Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - State to secure enforcement of judgment debt;Non-pecuniary damage - financial award

The applicant was born in 1954 and lives in Kursk.

The applicant worked as a forwarding agent for a catering enterprise. In January 1999 the enterprise’s director instructed him to sell 10 tonnes of flour. The applicant sold the flour, purchased certain foodstuffs with the money thus raised and paid the transportation expenses. The director refused to accept the foodstuffs and asked the applicant to remit the value of the flour. The applicant sold the foodstuffs but the amount raised was insufficient to cover that value. The applicant offered various other goods in payment of the outstanding amount. The director refused to accept them. It appears that the applicant was subsequently dismissed. In January 2000 criminal proceedings for embezzlement were brought against the applicant. From 25 January 2000 to 4 February 2000 he was held in pre-trial detention.

On an unspecified date the applicant fully reimbursed the value of the flour.

On 17 May 2000 the Leninskiy District Court of Kursk convicted the applicant of embezzlement. He was given a two-year suspended prison sentence and fined 2,087.25 Russian roubles (RUR), which he paid.

The Kursk Regional Court upheld the judgment on 20 June 2000.

On 18 July 2001, following an application for supervisory review lodged by the Deputy President of the Supreme Court of Russia, the Presidium of the Kursk Regional Court quashed the sentence and terminated the criminal proceedings against the applicant on the basis that there was no indication that an offence had been committed.

On 17 August 2001 the applicant brought proceedings against the Ministry of Finance seeking compensation for pecuniary and non-pecuniary damage caused by the criminal proceedings against him, in particular as a result of his detention between 25 January 2000 and 4 February 2000 and his conviction of 17 May 2000.

The Leninskiy District Court of Kursk partially granted the claim for damages on 12 November 2001.

On 18 December 2001 the Kursk Regional Court quashed the judgment and remitted the case for a fresh examination.

The Leninskiy District Court of Kursk partially granted the claim for damages on 10 January 2002.

On 14 March 2002 the Kursk Regional Court once more quashed the judgment and remitted the case for a fresh examination.

On 16 April 2002 the Leninskiy District Court of Kursk partially granted the claim for damages. The court awarded the applicant RUR 15,000 in damages and RUR 3,700 for costs. The judgment stated:

“Under Article 1070 of the Civil Code, damage caused to a citizen as a result of unlawful conviction, unlawful criminal prosecution, unlawful application of detention as a preventive measure ... shall be compensated at the expense of the Treasury of the Russian Federation. ...

Under Article 1100 compensation for non-pecuniary damage shall be effectuated irrespective of the fault of the causer of the damage where the damage is caused as a result of unlawful conviction, unlawful criminal prosecution. ...

On the foregoing grounds ... the court has decided to award [damages] against the Ministry of Finance in favour of [Mr] Shatunov...”

By a final decision of 14 May 2002 the Kursk Regional Court varied the judgment and awarded the applicant RUR 25,000 in damages and RUR 4,700 for costs.

On 23 April 2002 the applicant brought proceedings seeking compensation for the fine he had been ordered to pay in the judgment of 17 May 2000.

By a final decision of 17 June 2002 the Leninskiy District Court of Kursk granted the claim and ordered the Ministry of Finance to pay the applicant RUR 2,087.

On 28 May 2002 the Leninskiy District Court of Kursk issued a writ of execution for recovery of RUR 29,700 from the Ministry of Finance, pursuant to the judgment of 16 April 2002, which had been varied on appeal on 14 May 2002.

On an unspecified date the same court issued a writ of execution for recovery of RUR 2,087 from the Ministry of Finance, pursuant to the ruling of 17 June 2002.

It appears that the applicant initially sent the writs to the First Department of the Bailiffs’ Service for the Central District of Moscow. In a letter of 5 September 2002 the Ministry of Justice informed the applicant that a writ of execution had been transferred to the Second Department of the Bailiffs’ Service for the Central District of Moscow. It is not clear which of the two writs was referred to in the letter. Nevertheless, it appears that both writs either remained in, or were subsequently returned to, the First Department of the Bailiffs’ Service.

The First Department of the Bailiffs’ Service transferred both writs to the Second Department of the Bailiffs’ Service on 22 April 2004.

On 1 June 2004 the Second Department of the Bailiffs’ Service returned the writ for recovery of RUR 29,700 to the applicant because it did not meet the statutory requirements. In particular, the date of issue of the writ and the time-limit for its submission for execution had not been indicated. The applicant was also advised that, pursuant to a Government Decree of 9 September 2002, writs against the Treasury of the Russian Federation were to be sent for execution to the Ministry of Finance. It appears that the applicant applied to the Leninskiy District Court of Kursk to have the writ amended.

On 5 July 2004 the Second Department of the Bailiffs’ Service transferred the writ for recovery of RUR 2,087 to the Leninskiy District Court of Kursk, apparently because it too failed to meet the statutory requirements.

On an unspecified date the Leninskiy District Court of Kursk returned the writ for recovery of RUR 2,087 to the applicant and advised him that it should be sent to the Ministry of Finance.

The Leninskiy District Court of Kursk sent the writ for recovery of RUR 29,700 to the applicant on 26 July 2004.

In July and August 2004 the applicant sent both writs to the Ministry of Finance.

According to the Government, on 27 July 2004 the Ministry of Finance had received the writ of execution for recovery of RUR 2,087. On 6 October 2004 the Ministry of Finance had returned the writ of execution to the applicant, stating that it did not meet the statutory requirements in that the time-limit for its submission for execution had not been indicated and the operative part of the judgment had been cited incorrectly.

According to the Government, on 24 August 2004 the Ministry of Finance had received the writ of execution for recovery of RUR 29,700. On 27 May 2005 the writ had been returned to the applicant because it did not meet the statutory requirements. In particular, the time-limit for its submission for execution had not been indicated. Furthermore, the decision of the Kursk Regional Court of 14 May 2002 had not specified that the amount was to be recovered from the Treasury of the Russian Federation.

On 2 November 2004 the applicant applied to the Leninskiy District Court of Kursk to have the writ for recovery of RUR 2,087 amended. On 1 December 2004 the writ was again received by the Ministry of Finance. According to the Government, the payment pursuant to the writ had been made by the Ministry of Finance on 5 May 2005. According to the applicant, the writ had never been executed.

According to the Government, on 4 July 2005 the writ of execution for recovery of RUR 29,700 had again been received by the Ministry of Finance. However, its defects had not been rectified. For these reasons it had again been returned to the applicant.

According to the applicant, neither writ has been executed.

Section 9 of the Enforcement Proceedings Act of 21 July 1997 provides that a bailiff’s order on the institution of enforcement proceedings must fix a time-limit for the defendant’s voluntary compliance with a writ of execution. The time-limit may not exceed five days. The bailiff must also warn the defendant that coercive action will follow should the defendant fail to comply with the time-limit.

Under section 13 of the Act, enforcement proceedings must be completed within two months of the receipt of the writ of execution by the bailiff.

The Rules on execution by the Ministry of Finance of the Russian Federation of judicial acts concerning claims against the Treasury of the Russian Federation in respect of damage caused by the unlawful acts (omissions) of agencies of State authority or officials of the agencies of State authority, approved by Government Decree No. 666 of 9 September 2002, provide that a writ of execution should be sent to the Ministry of Finance together with a copy of the judicial act and the claimant’s bank-account details (Rule 2). Within five days from the receipt of the above documents the Ministry of Finance sends them to the debtor State agency in order to find out whether the underlying judicial decision is being appealed against. The time-limit for execution of the writ by the Ministry of Finance is two months (Rule 5). The writ of execution may be returned without execution in the following situations: if the time-limit for its submission has expired, if the documents submitted do not meet the statutory requirements or some of the documents are missing, or if the execution of the underlying judicial decision has been stayed or discontinued (Rule 6).

On 20 May 2003 the Supreme Court of the Russian Federation in its decision no. KAC 03-205 held that the Rules adopted by Decree No. 666 concerned the voluntary execution of court decisions against the Federal Treasury and did not prevent the creditor from seeking enforcement through the court bailiffs.

On 14 July 2005 the Constitutional Court of the Russian Federation in its decision no. 8-П held, inter alia, that Rules 3, 5 and 6 of the Rules adopted under Decree No. 666 were unconstitutional and were to become invalid from 1 January 2006.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant was born in 1931 and lives in Krasnodar.

