Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström

On 9 August 2004 the applicant lodged a civil claim concerning a property issue against eleven other persons with the Court of First Instance (Osnovni sud) in Herceg Novi.

On 15 March 2011 the Court of First Instance in Herceg Novi ruled partly in favour of the applicant.

On 18 March 2011 the applicant lodged an appeal with the High Court (Viši sud) in Podgorica.

On 8 November 2013 the High Court in Podgorica quashed the judgement and remitted the case back to the Court of First Instance.

On 6 July 2015 the Court of First Instance in Herceg Novi ruled against the applicant. On 3 August 2015 the applicant lodged an appeal against this judgment. The proceedings are still pending at the second instance.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the inadequate conditions of their detention. Some applicants also raised complaints under Article 13 of the Convention.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicants complained of the inadequate conditions of their detention and of the lack of any effective remedy in domestic law. Some applicants also raised other complaints under the provisions of the Convention.


Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The applicant was born in 1968 and lives in Kharkiv.

At the beginning of November 2008 some equipment was stolen from the enterprise at which the applicant worked.

The Kharkiv Ordzhonikidze District Police Department invited the applicant and one of her colleagues for questioning in respect of the theft.

On 8 November 2008, at 11.15 a.m., the applicant came to the police station.

At about 11.35 a.m. on 8 November 2008 a senior detective officer, T., accompanied the applicant to the fourth floor of the police station. He asked her to wait in the corridor and entered office no. 56. Five minutes later the applicant heard a woman’s scream emanating from that office. T. opened the door and directed an officer passing by to take the applicant to his office. She was made to wait there for about twenty minutes. Then T. took her to office no. 56. He pushed her inside, twisted her arms behind her back and handcuffed her, even though she had offered no resistance.

T. and his colleague, S., who was also in the office, intimidated the applicant with a view to making her confess to the investigated theft. They told her that her colleague, Ms L., had already started to “crack”. The applicant noticed Ms L.’s belongings on the floor. She concluded that it was her scream that she had heard.

Having failed to obtain a confession from the applicant, T. and S. made her sit on a chair, put a plastic bag over her head and started to strangle her. At the same time they struck her head, face and mouth so that she could not bite through the bag. The applicant fainted several times. When she told the officers she needed to use the toilet, S. hit her in the stomach and the head. She fainted once again and urinated involuntarily. Sometime later the applicant noticed the presence of another officer, P., in the office.

After several hours of ill-treatment, the applicant was taken to another office where she stayed for about twenty minutes. Thereafter she was brought before a female officer, who conducted her formal questioning.

At about 6 p.m. the applicant signed the official report of the questioning. She was then taken to the office of the head of the search unit, who stated that she was the main suspect in the theft case and that all her colleagues had indicated her as the likely thief. The applicant complained about her ill-treatment. Her complaint was ignored.

She was taken again to office no. 56, where the officers threatened her and tried to pressure her into confessing. She repeatedly refused to do so and professed her innocence. The applicant was forced to write a statement that she had no complaints about the way the police had treated her.

At about 8 p.m. on 8 November 2008 she was released.

The applicant submitted to the Court five colour photographs of herself in which extensive bruising on her both arms and forearms is visible.

On 9 November 2008 (the day following her release) the applicant felt unwell and called an ambulance.

From 9 to 27 November 2008 she underwent in-patient hospital treatment for a closed head injury, concussion, soft tissue contusions on the head, upper and lower limbs, bruising of the abdominal wall, lumbar osteochondrosis and asthenia.

On 9 November 2008 the hospital authorities informed the Ordzhonikidze Police Department about the applicant’s injuries allegedly inflicted on her by police officers.

On 10 November 2008 the applicant complained to the Kharkiv Ordzhonikidze District Prosecutor’s Office (“the Ordzhonikidze Prosecutor’s Office”) about her ill-treatment. Ms L. lodged a similar complaint.

On 18 November 2008 the police department refused to open a criminal case following the information from the hospital administration.

On 12 December 2008 the Ordzhonikidze Prosecutor’s Office opened a criminal case against the police officers on suspicion of their exceeding their powers by engaging in violent and degrading treatment. As a result, on 16 December 2008 the prosecutor also quashed the ruling of 18 November 2008.

After her discharge from hospital, the applicant remained on sick leave until 19 December 2008.

On 15 January 2009 the investigator seized the trousers which the applicant had been wearing on 8 November 2008. A forensic immunological examination discovered traces of her urine on them.

From 27 November 2008 until 26 January 2009 a forensic medical expert evaluation was carried out with a view to establishing the applicant’s injuries and their nature. That evaluation was based on her medical file, as well as a medical examination of her. The expert considered it established that, at the time of her hospitalisation, the applicant had had bruises to both arms that had been inflicted by blunt objects a day to three days previously. The expert stated that it was impossible to establish more precisely the time at which those injuries had been inflicted. As regards the soft tissue contusions, the expert did not find it necessary to take that diagnosis into account as being based merely on a personal opinion of the doctor who had examined the applicant. The same doctor’s diagnoses of a closed head injury and concussion were considered by the expert as not sufficiently supported by “clinical data”. Lastly, the expert report stated that the applicant was suffering from neurotic asthenia, but that it was impossible to establish its origin.

