article 501). As regards acts of "public administration", Legislative Decree no. 48.051 of 21 November 1967 contains provisions on the non-contractual liability of the State and other public bodies for acts due to negligence, abuse of authority or deceit by their agencies or officials. The most important of these are as follows:
"Article 2
1. The State and other public bodies shall be liable to third parties in civil law for such breaches of their rights or of legal provisions designed to protect the interests of such parties as are caused by negligent acts (actos ilicitos culposamente praticados) of their agencies or officials in the performance of their duties or as a consequence thereof.
2. Where any compensation is paid pursuant to the previous paragraph, the State and other public bodies shall have a right of recourse against the members of the agency or the officials at fault if they failed to act with proper diligence.
Article 3
1. Members of the agency and officials of the State and other public bodies shall be liable to third parties in civil law for unlawful acts in breach of their rights, or of legal provisions designed to protect the interests of such parties, where they have exceeded their powers or if they acted with wrongful intent in exercising them.
2. The public body shall always be jointly liable with the members of the agency or the officials concerned for acts performed with wrongful intent.
Article 4
1. The negligence (culpa) of the members of the agency or of the officials concerned shall be assessed in accordance with Article 487 of the Civil Code.
2. Where more than one person is liable, Article 497 of the Civil Code shall apply.
Article 5
1. The right to compensation under the foregoing provisions shall be time-barred after expiry of the periods laid down in the Civil Code.
2. Limitation of actions by the State to enforce its right of indemnity is likewise governed by civil law.
..."
31. Under the Administrative Code, actions for damages in respect of liability of public authorities come within the jurisdiction of the administrative courts (auditores - Articles 815 and 820). With the exception of certain rules regarding locus standi and limitation (Articles 824 and 829), Article 852 explicitly refers to the provisions governing ordinary civil procedure.
Decisions of administrative courts are subject to appeal as to the merits, interlocutory appeal and complaint (Article 853). Certain interlocutory appeals have a suspensive effect and must be referred forthwith to the Supreme Administrative Court, in particular those made against a decision to dismiss a complaint against a preliminary decision (Article 859 sub-paragraph (d)), while others must be forwarded with the case file when the final decision is appealed, and have no suspensive effect (Article 860).
32. The procedure in question must therefore comply with the rules in the Code of Civil Procedure.
Article 484 § 1 of the Code provides that "if the defendant fails to submit pleadings in reply notwithstanding the proper issue of a summons ..., the facts as pleaded by the plaintiff shall be deemed to have been admitted".
Article 485 lays down certain exceptions to this principle, however; in particular, sub-paragraph (b) states that the rule does not apply where the defendant is a legal person.
Under Article 486 § 1 the defendant has twenty days in which to reply to the claim, but paragraph 3 of the same Article provides:
"State Counsel shall be granted more time when he needs information he cannot obtain within the time-limit or when he is awaiting a reply from a higher authority. The extension may not exceed six months unless exceptional cause is shown."
Article 490 § 1 of the Code of Civil Procedure stipulates that "the defendant shall reply clearly to each item of fact in the originating application; items not expressly (especificadamente) disputed shall be regarded as agreed between the parties except where obviously inconsistent with the defence as a whole, or not capable of being admitted, or provable only by written document".
By paragraph 4, however, this provision applies neither to defence counsel assigned by the court nor to State Counsel.
Under Article 511 § 2, once the parties have been informed of the preliminary decision they may make "any complaints they wish about the list of the facts agreed by the parties or the list of matters to be clarified at the hearing on grounds of procedural irregularity (deficiência), irrelevance (excesso), complexity or obscurity".
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-5135
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: BLOM v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Gaukur Jörundsson;Josep Casadevall
TEXT: The applicant is a Swedish national, born in 1947 and living in Huddinge. She is represented before the Court by Mr Georg Antal, a lawyer practising in Stockholm.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant applied for disability benefits in November 1991. Additional information was requested from her and she was asked to fill out the appropriate form.
Her formal application for a disability allowance (handikappersättning) under Chapter 9, Section 2 of the 1962 Social Insurance Act (lagen om allmän försäkring; hereinafter “the 1962 Act”) was lodged on 26 February 1992. Six different medical opinions and also medical records from a hospital were enclosed. The applicant invoked back problems and problems relating to incontinence. She stated, inter alia, that she was unable to use public transportation.
The Social Insurance Office (försäkringskassan) of the County of Stockholm requested the opinion of two other medical doctors who were attached to the Office in order to assist in medical matters (förtroendeläkare; ”insurance doctor”). After having studied the documents in the case, the insurance doctors came to different conclusions. One doctor, T.A., considered that the applicant was unable to use public transportation and the other doctor found that the available documents failed to substantiate this contention.
On 10 February 1993 the Office rejected the application, finding that the applicant’s needs or costs did not attain the level required under the above Act.
Doctor T.A.’s statement had not been included among the documents which formed the basis of the Office’s decision, nor had the applicant been informed of the statement. After the applicant had made a complaint in these respects, the Parliamentary Ombudsman (Justitieombudsmannen) levelled serious criticism against the Office’s handling of the case.
The applicant appealed against the Office’s decision to the County Administrative Court (länsrätten) of the County of Stockholm. Before this court as well as during the following court proceedings she was represented by legal counsel. She requested the court to hold an oral hearing and to obtain the opinion of a medical expert. She gave no explicit motive for her request for an oral hearing.
On 4 May 1994 the court informed the applicant as follows:
(Translation)
“Having regard to the available material, the [court] finds no need to hold an oral hearing.
In your submission of 11 March 1993 you have also requested the court to obtain a certificate from a medical doctor with special neurological knowledge regarding the need to use a car for transport to and from work and the need for help with heavy domestic duties. Doctor [I.O.-L.] has in a certificate of 22 April 1992 made an assessment of [the applicant’s] need of a car for transports to and from work. [The court] therefore considers further material unnecessary as regards that issue. [The court] invites you to submit whether you maintain your request.
[The court] hereby gives you the opportunity to make in writing, no later than 18 May 1994, your final submissions in the case.
If you maintain your request for an oral hearing in the case, you are required to submit to [the court], within the same time, a statement of evidence indicating the evidence you want to invoke and what you want to prove with each separate piece of evidence. [...]
If no response is submitted to [the court], the case will be determined on the basis of the available material.”
No submission of evidence was made by the applicant. Instead she responded by informing the court that she regarded the court’s notification as a decision of, inter alia, her request for an oral hearing.
By judgment of 23 June 1994, the County Administrative Court, taking into account the medical certificates and the other evidence in the case, rejected the applicant’s appeal with extensive reasons. The court, referring to most of the medical certificates available in the case, found no evidence from the documentation supporting that the applicant in her everyday life needed assistance from another person to such an extent as to qualify for benefits. Neither did the court find that the applicant needed continuing assistance in order to be gainfully employed. Lastly the court found nothing to substantiate that the applicant due to a functional impairment was prevented from using public transportation to and from work, for which reason she was not entitled to benefits in order to cover any extra expenses.
The applicant then appealed to the Administrative Court of Appeal (kammarrätten) in Stockholm, submitting yet another medical certificate. She again requested that the opinion of a medical expert be obtained. She did not request the appellate court to hold an oral hearing, and the court did not hold a hearing on its own motion. By decision of 16 September 1994 the court rejected her request for a further medical opinion and instructed her to submit concluding arguments in writing.
On 7 October 1994 the Administrative Court of Appeal, after having rejected the applicant’s renewed request for a further medical opinion, upheld the County Administrative Court’s judgment with substantial reasons. The court referred to the new medical certificate and found that the functional impairments described therein did not prevent the applicant from using public transportation.
The applicant made a further appeal to the Supreme Social Insurance Court (Försäkringsöverdomstolen). She requested that an oral hearing be held and that the opinion of a medical expert be obtained. She also complained about the lack of oral hearings before the lower courts and their refusal to obtain a further medical opinion.