In 1993 the applicant sued his former employer, the public company “KAPRSM”, for unpaid compensation for a work-related injury, caused by a lorry owned by another company, “KTS”.

On 21 April 1997 the Takhtamukayskiy District Court found for the applicant and awarded him a lump sum and life-long monthly payments. The lump sum was made up of the principal amount, interest thereon and a penalty for belated payments.

On 3 June 1997 the Supreme Court of the Adygheya Republic set aside the judgment in the part concerning the claim for penalty and remitted that claim for a new examination. It upheld the remainder of the judgment. The claim for penalty was subsequently examined by courts of various levels. As of March 2002 the claim was pending before the District Court.

On 15 March 2002 the acting President of the Takhtamukayskiy District Court lodged an application (представление) with the Supreme Court of the Adygheya Republic to quash the judgment of 21 April 1997 and all other judgments in the case, because the defendant in the applicant’s action should have been KTS that had owned the lorry rather than KAPRSM that had been the applicant’s employer.

According to the Government, on 15 August 2002 the Supreme Court informed the applicant that the above application would be examined at a hearing on 27 August 2002.

On 27 August 2002 the Presidium of the Supreme Court of the Adygheya Republic granted the application and quashed the previous judgments, including those of 21 April and 3 June 1997. It found that those judgments had been unlawful because the lower courts had failed to determine the proper defendant. The applicant’s claims were remitted for a new examination.

In the resumed proceedings, on 12 May 2003 the Takhtamukayskiy District Court established that the applicant had been informed of the possibility to substitute the legal successor of the KTS company as the proper defendant and to join the regional branch of the Social Security Fund as a third party, but he had not agreed to the substitution. His claim was therefore dismissed as being directed against an improper defendant.

In his observations on the admissibility and merits of the case of 25 November 2003, the applicant made certain abrasive remarks which prompted the respondent’s Government request to declare the application inadmissible as an abuse of the right of petition.

In its admissibility decision of 8 July 2004, the Court rejected the Government’s request for the reason that they had not identified the allegedly abusive expressions or passages in the applicant’s submissions and as the application had not been knowingly based on untrue facts. The Court noted, nevertheless, that some of the applicant’s statements had been irrelevant and excessively emotional.

In September 2004 the applicant and the Government filed their observations on the merits of the application. The Section President set 11 November 2004 as the time-limit by which the parties could submit written comments in reply to each other’s observations.

In a letter of 19 October 2004, the applicant commented on the Government’s observations in the same abrasive manner.

In their observations on the merits of the case and letters of 14 December 2004 and 18 January 2005, the Government invited the Court to declare the application inadmissible as an abuse of the right of petition. Drawing a parallel between the conduct of Mr L.R. (see L. R. v. Austria, no. 2424/65, Commission decision of 24 May 1966) and that of the applicant, they claimed that the expressions used by the applicant were even more insulting than those used by Mr L. R. against the representatives of the Austrian Government. The Government reproached the Court for not having invited the applicant to withdraw or amend the objectionable statements. They submitted that the applicant’s letter of 19 October 2004 was a further evidence of his abusive attitude to the proceedings before the Court.

On 29 September 2005 the Court considered the Government’s request to declare the application inadmissible in connection with the applicant’s persistent use of offensive language and invited the applicant to withdraw his inappropriate remarks and to offer a formal apology.

By letter of 3 November 2005, the applicant informed the Court as follows (translated from Russian):

“I formally withdraw my rough remarks about the Government and about the Government’s representative Mr Laptev which were considered offensive. I also offer my sincere apology to the Court, to the Government and to Mr Laptev. It was not my intention to offend anyone...”

In their comments on the applicant’s letter, the Government asked the applicant to identify the expressions he apologised for.


Violation of Art. 3 (in case of expulsion to Afghanistan)

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall

The applicant was born in 1970 and lives in Fagersta.

On 13 August 2004 the applicant and her husband, X, arrived in Sweden and on 16 August 2004 they applied to the Migration Board (Migrationsverket) for asylum and residence permits. The applicant was interviewed on 4 October 2004 and 8 March 2005. She had no identity papers and could not prove her identity. She stated that she was born and grew up in Kabul, where her parents, one of her two brothers, an aunt and an uncle resided. Her other brother had left Afghanistan a long time ago. She also had an uncle in Mazar-e-Sharif. The applicant had attended school for twelve years in Kabul and had studied at the university.

The applicant and her spouse also submitted that they had been persecuted since 1996 because X had been a politically active member of the communist party, leading to his arrest on two occasions. Following his second release they had moved to Kabul, but they alleged that some fundamentalists had come looking for X there as well with the intention of killing him. The applicant submitted that she also had shown her political stance by acting as a teacher for women, which was not accepted by parts of the leading elite in Kabul. Therefore, they had fled the country. When they had left their home, they had stayed with her uncle in Mazar-e-Sharif and the latter had helped them finance their journey to Sweden by paying a smuggler 24,000 US Dollars. Lastly, X invoked his poor mental health, stating that he was suffering from anxiety, sleeplessness and aggressive behaviour.

On 29 March 2005 the Migration Board rejected the couple's application. It first noted that the security situation in Afghanistan varied between different parts of the country but that it was better in Kabul than in other parts of the country. The Board then considered that X had given vague information about his activities and had failed to demonstrate that he had held a prominent or leading position within the communist party. Hence, it questioned the claim that his life would be endangered because of his membership of that party. The Board therefore found that neither X nor the applicant had shown that they had been persecuted in Afghanistan or that they would risk persecution upon return. Thus, even having regard to X's poor mental health, the Board found that there were no grounds on which to grant them leave to remain in Sweden.

The applicant and her husband appealed against the decision to the then Aliens Appeal Board, which subsequently transmitted the case to the Migration Court (Migrationsdomstolen). The applicant maintained her claims and added that the threats against her and X stemmed from X's previous political activities and from her activities in educating women and that the authorities had not been able to protect them, not even in Kabul. The applicant further submitted that she had separated from X in June 2005, lived alone and intended to obtain a divorce although X opposed it. Due to this, she had been criticised by some of X's friends, been called a “bad woman” and some other Afghans had spread untrue rumours about her. By separating from X, she had broken with Afghan traditions which meant that she risked serious persecution if forced to return to her home country. In this respect, she pointed out that she would not be able to obtain a divorce in Afghanistan and that by trying to obtain a divorce in Sweden she had dishonoured both her own and X's family. Consequently, her own family had disowned her and she would risk reprisals from X's family. It would also be impossible for her to find work and, since she and X had no children, she would be a social outcast. She further mentioned that the punishment for adultery in Afghanistan was stoning. Lastly, she stated that she suffered from psychological problems and was in need of treatment in Sweden.

The Migration Board contested the appeal and submitted, inter alia, that X had stated that his father had held a higher position than him in the party but that he had not been threatened. It further claimed that, having regard to X's poor mental health, it should be possible for the applicant to obtain a divorce. Moreover, it appeared that X would agree to a divorce. Lastly, it did not question that the applicant's family was dissatisfied with her decision to separate from her husband but it had not been shown that they had disowned her.

On 19 March 2007, after holding an oral hearing, the Migration Court rejected the appeal. It first considered that it had not been shown that X, on account of his previous political activities, would be of interest to any resistance groups in Afghanistan. It then observed that quite some time had passed since the applicant had taught women in her home country. Moreover, the court noted that the previous Taliban ban on education for women had been replaced by affirmative action for women and that the constitution stated that the State should actively support women's education. Therefore, the court found that the applicant had not demonstrated that she had a well-founded fear of persecution because of her previous work as a women's teacher. As concerned the applicant's personal life, the court observed that she had not formally divorced X although they had separated. In its view, nothing had appeared in the case which showed that the applicant faced a concrete and individual risk of persecution for having broken with Afghan traditions. It further noted that the applicant had stated that she had not had an extramarital affair, for which reason there was no risk that she would be convicted of adultery and sentenced to death. In this respect, the court considered that the applicant had not shown that the alleged rumours about her had come to the knowledge of the Afghan authorities. Turning to her claim that she would lack a social network in Afghanistan, the court found that the applicant had not demonstrated that her family in Afghanistan had rejected her and, hence, she had a social network there. It further took into account that she was well-educated and thus concluded that she had failed to show that she would face a real risk of being persecuted or subjected to inhuman or degrading treatment or punishment. Therefore, and since the court did not find that any of the other reasons submitted by the applicant were sufficient to grant her exceptional leave to remain, the appeal was rejected.