On 9 February 2009 a forensic expert evaluation was carried out of the applicant’s handwritten statement on the official report on the questioning of 8 November 2008. The expert concluded that she had been “in an unusual state” when writing that note.

On the same date officer T. challenged the decision of 12 December 2008 before the Ordzhonikidze District Court (“the Ordzhonikidze Court”).

On 24 February 2009 the Ordzhonikidze Court rejected his complaint.

On 19 March 2009, however, the Kharkiv Regional Court of Appeal (“the Court of Appeal”) quashed that decision and remitted the case to the first-instance court for fresh examination.

Between 3 March and 2 April 2009 another forensic medical expert evaluation of the applicant’s injuries was carried out. It concluded that she had sustained numerous bruises on her arms, shoulders and thighs. These could have been inflicted at the time and in the circumstances described by her. Because of the delay before the first forensic medical examination was undertaken, it appeared impossible to reach more specific findings.

On 22 April 2009 the Ordzhonikidze Court quashed the prosecutor’s decision of 12 December 2008. This ruling was quashed by the Court of Appeal on 7 May 2009.

On 5 June 2009 the Ordzhonikidze Court once again quashed the prosecutor’s decision of 12 December 2008. On 25 June 2009 this ruling too was quashed by the Court of Appeal.

On 18 November 2009 the applicant and Ms L. identified the officers who had ill-treated them from photographs shown to them by the investigator.

On 4 February 2010, however, the investigator closed the criminal case against the police officers, citing a lack of proof of their guilt.

On 30 September 2010 the Ordzhonikidze Court upheld that decision.

On 15 November 2010 the Court of Appeal quashed the ruling of the first-instance court and remitted the case to it for fresh examination.

On 21 December 2010 the Ordzhonikidze Court allowed the applicant’s complaint and quashed the investigator’s decision of 4 February 2010.

On 13 January 2011 the Court of Appeal upheld that ruling.

In March and May 2011 the applicant enquired about the progress of the investigation. Her enquiries received no answer.


Remainder inadmissible;Violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general} (Article 4 of Protocol No. 7 - Acquittal;Right not to be tried or punished twice);Non-pecuniary damage - award

Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant was born in 1961 and lives in Hässelby, Sweden.

By a decision of 1 June 2004 the Tax Agency (Skatteverket), noting that the applicant ran two restaurants together with her husband, Mr Shibendra Dev (who also lodged an application before the Court; no. 7362/10), found that they should each declare half of the proceeds and the costs of that business. As the applicant, in her tax return, had not declared all her income and had, moreover, not declared it in the correct manner, the Agency revised upwards her income for 2002 (i.e. the taxation year 2003), finding her liable to pay tax on undeclared business income (inkomst av näringsverksamhet) amounting to 764,945 Swedish kronor (SEK; approximately 83,000 euros (EUR)). It also increased her liability to value-added tax (mervärdesskatt; “VAT”) for 2002 by SEK 379,365 (approximately EUR 41,000). Finally, as the information supplied by the applicant in her tax return was found to be incorrect and the revision had had to be made under a discretionary assessment procedure, given the business’s deficient accounting, the Agency ordered her to pay tax surcharges (skattetillägg), amounting to 40% and 20%, respectively, of the increased income tax and VAT.

Following the applicant’s appeal, the Tax Agency, on 18 March 2005, made an obligatory review of its decision but did not change it.

On 10 January 2007 and 29 October 2008, respectively, the County Administrative Court (länsrätten) in Stockholm and the Administrative Court of Appeal (kammarrätten) in Stockholm upheld the Tax Agency’s decision.

By a decision of 20 October 2009 the Supreme Administrative Court (Regeringsrätten) refused leave to appeal.

Criminal proceedings were initiated against the applicant on 5 August 2005 in regard to the above conduct.

By a judgment of 16 December 2008 the Stockholm District Court (tingsrätt) convicted the applicant of an aggravated bookkeeping offence (grovt bokföringsbrott). She was given a suspended sentence and ordered to perform 160 hours of community service. The offence concerned the same period as the above-mentioned tax decisions, that is, the year 2002. The District Court found that the bookkeeping of the restaurant business had been seriously deficient and that the applicant and her husband had been responsible for failing to account for considerable proceeds and VAT, which had involved large profits for them. In regard to the public prosecutor’s claim that the applicant was guilty also of an aggravated tax offence (grovt skattebrott), the court considered that it could not be ruled out that, as she claimed to have relied on her husband running the business properly and their accountant having entered the correct figures in her tax return, she had been unaware that her tax return contained false information. Thus, it had not been shown that she had intended to give incorrect information, for which reason the indictment was dismissed in this respect.