By letters of 15 March and 25 April 1995, the Supreme Social Insurance Court informed the applicant that it did not intend to request a further medical opinion or to hold an oral hearing. The applicant was given the opportunity to submit further observations on the question of leave to appeal.
On 12 June 1995 the Supreme Social Insurance Court refused the applicant leave to appeal against the judgment of the Administrative Court of Appeal.
B. Relevant domestic law
According to Chapter 9, Section 2 of the 1962 Act, a person who is ill or handicapped may receive disability benefits provided that he or she is insured and registered with a Social Insurance Office and has reached the age of 16. A further requirement is that the insured person before turning 65 years of age has become functionally impaired for a considerable time and to such a degree that he or she is in need of more time-consuming assistance from another person on a daily basis, is in need of continuing assistance in order to be gainfully employed or otherwise has considerable extra expenses. All Swedish nationals and other residents in Sweden are automatically insured in accordance with the 1962 Act.
It is the total need of support and assistance that determines whether an insured person is entitled to disability benefits and, should that be the case, the amount of compensation. When making this assessment, it is necessary to look into the insured person’s whole situation and to add together the need for different types of assistance and extra expenses. A medical report is required when it comes to the assessment of the functional impairment itself. As far as extra expenses are concerned, the extent to which other measures from the social services compensate also have to be taken into account, for instance assistance benefit (when the handicapped person has his or her own personal assistant). When it comes to costs for transportation to and from work by car, it also has to be considered whether it is possible to use public transportation service for the disabled. Furthermore, at the time of relevance for the present case, protection aids against incontinence were provided free of charge.
Disability benefits are not subject to taxation. They are granted on a yearly basis with 69, 53 or 36 per cent of the yearly basic amount for national security purposes (“the basic amount”), depending on the extent to which the insured person is in need of assistance and the amount of extra expenses caused by the handicap. The basic amount was 33,700 Swedish kronor (SEK) during 1992 when the applicant applied for disability benefits. In 1993, when her application was rejected by the Social Insurance Office, the amount was SEK 34,400.
A decision by the Social Insurance Office in accordance with the 1962 Act may be appealed against to the County Administrative Court and from there on to the Administrative Court of Appeal and, at the relevant time, to the Supreme Social Insurance Court. The latter court was the highest social insurance court prior to 1 July 1995. The Supreme Social Insurance Court was abolished with effect from this date and its tasks were taken over by the Supreme Administrative Court (Regeringsrätten).
The Supreme Social Insurance Court could not examine a case on its merits without first granting leave to appeal. According to the provisions in force after 1 July 1993, the Court could grant leave to appeal in two different situations: if it was of importance for guidance in application of the law that the Court examine the case; and if there were extraordinary reasons for the Court to examine the case, e.g. on account of the fact that a ground existed for the re-opening of the case or that the outcome of the case in the inferior court was clearly due to a gross oversight or a gross mistake.
The procedure in the administrative courts is governed by the provisions of the 1971 Administrative Court Procedure Act (förvaltningsprocesslagen; hereinafter ”the 1971 Act”). The same Act also regulated the proceedings before the Supreme Social Insurance Court. According to Section 9 of the Act, the proceedings consist of a written procedure. However, the proceedings may include an oral hearing with regard to a certain issue, when there is reason to assume that such a measure would be to the advantage of the proceedings or that a rapid determination of the case is promoted. According to the third paragraph of Section 9, an oral hearing shall take place before a County Administrative Court and an Administrative Court of Appeal on the request of an individual party to the case, if such a hearing is not unnecessary and there are no particular reasons against it. Thus, the opportunity for an individual party to the case to obtain an oral hearing on request under those circumstances was not available in the proceedings before the Supreme Social Insurance Court.
According to the travaux préparatoires to the 1971 Act (Government Bill 1971:30, p. 353) the oral element can be a valuable complement to the written proceedings and an oral hearing can be of advantage to the examination of a case in two respects, mainly. First of all, in order to hear a witness, an expert witness or a party, or when it is difficult for a party to present the case in writing. Secondly, in order to sort out the different positions in the case and to eliminate unnecessary or pointless issues of dispute. In the latter case, the oral hearing takes on a preparatory character. When the Act was drafted, it was also stressed that oral elements in the proceedings are not to be seen as an alternative to the written procedure but merely as a complement to it.
The reference in Section 9 of the 1971 Act to the promotion of a rapid determination of the case was added in 1983. The purpose was to make it clearer that an oral hearing could, and should, be held in order to further a more rapid and effective examination of the case. The amendment aimed mainly at such cases concerning taxation that are connected with criminal proceedings before the general courts (cf. Government Bill 1982/83:134).
In connection with the enactment of the 1971 Act it was stated, in respect of the third paragraph of Section 9, that a party’s request for an oral hearing should be given great consideration. However, the party would not be allowed to have a decisive influence in the matter. The question whether or not an oral hearing is unnecessary should primarily be determined against the background of the available information in the case. Other circumstances can, however, also be of relevance, for instance the importance for the party of the matter at stake or the fact that an oral hearing would enhance the party’s understanding of a future decision in the case. A particular reason against the holding of an oral hearing can be that the case is of a trivial character or that the costs for an oral hearing would not be proportionate to the values involved in the matter at stake (cf. Government Bill 1971:30, p. 537).


ITEMID: 001-102947
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF T.N. v. DENMARK
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Art. 3 (in case of expulsion to Sri Lanka)
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1972 in the vicinity of Jaffna in the north of Sri Lanka. She currently lives in Ellebæk, Denmark. She is of Tamil ethnicity and Hindu.
6. The applicant's parents died in 1978 and 1983.
7. On 27 March 2004, she married a Sri Lankan man who had lived in Denmark since 1986 and who returned to Colombo to attend the wedding.
8. On 30 January 2005, under the rules on family reunification, the Aliens Authorities (Udlændingestyrelsen) granted the applicant a residence permit to join her husband in Denmark. Accordingly, on 16 March 2005 the applicant entered the country on a valid passport issued on 11 February 2004.
9. Less than a year later, on 31 January 2006, the Aliens Authorities decided to withdraw the applicant's residence permit on the ground that the applicant and her husband had separated. This decision was confirmed by the Ministry of Refugee, Immigration and Integration Affairs (Ministeriet for Flygtninge, Indvandrere og Integration) on 6 October 2006 and the applicant was ordered to leave Denmark no later than 9 November 2006. The applicant did not challenge this decision before the ordinary courts.
10. On 1 November 2006 the applicant applied for asylum in Denmark. In support of her application she submitted that her marriage had been arranged, and that once she had arrived in Denmark her husband had taken her passport and been abusive by beating her and depriving her of food. After four months, she had fled to a women's shelter. By a judgment of 17 October 2005 her husband was convicted of abuse and sentenced to 40 days' imprisonment. Her passport had been returned. Subsequently, on one occasion when she had seen him on the street, he had threatened to kill her. He came from a wealthy family in Colombo with good connections to the authorities and the military and she was afraid that he had told the Sri Lankan authorities about her five years between 1988 and 1994 as a soldier for the Liberation Tigers of Tamil Eelam, hereafter the LTTE. She had participated and been injured in battle. Having contracted malaria, in 1995 she had had to leave the organisation. Between 1995 and 1999, she had moved around because of the instability in the country. In 1999 she had settled in Colombo where she had worked as a carer for an elderly gentleman. In January 2004 she had met her husband and agreed to marry him to secure her future. She had a sister in Sri Lanka but had heard no news from her since the tsunami in 2004. She had no other relatives in her home country.
11. By a judgment of 21 June 2007 the applicant was convicted for two incidents of malicious damage to her husband's car and flat, and sentenced to six day fines.
12. On 28 June 2007 the Aliens Authorities rejected her application for asylum. It found that the grounds invoked by the applicant were not such that she would face a real risk of persecution or ill-treatment if returned to Sri Lanka.
