Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant, Mr Igor Vasilyevich Belayev, is a Russian national who was born in 1957 and lives in Pyatigorsk, the Stavropol Region. The applicant is a retired military serviceman.

“... the military commissioner is to reinstate Belayev in the list of military personnel and to eliminate the violations of the procedure of his discharge from work... and then [again] exclude Belayev from the list of military personnel, after having provided him with all kinds of military provisions, including monetary ones...”

On 12 January 2004 the Military Commissioner replied to the applicant stating that in 1990 he had been provided with a flat in Magadan, that in 1997 his wife had privatised the flat and that in 1999 she had sold it. The letter further stated:

“... Thus, you have forfeited your entitlement to be provided with housing by the State or by the Ministry of Defence...”

On 27 March 2004 the applicant brought proceedings against the Military Commissioner at the Garrison Court.

On 2 June 2004 the Garrison Court refused to examine the applicant’s complaint stating that the same complaint had been already examined by the court’s decision of 15 November 2001. The applicant appealed against this decision to the court of the North-Caucasus Military Circuit Court (the Circuit Court). On 13 October 2004 the Circuit Court overruled this decision and returned the case for a fresh examination.

On 21 October 2004 the Garrison Court rejected the applicant’s complaint. The court referred to the Military Commissioner’s letter of 12 January 2004 and stated that the applicant had missed the three-month statutory time-limit for the appeal against actions of officials. The text of the court’s decision stated, inter alia, the following:

“... During the hearing the applicant stated that he did not miss the three-month time-limit for appeal of actions of officials, as he had received the Military Commissioner’s written refusal ... on 12 January 2004 and that he had lodged his complaint with the court on 27 March 2004...

The court finds that the applicant’s reference [to the above dates] is unsubstantiated for the following reasons:

... according to Article 239 of the former Civil Procedure Code and Article 256 of the acting Civil Procedure Code, a citizen must lodge his complaint within three months from the date when he learnt about a violation of his rights [by a State official].

The Court finds that it is obvious that after the sale of his flat in Magadan on 18 February 1999 the applicant was aware of the absence of housing for him and his family. Further, by the Military Commissioner’s order no. 161 issued on 27 December 1999 the applicant was excluded from the list of the military personnel. Being aware of the exclusion from the list, the applicant appealed this order in June 2001 to the Garrison Court.

In these circumstances, the court finds that the applicant was aware of the exclusion from the list of military personnel [and of the relevant entitlements] ...and the violation of his rights by the State official in June 2001...

...The applicant’s [current] complaint was received by the Garrison Court on 17 May 2004.

In this situation the Court finds that the three-month time limit for appeal against the actions of the Military Commissioner ... was missed by the applicant.

As to the applicant’s reference that the time limit started running over again after ... in January 2004 he had received the written refusal of the State official, the court finds it unconvincing as the time limit [for the appeal against actions of officials] should be calculated from the earliest event...”

The applicant appealed this decision to the Circuit Court. On 16 February 2005 the Circuit Court upheld the decision of the Garrison Court and it became final.

Article 256 of the Code of Civil Procedure, in force as of 1 February 2003 stipulates:

“Limitation period for judicial complaints:

A citizen has the right to apply to a court within the period of three months starting from the day when he leant about the violation of his rights [by a State official].”


The applicant, Mr Sunday E. Omwenyeke, is a Nigerian national who was born in 1965 and lives in Bremen. He was represented before the Court by Ms N. Mole, a lawyer working for the AIRE (Advice on Individual Rights in Europe) Centre in London.

On 22 June 1998 the applicant entered Germany and requested asylum.

On 12 October 1998 the Federal Office for Refugees rejected his asylum request and declared that there was no prohibition on deporting him because he did not face political persecution in Nigeria. The applicant brought an action in the Hannover Administrative Court seeking to have this decision quashed.

On 29 October 1998 the applicant, who had been issued with a provisional residence permit (Aufenthaltsgestattung, see 'Relevant domestic law' below), was directed to reside and remain within the city of Wolfsburg pending the decision on his asylum request.

Between 12 November 1998 and 11 January 2000 the Wolfsburg Aliens Office granted the applicant leave to quit the city of Wolfsburg on six occasions in order to attend conferences for refugees and on one occasion to meet a lawyer.

In April 2000 the applicant left the city of Wolfsburg in order to help in preparations for and to attend another congress for refugees, despite the fact that the Aliens Office had refused him permission to leave the city. The applicant left Wolfsburg on three further occasions without having requested authorisation to do so. On 6 February 2001 the Wolfsburg District Court discontinued the criminal proceedings instituted against the applicant for repeated disregard of a territorial restriction of residence, since it considered the applicant's offence to be of a minor nature.

On 3 May 2001 the applicant was again stopped by the police outside the Wolfsburg city limits; again, he had not requested and obtained the necessary authorisation.

On 16 July 2001 the applicant was granted a residence permit (Aufenthaltserlaubnis) following his marriage to a German national and was thus no longer subject to restrictions on his movements.

On 9 October 2003 the Bremen District Court convicted the applicant of repeated disregard of a territorial restriction of residence in view of his residence outside Wolfsburg in 2000 and on 3 May 2001, and ordered him to pay a fine of 112.50 euros (EUR).

The Bremen District Court conceded that the application of section 56 § 1 of the Asylum Procedure Act (see 'Relevant domestic law' below) led to hardships for asylum seekers in many cases. Nevertheless, contrary to the applicant's view, that provision was compatible with the Basic Law. This had been confirmed by the Federal Constitutional Court, in particular, in its decision dated 10 April 1997. The legislator had restricted the right to free development of one's personality, guaranteed by Article 2 § 1 of the Basic Law in a proportionate manner. The impugned provision was intended to accelerate the treatment of asylum requests by securing the asylum seekers' availability, and to distribute between the Länder and cities the tasks and costs incurred by taking in asylum seekers. There was no milder, equally effective means to secure the achievement of the aims pursued by the provision. In particular, the option of restricting merely longer absences from the assigned district and authorising shorter absences without prior permission could not be controlled in practice and would entail considerable administrative expense. Given that section 57 § 1 of the Asylum Procedure Act (see 'Relevant domestic law' below) allowed for exceptions from the restriction of residence, that restriction was not disproportionate. Likewise, it was not disproportionate to enforce the restriction by means of criminal law (section 85 no. 2 of the Asylum Procedure Act).

The District Court further found that the territorial restriction of residence pursuant to section 56 § 1 of the Asylum Procedure Act did not contravene any provisions of public international law. Both Article 26 of the Geneva Convention relating to the Status of Refugees and Article 12 § 1 of the International Covenant on Civil and Political Rights (ICCPR; see 'Relevant domestic and public international law' below) granted freedom of movement only to refugees who were lawfully on the territory of the Contracting State. This was only the case where an asylum seeker was recognised by a final decision as a person being persecuted for political reasons. The applicant had resided lawfully in Germany only since 16 July 2001, when he was granted a residence permit following his marriage to a German national.

On 13 February 2004 the Bremen Regional Court dismissed the applicant's appeal. It found that the appeal, which had been lodged in accordance with the formal requirements and time-limit laid down in the Code of Criminal Procedure, was manifestly ill-founded and therefore inadmissible. Endorsing the reasons given by the District Court, the Regional Court confirmed that the applicable provisions of the Asylum Procedure Act complied with the provisions of the Basic Law and of public international law.

On 27 May 2004 the Federal Constitutional Court declined to consider the applicant's constitutional complaint (file no. 2 BvR 554/04).

The Federal Constitutional Court found that the complaint had no prospects of success. In so far as the applicant considered sections 56 and 85 no. 2 of the Asylum Procedure Act to be unconstitutional, he had not sufficiently substantiated his complaint. He had failed to address the reasons given in the Federal Constitutional Court's decision of 10 April 1997 in which it had found that the impugned provisions complied with the Basic Law. In so far as the applicant contested the application of the impugned provisions to his case, his submissions were inconsistent. He now claimed to have travelled for the benefit of a refugee organisation on 3 May 2001, a fact which he had failed to mention in the proceedings before the criminal courts.

The decision was served on the applicant's counsel on 11 June 2004.