The applicant did not appeal against the District Court’s judgment, which consequently acquired legal force on 8 January 2009.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Civil proceedings;Right to a fair trial;Article 6-1 - Reasonable time);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the excessive length of civil proceedings and of the lack of any effective remedy in domestic law. The applicant in application no. 45879/07 also raised another complaint under the provisions of the Convention.


András Sajó;Barbara Leitl-Staudinger;Dmitry Dedov;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque

The applicant, ATV Privatfernseh-GmbH, is a broadcasting company established under Austrian Law with its seat in Vienna. It is represented before the Court by Mr G. Lansky, a lawyer practising in Vienna.

The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.

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

On 19 November 2007 the applicant company aired a broadcast as part of a society programme that showed the then Federal Minister for Health, Families and Youth, A.K., and her partner, P.I., entering a restaurant in Mayerling. The report concerned mainly the Minister’s presence at a charity event – an exhibition of contemporary art in a gourmet restaurant and the sale of towels for the benefit of female sport cycling. The commentary referred to the Minister’s own forthcoming cookery book on roast pork and the chef’s creations for the evening.

The report started with the Minister arriving, with her new partner at her side. The introductory commentary stated that they were currently Austria’s most observed couple, but rarely appeared in public together. However, that evening the divorced Minister and her new partner, P.I., a senior manager with Austrian railways, came to H. restaurant in Mayerling together to “do good and eat well”.

Overlaying images of the couple entering the restaurant and A.K. greeting people, the voice-over continued, stating that A.K. looked fabulous and showed no trace of the difficulties she had successfully left behind her in 2007. On the other hand P.I., the new man at her side, was not entirely prepared for the media’s interest: P.I. was in his early thirties, division manager with a company of the Austrian railways and in the middle of divorce proceedings. Because of the pending court proceedings, P.I. did not want to pose officially next to his new love.

The images showed P.I. entering beside A.K., later stepping aside and stroking a puppy. A.K. also cuddled the puppy and expressed her love for animals in the direction of the camera.

On 19 December 2007 P.I. lodged an action under Section 7 of the Media Act (Mediengesetz) claiming that the commentary stating that “P.I. was the new man at A.K.’s side”, that “he was in the middle of divorce proceedings” and that “because of the pending proceedings he did not want to pose at his new love’s side” had violated his most intimate personal sphere.

On 26 March 2008 the Vienna Regional Court (Landesgericht) ruled that the statement that P.I. was “in the middle of divorce proceedings”, and that these proceedings were pending, infringed his most intimate personal sphere. The court ordered the applicant company to pay compensation in the amount of 500 Euros (EUR), to publish the operative part of the judgment and to bear the costs of the proceedings. However, it dismissed P.I.’s claim that the statement that he was “the new man at A.K.’s side” and refused to pose with “his new love” compromised his privacy.

The court found that the media had already reported on A.K.’s new relationship in summer 2007. The print media had also reported that P.I. was still married at the time and that divorce proceedings were pending. P.I. had, however, lodged proceedings under the Media Act against those publications in at least thirteen cases with the Vienna Regional Court alone. P.I. never gave interviews on his personal situation and did not pose for press photographs with A.K. P.I. had been seen in public with A.K. when they went out to dinner on several occasions, or attended several smaller parties and two weddings.

The court found the statement on the pending divorce proceedings to be compromising, since the end of a relationship was often considered a personal failure and resulted in adverse reactions from the public, ranging from pity to malice. Divorce proceedings were not public. Pending divorce proceedings had thus no public consequence; only the divorce itself publicly testified to the end of a marriage. While other media had reported on P.I.’s failed marriage before the airing of the broadcast, that had happened without his consent. Furthermore, he had objected to those reports by initiating court proceedings against them. Therefore, the applicant company could not argue that the facts broadcast had already been spread by other media.

As concerns the reference to the relationship between P.I. and A.K., the court found that, from their appearing together at the charity dinner, the media could assume that P.I. would consent to the reporting. That assumed consent did not include the statements on his pending divorce. The mere fact that A.K. was the Minister for Health, Families and Youth did not suffice to bring the private person P.I. into the public arena.

Both the applicant company and P.I. appealed against this judgment. On 15 April 2009 the Vienna Court of Appeal (Oberlandesgericht Wien) partly followed P.I.’s appeal and declared in addition that P.I. had also been hurt in his most intimate personal sphere by the statement that he was “the new man at A.K.’s side, but did not want to pose with his new love”. The applicant company was ordered to pay compensation in the amount of EUR 600 and to publish the operative part of the judgment. It was also ordered to bear the costs of the appeal proceedings.