13. On appeal to the Refugee Appeals Board (Flygtningenævnet), the applicant explained, among other things, that her mother died when she was five years old and her father died when she was eight years old. After her father's death she had been sent to a boarding school. She could only stay at school until she turned 16. She did not have any relatives or others with whom she could stay. When she was 16 years of age, she had joined the LTTE. She had been in combat on five occasions when she was between 16 and 18 years old and had been hit by shell splinters. Consequently she had a small shell splinter under the skin by her left eye and part of one finger was missing. The LTTE had accepted that she leave the organisation after she contracted malaria. She married on 27 March 2004, in Colombo. Her husband was an ethnic Tamil resident in Denmark. Prior to her entry into Denmark she became pregnant. Her spouse's family took her to a clinic and forced her to have an illegal abortion. Her spouse's family treated her very badly prior to her entry into Denmark. Her spouse was an alcoholic and beat her every day. After she left her spouse, he had threatened to have her sent back to Sri Lanka where she would end up in the street. If she were to return to her country of origin she feared her former spouse's family who lived in Colombo. She had neither family members nor a place to stay in Sri Lanka. Her former spouse's family had a good relationship with the Sri Lankan army. She also feared the authorities, should she return to Sri Lanka, as persons who had been attached to the LTTE were not allowed to leave the country without the permission of the authorities. She feared that her former spouse would inform the Sri Lankan authorities about her return and that she would be arrested at the airport as a result. On the basis of her scars the authorities would be able to conclude that she had been attached to the LTTE.
14. By a decision of 13 August 2007, the Refugee Appeals Board refused to grant the applicant asylum. It first noted that the applicant had arrived in Denmark on a passport which was still valid and that she had had no problems with the authorities before she left Sri Lanka.
15. The fact that she had been a member of the LTTE at a very young age could not in itself justify the granting of asylum. Moreover, she had not held any prominent position in the organisation and her attachment to the LTTE ended after she had developed malaria. She had had no problems with the LTTE since she left in 1995 and she had not in any way attracted attention to herself.
16. Finally, the applicant's problems with her former husband were of a private nature and there was no indication that the Sri Lankan authorities would be unable or unwilling to help and protect her if necessary.
17. In conclusion, the Refugee Board therefore found that on her return to Sri Lanka she would not run any particular risk of persecution within the scope of section 7(1) of the Aliens Act, or any real risk of outrages within the scope of section 7(2) of the Aliens Act.
18. On 6 November 2007 the Refugee Appeals Board rejected the applicant's request to reconsider the case finding that no new essential information or aspects had been added to the case. The fact that on 21 October 2007 the UNHCR had requested the Refugee Appeals Board to suspend the return of Tamils from northern and eastern Sri Lanka had not given rise to a general suspension of the return of ethnic Tamils to northern and eastern Sri Lanka, and the Board did not find either that it should give rise to a postponement of the time-limit for the applicant.
19. By a court order of 16 November 2007 the applicant divorced. It appears that shortly thereafter the applicant married a Singhalese man who lived in Denmark. Their daughter was born on 5 September 2008.
20. In the meantime, on 2 April 2008, the applicant again requested a reopening of her asylum case. In support she referred to the fact, inter alia, that the Sri Lankan authorities had issued a birth certificate to her in October 2007. Her friends had arranged for the certificate to be issued and had subsequently sent it to her in Denmark. The authorities in Sri Lanka were thus aware of what she had told the Danish authorities in connection with her asylum application. She also referred to the fact that she had contracted a Hindu marriage with a Singhalese man during her residence in Denmark. She finally referred to her pregnancy and to having been hospitalised in Norway on 9 or 10 March 2008 due to dehydration. By a letter of 9 April 2008 she added that she had fled the LTTE in 2002 and hidden with her future husband's brother in Vavuniya. From there she had gone to Colombo to stay with her future husband's sister. Subsequently, she heard that on several occasions members of the LTTE had approached her brother-in-law in order to find her. Furthermore, the LTTE had detained one of her brother-in-law's children for three months. She had only learned about this later on. Finally, her former spouse refused to return her national identity papers to her; instead, he had passed her identity card to the Sri Lankan army. She had received this information recently. Consequently, the military was waiting to arrest her in Sri Lanka where she was wanted. If she succeeded in going to Vanni she would be arrested by the LTTE.
21. On 14 April 2008, the Refugee Appeals Board again refused to reopen the asylum case, finding that no essential new information or aspects had been added in relation to the information which had been available when the case was considered by the Board in the first place. The Refugee Appeal Board did not find it probable that the Sri Lankan authorities had become acquainted with the applicant's statements given to the Danish immigration authorities since that information was private and covered by the regulations of the Criminal Code (straffeloven) concerning the professional secrecy of public authorities. The fact that the applicant was pregnant and had married in Denmark had no bearing on her asylum case and therefore could not lead to a different evaluation of the matter. Her statement about recently having learnt that her former brother-in-law had been approached by the LTTE seemed unreliable, notably because during the original asylum case hearing before the Refugee Appeals Board she had stated that she left the LTTE because she had developed malaria. Consequently, this “new” information could not be taken into account. The Refugee Appeals Board could not take into account either the statement that her former spouse had passed on her identity card to the Sri Lankan authorities as this information had been submitted at a very late date and seemed fabricated for the occasion. Her problems with her former spouse were of a private law nature and thus could not lead to a different evaluation of her asylum case.
22. By letter of 25 April 2008, once more the applicant requested that her case be reopened and submitted in support thereof a letter from the European Court of Human Rights to the United Kingdom dated 23 October 2007 requesting the latter to suspend the return of all Tamils to Sri Lanka, and an e-mail of 16 April 2008 concerning the suspension of deportation cases in Switzerland on the basis of the above-mentioned letter.
23. On 28 April 2008, the Refugee Appeals Board again refused to reopen the asylum case. It stated that it was acquainted with the letter of 23 October 2007 but found that the letter alone could not bring about a general suspension of cases concerning Sri Lankan nationals of Tamil ethnicity. Nevertheless, the letter and the UNHCR's recommendations formed part of the background material on Sri Lanka which was available to the Refugee Appeals Board and which was a constituent part of the basis for the Board's decisions.
24. On 28 April 2008, upon the applicant's request, the Court of Human Rights decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was in the interests of the parties and the proper conduct of the proceedings that the applicant should not be expelled to Sri Lanka pending the Court's decision.
25. On 10 June 2008, the Ministry of Refugee, Immigration and Integration Affairs refused the applicant's application for a residence permit on humanitarian grounds under section 9b(1) of the Aliens Act.
26. On 11 February 2009 the applicant's passport expired.
27. On 29 April 2009, referring to the deterioration in the security situation in Sri Lanka and UNHCR Eligibility Guidelines for Assessing the international Protection Needs of Asylum-Seekers from Sri Lanka from April 2009, the applicant requested that the Refugee Appeals Board reopen her asylum case.
28. On 11 June 2009, anew, the Refugee Appeals Board refused her request, concluding as follows:
“... In April 2009, the Refugee Appeals Board received the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka from April 2009, which have been included in the background material of the Refugee Appeals Board. In addition, the Refugee Appeals Board has subsequently added the following reports to its background material: Human Rights Watch, War on the Displaced, Sri Lankan Army and LTTE, Abuses against Civilians in the Vanni, February 2009; United Kingdom, Home Office, UK Border Agency, Country of Origin Information Report - Sri Lanka, 18 February 2009; U.S. Department of State, 2008 Human Rights Report: Sri Lanka, 25 February 2009; United Kingdom, Home Office, UK Border Agency, Operational Guidance Note - Sri Lanka, April 2009; and United Kingdom, Home Office, UK Border Agency, Operational Guidance Note, April 2009.