The Asylum Procedure Act (Asylverfahrensgesetz) lays down the rules which are applicable to foreigners who seek asylum on account of political persecution or who seek protection from deportation to a country where their life or freedom would be at risk.

Under section 55 § 1 of the Asylum Procedure Act, a foreigner who requests asylum is permitted to reside on the Federal Territory while the relevant asylum proceedings are pending (provisional residence permit – Aufenthaltsgestattung). He or she is not entitled to reside in a particular Land or place.

Section 56 § 1 of the Asylum Procedure Act provides that the provisional residence permit is territorially restricted to the district of the Aliens Office in which the institution responsible for reception of the foreigner is located.

Under section 58 § 1 of the Asylum Procedure Act, the Aliens Office may grant a foreigner who is not or is no longer obliged to live in a reception centre authorisation to leave temporarily the district for which his or her provisional residence permit is valid or, generally, to reside in a neighbouring district. Leave must be granted if there is a pressing public interest or compelling grounds to do so, or if a refusal to grant leave would entail an undue hardship. Section 58 § 2 stipulates that leave is to be granted to facilitate appointments with representatives, with the United Nations High Commissioner for Refugees and with organisations providing care for refugees. Under section 58 § 3, a foreigner does not require permission to keep appointments with authorities and courts where his or her appearance in person is necessary.

Section 85 no. 2 of the Asylum Procedure Act provides that anyone who repeatedly contravenes a restriction of residence imposed under section 56 § 1 shall be sentenced to a term of imprisonment not exceeding one year, or to a fine.

The relevant provision of the United Nations Geneva Convention relating to the Status of Refugees, adopted on 28 July 1951, reads:

Article 26. Freedom of movement

“Each Contracting State shall accord to refugees lawfully in its territory the right to choose their place of residence and to move freely within its territory subject to any regulations applicable to aliens generally in the same circumstances.”

Article 12 § 1 of the International Covenant on Civil and Political Rights, adopted on 16 December 1966, provides:

“Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.”


Violation of Art. 6-1;Violation of Art. 13

The applicant was born in 1949 and lives in Bratislava.

On 7 November 1997 enforcement proceedings were initiated against the applicant.

On 21 January 1999 the Bratislava IV District Court dismissed the applicant's objections against the enforcement and its costs.

On 31 January 2000 the district court dismissed the applicant's request for adjournment of the enforcement. On 30 June 2000 the decision was upheld by the Bratislava Regional Court.

On 29 January 2001 the applicant requested the district court to issue an interim measure and to discontinue the enforcement.

On 21 May 2001 the district court adjourned the enforcement pending its decision on the applicant's request for the enforcement to be discontinued. On 30 November 2001 the regional court quashed the above decision.

On 29 October 2003 the applicant again requested discontinuation of the enforcement proceedings.

On 25 October 2007 the district court rejected the applicant's request for interim measures.

On 17 March 2009 the district court dismissed the applicant's request for discontinuation of the proceedings.

On 28 January 2010 the regional court, on the applicant's appeal, quashed the first-instance decision and remitted the case to the district court for further examination.

On 20 May 2010 the district court discontinued the proceedings and held that it would deliver a decision on costs once the decision to discontinue the proceedings became final.

On 24 June 2010 the applicant's representative informed the Court that the decision has not yet become final.

On 6 October 2003 the applicant complained to the Constitutional Court about length of the proceedings before the Bratislava IV District Court and claimed the equivalent of 2,426 euros (EUR) at that time as just satisfaction for non-pecuniary damage suffered.

The Constitutional Court examined the period of the proceedings after 29 January 2001.

On 2 February 2005 it found that the district court had violated the applicant's right to a hearing without unjustified delay, ordered the latter to avoid further delays and to reimburse the applicant's legal costs.

It concluded that these represented a sufficient just satisfaction and did not award the applicant any award for non-pecuniary damage. It referred to the fact that the applicant was the liable party in the proceedings. It further held that the applicant had failed to specify the allegedly suffered harm.


Violation of Art. 3 (substantive aspect)

Anatoly Kovler;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in 1977 and is serving a prison sentence in the Samara Region.

From 11 July to 22 October 2008 the applicant was held in remand prison no. IZ-63/2 of Syzran in the Samara Region pending criminal proceedings against him.

The Government and the applicant provided differing descriptions of the conditions of the applicant’s detention.

The Government submitted extracts from the register of the remand prison population. They further submitted data concerning the size of the cells based on statements made by the remand prison officers. In particular, they provided the following information:

The applicant spent a considerable amount of time outside the prison cells. He participated in questioning and other investigative activities, and met with his lawyer, relatives and other persons. He was allowed at least an hour-long daily walk in a specially equipped prison yard and weekly showers. During inspections and cleaning of the cells the inmates, including the applicant, were taken outside the cells as well.

All the cells of the remand prison were equipped with natural and artificial ventilation which was in a good working order. The windows were covered with metal bars which did not prevent daylight coming through. The artificial day lighting in the cells was in compliance with the applicable specifications and was on from 6 a.m. to 10 p.m. At night low-voltage bulbs were used to maintain lighting for surveillance and practical reasons (for example, to provide lighting in the toilet area).

Each cell was equipped with a toilet and a sink located in the corner. The distance between the table and the toilet was at least 1.5 m and the distance between the toilet and the nearest bed was at least 1.2 m. The toilet was separated from the living area of the cell by a partition measuring at least one metre in height.

The applicant contested the description of the conditions of his detention in the remand prison provided by the Government. In particular he provided the following information:

While it was true that on several occasions the applicant was transported to the courthouse to attend hearings, the rest of the time he was confined to his cell. He was allowed to see his lawyer only once. That meeting lasted no longer than one hour. The meetings with the officers of the remand prison which took place outside his cell did not exceed thirty minutes.

The applicant was provided with an individual bed only when detained in cell no. 114. For the rest of the time he had to share the bed with two to three other inmates.

The ventilation did not function properly and was insufficient due to the overcrowding of the cells. The air was stuffy and humid. It was filled with tobacco smoke. Dirty condensation accumulated on the walls and the ceiling and then trickled down. The light was constantly on. Low-voltage bulbs were not used. The windows were covered with metal bars both on the inside and outside.

The flushing system in the toilet did not provide a sufficient amount of water to keep the toilet clean. The odour emanating from the toilet was very bad and the inmates had to burn paper to mask it. The distance between the toilet and the dinner table was 1.8 metres in cells nos. 113, 122, 144. In cell no. 114 the toilet was located some 1.2 metres away from the dinner table.

In his submissions of 1 June 2010, the applicant alleged that on the days of the trial hearings he had been transported to and from the courthouse in appalling conditions. The vans were overcrowded and each trip lasted over two hours.

On 29 September 2008 the applicant was convicted of another drugrelated offence and sentenced to six years and six months’ imprisonment in a high-security colony. He was sent to serve a prison sentence in correctional colony no. IK-13 in the Samara Region.

The applicant was held in the colony from 21 January to 11 July 2009.

The applicant was provided with an individual bed, bedding and cutlery. While he was held in the disciplinary cell he was allowed a daily walk which lasted at least an hour in a specially equipped yard. He also spent time outside the cell when taking a shower. He was invited to meetings with the administration of the correctional colony.

The dormitories and the disciplinary cell were equipped with artificial and natural ventilation. The dormitories had at least ten windows and nine lamps. The disciplinary cell had a window measuring 0.9 by 1.0 sq. m. It was reinforced with metal bars which did not prevent daylight coming into the cell. The cell was provided with two daylight lamps. At night low-voltage bulbs were used to light the cells for surveillance and practical reasons.

The dormitories had separate restrooms ensuring sufficient privacy. The toilet in the disciplinary cell was placed in the corner one metre away from the dinner table. The distance between the toilet and the nearest bed was 0.6 m.

The applicant contested the description of the conditions of his detention in the colony. In particular he provided the following information:

There was no artificial ventilation in disciplinary cell no. 2. The opening of a window pane measuring 0.2 by 0.3 m was insufficient to ensure the proper ventilation of the cell. The lighting was dim and insufficient. The toilet was not cleaned and reeked. It was located some 0.85 metres and 1.2 metres away from the dinner table. The windows were covered with two rows of metal bars inside and outside.