The Court of Appeal referred to case-law according to which the “intimate personal sphere”, within the meaning of the Media Act, not only encompassed events and situations confined to home, but also a “private area within a public space” (“Privatöffentlichkeit”) meaning that private events in a public space were nevertheless not open for just anyone. When the applicant company thus complained that A.K. and P.I. had appeared in public before the charity dinner, the court referred to this concept of “private area within a public space”. The mere fact that the relationship between P.I. and A.K. had been witnessed in public before was not decisive for determining whether a specific media report was capable of compromising P.I., or not. The allegation of an extramarital affair must be considered to affect adversely the intimate sphere within the meaning of Section 7 of the Media Act, as must the statement on pending divorce proceedings, and in this context the information on a “new partner” and a “new love”. The Court of Appeal reiterated that the phrase “pending divorce proceedings” clearly has a different meaning from “finality of divorce”, since a couple could still decide to discontinue divorce proceedings. However, according to the jurisprudence of the civil courts, the intention to divorce was part of a person’s intimate sphere. In response to the applicant company’s argument that P.I. himself had demonstrated the end of his marriage in public by appearing with A.K., the Court of Appeal found that such appearances were not comparable to those of public figures within the context of their political work or state functions, but needed to be seen as belonging to that already-mentioned “private area within a public space”. Those appearances had not had any official character and did not allow the conclusion that P.I. had opened up his private life to the public arena. They could also not be interpreted as consent to exclusive media reporting – not only on the couple attending a charity dinner, but also on their conducting an extramarital affair, being partners and in love, while divorce proceedings in respect of P.I. were still pending.

The Court of Appeal also rejected the applicant company’s argument that reporting on P.I. as being the Minister’s new partner was inseparable from reporting on the Minister herself. It observed that the media were entitled to report on the Minister of Health, Families and Youth’s conduct, considering that she was appointed by the People’s Party which represented a conservative image on families, that her credibility was at stake and that this was a matter of public interest. However, this did not mean that the media also had the right to violate her partner’s private sphere. Indeed, P.I. himself was not a public figure. It would have been sufficient, to satisfy the public interest in the Minister’s conduct, to report that she maintained an apparently sexual relationship with a married man. However, it had not been necessary to reveal the identity of that married man. The report in question exceeded the necessary information and also included details on P.I.’s marriage.

The Court of Appeal altered the decision of the Vienna Regional Court concerning the statement that P.I. was the “new man at A.K.’s side and refused to pose with his new love” because this statement had to be seen in the context of the whole broadcast and not separately. Therefore, it was also an infringement of his most intimate personal sphere. That judgment was served on the applicant company’s counsel on 4 May 2009.

The applicant company did not file a request under Article 363a of the Code of Criminal Proceedings (Strafprozessordnung) to the Supreme Court (Oberster Gerichtshof).

By an amendment of 30 December 1996 which entered into force on 1 March 1997 under the heading “Renewal of criminal proceedings” (Erneuerung des Strafverfahrens), Article 363a of the Code of Criminal Proceedings (Strafprozeßordnung) was introduced, which provides as follows:

“1. If it is established in a judgment of the European Court of Human Rights that there has been a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms (Official Gazette [Bundesgesetzblatt] no. 210/1958) or of one of its Protocols on account of a decision [Entscheidung] or order [Verfügung] of a criminal court, a retrial shall be held on application in so far as it cannot be ruled out that the violation might have affected the decision in a manner detrimental to the person concerned.

All applications for a retrial shall be decided by the Supreme Court. Those who are affected by the determined violation as well as the Procurator General’s Office are entitled to file an application. Article 282 § 1 of the Code of Criminal Proceedings shall be applicable analogously. The application is to be filed at the Supreme Court. If the Procurator General’s Office files an application, those who are affected, if the one affected files an application the Procurator General’s Office, shall be heard. Article 35 § 2 of the Code of Criminal Proceedings shall be applicable analogously.”

On 1 August 2007 the Supreme Court decided on an application under Article 363a by a convicted person in a case in which no application to the Court had been filed previously and no judgment of the Court had been delivered (file no. 13 Os 135/06m):

“... In the present case there are no indications that a decision or order of a criminal court which had an adverse effect on the applicant had been found to be in violation of Articles 8 and 14 of the Convention by the European Court of Human Rights in respect of the applicant. However, this does not render the application inadmissible.

Article 13 of the Convention required each Contracting State to provide any person, who shows with some plausibility that there has been a violation of his or her rights under the Convention and its Protocols, with an effective remedy, in other words, to ensure that there is a national instance examining whether there has been a violation of a Convention right. Article 363a § 1 of the Code of Criminal Proceedings must not be interpreted as permitting a retrial only in cases where a violation of Convention rights has already been established in a judgment against Austria by the European Court of Human Rights.

The Supreme Court, as the highest instance in Austria in criminal matters established by the Federal Constitution, sees itself called upon to fulfil the obligations under the Convention by ensuring that in the field of criminal law the spirit of the Convention is respected also in cases in which no judgment was issued against Austria by the Court.

The Supreme Court has previously detected lacunae in the law (planwidrige Lücke) as regards the protection of human rights and has used its powers to close them.