It should be noted in that respect that the Refugee Appeals Board makes its decisions in asylum proceedings upon a concrete and individual assessment of the individual asylum-seeker's statement about his asylum motive compared with the background information available at any time about the conditions in the asylum-seeker's country of origin. It should also be noted that, as appears from NA. v. the United Kingdom, no. 25904/07, § 127, the Refugee Appeals Board places substantial emphasis on the information of the UNHCR Position Papers about the situation in Sri Lanka. The Position Papers are necessarily broadly phrased and contain general descriptions about the varying risks for each of Sri Lanka's ethnic groups. The views expressed in the Position Papers cannot in themselves be conclusive evidence for the assessment by the national authorities or the European Court of Human Rights of the risk for ethnic Tamils returning to Sri Lanka.
The Refugee Appeals Board observes that the general conditions for ethnic Tamils from northern Sri Lanka, including single women, do not in themselves justify asylum. It should be noted in that connection that the European Court of Human Rights stated in NA. v. the United Kingdom (quoted above, § 125 that, in the assessment of the Court, the deterioration in the security situation and the increase in human rights violations in Sri Lanka did not create a general risk to all Tamils returning to Sri Lanka. The Court further observed in § 128 that both the assessment of the risk to ethnic Tamils of certain profiles and the assessment of whether individual acts of harassment would cumulatively amount to a serious violation of human rights could only be made on an individual basis.
Your statement to the effect that your client may risk having an explanatory problem upon her arrival at Colombo as a consequence of the scars acquired by her in connection with military operations against the government forces does not lead to a revised assessment of the case. In this respect, the Refugee Appeals Board refers to the Danish Government's written observations of 5 January 2009 stating that your client had not been detained or subjected to outrages or to other acts contrary to Article 3 of the Convention before her departure as opposed to the applicant in NA. v. the United Kingdom. Nor had your client been recorded by the authorities in connection with detention, or photographed, fingerprinted or anything else so that the authorities might be presumed to know of her, and therefore your client could not be considered to be at risk of being subjected to outrages or other acts contrary to Article 3 of the Convention upon her arrival at Colombo Airport in the same way as the applicant in the above judgment.
Nor does your statement about your client's affiliation with the LTTE until 2002 and not, as originally stated, until 1994, when your client left the LTTE because she contracted malaria, lead to a revised assessment of the case. It should be noted in that connection that the new information appeared at a very late stage of the asylum proceedings after your client had been refused asylum, having had several opportunities to provide this information without having done so. The Refugee Appeals Board still finds that there is no reasonable explanation for her changed statement.
In that connection, the Refugee Appeals Board has also placed some emphasis on the fact that your client only applied for asylum in Denmark almost one year and eight months after her entry into Denmark and only after her residence permit under the family reunification rules had been revoked and she therefore had to leave Denmark.
Concerning your statement about your client suspecting her former spouse or his family of having disclosed information to the Sri Lankan authorities about her, it should be noted that the Refugee Appeals Board finds that it has not been rendered probable that the Sri Lankan authorities have gained knowledge of your client's statements to the Danish immigration authorities. In this respect, it should be noted that the information given by your client in connection with the asylum proceedings is comprised by the rules of the Danish Criminal Code on the duty of confidentiality of public authorities.
The fact that your client was married at a religious ceremony in Denmark and has given birth to a daughter is not relevant under asylum law and thus does not lead to a revised assessment of the case either.
Against this background, the Refugee Appeals Board fully relies on its decisions of 13 August 2007, 6 November 2007 and 14 and 28 April 2008.
No time-limit for departure is fixed as, on 29 April 2008, the Refugee Appeals Board suspended your client's time-limit for departure for the time being.”
29. On 16 June 2009 the Refugee Appeals Board decided to suspend the examination of asylum cases concerning Tamils from northern Sri Lanka, including the applicant's case.
30. On 16 December 2009, on the basis of the most recent background information concerning Sri Lanka including, inter alia, a Memorandum of 26 October 2009 prepared by the Ministry of Foreign Affairs, the Refugee Appeals Board decided to review the suspended cases, including the applicant's case.
31. On 12 March 2010 the Refugee Appeals Board refused to reopen the applicant's case as it found that the most recent general background information would not lead to a revised assessment of the case. More specifically in its letter to the applicant's representative it stated as follows:
The Refugee Appeals Board observes that as her asylum motive your client has stated, inter alia, that, in case of return, she fears outrages committed by the LTTE because she left without permission. She also fears the Sri Lankan military forces. Due to the injuries incurred by her during military operations, she fears that the Sri Lankan army will suspect her of being a member of the LTTE. Moreover, your client fears that her former family-in-law, with whom she is on bad terms and who live in Sri Lanka and have good connections with the Sri Lankan military forces, have informed on her to the Sri Lankan authorities and that she will therefore be unable to enter the country without becoming an object of interest to the authorities. Her former spouse living in Denmark has her ID card, and she fears that he will travel to Sri Lanka and do something that may harm her. Finally, your client has stated that, as a single woman without family or social network, she will be unable to manage in her country of origin.
By decision of 13 August 2007 the Refugee Appeals Board stated, inter alia, that your client had left Sri Lanka in possession of her own national passport without problems and that she had not, prior to her departure, been subjected to outrages or the like of a nature to warrant asylum. The Board found that the fact that your client was affiliated with the LTTE as a child soldier when very young did not in itself warrant granting asylum. In that connection, the Refugee Appeals Board emphasised the length of the time passed and the fact that your client was deemed not to have made herself stand out in any way. Moreover, the Board found that the general situation for single women in Sri Lanka could not justify granting a residence permit under section 7 of the Aliens Act. The Board observed that your client's problems with her former spouse were of a private law nature and therefore recommended that she seek the protection of the authorities in case of conflicts. The Board finally found that it had not been rendered probable that your client would be unable to seek the protection of the authorities and that therefore the information on her former family-in-law could not lead to a revised assessment.
The Refugee Appeals Board still finds that your client's fear of the LTTE and the Sri Lankan authorities and the conflict with her former family-in-law do not warrant a residence permit under section 7 of the Aliens Act.
In that connection, the Refugee Appeals Board refers to your client's statement during the asylum proceedings to the effect that she did not have any problems with the LTTE at any time prior to her departure, including in connection with her leaving the LTTE. On the contrary, she stated that the LTTE accepted her leaving the organisation. The Board observes that several years have passed since your client left the LTTE, and therefore the Board cannot find as a fact that former LTTE members would pursue her because she had left the country without permission from the LTTE.
Additionally, the Sri Lankan military forces defeated the LTTE in May 2009. Moreover, it appears from the background information available to the Board that it is hardly likely that former low-ranking members of the LTTE or persons who have previously supported the LTTE will risk reprisals from the LTTE, see United Kingdom: Home Office, Operational Guidance Note, Sri Lanka, August 2009.
The possibility that as an ethnic Tamil from northern Sri Lanka your client risks being questioned and investigated by the authorities upon entry into her country of origin does not lead to a revised assessment of the case under asylum law. The individuals at particular risk of being detained and investigated upon entry in Colombo are young Tamils, men in particular, from northern and eastern Sri Lanka; those without ID; those not resident or employed in Colombo; and those recently returned from the West, see United Kingdom: Home Office, Report of Information Gathering Visit to Colombo, Sri Lanka 23 - 29 August 2009.
Similarly, although your client risks being detained at the airport, the Refugee Appeals Board finds that this cannot warrant asylum. In that connection, the Board refers to your client's statement during the asylum proceedings to the effect that she was an ordinary, rank-and-file member of the LTTE and that she has not had any conflicts with the Sri Lankan authorities at any time, or been registered in any way. She departed lawfully from Sri Lanka in possession of her own Sri Lankan national passport for the purpose of family reunification in Denmark. Moreover, several years have passed since your client carried out activities for the LTTE. Against that background, the Refugee Appeals Board finds that it has not been rendered probable that the Sri Lankan authorities would take a special interest in your client upon return, regardless of her scars.
In this connection, the Refugee Appeals Board refers to the fact that it appears from the background material available to the Board that, in general, individuals who have supported the LTTE on a lower level are not of interest to the authorities. Thus, generally, only high-profile members of the LTTE who are still active and wanted, or individuals wanted for serious criminal offences are of interest to the authorities, see United Kingdom: Home Office, Operational Guidance Note, Sri Lanka, August 2009, and Home Office, Report of Information Gathering Visit to Colombo, Sri Lanka 2329 August 2009.