For the whole time the applicant was detained in the disciplinary cell he was never taken for a walk outside.

On 1 February and 5 April 2010 the administration of correctional colony no. IK-29 allegedly opened the applicant’s letters addressed to his representative before the Court.

The applicant’s letter dispatched on 2 April 2010 did not reach his representative.

The applicant’s letters of 4 and 19 May 2010 addressed to his representative were allegedly dispatched with a delay of thirteen and six days respectively.

Section 23 of the Detention of Suspects Act of 15 July 1995 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell.

Article 99 § 1 of the Penitentiary Code of 8 January 1997 provides for a minimum standard of two square metres of personal space for male prisoners in correctional colonies.


Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert

The first applicant has four children from previous relationships; one of them is a girl, X, born in October 1995, whose biological father’s identity remains unconfirmed. The other three daughters are grown up. They have never lived with the applicants.

The applicants have been in a relationship since 1999 and were married in May 2004. In December 2001 twins, a girl W and a boy Y, were born to the applicants. On 5 May 2003, W died in suspicious circumstances. The autopsy report showed that she had several bone fractures and had sustained severe injuries to her internal organs. On 28 September 2009, the first applicant was found guilty of continuously causing severe bodily harm to W and of negligent manslaughter of W. She was sentenced to eight years and six months in prison. The second applicant was found guilty of negligent manslaughter of W and was sentenced to three years in prison. The Higher Court confirmed the verdict and the proceedings are currently pending before the Supreme Court following the request for protection of legality (extraordinary remedy) lodged by the applicants. The first applicant started serving her sentence on 8 October 2010. The second applicant has a serious heart condition and his prison sentence has been temporarily suspended.

On 14 May 2003, following W’s death, a social worker from the Maribor Welfare Authority (hereinafter referred to as “the Maribor Authority”) called the applicants and asked them to bring X and Y, who both lived with the applicants, to the paediatric hospital for examination. The children stayed in the hospital until 2 June 2003. In the meantime, it was established that X was traumatised by the death of W and that Y had delayed psychophysical development. Measures were taken by the social workers to find a suitable foster family that would receive X and Y.

Following several meetings with the applicants and in view of psychological reports prepared during X’s and Y’s hospitalisation, the Maribor Authority, on 2 June 2003, issued an emergency care order removing Y, then two years old, from the applicants and X, then seven years old, from the first applicant, and placing them in foster care. In the emergency care order, the Maribor Authority referred to suspicious circumstances of W’s death and found that there were indications of possible domestic violence and neglect. It also noted that the applicants had not been critical of their situation and that X and Y would have been at risk if left at home. The order stated that contact between the applicants and Y as well as between the first applicant and X be allowed for one hour every two weeks under supervision, beginning on 25 June 2003.

On 3 June 2003, presumably before the children were taken to the foster home, the Maribor Administrative Unit issued a decision allowing the enforcement of the Maribor Authority’s emergency care order. The applicants were verbally informed of the order on the same day. They received it in writing on 4 June 2003.

On 17 June 2003 the applicants appealed against the emergency care order stating, inter alia, that a medical examination had not shown any signs of maltreatment, that no measures had previously been taken against them by the Maribor Authority and that they had taken proper care of X and Y. They also submitted that three of the first applicant’s children had been successful in school and were now already grown up, and also that X had no learning difficulties. Their appeal was dismissed by the Ministry for Labour, Family and Social Affairs (hereinafter referred to as “the Ministry”) on 20 October 2003.

The applicants challenged that decision before the Administrative Court. The latter, relying on the Maribor Authority’s findings, rejected their claim on 16 March 2004. It found that the procedure had been conducted properly.

In the meantime, the Maribor Authority established an internal expert panel consisting of three employees, namely a sociologist, a lawyer and a social worker (hereinafter referred to as “the Maribor panel”). It also obtained a psychological report concerning X and Y. After each contact between the applicants and the children took place, a record was made by the social workers. The applicants were offered counselling, which they refused. On 4 December 2003 a hearing was held before the Maribor Authority, at which the applicants were present. On 18 December 2003 the Maribor Authority issued an ordinary care order, by which Y was removed from the applicants, X was removed from the first applicant, and both were placed in foster care. At the same time, the Maribor Authority set out contact arrangements, stating that the applicants could see Y and the first applicant could see X under the Maribor Authority’s supervision for one hour every two weeks. It found that the children were living under psychological pressure and were neglected, in that they did not have a proper behaviour model at home. Y needed more support to catch up in his development and X needed therapy due to being under severe psychological pressure. Her psychological needs were entirely ignored by her mother, who was extremely egocentric. The applicants were advised to undergo parenting counselling.

The applicants appealed against the care order. On 13 August 2004 the Ministry dismissed their appeal, by which the order became enforceable.

The applicants challenged this decision in a claim before the Administrative Court. On 5 July 2005 the court issued a judgment rejecting their claim.

On a further appeal the Supreme Court, on 16 November 2005, quashed the Administrative Court’s judgment and ordered a re-examination of the case in so far as the removal of the children and their placement into foster care were concerned. They found that a removal order could only be issued if supported by a report from an independent expert. In the instant case, however, the psychologist who had drawn up the report was an employee of the Maribor Authority.

Subsequently, the Administrative Court again considered the case and quashed the Ministry’s decision on 17 January 2006. It ordered that an independent expert be appointed and that the applicants’ ability to ensure the normal mental and physical development of X and Y, which was crucial for the care order, be further assessed. On 9 March 2006 the Ministry ordered the Maribor Authority to re-examine the case.

On 23 March 2006, following the quashing of the ordinary care order by the Ministry, the Maribor Authority issued a new emergency care order, by which the children were to remain in the foster home. In the written grounds, it stated that the reason for re-examination of the matter concerning the ordinary care order was the fact that no independent expert had been appointed and that the higher courts had given no indication that the children should be returned to their parents. In addition, the Maribor Authority referred to the fact that an indictment had been lodged against the applicants, alleging that they had caused the death of W by negligence, which would have in itself been a sufficient reason for taking their remaining minor children into public care. The order did not set out any new contact arrangements, as this issue was pending before the Maribor District Court (see paragraph 43 below).

The applicants appealed against the emergency removal, on the grounds that it was unjustified. The appeal was rejected by the Ministry, which found that there were sufficient grounds for emergency placement of the children in foster care. On 23 August 2006 the applicants lodged a claim with the Administrative Court, which was rejected on 13 March 2007, as the court agreed that the facts as established by the Maribor Authority and its panel were sufficient to justify the emergency placement of the children in foster care pending the outcome of the proceedings concerning the ordinary care order.

In the meantime, on 14 April 2006, the Maribor Authority appointed a forensic expert in psychology to draw up a report on the applicants’ capacity for parenting. He submitted his report on 10 September 2006. On the basis of the examination of the applicants, Y and X, the first applicant’s other daughters, the social workers and neighbours, and having regard to the circumstances surrounding W’s death, the expert found that Y’s and X’s psychophysical development would be at a serious risk if they stayed with the applicants, who were unable to satisfy their basic needs. It found that the second applicant was passive and as such unable to take an active role in the family, and that the first applicant had developed an “emotionally unstable personality disorder with querulous and socially inadaptable behaviour”. He also found that the contact should certainly not be extended and that the applicants should be given clear limits as regards their contact with Y and X.

On 13 October 2006 a hearing was held before the Maribor Authority, at which the applicants were present.

On 11 January 2007 the Ministry allowed the applicants’ request for a change of venue. The case concerning the care order was consequently allocated to the Ptuj Welfare Authority (hereinafter referred to as the “Ptuj Authority”), which appointed their internal expert panel (hereinafter referred to as the “Ptuj panel”) on 25 April 2007. After the change of venue, the Maribor Authority regularly reported to the Ptuj Authority on the contact between the applicants and the children.

On 20 June 2007, on the basis of the reports collected so far, the Ptuj panel issued an opinion that the applicants were unfit parents. It also noted that the children could potentially be returned to their parents if the latter underwent appropriate therapy.

A hearing was held on 19 July 2007 before the Ptuj Authority, which allowed the evidence proposed by the applicants - an opinion of another independent expert, reports from the primary school, an interview with X -and ordered a home visit to be carried out. An interview was also held with the applicants, foster parents and a social worker with responsibility in the case.