The minority of the court wanted to grant the applicant leave to remain in Sweden on the ground that, since she did not have any children and had separated from her husband, she had shown that she would risk degrading treatment upon return to her home country.

The applicant appealed against the judgment to the Migration Court of Appeal (Migrationsöverdomstolen) which, on 4 September 2007, refused leave to appeal. This decision was final and the applicant's deportation order thus became enforceable.

On 27 October 2007 invoking new circumstances, the applicant lodged an application for a residence permit under Chapter 12, Section 18, of the Aliens Act, which was refused by the Migration Board.

On 28 January 2008 the applicant lodged a new application for a residence permit under Chapter 12, Section 18, of the Aliens Act, which was refused by the Migration Board.

In February 2008 the applicant petitioned the District Court (tingsrätten) of Västmanland for a divorce from X. The latter informed the District Court on 17 July 2008 that he opposed a divorce. The applicant submitted that she had separated from her husband in 2005 and only seen him once since then. Moreover, she intended to invoke the divorce as one of the grounds to stop her deportation.

In a decision of 19 November 2008, the court dismissed her petition on the ground that it was not competent to dissolve her marriage since she did not have a legal right to reside in Sweden.

In the meantime, on 17 October 2008, the applicant requested the Migration Board to re-evaluate her case and stop her deportation. As grounds for her request, she claimed that the situation in Kabul had worsened considerably since the Migration Board's previous decision. She further alleged that she now had a well-founded fear of persecution upon return to Afghanistan since she had started a relationship with a Swedish man. Thus, she had committed adultery and risked the death penalty in Afghanistan. She had not been in touch with her family since the summer of 2005.

She also submitted a letter from the UNHCR Regional Office for the Baltic and Nordic Countries, dated 2 October 2008, which stated, inter alia, the following:

“UNHCR's views on the protection needs of Afghan female asylum-seekers are fully set forth in the UNHCR's Eligibility Guidelines for Assessing the International Protection needs of Afghan Asylumseekers. ... In the context of Afghanistan, UNHCR would like to draw to your attention to the fact that an assessment of a refugee claim of an Afghan female asylum-seeker, should take into account the specifically vulnerable situation in which Afghan women are found, including pressure from within families, communities, and by the public to conform [to] behaviour in accordance with particular codes of behaviour. In this regard, a separation and/or divorce effected in the country of asylum, may indicate adoption of a Westernised way of life and be perceived as, or actually transgressing, prevailing social mores and thereby indicates a heightened risk of sur place persecution linked to the grounds of religion and/or political opinion under the scope of Article 1 A (2) of the 1951 Refugee Convention. ... UNHCR notes that Afghan female asylum-seekers' reliance for relative social, cultural and economic freedom is exclusively dependent on the existence of male protection (husband, father, brother or extended family member) and that lack of such networks may seriously undermine a returnee's personal physical, economic and emotional security.”

On 24 October 2008 the Migration Board refused to reconsider the applicant's case as she had failed to invoke any new circumstances of importance. It considered that the applicant had only developed and clarified those grounds which had already been examined by it and the migration courts. The Board also found that there were no impediments to the enforcement of the deportation order.

The applicant appealed against the decision to the Migration Court, maintaining the grounds invoked before the Board and insisting that these were new circumstances of importance. On 4 December 2008 the court rejected the appeal, upholding the Board's decision and reasoning in full.

On 21 January 2009 the Migration Court of Appeal refused leave to Appeal and, on 17 February 2009, the case was transferred to the Police Authority to enforce the deportation order.

Finally, on 17 April 2009 the applicant lodged a third application for a residence permit under Chapter 12, Section 18, of the Aliens Act, which was refused by the Migration Board.

On 28 April 2009 the applicant lodged the case with the Court and on 11 May 2009 the President of the Chamber decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings not to deport the applicant until further notice

In her observations of 4 November 2009 the applicant submitted that already before leaving Afghanistan, she had told her mother about her problems with her husband. In October 2005 the applicant had called home and told her mother that she and her husband had separated. The mother had become very upset and said that it was totally wrong and that the applicant should go back to her husband. She had then talked to her father who became furious and shouted that she brought dishonour to the family. The conversation had ended because the applicant ran out of money on her telephone card. The father had called her back the following day to try to persuade her to change her mind and talked about honour, shame and her disgracing the family. In the end he had shouted that she was go back to her husband or the family would not have anything more to do with her. She was no longer his daughter. After the conversation, the applicant had called her uncles in Kabul and Mazar-e Sharif to have their support but they had both repeated the words of her father. That had been the last conversation between the applicant and her relatives.

With the applicant's observations of 4 November 2009 she also enclosed a letter of 31 October 2009 “to whom it may concern” by a named Swedish man who confirmed having a relationship with the applicant. He stated, inter alia, that they had met for the first time in the autumn of 2007, that their relationship had started in February 2008 and that they had been living together in his apartment since April 2009.

In reply the Government observed on 15 January 2010 that the facts now presented by the applicant in her observations were never submitted to the Swedish authorities in spite of the fact that these could be considered relevant to her claim for asylum. Notably, regarding the claim that the applicant and the said Swedish man have been living together since April 2009, the Government noted that the applicant has still not changed her registered mail address in Fagersta although her new residence is apparently far away.

The basic provisions mainly applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the 2005 Aliens Act (Utlänningslagen, 2005:716 – hereafter referred to as “the 2005 Act”) which replaced, on 31 March 2006, the old Aliens Act (Utlänningslagen, 1989:529). Both the old Aliens Act and the 2005 Act define the conditions under which an alien can be deported or expelled from the country, as well as the procedures relating to the enforcement of such decisions.

Chapter 5, Section 1, of the 2005 Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, Section 1, of the 2005 Act, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, Section 2, of the 2005 Act).

As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, Section 1, of the 2005 Act). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, Section 2, of the 2005 Act).

Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This applies, under Chapter 12, Section 18, of the 2005 Act, where new circumstances have emerged that mean there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced. If a residence permit cannot be granted under this provision, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, Sections 1 and 2, of the 2005 Act, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, Section 19, of the 2005 Act).

Under the 2005 Act, matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances; the Migration Board, the Migration Court and the Migration Court of Appeal (Chapter 14, Section 3, and Chapter 16, Section 9, of the 2005 Act). Hence, upon entry into force on 31 March 2006 of the 2005 Act, the Aliens Appeals Board ceased to exist.

In so far as relevant, the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Afghan Asylum-Seekers of July 2009, which replaced the previous Guidelines from December 2007, set out the following:

In view of the serious and widespread human rights violations and ongoing armed conflict in many parts of the country, UNHCR considers that a significant number of Afghan asylum seekers are in need of international protection. Applications by Afghan asylum-seekers should be determined on an individual basis, according to fair and efficient refugee status determination procedures, including the right of appeal. Favourable consideration should be given to the specific groups identified in these Guidelines, including, but not limited to (i) persons perceived as contravening Sharia law and members of minority religious groups; (ii) ethnic minority groups; (iii) persons associated with or perceived as supporting the Government, including civil society members; (iv) actual or perceived supporters of armed anti-Government groups; (v) journalists; (vi) persons associated with the People's Democratic Party of Afghanistan or other left-aligned political parties; (vii) women; (viii) children; and (ix) persons at risk of becoming victims of blood feuds.

UNHCR further considers that an internal flight or relocation alternative (IFA/IRA) is not available within certain parts of Afghanistan due to a number of factors. If, however, the availability of an IFA/IRA must be assessed as a requirement in a national eligibility procedure, it should be examined carefully and on a case-by-case basis, in light of the requisite relevance and reasonableness analyses, taking into account the individual circumstance of the case, and bearing in mind the cautions in these Guidelines. Even in those exceptional cases where relocation to an accessible area might be considered as viable to eliminate the existing threat, such area can only be a reasonable alternative in cases where the claimant has strong family, social or tribal links in the area of displacement, permitting relocation without undue economic and social hardship. ...