Your client has also stated that her former family-in-law has good connections with the Sri Lankan army and that she has reason to believe that the family has informed on her to the Sri Lankan authorities. The Board does not consider this information a fact. The information is thus not substantiated in detail, and your client has not given a more accurate account of which member of her former family-in-law is involved and when that member has allegedly spoken to the authorities about your client.
Nor does the Refugee Appeals Board find that the fact that your client's former spouse has taken your client's ID card from her, and that she will have to have her national passport renewed and might thereby attract attention to herself, can lead to any other assessment.
As in the previous decisions in the case, the Refugee Appeals Board still finds that the general situation in Sri Lanka is not of such nature as to warrant in itself the grant of a residence permit under section 7 of the Aliens Act.
Thus, the Refugee Appeals Board fully relies on the decisions of 13 August 2007, 6 November 2007, 14 April 2008, 28 April 2008 and 11 June 2009. Against that background, the Board still finds that it has not been rendered probable that, in case of return to Sri Lanka, your client would be at concrete and individual risk of persecution as covered by section 7(1) of the Aliens Act, or that your client would be at a real risk of outrages as covered by section 7(2) of the Aliens Act.
It should be noted that your client's time-limit for departure is still suspended until further notice on the basis of the request of 28 April 2008 from the European Court of Human Rights.
If your client's lawful stay in Denmark lapses, she must leave the country immediately, see section 33(1) and (2) of the Aliens Act. As appears from the decision of the Refugee Appeals Board of 13 August 2007, your client may be forcibly returned to Sri Lanka if she does not leave voluntarily, see section 32a, cf. section 31, of the Aliens Act.
32. By virtue of section 7 of the Aliens Act (Udlændingeloven), asylum is granted to aliens who satisfy the conditions of the Geneva Convention. Applications for asylum are determined in the first instance by the former Aliens Authorities (now called the Immigration Service) and in the second instance by the Refugee Appeal Board.
33. Pursuant to section 56, subsection 8 of the Aliens Act, decisions by the Refugee Board are final, which means that there is no avenue for appeal against the Board's decisions. Aliens may, however, by virtue of Article 63 of the Danish Constitution (Grundloven) bring an appeal before the ordinary courts, which have authority to adjudge on any matter concerning the limits to the competence of a public authority.
34's country of origin or first country of asylum. For this purpose, the Refugee Appeals Board has a comprehensive collection of general background material on the situation in the countries from which Denmark receives asylumseekers. The material is up-dated and supplemented on a continuous basis. The background material of the Refugee Appeals Board is obtained from various authorities, in particular the Danish Ministry of Foreign Affairs and the Danish Immigration Service. In addition, background material is procured from various organisations, including the Danish Refugee Council, Amnesty International and other international human rights organisations and the UNHCR. Also included are the annual reports of the US State Department (Country Reports on Human Rights Practices) on the human rights situation in a large number of countries, reports from the British Home Office, reports from the documentation centre of the Canadian Refugee Appeals Board, reports from the Swedish Ministry for Foreign Affairs, reports from EURASIL (European Union Network for Asylum Practitioners), reports from the authorities of other countries and to some extent articles from identifiable (international) journals. Moreover, the Board may request the Danish Ministry of Foreign Affairs to issue an opinion on whether it can confirm information from a background memorandum drafted in general terms. The Refugee Appeals Board also retrieves some of its background material from the Internet. Internet access also enables the Board to obtain more specific information in relation to special problems in individual cases.
35. Usually, the Refugee Appeals Board assigns counsel to the applicant. Board hearings are oral and the applicant is allowed to make a statement and answer questions. The Board decision will normally be served on the applicant immediately after the Board hearing, and at the same time the Chairman will briefly explain the reason for the decision made.
36. Extensive information about Sri Lanka can be found in NA. v. the United Kingdom, no. 25904/07, §§ 53-83. The information set out below concerns events occurring after the delivery of the said judgment on 17 July 2008 and, in particular, after the cessation of hostilities in May 2009.
37. Fighting between the Sri Lankan army and the LTTE intensified in early 2009, with the army taking a number of rebel strongholds in the north and east of the country. On 19 May 2009, in an address to the country's parliament, the President of Sri Lanka announced the end of hostilities and the death of the leader of the LTTE, Velupillai Prabhakaran. It was also reported that most, if not all, of the LTTE's leadership had been killed.
38. The previous day, the United Nations Office for the Coordination of Humanitarian Affairs had estimated that around 220,000 people had already reached internally displaced persons' camps, including 20,000 in the last two or three days. In addition, it was believed that another 40,000-60,000 people were on their way to the camps through the crossing point at Omanthai, in the northern district of Vavuniya.
39. In July 2009, the South Asia Terrorism Portal reported that the number of killings in Sri Lanka in the previous three years (including deaths of civilians, security forces and members of the LTTE) was: 4,126 in 2006; 4,377 in 2007; 11,144 in 2008 and 15,549 between 1 January 2009 and 15 June 2009. An estimated 75-80,000 people were reported to have been killed in total over the course of the 26 year conflict.
“Notwithstanding the cessation of the hostilities, the current protection and humanitarian environment in Sri Lanka remains extremely challenging. In the North, nearly the entire population from the territory formerly held by the LTTE in the North (285,000 Tamils) has been confined to heavily militarized camps in the Northern region. Although the government has gradually reduced the military presence in the camps and has pledged to start the progressive return to their villages of origin of the majority of those in the camps, it is clear that this may take a considerable amount of time. The lack of freedom of movement remains the overriding concern for this population restricting its ability to reunite with family members outside the camps, access employment, attend regular schools, and ultimately choose their place of residence.”
41. A Human Rights Watch [HRW] press release, dated 28 July 2009, reported that:
“The government has effectively sealed off the detention camps from outside scrutiny. Human rights organizations, journalists, and other independent observers are not allowed inside, and humanitarian organizations with access have been forced to sign a statement that they will not disclose information about the conditions in the camps without government permission. On several occasions, the government expelled foreign journalists and aid workers who had collected and publicized information about camp conditions, or did not renew their visas.”
42. A further Human Rights Watch press release dated 26 August 2009 set out concerns that more than 260,000 Tamil civilians remained in detention camps without the freedom to leave.
43. In August 2009, the first post-war local elections were held in Northern Sri Lanka. The British Broadcasting Corporation reported that voter turn-out was low due to the number of people who were still displaced. The governing party, the United People's Freedom Alliance, took the majority of seats in the biggest city in the region, Jaffna. However, the Tamil National Alliance, a party sympathetic to the defeated LTTE, took the majority of seats in Vavuniya, the other town where polling took place.
44. On 7 September 2009, James Elder, the official spokesman for the United Nations Children's Fund in Sri Lanka was ordered to leave Sri Lanka because of adverse remarks that he had made to the media about the plight of Tamils in the government-run camps.
45. On 10 September 2009 the Sri Lankan Official Government News Portal announced that the motion to extend the State of Emergency (under which the authorities have extensive anti-terrorism powers and heightened levels of security including checkpoints and road blocks) by a further month had been passed by Parliament with a majority of 87 votes.
46. In a report dated 22 October 2009, the United States of America State Department published a report entitled “Report to Congress on Incidents During the Recent Conflict in Sri Lanka”, which compiled incidents from January 2009, when the fighting intensified, until the end of May 2009. Without reaching any conclusions as to whether they had occurred or would constitute violations of international law, it set out extensive reports of enforced child soldiers, the killing of captives or combatants trying to surrender, enforced disappearances and severe humanitarian conditions during the hostilities.
47. On 21 November 2009, the Sri Lankan Government announced its decision that all internally displaced persons would be given freedom of movement and allowed to leave the detention camps from 1 December 2009.