The expert in psychology requested by the applicants was appointed on 20 July 2007. She was asked to assess the applicants’ capacity for parenting, whether the return of the children would be in the latter’s interest, and what the children’s wishes were. On 26 July 2007 additional questions proposed by the applicants were forwarded to the expert for reply. Subsequently, a forensic expert in psychiatry was also requested to prepare a report.

On 14 December 2007 the expert in psychology submitted her report. She concluded that the applicants were unable to take proper care of X and Y, and that it was in the children’s interest to stay with the foster family. She also noted that contact should continue to be supervised and should not be extended. According to the opinion of the psychiatrist, both applicants had a personality disorder although the first applicant’s disorder was particularly severe. The report suggested that the normal development of the children was likely to be jeopardised if they returned to their primary family.

On 3 January 2008 the Ptuj panel, on the basis of the new expert reports, issued another report proposing that a care order be issued and that the children remain in foster care. The Ptuj panel also took into account the social workers’ reports drawn up after each contact between the applicants and the children, and noted that the applicants had not improved their behaviour towards the children, despite being constantly provided with advice in this respect.

On 12 March 2008 a hearing was held before the Ptuj Authority at which the applicants, who contested the experts’ reports and the report by the Ptuj panel, were also present.

On 19 May 2008 the Ptuj Authority, having regard to the evidence obtained in the proceedings, delivered a care order by which it decided that Y and X should be taken from the first applicant and Y should also be taken from the second applicant. Both should remain in foster care. It proposed that the parents undergo appropriate therapy, after which their parenting ability would be examined again.

The applicants lodged an appeal with the Ministry, which was dismissed. At that point the second ordinary care order become enforceable and replaced the emergency order of 23 March 2006.

On 18 December 2009 the applicants challenged this decision before the Administrative Court.

On 5 July 2010 the Administrative Court delivered a judgment rejecting the applicants’ claim. The court, having regard to the evidence collected in the administrative proceedings, concurred with the findings of the administrative authorities and rejected the applicants’ claim. The applicants did not appeal.

During the proceedings the applicants five times requested access to the Maribor Authority’s file, which was granted.

On 19 September 2005 the applicants requested the Maribor Authority to initiate proceedings for the return of the children. They stated that no measures had been taken with a view to reuniting the family; in particular, that a “project group”, including them, should have been set up and had not been. It should also have included X and Y and the foster parents and should have aimed to draw up a schedule for the return of the children, as stipulated in the domestic law.

On 1 December 2005 the Maribor Authority dismissed the request as essentially the same as the issue of the children’s care and contact, which had already been decided by the decision of 18 December 2003, which was enforceable.

On 24 July 2006 the Ministry dismissed an appeal by the applicants. However, on 23 February 2007 the Administrative Court quashed that decision and ordered a re-examination of the case, finding that the applicants’ request concerning the implementation of the foster care and the proceedings concerning the taking of the children were two separate issues with different legal bases.

On 8 June 2007 the applicants attended a meeting with the Maribor Authority, where they were invited to explain their request. On 31 July 2007 the Maribor Authority discontinued the proceedings. The applicants appealed, stating that the Maribor Authority had conducted proceedings arbitrarily and it should have invited them formally and in writing to correct the request if it considered it incomplete. On 15 November 2007 the Ministry set aside the Maribor Authority’s decision of 31 July 2007, finding that the applicants had never withdrawn their request and that the Maribor Authority should therefore have decided on it. However, it stressed that although this was a separate request it was nevertheless connected to the issue of the taking of the children and should be decided at the same time. Consequently, the Ptuj Authority decided the issue in its decision of 19 May 2008, by which the children were to remain in foster care. The applicants’ appeal and a claim to the Administrative Court was rejected (see paragraphs 28 to 31 above).

The Maribor Authority has remained responsible for the contact arrangements, counselling and monitoring of the children’s foster care. It set out contact arrangements in its emergency order of 2 June 2003 and then in its ordinary care order of 18 December 2003. The applicants were allowed to see X and Y under the Authority’s supervision for one hour every two weeks (see paragraphs 8 and 12 above). On 23 December 2003 the applicants requested contact with X and Y during weekends. This was rejected by the Maribor Authority as in breach of the valid decision on contact arrangements. On 19 August 2005 the applicants requested that their contact take place out of doors and to have X and Y at home at weekends. The latter request was transferred to the Maribor District Court on 28 August 2005 (see paragraph 43 below).

After the children were taken into foster care, reports were regularly prepared by social workers indicating several problems which occurred during the visits, in particular due to the first applicants’ abrupt behaviour and the pressure she put on the children as regards their behaviour towards her, in particular on X, whom she pressured, among other things, to write requests to return home. The first applicant was intensively involved in the organisation of the leisure activities and schooling of X and problems regularly occurred in this respect as well. On 3 October 2003 the Maribor Authority also decided that the first applicant should not have telephone conversations with X, to whom she had given a mobile phone and made frequent calls, as this was causing X a lot of stress. During the first years after the children were taken into foster care the applicants often tried to approach them at the foster parents’ home or at school, for which reason a restraining order was requested by the Maribor Authority. In 2005 the Maribor Authority prepared a care plan, which included steps planned with a view to possible family reunification, such as assistance in order to improve contact, the applicants’ attendance at special counselling and therapy sessions and attention to be given to the children’s wishes as well as regular reviews of the situation with reunification in mind. The plan also noted that the return would depend on whether the applicants would be sentenced in the criminal proceedings.

The Maribor Authority regularly organised thematic meetings at which social workers discussed the situation regarding X and Y. The applicants had been regularly (often monthly and occasionally weekly) invited to discuss issues relating to X and Y as well as to attend consultations. The reports drawn up during or after these meetings indicated that the applicants did not have a constructive attitude and were unwilling to undergo therapy.

In addition to the above meeting, the “individual project group” was set up in 2005 and has held meetings since then. The applicants, foster parents and social workers dealing with the case were usually invited to these meetings, where they discussed issues relating to the day-to-day life of the children and the applicants’ parenting and visiting arrangements.

The reports of the meetings between the applicants and the social workers show that both applicants were involved in contact arrangements and had the opportunity to express their opinion as regards X and Y. The reports also indicate that the applicants were normally also able to have contact with the children on special occasions such as birthdays, Y’s first communion and the applicants’ marriage ceremony.

It would appear that during the last two years or so the contact between the applicants and the children has improved and is now no longer being supervised. At the meeting of the “individual project group” held on 24 August 2010, at which the applicants were present, the following was agreed: contact would take place every two weeks, namely once on Sunday (from 10 a.m. to 7 p.m., with the applicants picking up and returning the children) and once on Wednesday (from 2 p.m. to 6 p.m., with a social worker bringing the children to the applicants’ home and picking them up at the end of the visit). According to the information supplied by the applicants following the first applicant’s incarceration, the second applicant takes Y and X from the foster family and spends a day with them every two weeks. The Maribor Authority’s report of 23 November 2010 also indicates that during each meeting the second applicant takes Y and X to visit the first applicant in prison and afterwards spends the rest of the day with them. The latter report also noted that Y expressed the wish to visit the first applicant once a month and the second applicant twice a month, and did not wish to visit the applicants without the presence of X. Likewise, X stressed in her letter to the first applicant dated 5 January 2011 that she wished to have contact with her no more than once a month.

On 28 August 2005 the Maribor Authority forwarded to the Maribor District Court the applicants’ request of 19 August 2005 for extended contact with X and Y (see paragraph 37 above). The court held two hearings and appointed an expert in psychology. The court regularly inquired about the progress of the criminal proceedings against the applicants: the latest inquiry was made on 18 January 2010. The proceedings appear still to be pending.

The relevant provisions of the Slovenian Constitution read as follows:

The state shall protect the family, motherhood, fatherhood, children and young people, and shall create the necessary conditions for such protection.”

“Parents have the right and duty to maintain, educate and raise their children. This right and duty may be revoked or restricted only for such reasons as are provided by law in order to protect the child’s interests.