(g) Women

Women are at particular risk of ill-treatment if perceived as not conforming to the gender roles ascribed to them by society, tradition and even the legal system. Ill-treatment occurs in a variety of forms and may be inflicted by several actors, including family members. Such treatment includes domestic violence, excessive custodial sentences and degrading and inhuman treatment. While there is a limited number of women holding public office, women's rights continue to be curtailed, restricted and systematically violated. In April 2009, for instance, a Shiite Personal Status Law was passed by Parliament and signed by President Karzai. The law requires, inter alia, women to comply with their husbands' sexual requests, and to obtain permission to leave the home, except in emergencies. The code has yet to be implemented and is currently under review as a result of international pressure.

Cases of physical violence perpetrated against women and girls in Afghanistan have increased by about 40% in the period from March 2007 to March 2008. Existing figures indicate that currently up to 80% of Afghan women are affected by domestic violence. Human rights organizations report an overall increase of cases of self-immolation and other forms of suicide. The phenomenon of female self-immolation is commonly linked to the pervasive societal discrimination against women. Survivors of sexual violence generally lack basic support mechanisms such as trauma counselling and medical treatment, as well as judicial capacity for forensics analysis. The social stigma attached to the reporting of gender-based violence in Afghanistan often prevents victims from seeking physical or psychological treatment.

Afghan women, who have adopted a less culturally conservative lifestyle, such as those returning from exile in Iran or Europe, continue to be perceived as transgressing entrenched social and religious norms and may, as a result, be subjected to domestic violence and other forms of punishment ranging from isolation and stigmatization to honour crimes for those accused of bringing shame to their families, communities or tribes. Actual or perceived transgressions of the social behavioural code include not only social behaviour in the context of a family or a community, but also sexual orientation, the pursuit of a professional career, and mere disagreements as to the way family life is conducted.

Unaccompanied women or women lacking a male “tutor” (mahram) continued to face limitations on conducting a normal social life. They include divorced women, unmarried women who are not virgins, and women whose engagements to be married have been broken. Unless they marry, which is very difficult given the social stigma associated with these women, social rejection and discrimination continue to be the norm. Many Afghan women are prevented from leaving the family compound without a burqa and a male companion, who has to be a husband or a close relative. Women without male support and protection generally lack the means of survival, given the social restrictions on women living alone, including the limitations on their freedom of movement. This is reflected in the absence of solutions available to the few women able to access domestic violence shelters. Unable to live independently, they face years of quasi-detention, prompting many to return to abusive family situations. The results of such “reconciliation” are generally not monitored and abuse or honour crimes committed upon return are often done with impunity.

Forced and child marriages continue to be widely practiced in Afghanistan, and can occur in a variety of forms. Statistics show that nearly 60% of girls in Afghanistan are married before they reach 16 years old. Most marriages continued to be arranged by families. However, more coerced forms include 'sale' marriage, that is, girls sold for a fixed quantity of goods, cash or simply to settle a family debt; bad dadan, a tribal form of dispute-settling in which the offending family offers one girl for marriage into the wronged family, for instance to settle a blood debt; and badal, when two families exchange their daughters in an attempt to minimize marriage costs.

Furthermore, women's rights activists face threats and intimidation, particularly if outspoken about women's rights, the role of Islam or the behaviour of commanders. In areas under the control of armed anti-Government groups, there are growing indications that women face systematic societal discrimination. For example, a significant number of female medical graduates is systematically refusing to work in rural areas, due to the fear of being targeted by insurgents. These developments affect women's access to health in a disproportionate way.

Access to education for girls is also severely curtailed. According to the Ministry of Education and aid agencies over five million school-age children (three million of them girls) have been deprived of education as a consequence of conservative customs, poverty, lack of education facilities and a culture of gender discrimination.

The deterioration of the security situation has also had a detrimental effect on education. Armed anti-Government groups have continued their systematic attacks on schools, teachers, pupils (particularly schoolgirls) and parents. According to the Afghan Ministry of Education (MoE), more than 600 primary, secondary and high schools closed due to such attacks. Up to 80% of schools are closed in the four southern provinces of Helmand, Kandahar, Zabul and Urozgan, with Helmand Province having only 54 schools, primarily for boys, functioning, compared to 223 schools open in 2002. Consequently, between 230,000 to 300,000 students have been deprived of an education in 12 provinces, according to MoE officials. Girls' schools are increasingly a target of attacks. Some 50% of security incidents at schools across the country were specifically directed against girls' schools despite the fact that they represent only 14.8% of the total number of primary, secondary and high schools in the country. Furthermore, female teachers are specifically targeted and higher bounties are offered for killing them. In November 2008, in a widely reported attack in Kandahar, 12 students and four teachers, all female, were sprayed with acid and suffered severe injuries.

Given the pervasive societal discrimination and the widespread sexual and gender based violence, Afghan women and girls, particularly those living in areas affected by the armed conflict or under the de facto control of armed anti-Government groups, may be at risk of persecution depending on their individual profile and circumstances. Failure to conform to conventional roles or transgression of social and religious norms may expose women and girls to violence, harassment or discrimination in Afghanistan. As such, women with particular profiles, including, but not limited to victims of domestic violence or other serious forms of violence, unaccompanied women or single heads of household, women with visible social or professional roles, such as journalists, human rights activists and community workers, may be at risk of persecution on the ground of membership of a particular social group. Where non-conformity with traditional roles is perceived as opposing traditional power structures, the risk of persecution may be linked to the ground of religion and/or political opinion. Furthermore, measures which restrict one's ability to earn a living so that survival is threatened, or severe limitations to accessing education or health services, may also amount to persecution.

The US State Department Human Rights Report on Afghanistan for 2008, published on 25 February 2009 stated, inter alia:

Women

The law criminalizes rape, which is punishable by death, but under Shari'a, which the country's laws draw from and cannot conflict, the criminalization did not extend to spousal rape. Under Shari'a, a rape case requires a woman to produce multiple witnesses to the incident, while the man need simply claim it was consensual sex, often leading to an adultery conviction of the victim. Adultery is defined in the Penal Code and designated a crime; premarital sex is not designated a crime, but local officials often considered it a "moral" offense. While the MOI reported 226 cases of rape during the year; however, the actual number of cases generally was believed to be much higher. Of the reported cases, 28 were charges of rape against females and 198 were of rape against males. The MOI reported 172 arrests in connection with rape cases. Statistics on convictions were unavailable. Rapes were difficult to document due to social stigma. Female victims faced stringent societal reprisal from being deemed unfit for marriage to being imprisoned. According to NGOs jail authorities frequently raped women imprisoned overnight in jail.

The Afghan penal code criminalizes assault, and courts entered judgments against domestic abusers under this provision. According to NGO reports, hundreds of thousands of women continued to suffer abuse at the hands of their husbands, fathers, brothers, armed individuals, parallel legal systems, and institutions of state such as the police and justice system. Many elements of society tolerated and practiced violence against women. A Kabul women's shelter reported receiving 50 new cases of domestic violence victims a month from MOWA referrals. According to the shelter's report the weak economy and poor security contributed to the incidence of domestic violence. Authorities rarely prosecuted abusers and only occasionally investigated complaints of violent attacks, rape, or killings, or suicides of women. If cases came to court, the accused were often exonerated or punished lightly. The director of a women's shelter in Kabul noted domestic violence occurred in most homes but went largely unreported due to societal acceptance of the practice. Domestic violence usually consisted of beating women and children and, less often, burning women. During the year, the AIHRC initiated additional efforts to collect statistics on violence against women.

There were at least 19 women's shelters across the country. The five shelters in Kabul were home to more than 100 women and girls. The Ministry of Women's Affairs (MOWA) and other agencies referred women to the centers, which were designed to give protection, accommodation, food, training, and healthcare to women escaping violence in the home or seeking legal support due to family feuds. According to the MOWA, as many as 20 women and girls were referred to the MOWA's legal department every day; however, space at the specialized shelters was limited. Women in need of shelter who could not find a place in the Kabul shelters often ended up in prison.