48. In its Global Appeal 2010-2011, the UNHCR reported that:
“The Government-led military operations in northern Sri Lanka which ended in May 2009 displaced some 280,000 people, most of whom fled their homes in the last few months of the fighting. The majority of these internally displaced persons (IDPs) now live in closed camps in Vavuniya district, as well as in camps in Mannar, Jaffna and Trincomalee. An additional 300,000 IDPs, some of whom have been displaced since 1990, are also in need of durable solutions.
The IDPs originate mainly from the Mannar, Vavuniya, Kilinochchi, Mullaitivu and Jaffna districts in northern Sri Lanka, as well as from some areas in the east of the country. Though the end of hostilities has paved the way for the voluntary return of displaced people, some key obstacles to return remain. For instance, many of the areas of return are riddled with mines and unexploded ordnance. Not all are considered to be of high risk, particularly those away from former frontlines, but mine-risk surveys and the demarcation of no-go areas are urgently needed.
Other key obstacles to return include the need to re-establish administrative structures in areas formerly held by the Liberation Tigers of Tamil Eelam; the destruction or damaged condition of public infrastructure and private homes; and the breakdown of the economy - including agriculture and fisheries.
The Government of Sri Lanka is planning the return framework, and it has called on UNHCR for support with return transport, non-food items, return shelter, livelihoods support and assistance in building the capacity of local authorities.
With some progress having been recently achieved, it is hoped that a substantial number of IDPs will be able to return to their places of origin in the latter half of 2009, but a large portion of new IDPs are also likely to remain in the camps and with host families until well into 2010.”
49. In a Human Rights Report 2009, dated 11 March 2010, the United States of America State Department stated that the Sri-Lankan Government accepted assistance from NGOs and international actors for the IDP camps but management of the camps and control of assistance were under the military rather than civilian authorities. Food, water, and medical care were all insufficient in the first few weeks after the end of the war, but by July the situation had stabilised and observers reported that basic needs were being met. In June the military withdrew from inside the camps but continued to provide security around the barbed wire-enclosed perimeter. The IDPs in the largest camp, Manik Farm, were not given freedom of movement until December, when a system of temporary exit passes was implemented for those who had not yet been returned to their districts of origin. Some observers said that this exit system still did not qualify as freedom of movement.
50. Human Rights Watch, in their report, World Report 2010, estimated that six months after the main fighting ended, the Government continued to hold more than 129,000 people (more than half of them women and girls) in the camps. Over 80,000 of these were children. The camps were severely overcrowded, many of them holding twice the number recommended by the UN. As a result, access to basic requirements such as food, water, shelter, toilets and bathing, had been inadequate. These conditions imposed particular hardships on the elderly, children and pregnant women. The camps were under military administration, and effective monitoring by humanitarian agencies was lacking. The authorities failed to provide camp residents with sufficient information about the reason for their continued detention, the whereabouts of relatives, or the criteria and procedure for their return home.
51. The United Kingdom Border Agency Country of Origin Information Report on Sri Lanka of 11 November 2010 (“the November 2010 COI Report”) stated as follows:
4.23 The International Crisis Group (ICG) report Sri Lanka: A Bitter Peace, 11 January 2010, also referred to “extra-legal detention centres” maintained by the military and observed: “These detained have had no access to lawyers, their families, ICRC or any other protection agency, and it is unclear what is happening inside the centres. In addition, 'the grounds on which the ex-combatants have been identified and the legal basis on which they are detained are totally unclear and arbitrary'. Given the well-established practice of torture, enforced disappearance and extra-judicial killing of LTTE suspects under the current and previous Sri Lankan governments, there are grounds for grave concerns about the fate of the detained. The government has announced that of those alleged ex-combatants currently detained, only 200 will be put on the trial; most will detained for a further period of 'rehabilitation' and then released.”
...
4.25 Referring to the “at least 11,000 people” detained “in so-called 'rehabilitation centers” because of their alleged association with the LTTE, the HRW [document Legal Limbo, The Uncertain Fate of Detained LTTE Suspects in Sri Lanka, released on 29 January 2010, observed: “The government has routinely violated the detainees' fundamental human rights, including the right to be informed of specific reasons for arrest, the right to challenge the lawfulness of the detention before an independent judicial authority, and the right of access to legal counsel and family members. The authorities' consistent failure to inform families of the basis for the detainees' arrest and their whereabouts raises serious concerns that some detainees may have been victims of torture and ill-treatment, which are more likely to take place where due process of law is lacking and which have long been serious problems in Sri Lanka. Given the lack of information about some detainees, there is also a risk that some may have been 'disappeared'.”
4.31 The UNHCR 'Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka', 5 July 2010 reported that “In the wake of the conflict, almost 11,000 persons suspected of LTTE links were arrested and detained in high-security camps” adding that “According to a Government survey, as of 1 March 2010, 10,781 LTTE cadres were being held at 17 centres. Among the detainees were 8,791 males and 1,990 females.” and noted that “Some of the adult detainees have...been released after completing rehabilitation programmes or because they were no longer deemed to present a risk, including some persons with physical disabilities.”
52. The November 2010 COI Report also set out:
4.09 The EIU [The Economist Intelligence Unit], Country Report, Sri Lanka, July 2010 reported: “The EU has warned that Sri Lanka faces losing trade advantages under the Generalised System of Preferences-Plus (GSP-Plus) scheme from August 15th, unless the Government commits itself in writing to improving its human rights record. The EU has put forward 15 conditions that it says the Government needs to promise to meet within the next six months. These include: ensuring that the 17th amendment to the constitution, which requires that appointments to public positions be impartial and reflect the country's ethnic and religious mix, is enforced; repealing parts of the Prevention of Terrorism Act that are incompatible with Sri Lanka's covenants on political and human rights; reforming the criminal code to allow suspects immediate access to a lawyer on arrest; and allowing journalists to carry out their professional duties without harassment. However, the Government has rebuffed the EU, stressing that the issues that it has raised are internal political matters that should not be linked to trade. “The EU is not the only international body currently putting pressure on the government. Sri Lanka has also rejected the UN's appointment of a three-member panel to examine possible human rights violations during the island's civil war. The Sri Lankan authorities have warned that they will not provide visas for panel members to enter the country.”
...
4.11 The EIU, Country Report, Sri Lanka, August 2010 noted that: “The decision by the UN secretary-general, Ban Ki-moon [on 22 June 2010], to appoint a panel to examine accountability issues stemming from the final stages of the island's civil war, which ended in May 2009, has prompted a strong reaction in Sri Lanka ...
4.12 On 17 September 2010 the UN News Service reported that “Secretary-General Ban Kimoon has held his first meeting with the panel of experts set up to advise him on accountability issues relating to alleged violations of international humanitarian and human rights law during the final stages last year of the conflict in Sri Lanka.” The source also noted that the role of the experts was to examine “the modalities, applicable international standards and comparative experience with regard to accountability processes, taking into account the nature and scope of any alleged violations in Sri Lanka.”
53. The United Kingdom Border Agency Country of Origin Information Report on Sri Lanka of 18 February 2009 (“the February 2009 COI Report”) sets out a series of letters from the British High Commission – hereafter “BHC”, Colombo, on arrival procedures at Colombo airport. In its letter of 28 August 2008, the BHC observed:
“[T]he correct procedure for [Department of Immigration and Emigration [DIE]] officers is to record the arrival of these persons manually in a logbook held in the adjacent Chief Immigration Officer's office. The name, date and time of arrival and arriving flight details are written into the log. It records why the person has come to their attention and how the case was disposed of. I have had the opportunity to look at the log, and it appears that the only two ways of disposal are to be passed to the Criminal Investigations Department [CID], or allowed to proceed.