The Constitutional Court Act (Official Gazette no. 64/2007 – official consolidated version) provides in so far as relevant:

“(1) A constitutional appeal alleging a violation of human rights or fundamental freedoms may, under the conditions determined by this Act, be lodged against individual acts by which state authorities, local authorities, or holders of public power have decided on rights, obligations, or legal interests of individuals or legal entities.

Relevant provisions concerning removal of children and foster care are included in the Marriage and Family Relations Act ( Official Gazette no. 69/2004 - official consolidated version, hereinafter referred to as “the Family Act”). They read as follows:

“(1) A welfare authority can remove a child from his or her parents and place him or her in the care of foster parents or an institution, if the parents have neglected him or her or if this is necessary for other reasons for the protection of the child’s interest.

(2) The removal of the child does not affect the other rights and responsibilities of the parents.

(3) The welfare authority is responsible for the monitoring of the implementation of the above measure.”

(1) A welfare authority can place a child in foster care if he or she does not have his or her own family or cannot live with his or her own family for different reasons or if his or her physical and psychological development is at risk at home.

“Following the placement of a child in foster care, the welfare authority must strive to eliminate the reasons which led to the removal.”

Furthermore, section 88 of the Social Security Act (Official Gazette no. 3/2007 - official consolidated version) provides, in so far as relevant, as follows:

“When welfare authorities deal with the administrative matters concerning rights and interest of children according to sections 105, 106, 114, 120 and 121 of the Family Act, they shall, before taking any decision, ... obtain a report from an internal expert panel (strokovna komisija) and hold a hearing.

The panel referred to in the preceding paragraph is formed by the expert council of the welfare authority ...”

The Administrative Disputes Act (Official Gazette no. 105/2006) provides in its section 83 grounds on which an appeal on points of law can be lodged with the Supreme Court. The grounds are provided as alternatives. The relevant text reads as follows:

(1) A judgment of a first-instance court can be challenged by an appeal on points of law, which shall be lodged thirty days of the service of the judgment on the party.

(2) The appeal on points of law is admissible if:

it concerns an important legal questions ...;

it the impugned decision has serious consequences for the party;

As regards the contact rights of parents and estranged children, the old section 106 of the Family Act (in force until 1 May 2004) provided that the parent who did not live with his or her child had a right to have contact with him or her unless the Welfare Authority decided otherwise.

However, the Constitutional Court set aside this provision in its decision no. U-I-312/00 delivered on 23 April 2003. This decision was primarily concerned with the contact rights of parents who did not live together but had never been married, and therefore the issue of contact arrangements could not have been part of divorce proceedings before a court. The Constitutional Court found that the system whereby the welfare authorities decided on contact arrangements was unconstitutional in that it did not provide for the same level of protection of the children’s rights to participate in the proceedings as would have been provided by way of court proceedings. The Constitutional Court however noted that the system was not problematic in respect of the protection of the parents’ rights of participation. Parents were able to be sufficiently involved in administrative proceedings by having the right to express their opinion, to request evidence, to comment on submissions by other participants, to participate in the hearing and to lodge appeals. Because it was determined that there was insufficient protection for children’s rights, the Constitutional Court ordered that new legislation should be adopted within a year with a view to transferring matters concerning contact arrangements to courts.

As a result of the above Constitutional Court’s decision, an amendment to the Family Act (Official Gazette no. 16/2004) was adopted and entered into force on 1 May 2004. According to the transitional provision, proceedings instituted before the entry into force of the amendment were to be completed before the administrative authorities. However, the requests concerned by the amendment made to welfare authorities after the above mentioned date should be automatically transferred to the court.

Section 106 of the amended Family Act reads, as far as relevant, as follows:

“(1) A child has a right to have contact with both parents. Both parents have a right to have contact with their children. The contact is meant primarily to serve the child’s interest.

(5) The court can withdraw or restrict the right to contact only if this is necessary for the protection of the child’s interest. Contact would not be in the child’s interest if it caused psychological pressure or if it caused risk to the child’s physical and psychological development. The Court can decide that the contact should be carried out under the supervision of a third person or by means other that visits if this is necessary in order to protect the child’s interests.

(7) Before taking a decision under the ... fifth paragraph of this section, the court must obtain an opinion from the welfare authority. The court shall consider also the child’s opinion, if he or she is able to express it himself or herself, or with the assistance of another person he or she trusts and has chosen ...”

Moreover, section 106.a was introduced with the above-mentioned amendment. It provides that the child has a right to have contact with the extended family members, apart from his or her parents, if he or she is personally attached to them. These included the current or previous spouse or partner of one of his parents. The contact should be agreed between the parents, the child, if he or she is able to understand the matter, and the persons in question. The welfare authorities should assist in the matter. If no agreement is reached, the court shall decide on the issue further to a request lodged by a child who is fifteen or older, the persons in question or the welfare authority.


CARMUIREA SPIRITUALA A MUSULMANILOR DIN REPUBLICA MOLDOVA v. MOLDOVA

The applicant, Cârmuirea Spirituală a Musulmanilor din Republica Moldova, is an organisation of Muslims from the Republic of Moldova. They were represented before the Court by Mr S. Ostaf, a lawyer practising in Chişinău.

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 25 July 2000 several natural persons joined together to form the applicant organisation – Cârmuirea Spirituală a Musulmanilor din Republica Moldova – an organisation of Muslims with the goal of having the Muslim religion officially registered in Moldova and building a Mosque in the city of Chişinău. On the same date the organisation adopted its articles of association.

Pursuant to the Religious Denominations Act (see below), which requires religious denominations active in Moldovan territory to be recognised by means of a government decision, the applicant organisation applied for recognition on 6 September 2000.

On 18 September 2000 the Government replied that they needed more time in order to examine and observe the activity of the organisation.

On 25 October 2000 the applicant organisation lodged a new request with the Government.

On 29 November 2000 the applicant organisation brought an action against the Government seeking an order to oblige the Government to reply to their request and to register their religion.

On 12 February 2001 the Court of Appeal obliged the Government to give an answer to the applicant's request. It did not oblige the Government to register their religion. The applicant organisation appealed against this judgment.

On 30 May 2001 the Supreme Court of Justice upheld the applicant's appeal, quashed the judgment of 12 February 2001 and sent the case for re-examination to the Court of Appeal in a different formation of judges.

On 8 October 2001 the Court of Appeal decided that it could not oblige the Government to register the Muslim religion because the applicants had not submitted to the Government all the documents provided for in Articles 14 and 15 of the Religious Denominations Act (see below). The applicant appealed against this judgment.

On 24 April 2002 the Supreme Court of Justice upheld the judgment of the Court of Appeal, confirming that the applicant organisation had failed to submit to the Government a document setting out the fundamental principles of their religion. The Supreme Court also noted that the Government had informed the applicant organisation on several occasions that the documentation it had provided was incomplete, but the applicant failed to remedy this.

The relevant provisions of the Religious Denominations Act (Law no. 979-XII of 24 March 1992) in force at the material time read as follows:

Everyone has the right to freedom of thought, conscience and religion. This right must be manifested in a spirit of tolerance and mutual respect and it includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

No one can be forced to practice or not to practice the rites of a denomination...

The confessional intolerance, manifested through acts which obstruct the freedom of a denomination recognised by the State, constitutes an offence and shall be punished in accordance with the law.

“Denominations shall be free to organise and operate freely on condition that their practices and rites do not contravene the Constitution, the present Act or the legislation in force.

Denominations that do not comply with this condition shall not qualify for State recognition.

In order to be able to organise and operate, denominations must be recognised by means of a government decision.

Where a denomination fails to comply with the conditions laid down by the first paragraph of section 9 of the present Act, recognition may be withdrawn.

“To qualify for recognition, each denomination shall submit to the Government, for scrutiny and approval, the articles of association governing its organisation and operation. The articles of association must contain information on its system of organisation and administration and on the fundamental principles of its beliefs.”


Remainder inadmissible;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska

The applicant was born in 1953 and lives in Ljubljana.

The applicant is the director and sole owner of the limited liability company Energohit d.o.o., which provides consultancy, engineering and representation services.

On 25 October 1996 the applicant, representing his company Energohit, instituted enforcement proceedings against another company, L., for the payment of a bill for 887,250 Slovenian tolars (SIT). On 5 November 1996 the Ljubljana Local Court, relying on a valid purchase order submitted by the applicant’s company, upheld his request. The operative part of the court’s decision stated that company L. should pay the debt to the applicant’s company and that, if not paid, this claim should be enforced.