A judgment by the Court which establishes a violation of the rights under the Convention is a necessary and sufficient precondition for a renewal of the criminal proceedings under Article 363a. But also the legal practice and case-law of the European Court of Human Rights concerning criminal proceedings have changed significantly since the entry into force of this provision. There is therefore a lacuna in law that has to be closed. This must be done by interpreting the relevant law in a way, that a judgment by the Court is no longer a precondition for the renewal of the criminal proceedings under Article 363a. In fact, this can be done by the Supreme Court itself deciding on a violation of the rights and freedoms under the Convention upon an application under Article 363a of the Code of Criminal Proceedings. Also the Supreme Court’s previous case-law does not conflict with this result.

This extensive understanding of the provisions dealing with the renewal of criminal proceedings had been necessary not only because of the recent developments in human rights:

The Supreme Court was not involved in any of the seven cases, in which the Court found a violation of the right to freedom of expression under Article 10 in 2006, even though this could have been possible by means of a plea of nullity for the preservation of the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) or an extraordinary reopening under Article 362 § 1 of the Code of Criminal Proceedings (ausserordentliche Wiederaufnahme des Strafverfahrens). Therefore, in all these cases the Supreme Court had not been given the opportunity to fulfil its function as the highest instance in criminal matters as foreseen by Article 92 of the Federal Constitution. Therefore, this court did not have the opportunity to examine the question of a possible violation of human rights. On the one side, there are proceedings before the Constitutional Court (Verfassungsgerichtshof) in which an allegation of a violation of the rights and freedoms under the Convention can be raised. On the other side, as it is in this case of relevance, the Supreme Court – as the highest instance in criminal matters – has the duty to observe the compliance not only with the fundamental rights guaranteed at the level of ordinary law but also with rights guaranteed at the level of constitutional law (Article 92 (1), Article 89 (2) of the Federal Constitution). The Supreme Court has the power to deal in an effective way with alleged violations of human rights committed by the lower courts in proceedings on a plea of nullity, a request for the renewal of proceedings, a fundamental rights complaint (Grundrechtsbeschwerde) and proceedings under Section 91 (Fristsetzungsantrag) of the Courts Act (Gerichtsorganisationsgesetz). These remedies give the Supreme Court the possibilities set out by Article 1 of the Convention not only to follow the Court’s caselaw but also to take, itself, the initiative for influencing the development of human rights law on its own.

In the same judgment, the Supreme Court further stated that it would apply the criteria set out in Article 35 of the Convention on the admissibility of an application also in respect of a request for renewal of criminal proceedings under Article 363a, in particular the six-month time-limit, also in a case which had not been previously examined by the Court and in which no judgment of the Court had been issued.

Since then, the Supreme Court has decided in several cases on requests lodged under Article 363a of the Code of Criminal Proceedings as from 2008 onwards (for example the decision of 26 June 2008, 15 Os 41/08f; of 26 June 2008, 15 Os 25/08b; of 23 July 2008, 13 Os 162/07h; of 21 August 2008, 15 Os 30/08p; of 15 January 2009, 12 Os 180/08z; of 14 October 2009, 15 Os 171/08y; of 14 October 2009, 12 Os 106/09m). In all of these cases the Supreme Court confirmed its leading decision of 1 August 2007 and developed further its case-law in regard to the admissibility of the applications under Article 363a of the Code of Criminal Proceedings. Among these were cases concerning the Media Act (for example the decision of 14 October 2009, 15 Os 171/08y). In cases where the Supreme Court found a violation of rights guaranteed under the Convention, it quashed the lower court’s decisions and ordered that a fresh decision be taken (for example the decision of 15 January 2009, 12 Os 160/08h; of 14 January 2010, 13 Os 36/09g; of 17 September 2013, 11 Os 73/13i).

The Supreme Court further stated in its case-law that victims of crimes and private prosecutors (Privatankläger), as well as public prosecutors, are not entitled to this remedy (see, inter alia, the Supreme Court’s decisions of 26 June 2008, 15 Os 41/08f and of 17 August 2010, 11 Os 121/09t).


Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant, Mr A.A.Q., is an Afghan national, who was born in 1956 and is currently staying in Germany. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4). He was represented before the Court by Ms J.A. Younge, a lawyer practising in Amsterdam.

The Dutch Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, and Deputy Agent, Ms L. Egmond, of the Ministry of Foreign Affairs.

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

On 5 February 1998, the applicant entered the Netherlands where he applied for asylum. On 7 February 1998, the applicant was interviewed about his identity, nationality and travel itinerary. He stated, inter alia, that he hailed from Kabul and that he had travelled to the Netherlands via Pakistan and Belgium.