The office of the State Intelligence Service [SIS] is in the immigration arrivals hall and an officer from SIS usually patrols the arrivals area during each incoming flight. Invariably, if they notice a person being apprehended they approach IED [Immigration and Emigration Department] and take details in order to ascertain in [sic] the person may be of interest to them. Their office contains three computer terminals, one belonging to the airport containing flight information and two stand-alone terminals. If an apprehended person is considered suitable to be passed to CID, they are physically walked across the terminal building to the CID offices. A CID officer should then manually record the arrival of the person in a logbook held in their office...often persons shown in the DIE logbook to have been handed to CID are never actually recorded as being received in the CID logbook. It is believed that CID has allowed these persons to proceed and no action has been taken against them.”
54. The same letter also noted that CID offices at the airport contained two computers, which were not linked to any national database. Any checks on persons detained or apprehended were conducted over the phone with colleagues in central Colombo. There were no fingerprint records at the airport. One computer contained records of suspects who had been arrested and charged with offences, and court reference numbers. It continued as follows:
“Were a Sri Lankan national to arrive at Colombo Airport having been removed or deported from the United Kingdom, they would be in possession of either a valid national Sri Lankan passport, or an emergency travel document/temporary passport, issued by the Sri Lankan High Commission in London. The holder of a valid passport would have the document endorsed by the immigration officer on arrival and handed back to him/her. A national passport contains the national ID card number on the laminated details page. I have made enquiries with the DIE at Colombo Airport, and with the International Organisation for Migration who meet certain returnees at the airport, and both have confirmed that a person travelling on an emergency travel document is dealt with similarly. They too have the document endorsed by the immigration officer on arrival and returned to them. Before issuing an emergency travel document, the Sri Lankan High Commission in London will have details of an applicant confirmed against records held in Colombo and will thus satisfactorily confirm the holder's nationality and identity. If a returnee subsequently wishes to obtain a national identity card, they have to follow the normal procedures.”
55. In a letter dated 22 January 2009, the BHC reported that an official had spent several hours observing the return of failed asylum seekers from the United Kingdom, including those who were in possession of emergency travel documents, issued by the Sri Lankan High Commission in London. In the official's opinion, the fact that certain returnees had been issued with emergency travel documents by the Sri Lankan High Commission in London did not seem to make any difference to their treatment upon arrival.
56. The Report of Information Gathering Visit to Colombo on 23 to 29 August 2009, conducted jointly by the Foreign and Commonwealth Office Migration Directorate and United Kingdom Border Agency Country of Origin Information Service (“the Report of Information Gathering Visit, August 2009”), concluded that all enforced returns (of whatever ethnicity) were referred to the CID at the airport for nationality and criminal record checks, which could take more than 24 hours. All enforced returns were wet-fingerprinted. Depending on the case, the individual could also be referred to the SIS and/or the Terrorist Investigation Department for questioning. Anyone who was wanted for an offence would be arrested.
57. The report set out that those with a criminal record or LTTE connections would face additional questioning and might be detained. In general, non-government and international sources agreed that Tamils from the north and east of the country were likely to receive greater scrutiny than others, and that the presence of the factors below would increase the risk that an individual could encounter difficulties with the authorities, including possible detention:
- Outstanding arrest warrant
- Criminal record
- Connection with the LTTE
- Bail jumping/escape from custody
- Illegal departure from Sri Lanka
- Scarring
- Involvement with media or NGOs
- Lack of an ID card or other documentation
58. The United Kingdom Border Agency Country of Origin Information Report on Sri Lanka of 11 November 2010 set out the following:
33.20 The BHC letter of 30 August 2010 went on to observe that: “At the beginning of 2010, partly due to the large numbers of Sri Lankans being returned from around the world and causing logistical problems, CID procedures were relaxed in that they no longer had to detain returnees until written confirmation was received from the local police. All returnees are still interviewed, photographed and wet fingerprinted. The main objective of these interviews is to establish if the returnee has a criminal record, or if they are wanted or suspected of committing any criminal offences by the police. The photographs are stored on a standalone computer in the CID office at the airport. The fingerprints remain amongst paper records also in the CID office at the airport. Checks are initiated with local police, but returnees are released to a friend or relative, whom CID refers to as a surety. This surety must provide evidence of who they are, and must sign for the returnee. They are not required to lodge any money with CID. “The main CID offices at Colombo Airport, which are housed on the ground floor adjacent to the DIE embarkation control, are currently undergoing a complete refurbishment funded by the Australian government. The one completed office suite has three purpose built interview rooms, and facilities where returnees can relax and eat meals.”
...
33.22 A British High Commission letter of 14 September 2010 reported: “There is strong anecdotal evidence that scarring has been used in the past to identify suspects. Previous conversations with the police and in the media, the authorities have openly referred to physical examinations being used to identify whether suspects have undergone military style training. More recent claims from contacts in government ministries suggest that this practice has either ceased or is used less frequently. At the very least it appears that the security forces only conduct these when there is another reason to suspect an individual, and are not looking for particular scars as such, but anything that may indicate the suspect has been involved in fighting and/or military training. There is no recent evidence to suggest that these examinations are routinely carried out on immigration returnees.”
59. On 19 October 2009, Tamilnet reported that twenty-nine Tamil youths were taken into custody by the State Intelligence Unit of the Sri Lanka Police at the International Airport in two separate incidents whilst trying to leave Sri Lanka. It was also reported that since July 2009, special teams of the State Intelligence Unit and police had been deployed in the airport to monitor the movement of Tamils who try to go abroad.
60. The Report of Information Gathering Visit, August 2009, stated that the frequency of cordon and search operations had not reduced significantly in recent months, though there were fewer large-scale operations than in previous years. In general, young male Tamils originating from the north and east of the country were most at risk of being detained following cordon and search operations, with the presence of the risk factors set out above increasing that risk. Those without employment or legitimate purpose for being in Colombo were also likely to be seen as suspect. The same report also noted that most sources agreed that there had been few, if any, abductions or disappearances since June 2009. There was not a great deal of available information about the profile of Tamils targeted for abduction, although it appeared that people linked to the media might be more vulnerable. Police did not generally carry out effective investigations. It went on to note that most sources agreed that there had not been any significant reduction in the number of checkpoints in Colombo, whose stated purpose remained to detect and prevent terrorist activity. In general those most likely to be questioned were young Tamils from the north and east; those without ID; those not resident or employed in Colombo; and those recently returned from the West. However, most sources said that arrests at checkpoints were rare and none had been reported since June 2009. It was reportedly fairly likely that someone would be stopped at a checkpoint en route from the airport to Colombo city. Finally, it clarified that people who wished to live in Colombo but did not originate from there must register with the local police station with a national ID card or full passport, and details of planned length and purpose of stay. In theory, whilst anyone was entitled to register to stay in Colombo, some sources suggested that young Tamil men originally from the north or east of the country could encounter difficulties and face closer scrutiny. The presence of any of the risk factors set out above would also attract greater attention from the police.
“The significant majority of reported cases of human rights violations in Sri Lanka involve persons of Tamil ethnicity who originate from the North and East...In Government-controlled areas, Tamils who originate from the North and the East, which are, or have been under LTTE control, are frequently suspected as being associated with the LTTE. For this reason, Tamils from the North and the East are at heightened risk of human rights violations related to the implementation of anti-terrorism and anti-insurgency measures. While this risk exists in all parts of Sri Lanka, it is greatest in areas in which the LTTE remains active, and where security measures are heaviest, in particular the North and parts of the East, and in and around Colombo.”
“The country of origin information that UNHCR has considered indicates that Tamils from the North of Sri Lanka continue to face a significant risk of suffering serious human rights violations in the region (and elsewhere in the country) because of their race (ethnicity) or (imputed) political opinion. Tamils in the North are still heavily targeted in the security and anti-terrorism measures described in the Guidelines. Wide scale detention and confinement of Tamils from the North remains a serious concern. Pro-Government paramilitary elements also continue to operate with impunity against Tamils in the North.”