Company L. lodged an objection. It argued that the purchase order to which the applicant’s company referred had not been signed by it but by another company. Following the objection, the Ljubljana Local Court, on 9 December 1996, set aside its enforcement decision and the case was transferred to the Ljubljana District Court to decide on the dispute.

Further to the Ljubljana Local Court’s decision of 9 December 1996, the proceedings, which were governed by legislation concerning commercial disputes, were conducted before the Ljubljana District Court. The latter held three hearings, the first one on 16 February 2000. On 20 April 2000 the court upheld the applicant’s company’s claim for SIT 523,250 and rejected the remainder finding that it had already been paid. The judgment was served on the applicant’s company on 29 August 2000.

Following an appeal by company L., the judgment was quashed on 19 September 2002. Subsequently, the Ljubljana District Court re-examined the case, and, after holding two hearings, rejected the applicant’s company’s claim on 28 March 2003. The judgment was served on the applicant’s company on 8 July 2003.

Further to the applicant’s company’s appeal, the second judgment was also quashed (on 20 May 2004) and the case was re-examined at a new hearing held by the Ljubljana District Court on 22 October 2004. On that date the court upheld the claim for the sum of SIT 523,250 in a judgment, which was served on the applicant’s company on 28 January 2005. Company L.’s appeal was rejected by the Ljubljana Higher Court on 16 June 2005. On that date the judgment of 22 October 2004 became final and enforceable. The Ljubljana Higher Court’s judgment was served on the applicant’s company on 9 July 2005.

On 5 October 2005 the applicant’s company lodged a request for execution of the above judgment against company L.’s monetary assets, movable and immovable property. The applicant was twice asked to supplement the request with the necessary documents. On 20 December 2005 the Ljubljana Local Court gave a decision allowing the enforcement.

On 23 February 2006 the court appointed an enforcement officer.

On 12 May 2006 the applicant’s company asked the court to order company L. to supply a list of its assets. On 22 May 2006 the court issued an order in line with the applicant’s company’s request. On 21 June 2006 company L. supplied the list.

On 5 January 2007 the court decided that the seizure of company L.’s immovable property should be considered in separate proceedings, which were discontinued, presumably without success, on 11 June 2008. Subsequently, the applicant’s company was requested to specify which further assets could be subject to the enforcement.

Further to receiving a letter from company L.’s bank noting that there were no monetary assets and no transactions on its bank account, the court, on 25 March 2009, discontinued this aspect of the enforcement. The applicant’s company lodged an appeal, which was rejected on 17 June 2009 by the Ljubljana Higher Court.

On 25 September 2009 the enforcement officer informed the court that company L. had moved from its address, which was brought to the applicant’s company’s attention. On 15 February 2010 the applicant’s company informed the court of the new address.

In the course of the proceedings the applicant’s company twice requested a review of alleged irregularities in the process of execution; however, no decision appears to have been issued in reply to these requests.

On 13 July 2010 company L. was removed from the register of companies following a request by the tax authorities to that effect. As a result, the enforcement proceedings were discontinued on 21 December 2010. The applicant’s company did not request that the enforcement be continued against potential active shareholders in accordance with the relevant provisions of the Financial Operations, Insolvency Proceedings and Compulsory Dissolution Act.

The Protection of the Right to Trial without Undue Delay Act (Official Gazette nos. 49/2006 and 58/2009 – “the 2006 Act”) entered into force on 17 May 2006. On 1 January 2007 it became operational and has been implemented since that date. It applies to parties to court proceedings, participants in proceedings conducted under the statute regulating non-contentious procedure, and injured parties in criminal proceedings.

According to the 2006 Act, a claimant may use a supervisory appeal and a motion for deadline in order to expedite the proceedings. In addition to these acceleratory remedies, the 2006 Act also provides for the opportunity to obtain redress by means of a compensatory remedy, namely by bringing a claim for compensation. With regard to a compensatory remedy, the 2006 Act provides that two cumulative conditions must be satisfied in order for a party to be able to lodge a claim for compensation. Firstly, during the proceedings the applicant must have successfully availed himself of the supervisory appeal or have lodged a motion for a deadline, regardless of the outcome. Secondly, the proceedings must have been terminated.


The applicant, Mr Akbar Taheri Kandomabadi, is an Iranian national, who was born in 1979 and is currently staying in the Netherlands. He is represented before the Court by Mr M.A. Collet, a lawyer practising in Waalwijk.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 7 August 2000 the applicant arrived in the Netherlands. On the same day, he applied for asylum. In support of his claim for asylum he submitted the following:

Whilst living in Teheran, the applicant and his family (consisting of his mother and his two brothers) were frequently harassed by the authorities. By threatening to arrest the family members, the authorities wanted to exert pressure on the applicant’s father to give himself up. The applicant’s father was a professional soldier who did not agree with the regime. When he was ordered to fight against the Kurds in Iran, he deserted, fled the country and applied for asylum in the Netherlands in 1993. Although his father was not recognised as a refugee within the meaning of Article 1 of the Convention relating to the Status of Refugees of 28 July 1951 (“the Geneva Convention”), he had been granted a residence permit. In order to avoid arrest, the applicant and his mother and siblings stayed with different relatives, making sure never to stay at any one address for very long. However, the authorities always managed to trace them. The applicant was unable to go to school because his name featured on a list of people who were not allowed to attend school. According to the applicant, this was because his father was wanted by the authorities.

In March 1994 the Vezarat-e Sepah Pasdaran-e Enqelab-e Islamic (Islamic Revolutionary Guards, “Sepah Pasdaran”) came to arrest the applicant’s older brother, Hamid, but his uncle Bahran had managed to organise Hamid’s departure to Turkey before he could be arrested. In 1996, the applicant, his mother and younger brother also managed to reach Turkey. However, when Hamid was arrested in Istanbul and sent back to Iran, the other relatives also decided to return to Iran out of concern for him. Hamid was detained for two to three months and tortured during that time. His uncle Bahran managed to obtain Hamid’s release, presumably through the payment of bribes.

The applicant resumed his life of staying at different addresses.

On 8 July 1999, students demonstrated in Teheran following the closure of a newspaper. That night, security services raided dormitories on the university campus. Several students were wounded and others arrested in the raid. As a result, more student protests followed. The protests spread to other cities. Non-students, including the applicant, also participated. During one of the demonstrations, the applicant handed out wood and stones to the students, helped set fire to a bus and a fire engine and built barricades. Troops responsible for public order charged at the demonstrators; the applicant was beaten and his hand broken. After the demonstrations, many people were arrested and nothing more was heard of them. The applicant learnt that photographs had been taken of the people who had set fire to the bus and the fire engine. His uncle Bahran thought that it would be better for the applicant to leave the country and he put up the money for the applicant to go to Turkey in October 1999. Until his departure, he remained in Teheran, staying in hiding at the houses of friends.

Whilst in Turkey, the applicant was told by his mother on the telephone that a summons in his name, ordering him to report to the Sepah Pasdaran, had been delivered to his uncle’s address.

The applicant stayed in Turkey for some ten months. He did not apply for asylum in Turkey. A “travel agent” arranged for him to go to the Netherlands, together with a number of other people. They travelled by foot, boat, bus and train. The applicant used a Swedish passport in the name of a man of Iranian origin. The passport had been given to him by the “travel agent”. The applicant did not know through which countries his journey took him.

In the proceedings on his first request for asylum, the applicant submitted copies of two summonses. The first (“document (A)”) was dated 17 July 1999 and bore the number 1, the second (“document (B)”) was dated 15 August 1999 and bore the number 3 – the applicant stated that the summons bearing number 2 had never been received. The summonses had been issued by Sepah Pasdaran’s Justice Bureau and stated, without giving any reasons, that the applicant was to report to a specific place at a specific time. According to the applicant, these summonses had been given to his mother.