The concept of women's shelters was not widely accepted in society, as many persons treated them with distrust and did not understand their utility. The director of one shelter stated she always referred to the location as a mediation centre, as "shelter" was considered a negative word. Policewomen trained to help victims of domestic violence complained they were instructed not to do outreach to victims but simply to wait for victims to show up at police stations. This significantly hindered their work, as reporting domestic violence was not socially accepted. UNAMA reported police leadership often did not provide female officers with equipment or vehicles necessary to do outside investigations. A Herat-based NGO, however, reported recently graduated women police officers there were active in crime investigation including investigating cases of domestic violence. During the year, a local NGO conducted four domestic violence trainings for 240 ANP officers in Kabul, including those working in ANP Family Response Units. The Family Response Units are staffed primarily by female police officers and address violence and crimes against women, children, and families. They offer mediation and resources to prevent future instances of domestic violence.

Women continued to face pervasive human rights violations and remained largely uninformed about their rights under the law. Discrimination was more acute in rural areas and small villages. Women in urban areas continued to make strides toward greater access to public life, education, health care, and employment; however, the denial of educational opportunities during the continuing insurgency, as well as limited employment possibilities and the threat of violence, continued to impede the ability of many women to improve their situation.

Societal discrimination against women persisted, including domestic abuse, rape, forced marriages, exchange of girls to settle disputes, kidnappings, and honour killings. In some rural areas, particularly in the south, women were forbidden to leave the home except in the company of a male relative ...

According to a report released during the year by Womankind, 87% of women complained they were victims of violence, half of it sexual. According to the report, more than 60% of marriages were forced and, despite laws banning the practice, 57% of brides were under the legal marriage age of 16. The report stated many of these girls were offered as restitution for a crime or as debt settlement.

Local officials occasionally imprisoned women at the request of family members for opposing the family's choice of a marriage partner or being charged with adultery or bigamy. Women also faced bigamy charges from husbands who had deserted them and then reappeared after the woman had remarried. Local officials imprisoned women in place of a family member who had committed a crime but could not be located. Some women resided in detention facilities because they had run away from home due to domestic violence or the prospect of forced marriage. Several girls between the ages of 17 and 21 remained detained in Pol-e-Charkhi prison having been captured after fleeing abusive forced marriages.

The AIHRC documented a total of 76 honour killings throughout the year; however, the unreported number was believed to be much higher. In September, according to a local NGO, an 18 year-old woman in Kapisa Province was killed by her brother because she had run away from a forced marriage. Reportedly, after the woman ran away to a Kabul women's shelter the Governor of Kapisa intervened in the case, sheltered her, and forced the woman's mother to return her to Kapisa, resulting in her death.

Women occasionally resorted to self-immolation when they felt there was no escape from their situations. During the year the AIHRC documented 72 cases of self-immolation, in contrast to 110 cases in 2007. Other organizations reported an overall increase during the past two years. According to the AIHRC, almost all the women had doused themselves with gasoline and set themselves alight. In Herat Province, during the first six months of the year, the Herat city hospital alone recorded 47 cases of self-immolation, of whom 40 died. There have also been reports of relatives setting women on fire to create the appearance of self-immolation ...

There is no law specifically prohibiting sexual harassment.

Women who reported cases of abuse or who sought legal redress for other matters reported pervasive discrimination within the judicial system. Local family and property law were not explicitly discriminatory toward women, but in parts of the country where courts were not functional or knowledge of the law was minimal, elders relied on Shari'a and tribal custom, which generally were discriminatory toward women. Most women reported limited access to justice in tribal shuras, where all presiding elders were men; women in some villages were not allowed any access for dispute resolution. Women's advocacy groups reported informal intervention from the government through letters to local courts encouraging interpretations of the law more favourable to women ...

The UK Home Office, Country of Origin Information Report on Afghanistan of 18 February 2009, states in paragraphs 23.27- 23.30 about divorce:

Islamic Sharia and Constitution of the country have provided suitable rights for women and men, but practically and in some rules and practices of equality between men and women these rights are not ensured. Current legislation leaves women largely unprotected. A man can divorce his wife without due process. In the absence of officially enforced marriage and divorce registration women remain particularly open to abusive practices. A woman can remarry three months after divorce period (Edat). However, if challenged, she will have to provide witnesses to prove her divorce in court. The woman can initiate the divorce process if she has enough reasons to do so; accepted reasons among others include: her husband must be sick and it endangers her; her husband must fail to provide for the family; her husband must be absent for more than four years in the house or be sentenced for imprisonment of 10 years or more. In this case, the court will assign her mahr – divorce maintenance – and custody of girls until they reach their ninth birthday and boys until their seventh birthday.” (The Afghanistan Human Rights Commission report, December 2008).

The Womankind report of February 2008 noted “Afghan civil law contains numerous provisions that protect women's human rights in the family, such as their right to divorce if they are being maltreated. While seldom enforced, existing law provides a basis from which to advocate for enforcement and education about women's human rights.” Further, “Women's choices regarding marriage and divorce remain circumscribed by custom and discriminatory laws...” (Freedom House, 2008) UNHCR's December 2007 paper concurred “Women remain deprived of basic civil rights, including in cases of divorce, custody and with regard to inheritance rights.”

Womankind also recorded that “Stigma and shame surround divorced women...rendering them unmarriageable and subsequently, financially destitute. Polygamy is one of the few options available to divorced women, who have low social status but require a husband for financial dependence.” Also, “Women's economic dependence on male family members prevents them from seeking divorce or leaving abusive marriages.”

An IRIN News article dated 16 July 2008 reported that “In Afghanistan sexual relations between a man and a woman outside marriage are considered a serious crime and offenders can face death penalty and/or a lengthy prison sentence, depending on their marital status and other circumstances...Every year hundreds of female sex workers are sent to prison for allegedly having 'unlawful sexual relationships', according to women's rights activists...” However, high food prices, drought, unemployment and lack of socio-economic opportunities are pushing some women and young girls in northern Afghanistan into commercial sex work, women's rights activists and several affected women told IRIN...

The Human Rights Watch, in its report “We Have the Promises of the World” of 6 December 2009, on women's rights in Afghanistan, details emblematic cases of ongoing rights violations in five areas: attacks on women in public life; violence against women; child and forced marriage; access to justice; and girls' access to secondary education. The summary set out, inter alia:

Eight years after the fall of the Taliban, and the establishment of the Karzai government, Afghan women continue to be among the worst off in the world. Their situation is dismal in every area, including in health, education, employment, freedom from violence, equality before the law, and political participation ... The diminishing status of women's rights in Afghanistan came back into focus in March 2009 when the Shia Personal Status law, which was riddled with Taliban style misogyny, was passed by parliament and signed by President Hamid Karzai. The law regulates the personal affairs of Shia Muslims, including divorce, inheritance, and minimum age of marriage, but, as detailed below, severely restricts women's basic freedoms. ... the final outcome fell far short of expectations, apparently because President Karzai was intent on maintaining the electoral support of Shia fundamentalists. A month before the presidential election he issued by decree an amended version of the law which still includes articles that impose drastic restrictions upon Shia women, including the requirement that wives seek their husbands' permission before leaving home except for unspecified “reasonable legal reasons.” The law also gives child custody rights to fathers and grandfathers, not mothers or grandmothers, and allows a husband to cease maintenance to his wife if she does not meet her marital duties, including sexual duties. The furor over the Shia law highlighted the fragility of the gains made by Afghan women, human rights activists, and reform-minded politicians. The dominant political factions of Afghanistan remain ideologically hostile to many of the rights that many women have started to enjoy since the fall of the Taliban, such as freedom of movement, freedom to work, and the right to education. Many of the women interviewed for this report observed that the space for them to work as activists for change has diminished over the past few years, as the government has come to increasingly rely on conservative factions to maintain political control.