64. The UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka of 5 July 2010, which superseded the April 2009 Guidelines contained information on the particular profiles for which international protection needs may arise in the current context. It was stated that:
“given the cessation of hostilities, Sri Lankans originating from the north of the country are no longer in need of international protection under broader refugee criteria or complementary forms of protection solely on the basis of risk of indiscriminate harm. In light of the improved human rights and security situation in Sri Lanka, there is no longer a need for group-based protection mechanisms or for a presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country. It is important to bear in mind that the situation is still evolving, which has made the drafting of these Guidelines particularly complex.”
65. In summary, the following were UNHCR's recommendations: all claims by asylum seekers from Sri Lanka
(i) persons suspected of having links with the Liberation Tigers of Tamil Eelam (LTTE);
(ii) journalists and other media professionals;
(iii) civil society and human rights activists;
(iv) women and children with certain profiles; and
(v) lesbian, gay, bisexual and transgender (LGBT) individuals.
It was also stated that in the light of Sri Lanka's 26 year internal armed conflict, and a record of serious human rights violations and transgressions of international humanitarian law, exclusion considerations under Article 1F of the 1951 Convention Relating to the Status of Refugees may arise in relation to individual asylum seeker claims by Sri Lankan asylum seekers.
66. The BBC reported in March 2010 that the Colombo police force had opened four special units in Colombo suburbs able to take statements in Tamil, with plans for more. Previously, Tamil-speaking Sri Lankans had to rely on a friend to translate their complaints into Sinhala.
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-73177
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KOŘÍNEK AND OTHERS v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
TEXT: 5. The applicants were born in 1929, 1929, 1956, 1960, 1964 and 1966 respectively and live in Prostějov except for the sixth applicant who lives in Ostrov nad Ohří.
6. On 12 August 1992 the applicants lodged with the Prostějov District Court (okresní soud) a claim against the Ministry of Justice for damages caused by a violation of their personal rights and an unlawful court decision.
7. On 28 September 1992 the Brno Regional Court (krajský soud) referred the matter to the Brno Municipal Court (městský soud) which, in a decision of 25 June 1993, having received the defendant’s observations on 5 March 1993, separated that part of the action relating to the damage caused by a violation of personal rights and transferred it to the Regional Court. On 29 October 1993 the Regional Court decided to send certain of the applicants’ claims contained in this part of their action back to the Municipal Court. This decision became effective on 3 December 1993.
8. At a hearing held on 24 November 1993 the Municipal Court heard the first three applicants; the sixth applicant was to be heard by the Karlovy Vary District Court (okresní soud). It appears from the minutes that the fourth applicant did not attend the hearing. According to the Government, as the fifth applicant had not attended the hearing, he submitted his written statement on 15 March 1994. On 25 March 1994 the first and second applicants supplemented the action.
9. In the meantime, on 30 November 1993, the Municipal Court had requested the Prostějov District Court, the Kroměříž District Court and the Prague High Court (Vrchní soud) to submit some documents.
10. On 17 May 1994 the Municipal Court contacted the Vyškov District Court and the Zlín District Court in order to obtain information concerning other judicial proceedings initiated by the applicants. On 8 September 1994 it re-contacted the Vyškov District Court.
11. On 1 July 1994 the Karlovy Vary District Court, at the Municipal Court’s request of 2 June 1994, heard the sixth applicant who, on 7 July 1994, supplemented the action. The Municipal Court sent this document to the other parties to the proceedings on 13 January 1995, after the applicant having submitted the appropriate number of her supplement.
12. On 19 October 1995 the second applicant supplemented the action through the fourth applicant. On 31 October 1995 the Municipal Court held a hearing which was adjourned in order to gather evidence and to clarify the stage of the other proceedings which the applicants had concurrently instituted. The fourth applicant did not attend the hearing.
13. On 9 August 1996 the applicants’ lawyer, who did not have a power of attorney signed by the fourth applicant, asked for the latter’s psychiatric examination. On 14 August 1996 the first and second applicants requested that the first and fourth applicants be heard in their home.
14. On 25 October 1996 an attempt to hear the fourth applicant was made.
15. On 14 March 1997 the Municipal Court contacted the Prostějov Health Centre (zdravotní středisko) with a view to obtaining information about the fourth applicant’s state of health. On 10 July 1997 it asked the Prostějov District Court whether proceedings on limitation of the fourth applicant’s capacity to act had been instituted. Having received a negative reply, it invited the applicants’ lawyer, on 4 August 1997, to consider whether the other applicants could act as the fourth applicant’s guardians in the proceedings. On 12 September 1997 the lawyer informed the court that the second applicant would be ready to undertake this function. However, on 27 November 1997 the Municipal Court informed the lawyer that this would not be possible due to the risk of a conflict of interest. On 23 January 1998 the lawyer informed the court that the family was looking for a guardian.
16. On 16 September 1998 the Municipal Court asked the Prostějov District Court to appoint a guardian to defend the fourth applicant’s interests. On 29 March 1999 the District Court appointed the second applicant to represent the fourth applicant, finding that there was not any risk of a conflict of interest. On 15 October 1999 the Regional Court, having asked to have been provided with the case-file on 3 August 1999, sent it back to the Municipal Court.
17. On 29 October 1999 the applicants’ lawyer submitted final written pleadings.
18. On 23 November 1999 the fourth applicant gave a power of attorney to the lawyer. On the same day, the Municipal Court held a hearing, at which it invited the applicants’ lawyer to submit a supplementary statement, which the lawyer did on 22 December 1999. However, on 21 April 2000 the court asked him to explain the meaning of his statement.
19. On 3 August 2000 the Municipal Court, taking into account the aforesaid statement of the applicants’ lawyer, interpreted this as a withdrawal of the claims of the third, fourth, fifth and sixth applicants and discontinued the proceedings in respect of these claims. The decision became effective on 4 September 2000.
20. On 21 September 2000 the Municipal Court requested the first and second applicants to specify of their claims for damages. On 7 November 2000 their lawyer requested the court to extend the time-limit for that purpose.
21. On 15 February 2001 the Municipal Court discontinued the proceedings in respect of the claims of the first and second applicants due to their failure to specify their claims.
22. On 10 August 1994 the Regional Court declared that it was not territorially competent to deal with the applicants’ action for protection of their personal rights and transferred it to the Prague Municipal Court.
23. On 10 October 1994 the applicants appealed.
24. On 29 March 1996 the Prague High Court, having received the case-file on 10 March 1995, quashed the aforesaid decision and on 20 May 1996 remitted it to the Regional Court for further consideration.
25. On 25 July 1996 the applicants were invited to supplement their action, which they did on 4 September 1996.
26. On 20 February 1997 the Regional Court separated certain of the applicants’ claims for a separate hearing. On 18 March 1997 it declared that it was not territorially competent to deal with the case and transferred it to the Municipal Court, which did not agree with the transfer and brought the competence conflict to the High Court. On 28 March 1998 the High Court held that the Regional Court was competent to deal with the applicants’ case.
27. On 30 October 1998 the Regional Court held a hearing. On 9 November 1998 the first applicant, not having attended the hearing, submitted his written statement.
28. Another hearing was held on 29 September 2000. The court requested the applicants to pay court fees. On 30 October 2000 the applicants’ lawyer disagreed and three of the applicants appealed against the request.
29. Between 2 November 2000 and 30 April 2001 the judge dealing with the applicants’ case was sick.
30. On 1 October 2001 the applicants’ appeal was sent to the High Court, which on 11 October 2001 returned the case-file to the Regional Court with a request to remove certain formal shortcomings.
31. On 15 September 2003 the Regional Court invited the applicants to complete their action and, on 17 September 2003, requested the applicants’ lawyer to clarify his previous pleadings. The lawyer complied on 27 September 2003. As the first applicant had died on 25 February 2003, the lawyer modified and extended the applicants’ original action on 22 October 2003.
32. On 26 January 2004 the Regional Court separated certain of the applicants’ claims for a separate hearing. The next day, it requested the applicants to specify their action. The applicants’ lawyer replied on 4 February 2004.
33. Between 28 January and 8 August 2004 the judge dealing with the case was sick.
34. It seems that the proceedings are still pending.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1