Having considered that the applicant’s asylum request could be dealt with in the so-called accelerated procedure (see below), the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the request on 24 August 2000. The applicant’s objection (bezwaar) against this decision was dismissed as manifestly ill-founded on 12 September 2000 by the Acting President of the Regional Court of The Hague, together with his request for a stay of expulsion. The Acting President agreed with the Deputy Minister that the applicant’s failure to submit documents capable of establishing his identity, his nationality or his travel route affected the sincerity of his account and detracted from its credibility. The Acting President further expressed doubts as to the credibility of the applicant’s account concerning the problems encountered by his family in Iran allegedly as a result of the situation of his father. It was noted in this respect that the applicant’s father had told the Netherlands authorities that he had never encountered problems for political reasons, but that he had been unable to obtain promotion in the army on account of several episodes of desertion. The Acting President also did not find it sufficiently established that the Iranian authorities were aware of the applicant’s participation in the student demonstrations, or that he was “wanted” by those authorities as a result of his participation. The applicant was found to have been inconsistent in this regard, first telling the immigration authorities that, whilst in Turkey, his mother had told him that a summons had been sent to his uncle’s address, yet the copies of the summonses submitted dated from the time when the applicant had still been in Iran, and they had allegedly been given to his mother. Finally, the summonses submitted were not originals and did not state the reason why the applicant was supposed to report to the authorities.

On 9 July 2001 the applicant requested both the Deputy Minister and the Regional Court to review their respective decisions in view of the fact that he had in the meantime managed to obtain original documents. The Regional Court refused this request in a decision on 15 February 2002, stating in an obiter dictum that the documents might lead the applicant to decide to lodge a new request for asylum. On 25 June 2002 the Deputy Minister informed the applicant that a request for revision could only be made in the form of a new request for asylum. The applicant was subsequently informed when and where he should formally lodge such a new request.

The applicant lodged his second request for asylum on 2 August 2002. This was also dealt with in the accelerated procedure. In support of this request he submitted the originals of the above-mentioned summonses (A) and (B), as well as a further summons (“document (C)”), dated 28 August 1999. He also stated that his uncle in Iran had recently managed to get a third person to obtain the following, original, documents from a file on the applicant:

– a letter/memo dated 11 September 1999 from the Justice Bureau in the Western Teheran district to the Opposition Operations Department, stating that the applicant was being prosecuted on charges of participation in the revolt at the university campus, and requesting the addressee to arrest the applicant (“document (D)”);

– an undated letter/memo (the space after “date: ” is left blank) from the assistant criminal investigations officer in the police operations division to the commanding officer of border controls, in which reference is made to a letter dated 29 November 1999 of the public prosecution department, and in which the addressee is requested to ensure that the applicant does not leave the country and is arrested should he try to leave (“document (E)”);

– an undated letter/memo (the space after “date: ” is left blank) from an assistant information officer to his counterpart in the police identification division, in which reference is made to the order issued by the commanding officer of Sepah Pasdaran relating to the identification of the suspects at the university campus, and in which the addressee is requested to make available all information concerning the background of the applicant (“document (F)”);

– an undated letter/memo (the space after “date: ” is left blank) from an assistant information officer to the commanding officer of the Greater Teheran District, in which reference is made to the order issued by the Sepah Pasdaran commanding officer relating to the arrest of those persons who had “caused the university campus [disturbance]”, and in which the addressee is requested to observe all of the applicant’s movements so that he could be arrested once his whereabouts were known (“document (G)”).

The applicant’s second request for asylum was rejected by the Minister for Aliens Affairs and Integration (Minister voor Vreemdelingenzaken en Integratie, the successor of the Deputy Minister of Justice) on 5 August 2002. The Minister held that the documents submitted by the applicant did not constitute newly emerged facts or altered circumstances. In this respect, the Minister found that no decisive importance could be attributed to the undated documents. The new documents did not lead to a conclusion different from the one reached on the first request for asylum, given that in those earlier proceedings the applicant’s account had not been found wholly credible; the applicant had not established his identity so that it could not be ascertained whether the new documents related to him, and he had failed to give a plausible explanation as to why he could not have submitted the new documents at an earlier stage. For these reasons, the Minister did not consider that the merits of the new request for asylum should be examined. He therefore rejected it by referring to the decision on the first request, in accordance with Article 4:6 of the General Administrative Law Act (Algemene Wet Bestuursrecht).

On 6 September 2002 the provisional-measures judge (voorzieningenrechter) of the Regional Court of The Hague, sitting in Arnhem, rejected both the applicant’s request for a stay of expulsion and his appeal (beroep) against the decision of the Minister. The judge agreed with the Minister that no newly emerged facts or altered circumstances had been adduced by the applicant. Such facts or circumstances only existed if they had not played a role in the proceedings on the first request for asylum and if they could not have been submitted at that time. Facts and circumstances which had been known to the applicant prior to 12 September 2000 (the date of the final decision on the first request for asylum) could thus in principle not be considered. The documents (E), (F) and (G) could only be seen as further arguments (nadere bewijsvoering) relating to the first request which had already been rejected.

The applicant lodged a further appeal (hoger beroep) with the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State), in which he argued that there were “altered circumstances”: his first request for asylum had been rejected because his account was found not to be credible, whereas the new documents showed that it was credible.

The further appeal was rejected on 8 November 2002, the Administrative Jurisdiction Division finding that since documents (E), (F) and (G) were undated, it could not be established that it had been impossible for the applicant to submit them in the proceedings on his first request for asylum. It was further held that the applicant had not adduced any exceptional facts and circumstances relating to him personally, on the basis of which his new request for asylum fell to be assessed outside the framework of Article 4:6 of the General Administrative Law Act.

Following the rejection of the applicant’s first request for asylum by the Deputy Minister of Justice on 24 August 2000, the applicant’s entitlement to State-sponsored reception facilities ceased, and it was not revived with the lodging of the second request for asylum. The applicant subsequently received some financial support from refugee and charitable organisations and private donors, but from February 2004 he was no longer in receipt of any kind of income. On 19 April 2004 he lodged an official request to the Central Agency for the Reception of Asylum Seekers (Central Orgaan opvang Asielzoekers; hereafter the “COA”) to be provided with facilities to meet his basic needs. Having received no reaction, the applicant lodged an objection against the implied refusal (fictieve weigering) of his request on 8 May 2004. He also applied to the Regional Court for a provisional measure. Both procedures are currently still pending.

Under Article 15 § 1 of the Aliens Act 1965 (vreemdelingenwet, hereinafter “the Act”), which was in force until 1 April 2001, aliens coming from a country where they have a well-founded reason to fear persecution on account of their religious or political convictions, or of belonging to a particular race or a particular social group, could be admitted as refugees. The expression “refugee” in this provision was construed to have the same meaning as in Article 1 of the Geneva Convention (decision of the Judicial Division of Council of State of 16 October 1980, Rechtspraak Vreemdelingenrecht [Immigration Law Reports] 1981, no. 1).

On 1 April 2001, the Aliens Act 2000 entered into force. On the basis of Article 29 of the new Aliens Act, an alien may be eligible for a residence permit for the purposes of asylum if, inter alia,

– he or she is a refugee within the meaning of the Geneva Convention, or

– he or she has established well-founded reasons to assume that he/she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment if expelled to the country of origin.

Requests which, after a first intake interview with the applicant, are judged to be inadmissible and/or manifestly ill-founded, may be dealt with in an accelerated procedure if they do not require a time-consuming investigation, meaning that they can be processed with all due care within 48 working hours. This fast-track procedure was introduced following a huge rise in the number of asylum applications that began in 1993.

Article 4:6 of the General Administrative Law Act (Algemene Wet Bestuursrecht) provides that an applicant must adduce newly emerged facts or altered circumstances (nieuw gebleken feiten of veranderde omstandigheden) if a new request is filed following a decision in which the original request is, either totally or partially, rejected. When no such facts or altered circumstances have been adduced, the administrative authority may reject the new request with reference to the decision on the original request. Article 4:6 thus embodies the ne bis in idem principle for the administrative law. Nevertheless, an exception has been made in this particular area of the law, in that an alien may adduce exceptional facts and circumstances relating to him or her personally, on the basis of which the new request may be assessed outside the framework of Article 4:6. In the case of a repeat asylum application which also invokes the risk of treatment contrary to Article 3 of the Convention, an assessment by the court outside the framework of Article 4:6 is therefore possible. The Administrative Jurisdiction Division of the Council of State has on one occasion quashed the dismissal of a repeat application for a residence permit for the purposes of asylum despite the absence of new facts or altered circumstances (judgment of 24 April 2003, no. 220300506/1, Nieuwsbrief Asiel- en Vluchtelingenrecht [Newsletter on Asylum and Refugeelaw] 2003/160). It did so on the basis of the exceptional circumstance that there was no dispute between the parties, that on his return to his country of origin, the alien would run a real risk of being subjected to treatment or punishment proscribed by Article 3 of the Convention.