Violence against Women: Violence against women in Afghanistan is endemic. A nationwide survey of 4,700 women, published in 2008, found that 87.2% had experienced at least one form of physical, sexual, or psychological violence or forced marriage in their lifetimes. The forms of violence include rape, physical violence, forced marriage, and “honour killings.” Too often the attitudes of those in government and the police reflect the misogynous views, rooted in cultural traditions - but increasingly rejected by younger generations of Afghans – that underlie some of the violence against women. As Dr. Soraya Sobhrang, Women's Protection and Development Commissioner of the Afghanistan Independent Human Rights Commission (AIHRC), told us, “Police and judges see violence against women as legitimate, so they do not prosecute cases.” In the vast majority of cases women will not seek help because of their fears of police abuse or corruption, or their fears of retaliation by perpetrators of violence. Low social status and social stigmas deter women from going against their families to pursue justice, particularly in cases of domestic abuse. For a woman even to approach the police or courts requires her to overcome the public opprobrium that often still attaches to women who leave their houses without a male guardian, let alone women who seek protection from public authorities. In a 2008 study by the Women and Children Legal Research Foundation (WCLRF), only 15% thought that a woman disabled by violence should seek police help. For those who do seek help, many encounter lack of concern, if not outright hostility or abuse. Rape is not a crime in the Afghan Penal Code. Under the code, rapists can only be charged with “forced” zina, or adultery, which sometimes results in women also being prosecuted for zina. In a major achievement for civil society groups and women's rights activists, the president issued the Elimination of Violence Against Women law, which makes rape a crime. At the time of writing the law is being considered by parliament ...

Access to Justice: An underlying problem is women's access to justice. Police training involves little or no training in gender based violence or women's rights, particularly as training has been increasingly focused on counter-insurgency and security skills rather than crime prevention, crime solving and community policing. Deeply entrenched cultural prejudices prevent many women accessing the police or the courts because of the fear of being stigmatized a “bad woman.” Women face discrimination and prejudice in police stations and the courts from officials who often do not know the law but penalize women according to customary law, which places great emphasis on notions of female “honour” and chastity. The majority of women in jail are charged with extramarital sex (zina) or with “running away”- something that is not a crime in Afghan law or Sharia but often reflects a conservative cultural view that sees women as property of fathers or husbands. One widely welcomed policy response to this was the creation of female-staffed “Family Response Units” (FRUs) in police stations. But, as detailed in this report, there are serious problems with the implementation of FRUs, including insufficient numbers of women police officers and inadequate training, mentoring, and facilities...


Violation of Art. 6-1 (access to court - independent and impartial tribunal);Violation of P1-1;Remainder inadmissible;Pecuniary damage - financial reparation in the absence of restitution) - financial award;Pecuniary damage (loss of profits resulting from failure to comply with a final judgment) - claim dismissed;Pecuniary damage - financial award (reimbursement of taxes and duties paid) - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses (Convention proceedings) - claim dismissed

Alvina Gyulumyan;Corneliu Bîrsan;David Thór Björgvinsson;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Lucius Caflisch

The applicant was born in 1925 in Bucharest and lives in Le Cannet (France).

In 1952, under Decree no. 92/1950 on nationalisation, the State took possession of a building located at 16 Negustori Street in Bucharest which belonged to the applicant's parents, Romanian citizens and members of the Jewish faith.

On 18 September 1998 the applicant lodged an action to recover possession of the property with the Bucharest District Court. The action was directed against Bucharest local council, the Rental Property Administration Department (Departamentul de administrare a fondului locativ) and the State company Titan, which managed such properties. He alleged that, under Decree no. 92/1950, property belonging to certain social categories had been exempt from nationalisation and that his parents had belonged to one such category.

In a judgment of 24 June 1999 the court allowed the action on the ground that the State had taken possession of the property without any valid title. It ordered the defendants to restore the building and the adjoining land to the applicant.

Following an appeal by the Bucharest mayor's office acting on behalf of the local council, the Bucharest County Court upheld the decision of the first-instance court in a judgment of 6 December 1999.

The mayor's office lodged a further appeal with the Bucharest Court of Appeal, which in a final judgment of 21 June 2000 declared the appeal inadmissible for failure to give reasons.

In a decision of 25 September 2000 the mayor of Bucharest ordered the return of the building to the applicant.

On 9 November 2000 the applicant, accompanied by a bailiff, went to the building with a view to taking possession and found that it was occupied by the United States Peace Corps under a lease concluded with the State company Locato, which managed the buildings placed at the disposal of diplomatic missions in Romania.

On 14 November 2001 the applicant brought an action against Locato and the United States Peace Corps seeking the setting-aside of the lease and an order requiring the Peace Corps to vacate the building.

In a judgment of 30 May 2001 the Bucharest District Court dismissed the action. It observed that in 1992, by a government decision, ownership of the building had been transferred from the Bucharest mayor's office to the company managing the buildings used by diplomatic missions in Romania. That company had been letting the building to the United States Peace Corps since 1993. The latest lease, which had been concluded on 12 January 1999 and set the rent at 4,907 United States dollars (USD) per month, was due to expire on 31 March 2002. Taking the view that Locato had proper authority to manage the building, the court held that the disputed lease was valid.

In a judgment of 5 November 2001 the Bucharest County Court, on an appeal by Mr Hirschhorn, set aside the impugned decision and allowed the applicant's action. The County Court observed that in its final judgment of 24 June 1999 the Bucharest District Court had held that the State had appropriated the building without any valid title. Taking the view that the State could not dispose of a property which did not belong to it, the court set aside the lease and ordered the eviction of the tenant organisation. Locato appealed on points of law.

On 21 December 2001 the bailiff was authorised by the Bucharest District Court to evict the tenant organisation under the decision of 5 November 2001. On 31 January 2002 he directed Locato to comply with the decision.

In a letter of 6 February 2002 Locato informed the bailiff that the building was the property of the State and that the tenant organisation had diplomatic immunity. That being so, it considered that enforcing the eviction order would be inappropriate and liable to damage Romania's image internationally.

On 11 and 20 February 2002 the bailiff went to the building but was refused entry by a representative of the United States Peace Corps on the ground that the Peace Corps was a United States governmental organisation which had diplomatic immunity and could not therefore be evicted.

On 25 February 2002 the bailiff wrote to the President of the Bucharest Court of Appeal informing him of the difficulties encountered in enforcing the judgment of 24 June 1999 and the decision of the mayor of Bucharest, as Locato and the United States Peace Corps were invoking diplomatic immunity. The letter included the following passage:

“Given the applicability of certain international law conventions in situations such as this, we would be grateful if you could consider the possibility – and inform us accordingly – of taking specific enforcement measures, in view of the fact that the writ of execution is supposed to take effect and that the appeal by Locato against the Bucharest County Court judgment of 5 November 2001 is pending before your court and has been set down for hearing on 26 February 2002.”

On 4 March 2002 the President of the Bucharest Court of Appeal replied to the bailiff's letter and informed him that his concerns had been looked into by an inspecting judge, whose report he forwarded to the bailiff. The report indicated that under the Vienna Convention of 18 April 1961 the property of diplomatic missions was inviolable. As the immunity from jurisdiction extended to enforcement procedures, the inspecting judge concluded that the applicant could not regain possession of his building, and asked the bailiff to advise him to apply for compensation corresponding to the value of the building on the ground that it was not possible to have the judgment of 24 June 1999 enforced.

Meanwhile, on 20 February 2002, the applicant, who lives in France, sent a fax to the registry of the Court of Appeal stating that he was dispensing with the services of his lawyer and requesting an adjournment of the hearing scheduled for 26 February so that he could instruct a replacement.

At the hearing of 26 February the Court of Appeal refused the request for an adjournment, taking the view that the applicant had had sufficient time to appoint a new lawyer. However, it adjourned delivery of the judgment, first until 5 March and then until 12 March 2002, in order to allow the applicant to submit conclusions in writing.

In a final judgment of 12 March 2002 the Civil Division of the Bucharest Court of Appeal, sitting as a bench of three judges, allowed Locato's appeal on points of law and dismissed the applicant's action. It confirmed the validity of the lease, finding that it had been entered into in good faith since, although the company had not in fact been the owner of the building in question at the time of signature of the lease, it had appeared to be.

On 21 March 2002 the Bucharest District Court rejected a complaint by the applicant against the bailiff alleging that the latter had failed to take action to enforce the judgment of 24 June 1999. The court observed that the bailiff had gone to the building but had been informed that the United States Peace Corps enjoyed immunity from jurisdiction. Accordingly, the court held that the bailiff could not be said to have failed to enforce the judgment in question.

On 9 August 2001, on the basis of Law no. 10/2001 on the rules governing immovable property wrongfully nationalised by the State between 6 March 1945 and 22 December 1989 (“Law no. 10/2001”), the applicant requested that Locato return the property to him. His request was rejected by a decision of 9 October 2001.