On 4 June 1998 and 3 May 1999, the applicant was interviewed about his reasons for seeking asylum (nader gehoor). He stated that he had made a career in the Afghan army from 1984 to 1994, during which period the country had been ruled by the Communist People’s Democratic Party of Afghanistan (“PDPA”). He had joined the PDPA’s youth organisation at the age of 16 or 17 and become a full member in 1979. Having studied car mechanics in Afghanistan and graduated in 1978, the applicant had taken up a six-month internship at the Engineering Directorate of a Ministry in order to avoid military service. On this basis, he had been transferred, for a job, to the President’s Bureau where he had been assessed with a view to possibly offering him a higher education in the Soviet Union. Having passed that selection, the applicant had been sent to one of the Soviet republics from March 1980 until March 1984 to study rocket science. Later, the applicant had also taken a nine-month political course in the army, in the framework of continued education as an officer.

From 1985 to around 1987 and from 1990 to 1992, the applicant had been deputy of the Political Affairs Division in one of the Artillery Brigades of the Ministry of Defence; during the first period in a maintenance company and during the second period in one of the battalions. In the latter function he had been the superior of three deputies of the Political Affairs Division as well as Deputy Commander of the battalion. From 1987 to 1990, the applicant had also held the position of president of the (political) Officers’ Club.

The applicant had been promoted several times and his last held rank had been that of major. The applicant indicated that his tasks as deputy of the Political Affairs Division had involved, inter alia, the creation and dissemination of propaganda and the teaching of politics to soldiers.

On 6 March 1994, after the Mujahedeen had come to power, the applicant had left Kabul for Mazar-e-Sharif because he had no longer felt safe. Many of his friends had been arrested by the Mujahedeen. On the way to Mazar-e-Sharif, the bus in which he had been travelling had been stopped at a checkpoint. The applicant had been arrested by the Mujahedeen and kept in prison in Kabul for six months, during which period he had been interrogated about his role in the coup attempt and tortured. After that, the Mujahedeen had sent him to the war front to dig trenches and load grenade launchers.

On 27 or 28 September 1996, he had escaped from the prison in which he was kept by simply walking away when the prison guards had abandoned the prison in the wake of the capture of Kabul by the Taliban. He had then gone to his home village, where he had gone into hiding at his father’s house and where he had remained until his departure from Afghanistan on 26 December 1997. During that time, his father had been hassled by the Taliban about the family’s involvement with the PDPA (the applicant’s entire family had been PDPA members). The applicant submitted that he feared persecution from the side of the Mujahedeen and later, after 1996, the Taliban.

The applicant’s wife, born in 1958, and their eight children – who were born between 1980 and 1993 – as well as a number of members of the applicant’s family-in-law have all, at different points in time, been granted residence rights in the Netherlands. His eldest son had fled from Afghanistan via Pakistan to the Netherlands in 1993 together with the applicant’s mother-in-law and a number of the applicant’s wife’s brothers. This son, who was granted a residence permit in the Netherlands for compelling humanitarian reasons on the basis of the then general situation in Afghanistan, has since obtained Netherlands nationality. The applicant’s wife and four of the children fled from Afghanistan via Pakistan, Iran and Russia to the Netherlands, where on an unspecified date they were granted residence permits under the policy rules on extended family reunion (verruimde gezinshereniging). The remaining three children were also granted residence permits. On unspecified dates, the applicant’s oldest four children obtained Dutch nationality, retaining their Afghan nationality. The applicant’s spouse currently holds a residence permit for continued residence stay (voortgezet verblijf).

The Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the applicant’s asylum application on 13 February 2001. Having noted three official country reports (ambtsberichten) on the general political and human rights situation in Afghanistan drawn up by the Netherlands Ministry of Foreign Affairs (Ministerie van Buitenlandse Zaken) in 1998, 1999 and 2000, the Deputy Minister found, in the relevant part, that the situation in Afghanistan at that moment was not such as to qualify all asylum seekers from that country for asylum and that, therefore, the applicant had to demonstrate that he had a personal and well-founded fear of persecution in Afghanistan.

The Deputy Minister considered that the grounds adduced by the applicant – amounting in essence to him being searched for by the Taliban and/or Mujahedeen due to his past function in the army – did not provide any basis for assuming that the applicant would have to fear persecution upon his return to Afghanistan. The Deputy Minister held in this regard that the applicant had not established that the Taliban were aware of his past activities, that he had ever been in contact with the Taliban or that there would be any other reasons relating to his past activities that would attract the Taliban’s negative attention. According to the Deputy Minister, the applicant’s claims were of a general and speculative nature.

Furthermore, the Deputy Minister considered that the applicant had not, either as an army officer during communist rule, or as a member of the PDPA, held a political post at a level at which he would have exercised a decisive influence on policy. According to the aforementioned official country reports, the Taliban were in general not interested in former communists who had been active at that level only. Moreover, rather than leave Afghanistan immediately after his escape from detention, the applicant had chosen to remain for an additional year in an area that was already under Taliban control at that time. The Deputy Minister considered implausible that a person who allegedly feared persecution by the authorities would go into hiding with somebody who himself was experiencing regular problems with those same authorities. This also applied to the applicant’s claim that he feared persecution by the Taliban as a result of the problems he allegedly had with the Mujahedeen. As the power base of this latter movement had in the meantime significantly decreased, the Deputy Minister held that the applicant should be able simply to evade any problems he might expect to experience from that side. In respect of the applicant’s reliance on Article 3 of the Convention, the Deputy Minister found that his account provided insufficient indications to assume that he, if returned to his country of origin, would run a real risk of being subjected to treatment in breach of that provision.