During the initial asylum procedure, an alien is entitled to reception and other facilities provided by the State. However, entitlements do not exist if the application has been refused in the accelerated procedure. Pursuant to Article 10 of the Aliens Act 2000, an alien whose stay in the Netherlands is not lawful is not entitled to reception facilities. This provision applies to asylum seekers whose applications have been unsuccessful. Also, a second or further application for asylum does not confer a new entitlement to reception facilities. An exception to that basic principle can nevertheless be made if, inter alia, the asylum seeker finds him or herself in extremely compelling humanitarian circumstances (zeer schrijnende humanitaire omstandigheden, Chapter C5/20.4 of the Aliens Circular 2000). The question whether such circumstances exist is always considered after it has been ascertained that the second or further application for asylum will not be processed in the accelerated procedure. It may also be considered if a person, who has submitted a second or further application, requests reception facilities due to extremely compelling humanitarian circumstances.

The COA decides whether or not reception facilities will be provided. Appeal lies against a decision to refuse reception, but also against a failure to decide (or to decide within a reasonable time) on a request for reception facilities. The lodging of an appeal does not suspend the denial of reception facilities, but a provisional measure may be requested to the effect that such facilities are made available pending the appeal proceedings.

In a decision of 28 April 2004 (nr. AWB 04/4053 COA), the provisional-measures judge of the Regional Court of The Hague, sitting in Alkmaar, noted that the legislator had omitted to regulate whether or not an entitlement to reception facilities existed during the period for which an interim measure pursuant to Rule 39 of the Rules of Court was in place. The judge considered that, as a result of the application of Rule 39, the petitioner could not be said to be under an obligation to leave the country and his stay in the Netherlands was, therefore, lawful. In addition, the denial of reception facilities – which was aimed at encouraging a departure from the Netherlands – might detract from the effectiveness of the interim measure. In these circumstances, the judge perceived cause to grant a provisional measure to the effect that the COA should provide the petitioner with reception facilities pending the proceedings on his appeal against the COA’s refusal of such facilities.

In different proceedings, the Administrative Jurisdiction Division of the Council of State held on 25 May 2004 that, as long as an interim measure pursuant to Rule 39 of the Rules of Court is in place, the stay in the Netherlands of the person concerned is lawful (nr. 200400863/1).

Policy is based on official country reports (ambtsberichten), periodically drawn up by the Netherlands’ Ministry of Foreign Affairs.

The country report on Iran of 21 December 1999 described how student demonstrations followed parliamentary discussions on a bill relating to the press and the closure of a newspaper on 7 July 1999, which got out of hand when riot police, security forces and units of the fundamentalist Ansare Hezbollah raided the campus of the University of Teheran and used force against the students, resulting in a number of deaths and hundreds of injuries. The violent attack on the students led to mass street protests in several Iranian cities, where demonstrations for greater openness and freedom were held over a number of days. These led to violent confrontations with the police, security services and groups supporting conservative forces. President Khatami finally banned all demonstrations. It appeared that 1,500 students were arrested. At the time of the country report, 200 were still thought to be in detention. The four “instigators” of the protests had allegedly been condemned to death, although the Iranian Government neither confirmed nor denied such reports. Prison terms varying from a few months to thirteen years (for one of the “instigators”) were imposed.

The country report concluded that the human rights situation in Iran remained a source of concern, despite a few positive developments. Notably those groups or individuals perceived in Iran as a threat or potential threat to a society based on Islamic values and standards were at risk of becoming victims of human rights violations. The policy formulated on the basis of this country report meant that inter alia the following persons were eligible for consideration as possible refugees:

– persons viewed, whether individually or as a member of a particular group, as a threat, or a potential threat, to a society based on Islamic values and standards; and

– intellectuals, and in particular writers, journalists or publishers, who were viewed as a threat, or a potential threat, to society on the basis of their publications or other utterances in Iran.

According to the country report of 30 August 2000, students in Iran were relatively quiet in the period leading up to the commemoration on 8 July 2000 of the riots of July 1999. However, a demonstration on 8 July 2000 that was intended to be peaceful got completely out of hand. The police intervened when the marchers began to shout slogans, students were arrested and fights broke out. Many participants in the demonstration at the University of Teheran were in fact ordinary people, rather than students.

On 11 February 2000, Ayatollah Khamenei announced an amnesty for 10,000 people who had been involved in the riots of July 1999. The death penalty was imposed on one of the participants in the student disturbances but not carried out, the sentence being commuted to 15 years’ imprisonment. The three “instigators” of the student unrest of July 1999, who had been arrested on 26 July 1999, and on 1 March 2000 sentenced to long terms of imprisonment, were acquitted on appeal in mid-July 2000.

The country report of 24 August 2001 showed that the human rights situation in Iran had deteriorated in the second half of 2000 and the first few months of 2001. The persecution of reformist intellectuals continued unabated. Nevertheless, in July 2001 it was reported in the press that the speaker of the Iranian parliament had requested Ayatollah Khamenei to grant an amnesty to the last 17 students still in prison because of their activities during the student revolt. Only ten students from this group – the ones who had received the heaviest sentences – were still in prison at the time of the country report. They were primarily members and sympathisers of a student union that was viewed with suspicion by the regime.

The most recent country report, that of 10 February 2003, states that, as far as could be ascertained, six of the students imprisoned for taking part in the riots of July 1999 were still in prison, four students having been released in 2002.

In the light of the most recent developments in Iran, as described in the country reports, Netherlands policy on admitting Iranian nationals has remained largely unchanged. Every asylum seeker from Iran must still demonstrate that the personal facts and circumstances of his or her case – viewed objectively – justify a fear of persecution as defined in refugee law or might lead to the conclusion that he or she would be subjected to treatment contrary to Article 3 of the Convention if returned. Furthermore, the mere fact of a person being a student is no reason to fear persecution by the Iranian authorities. In order to be eligible for a residence permit, students who have taken part in demonstrations or riots, or who occupy important positions within the student movement, have to establish that, because of that fact, they personally are viewed with suspicion by the authorities. Moreover, not every form of suspicion immediately leads to the conclusion that there can be said to be persecution within the meaning of refugee law.

On 25 February 2004 the United States Department of State released the 2003 Country Report on Human Rights Practices in Iran. It stated inter alia:

“The Government’s poor human rights record worsened, and it continued to commit numerous, serious abuses. ... Continuing serious abuses included: summary executions; disappearances; torture and other degrading treatment, reportedly including severe punishments such as beheading and flogging; poor prison conditions; arbitrary arrest and detention; lack of habeas corpus or access to counsel and prolonged and incommunicado detention. Citizens often did not receive due process or fair trials. The Government infringed on citizens’ privacy rights, and restricted freedom of speech, press, assembly, association and religion. ...

During a wave of student protests in June, vigilantes beat many protestors, and police arrested approximately 4,000 persons (both protestors and vigilantes), according to Government figures shortly after the protests. The Government banned demonstrations planned for July 9 to commemorate the killing of several students by security forces in demonstrations held in 1999 and arrested more student activists at that time.”

In its Annual Report 2004, covering events from January to December 2003, Amnesty International noted with respect to Iran inter alia:

“Scores of political prisoners, including prisoners of conscience, continued to serve sentences imposed in previous years following unfair trials. Scores more were arrested in 2003, often arbitrarily and many following student demonstrations. ...

The development and fulfilment of human rights in Iran were adversely affected by the political stalemate between supporters and opponents of reform. ...

Students convicted and imprisoned after student demonstrations in 1999 were reported to have been ill-treated in custody. In several cases, they faced new charges, including some relating to defamation and insult, reportedly based on statements made in prison or given to the media while on temporary leave from prison.”