The applicant appealed against that decision to the Bucharest County Court and requested that Locato be evicted from the building. He argued that the building belonged to him by virtue of the judgment of 24 June 1999.

In a judgment of 13 May 2002 the County Court allowed the claim for restitution of the building but rejected the eviction request on the ground that the Peace Corps was not a party to the proceedings. Locato appealed on points of law.

By a governmental decision (no. 533) of 30 May 2002, Locato became the State Diplomatic Property Management Agency (Regia autonoma Administratia patrimoniului protocolului de Stat – “the Agency”). The applicant's property continued to appear in the lists attached to that decision as State property managed by the Agency.

By judgment of 31 March 2004 the Bucharest Court of Appeal allowed the appeal and dismissed the applicant's claim on the ground that Mr Hirschhorn had not adduced evidence either that title to the building had passed to him as his parents' heir or that he had failed to be compensated contrary to the agreement concluded in 1959 between France and Romania concerning property formerly owned by French citizens and nationalised by the Romanian State.

An appeal on points of law by the applicant is currently pending before the High Court of Cassation and Justice.

In an action to recover possession lodged with the Bucharest County Court on 15 August 2002, the applicant requested that the Agency return the building, that the lease concluded with the Peace Corps be set aside and the latter evicted, and that the rent received by the Agency under the lease be paid to him.

By judgment of 17 February 2003 the County Court declared the action inadmissible on the ground that the applicant could not lodge an ordinary action to recover possession while the action based on Law no. 10/2001 was still pending.

The applicant appealed to the Bucharest Court of Appeal, which upheld the judgment on 29 October 2003. The applicant then lodged an appeal on points of law with the High Court of Cassation and Justice. The latter, in a judgment of 7 July 2005, allowed the appeal and remitted the case to the Bucharest Court of Appeal. The proceedings are still pending.

The Agency was reorganised by Government Decision no. 60 of 21 January 2005. The applicant's building is still on the list of State-owned properties managed by the Agency.

Although the lease concluded with the United States Peace Corps expired on 31 March 2002, that organisation continues to occupy the building. The Government have not provided any details as to the legal basis for the occupancy.

The documents supplied by the applicant show that he has paid all the taxes and duties due on the building. However, in 2004 and 2005 the Agency also paid taxes and duties into the local budget in respect of the building.

Under the Administration of Justice Act (Law no. 92/1992) in force at the material time, the president of the court of appeal performed mainly administrative, organisational and supervisory duties. The relevant provisions of the Act read as follows:

“The president [of the court of appeal] and, where appropriate, the presidents of the divisions [of that court] shall decide on the composition of the benches...”

“Where the president, the vice-president or the division president is a member of the bench, he or she shall preside. In all other cases the president or division president shall appoint the presiding judge of the bench.”

“The Minister of Justice shall be responsible for the proper organisation and operation of the justice system as a public service. The inspecting judges of the courts of appeal shall keep the Minister of Justice informed of the functioning of the courts and of any irregularities liable to compromise the standard of judicial activity and the application of the laws and regulations coming within the jurisdiction of the courts of appeal.

The presidents and vice-presidents of the courts shall monitor the organisation and quality of the service and compliance with the laws and regulations... The presidents of the courts of appeal may exercise this prerogative through the intermediary of the inspecting judges of the court of appeal.

In no circumstances may the monitoring activities entail interference in the conduct of proceedings in progress or call into question a decision already given...”

“Promotion for judges shall be on the basis of merit, as attested by the appraisals carried out by their superiors. Appraisals shall be conducted annually and shall reflect the performance of the persons concerned, their conduct in the workplace and in society, their professional qualities and their career prospects.”

“Judges shall be prohibited from providing advice, orally or in writing, concerning ongoing cases, even if the case in question is being heard by a court other than the one in which they sit. They may not express opinions in public concerning ongoing cases.”

“Judges' disciplinary liability shall be incurred in the event of irregularities in the performance of their duties or conduct liable to damage the interests of the service or the reputation of the justice system.”

“Disciplinary proceedings ... shall be initiated by the Minister of Justice...”

“In order to initiate disciplinary proceedings..., a preliminary investigation ordered by the Minister of Justice shall be compulsory.

The investigation shall be carried out either by judges of at least the same ranking as the judge under investigation, by general inspectors or by other Ministry officials assimilated to judges.”

“On receiving the findings of the investigation, the Minister may refer the matter to the Supreme Council of the Judiciary.

The Supreme Council shall give a decision accompanied by a statement of reasons...”

The position of inspecting judge at the court of appeal was abolished by Law no. 247 of 19 July 2005. However, the possibility for the president or vice-presidents of the court of appeal to appoint judges to carry out inspections was maintained. Nevertheless, these inspections must respect judges' independence and comply with final court decisions.

Article 66 of Law no. 92/1992 was repealed by the Status of Judges Act (Law no. 303/2004), which stipulates that judges' performance shall be assessed every three years by a committee under the authority of the Supreme Council of the Judiciary.

The method for designating the judges to sit on the benches of the courts of appeal was amended by the Administration of Justice Act (Law no. 304/2004), which states that the composition of the benches shall be decided by a panel within each court of appeal, made up of the president and six members elected by the general assembly of judges.

Under Law no. 317/2004 on the Supreme Council of the Judiciary, disciplinary proceedings are a matter exclusively for a disciplinary committee within the Supreme Council, to which any interested party may apply.

The relevant international provisions are as follows:

“For the purpose of the present Convention, the following expressions shall have the meanings hereunder assigned to them:

(i) The 'premises of the mission' are the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the residence of the head of the mission.”

“1.The functions of a diplomatic mission consist, inter alia, in:

(a) Representing the sending State in the receiving State;

(b) Protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law;

(c) Negotiating with the Government of the receiving State;

(d) Ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State;

(e) Promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations.

“1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.

The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.

The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.”

“A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State if the proceedings relate to:

a. its rights or interests in, or its use or possession of, immovable property; or

b. its obligations arising out of its rights or interests in, or use or possession of, immovable property and the property is situated in the territory of the State of the forum.”

“No measures of execution or preventive measures against the property of a Contracting State may be taken in the territory of another Contracting State except where and to the extent that the State has expressly consented thereto in writing in any particular case.”

The relevant provisions of this Convention read as follows:

“1. For the purposes of the present Convention:

(b) “State” means:

(i) the State and its various organs of government;

(iii) agencies or instrumentalities of the State or other entities, to the extent that they are entitled to perform and are actually performing acts in the exercise of sovereign authority of the State;

“A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State subject to the provisions of the present Convention.”

“1. A State shall give effect to State immunity under article 5 by refraining from exercising jurisdiction in a proceeding before its courts against another State and to that end shall ensure that its courts determine on their own initiative that the immunity of that other State under article 5 is respected.

A proceeding before a court of a State shall be considered to have been instituted against another State if that other State:

(a) is named as a party to that proceeding; or

(b) is not named as a party to the proceeding but the proceeding in effect seeks to affect the property, rights, interests or activities of that other State.”

“Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to the determination of:

(a) any right or interest of the State in, or its possession or use of, or any obligation of the State arising out of its interest in, or its possession or use of, immovable property situated in the State of the forum;

(b) any right or interest of the State in movable or immovable property arising by way of succession, gift or bona vacantia; or

(c) any right or interest of the State in the administration of property, such as trust property, the estate of a bankrupt or the property of a company in the event of its winding up.”

“No post-judgment measures of constraint, such as attachment, arrest or execution, against property of a State may be taken in connection with a proceeding before a court of another State unless and except to the extent that:

(a) the State has expressly consented to the taking of such measures as indicated:

(i) by international agreement;

(ii) by an arbitration agreement or in a written contract; or

(iii) by a declaration before the court or by a written communication after a dispute between the parties has arisen; or

(b) the State has allocated or earmarked property for the satisfaction of the claim which is the object of that proceeding; or

(c) it has been established that the property is specifically in use or intended for use by the State for other than government non-commercial purposes and is in the territory of the State of the forum...”

“The Peace Corps representative and his/her staff members will be granted the same treatment as personnel of comparable rank in the United States Embassy in Romania, except that they will not have diplomatic status and immunity.”


The applicant, Larisa Konstantinovna Litovchenko, is a Russian national, who was born in 1963 and lives in Khabarovsk. She is represented before the Court by Mr A.Y. Leontyev and Mr J.M. Burns, lawyers practising in St. Petersburg.