On 9 April 2001 the applicant lodged an objection (bezwaar) against this decision with the Deputy Minister.

On 17 September 2001, the applicant was informed that his case file had been transmitted to the 1F Unit (see paragraph 47 below) of the Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst; “IND”) as his asylum account, in particular his professional activities as a career military, gave reasonable cause to suspect that Article 1F of the 1951 Geneva Convention Relating to the Status of Refugees, as amended by the New York Protocol of 31 January 1967 (“the 1951 Refugee Convention”) might apply to his case.

The applicant’s asylum application was re-examined in the light of an official report, drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs on “Security Services in communist Afghanistan (1978-1992). AGSA, KAM, KhAD and WAD” (“Veiligheidsdiensten in communistisch Afghanistan (1978-1992), AGSA, KAM, KhAD en WAD”) and concerning in particular the question whether and, if so, which former employees of those services should be regarded as implicated in human rights violations. According to this official report, Article 1F of the 1951 Refugee Convention could be held against virtually every Afghan asylum seeker who, holding the rank of third lieutenant or higher, had worked during the communist regime for the military Khadimate Atal’at-e Dowlati (“KhAD”) or, subsequently, the Wazarat-e Amaniat-e Dowlati (“WAD”).

On 5 September 2003, an additional interview was held with the applicant on the applicability of Article 1F of the 1951 Refugee Convention to his case.

On 1 December 2003, the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie; the successor to the Deputy Minister of Justice) dismissed the applicant’s objection. She found, inter alia, that the applicant constituted a danger to public order (openbare orde), as serious reasons had been found for believing that he had committed crimes referred to in Article 1F of the 1951 Refugee Convention. Although the Minister attached credence to the applicant’s statements in terms of his positions and career within the Afghan army, the applicant’s description of his tasks was deemed to be inaccurate. Further, on the basis of a person-specific official report (individueel ambtsbericht) issued by the Ministry of Foreign Affairs on 14 October 2003, the Minister found that, at the relevant time, the Political Affairs departments of the Afghan army consisted solely of highly loyal and skilled professional soldiers, who wielded a large amount of influence within the organisation and who, as informants, worked closely together with the KhAD. They were thus inextricably connected to the frequent arrests, disappearances and/or executions of disloyal members of the army by the KhAD. The Minister further emphasised the widely known cruel character of the KhAD, the grave crimes committed by its officers and the “climate of terror” it had spread throughout the entire Afghan society, including the army. In this regard the Minister relied on the general official report of 29 February 2000.

Having established, on the basis of elaborate argumentation and documentation, that those involved in the KhAD and the Political Affairs Divisions of the Afghan army were likely to fall within the scope of Article 1F of the Refugee Convention, the Minister proceeded to an analysis of the applicant’s individual responsibility under that Convention on the basis of the prescribed and so-called “personal and knowing participation test” and eventually rejected the applicant’s objection by holding Article 1F against him. The Minister indicated that consequently, pursuant to the provisions of sections 3.107 and 3.77 of the Aliens Decree (Vreemdelingenbesluit), the applicant was ineligible for a residence permit for asylum or any other ground.

In so far as the applicant relied on Article 3 of the Convention, the Minister held that it was for the applicant to show that there were concrete reasons, connected to personal facts and circumstances, justifying the conclusion that he would run a real risk of treatment contrary to that provision if returned to Afghanistan. The Minister found that the applicant had failed to substantiate such grounds, since he had neither indicated that anyone would be actively looking for him in Afghanistan nor furnished any reasons due to which he would draw the local authorities’ particular attention.

Lastly, and as regards Article 8 of the Convention as invoked by the applicant, the Minister held that, although there was family life between the applicant and his relatives residing in the Netherlands, the State’s interest in expulsion of individuals who endanger public order prevailed over the personal interests of the applicant.

The applicant’s appeal against this decision was rejected by judgment of 17 May 2005 by the Regional Court (rechtbank) of The Hague, sitting in Alkmaar. Pursuant to section 8:79 of the General Administrative Law Act (Algemene Wet Bestuursrecht), this judgment was sent to the applicant on 30 May 2005.

In the appeal proceedings before the Regional Court, the applicant had disputed the accuracy of the official reports, drawn up by the Ministry of Foreign Affairs, which the Minister had relied on in his case, and he argued that the information contained in those reports did not apply to him. At the request of the Minister of Foreign Affairs and with the parties’ consent, the Regional Court was granted access to the materials underlying the person-specific official report of 14 October 2003 without these materials being disclosed to the applicant. It found that the report provided information in an unbiased, objective and transparent manner, and accepted that the conclusions drawn in the official report were sufficiently supported by the underlying materials. The applicant’s unsubstantiated claim that the information contained in the person-specific official report did not necessarily apply to each person who had worked at the Political Affairs department was insufficient for the Regional Court to doubt the report’s accuracy. The Regional Court further found that it had not appeared that there were any concrete indications to doubt either the person-specific official report or the official report of 29 February 2000.