In 1994 the applicant, a former gynaecologist/obstetrician joined the Jehova’s Witnesses.

In the summer of 1996 the applicant entered State Maternity Hospital No. 2 in Khabarovsk to give birth to her third child. On her admission to the maternity ward at 8:00 a.m. on 4 July 1996, she explained to the duty doctor, Dr Bella Chebonenko, that she was a Jehova’s Witness and conscientiously objected to blood transfusions on religious grounds. She asked the medical staff to use effective alternatives that were available. Dr Chebonenko accepted the applicant as a patient. The applicant also gave Dr Chebonenko an advance directive, which had been signed and dated before witnesses, expressly refusing a blood transfusion (even if doctors believed it necessary to preserve her life or health), agreeing to accept alternative methods of treatment (non-blood volume expanders) and releasing the medical personnel from all liability for any unfavourable consequences resulting from her decision.

At 4:00 p.m. on 4 July 1996 the applicant gave birth to a baby girl. Although the delivery was uncomplicated, bleeding gradually ensued in the postnatal stage. An entry in the hospital records at 6:00 p.m. stated:

“The woman categorically refuses transfusions of blood and blood components (for religious reasons).”

Between 4 and 6 July 1996, instead of adhering to the applicant’s request for available alternatives to be used, the doctor rendered the applicant unconscious with anaesthetic and began to give her a blood transfusion. According to the hospital records, anaesthetic was administered

“with the aim of rendering her unconscious, as she refuses a blood transfusion for religious reasons.”

After the applicant regained consciousness and discovered that she was receiving a blood transfusion, she tried to close the regulator valve and stop the transfusion. The doctor took a syringe and administered a stronger anaesthetic. The hospital records stated:

“During the transfusion the woman periodically turned off the transfusion system, refusing the transfusion.”

Over the next three days the applicant received more than thirteen litres of blood, in addition to blood substitutes. The foreign blood came from twenty different donors, including fresh whole blood that had not been tested for HIV virus, Hepatitis B, Hepatitis C, and other blood-borne diseases.

An entry in the hospital records for 7 July 1996 stated:

“2:00 a.m. [The woman] is conscious, she orients herself properly, but has an inappropriate attitude towards the transfusion of blood components (which are prohibited by her faith).”

On 5 July 1996, the day after the doctors began the blood transfusion, they obtained consent from the applicant’s husband. The hospital records stated:

“The woman belongs to the Jehovist sect and categorically refuses blood transfusions. All blood transfusions were conducted under anaesthetic with the husband’s consent.”

On 8 July 1996 the applicant was transferred to the intensive care unit of the Territorial Clinical Hospital No. 1 in Khabarovsk (a hospital that accepts severe cases) for treatment for her condition, which continued to be serious, her symptoms including persistent fever and blood poisoning. The applicant told her new doctors that she wanted them to use alternatives to blood, and they agreed.

Ultrasound tests to the applicant’s abdomen revealed an unknown fluid that was the source of the problem, and doctors began non-invasive treatment. The applicant’s serious condition, however, continued for over three weeks. Suspecting an abscess, the doctors finally decided to operate on 30 July 1996. The operation revealed that the cause of the poisoning was 400 ml of thin blood in the applicant’s abdomen following the blood transfusions at Maternity Hospital No. 2.

In September 1996 the regional insert Dalinform to the national Argumenty i Fakty newspaper printed a story containing detailed information on the applicant’s treatment in Maternity Hospital No. 2, including her name (given as “Larisa L.”), age, religion, profession, number of years’ work experience, and the name of the hospital and the city. The applicant, who was easily identifiable from the publication, had not given her prior consent to the article or published any information herself. The newspaper story said that the information had come from hospital doctors, but they denied this.

On 4 July 1997 the applicant filed a civil action in the Industrial District Court of Khabarovsk requesting a judicial declaration that the fact that she had been forced to have blood transfusions at the State hospital had violated her rights as a patient to withhold her consent and to medical privacy, as well as her constitutional rights to respect for her private life and freedom of conscience.

On 10 December 1997 the Industrial District Court of Khabarovsk found that the applicant had made a prior written request signed before two witnesses for alternatives to blood to be used. The court dismissed her claim, stating that no mechanism existed in Russian law to enable the right to refuse medical treatment to be exercised and that the choice of treatment was the doctors’. It also dismissed the claims against the doctors for breach of medical privacy, holding that that issue had to be resolved by a separate libel action against the newspaper.

On 27 January 1998 the Civil Chamber of the Khabarovsk Regional Court allowed the applicant’s appeal and ordered a retrial.

On 12 November 1998, after three postponements due to the doctors’ repeated failure to appear in court, the Industrial District Court of Khabarovsk began a new hearing.

On 24 August 1999, after further adjournments, the court appointed a team of independent medical experts to compile a report. The team included four pre-eminent Russian doctors, specialising in obstetrics, intensive care, anaesthetics and medical ethics. The experts, whose practical experience ranged from twenty-eight to forty-six years, reviewed the entire court file, including all the hospital records and the testimony of all the doctors concerned.

On 20 March 2000 the experts concluded that the blood transfusions had been unnecessary and should have been avoided by adopting standard medical practice that would have been available to the treating doctors in 1996 in the Maternity Hospital No. 2. The applicant had had toxaemia, and bleeding had been anticipated. It had developed into disseminated intravascular coagulation. The necessary preventive measures had not been carried out. Other measures had been taken late or had been incorrect and had only served to exacerbate the applicant’s condition. The experts’ report highlighted critical errors in the applicant’s treatment.

On 4 July 2000 the Industrial District Court dismissed the applicant’s claims in spite of the Khabarovsk Regional Court’s ruling on appeal that Section 33 of the Basic Law of the Russian Federation on Health Protection “provides for a citizen’s right to refuse medical treatment, and not medical assistance.” Instead, the Industrial District Court held that under Russian law, it was for the doctor, not the patient, to decide the treatment. The court also found that the doctors’ intervention when the applicant had attempted to stop the transfusion by closing the valve was lawful, as applicable laws did not permit euthanasia. The court disregarded the conclusions of the team of experts because its findings were largely based on modern medical theory and practice in the period of 1997-99 while the incident involving the applicant had taken place in 1996.

On 21 September 2000 the Civil Chamber of the Khabarovsk Regional Court denied the applicant’s appeal for reasons similar to those of the trial court.

The Russian Constitution provides:

“Everyone has the right to freedom and personal inviolability.”

“Everyone has the right to respect for his private life and family life, his home and correspondence.”

The Basic Law of the Russian Federation on Health Protection, No. 5487-I, of 22 July 1993 recognises patient’s rights to “integrity” or personal autonomy and self-determination:

“Patients have the following rights when requesting or receiving medical assistance:...

(7) fully to make an informed decision on whether to consent to medical treatment in accordance with Section 32 of this Law;

(8) to refuse medical treatment in accordance with Section 33 of this Law...”

“The citizen’s informed voluntary consent is a prerequisite for medical treatment...”

“A citizen or his legal representative has the right to refuse medical treatment or to demand that it cease, as except in those instances set out on Section 34 of this Law.”

“Medical aid (medical examinations, hospitalisation, observation and isolation) shall be permitted without the consent of the patient or his legal representatives if he suffers from a contagious disease or a serious psychiatric disorder or has acted in a dangerous manner on the grounds and under the procedure order prescribed by the legislation of the Russian Federation.

A decision on whether to conduct a medical examination on a person or to admit him for observation without his or his legal representative’s consent shall be taken by a doctor (or a council of doctors), while a decision on whether to hospitalise a person without his or his legal representative’s consent shall be taken by a court of law.

The provision of medical assistance without the consent of the patient or his legal representatives, associated with anti-epidemic measures, shall be regulated by healthcare legislation.

Persons suffering from serious psychiatric disorders may be examined and admitted to hospital without their consent under the procedure prescribed by the Law of the Russian Federation on Psychiatric Help and the Guarantees of the Rights of People at the Time it is given.

Compulsory medical measures may be imposed on persons who have acted in a dangerous manner on the grounds and under the procedure established by the legislation of the Russian Federation.

Such persons shall remain in a medical institution until there cease to be any grounds for their hospitalisation without their consent or until a court order.”