The Regional Court held that the Minister could reasonably have established the facts relating to the applicant’s activities for the Political Affairs Division of the Afghan Ministry of Defence in the way that she had done. In addition, she could reasonably have dismissed as implausible the applicant’s claim that he had not been aware of human rights abuses committed by KhAD/WAD until he came to the Netherlands, given that the KhAD/WAD’s criminal character was generally known in Afghanistan at the time, according to the official report of 29 February 2000.

As regards the applicant’s reliance on Article 3 of the Convention, the Regional Court concurred with the Minister on all points that the applicant had failed to substantiate the existence of a real risk of treatment contrary to that provision. As to Article 8 of the Convention, the Regional Court held that this provision could not play a role in asylum proceedings, notwithstanding the fact that the Minister had examined the applicant’s arguments in this context.

The applicant’s further appeal to the Administrative Jurisdiction Division of the Council of the State (Afdeling Bestuursrechtspraak van de Raad van State) was declared inadmissible on 24 October 2005. The Division found that it had no jurisdiction as, by virtue of section 120 of the Aliens Act 2000 (Vreemdelingenwet 2000), the Division only had jurisdiction over decisions taken after the entry into force of that Act on 1 April 2001 whereas the initial decision by the Deputy Minister had been taken on 21 March 2001. No further appeal lay against this decision.

On 12 August 2008, the applicant applied for a residence permit for the purpose of exercise of family life within the meaning of Article 8 of the Convention. This application was rejected on 18 December 2009 by the Deputy Minister of Justice; the successor to the Minister for Immigration and Integration. The applicant’s objection against this decision was rejected on 17 June 2011 by the Minister for Immigration, Integration and Asylum Policy (Minister voor Immigratie, Integratie en Asiel; the successor to the Deputy Minister of Justice).

The applicant’s appeal against the decision of 17 June 2011 was rejected on 2 March 2012 by the Regional Court of The Hague, sitting in Amsterdam. It noted that it appeared from the decision of 1 December 2003 that the applicant was associated with extrajudicial arrests and extrajudicial detention of persons, the torture of persons, extrajudicial execution of persons, and the commission of assassinations, because he – on account of his work for the Political Affairs Division – had facilitated the activities of KhAD/WAD. It further noted that this decision had become final.

As regards Article 8, the Regional Court held:

“The court considers that, according to settled case law of the European Court of Human Rights, regardless of whether there is a positive or negative obligation, a fair balance must be struck between, on the one hand, the interests of the alien and, on the other, Netherlands general interest. In this balancing exercise, the [Minister] enjoys a certain margin of appreciation. The court notes that, in his assessment, the [Minister] has taken into account the criteria formulated in the judgments of the European Court of Human Rights of 2 August 2001 in the case of Boultif and 18 October 2006 in the case of Üner. The court accepts that it was reasonable for the [Minister], in striking this balance in the framework of Article 8, to find against the [applicant]. To this end, the court considers that it was not unjust that the [Minister] attached weight to the suspicion of the [applicant’s] involvement in human rights violations. The court does not follow the [applicant’s] argument that, in assessing whether he should be granted a residence permit on the basis of Article 8, insufficient factual research has been made into his involvement in the commission of crimes referred to in Article 1F of the Refugee Convention. ... The court sees no ground for holding that only crimes found proven according to criminal law standards may be held against [the applicant]. The [Minister could also hold against the [applicant] that [the latter] has accepted a deal (transactie) proposed by a public prosecutor in order to avoid the lodging of formal criminal proceedings for shoplifting. This is not altered by the fact, as confirmed by the [Minister] at the hearing, that this has a lighter weight. It further has been taken into account in the balancing exercise that the [applicant] has resided in the Netherlands for 13 years, but he has never had lawful residence based on a valid residence permit and his residence status has always been precarious. Although the [applicant’s] spouse is living here and holds a valid residence permit, no objective obstacle has appeared to exercise the family life with her elsewhere. His spouse holds Afghan nationality. The argument that his spouse cannot return to Afghanistan for asylum-related reasons but that these reasons have never been examined because she had already been granted a regular [i.e. not asylum-based] residence permit does not succeed. To the extent that reference has been made to the [applicant’s] asylum account, it has been established in the proceedings on his asylum request that he has not demonstrated that he has to fear treatment in breach of Article 3 nor that for any reason or other he will have to expect the particular attention of the authorities upon his return. To the extent that the [applicant’s] spouse claims to have independent, separate asylum-related problems, this has not been substantiated. The report of 9 August 2011 by M.D., psychologist, concerning the spouse’s mental health state is insufficient for finding that there is an objective obstacle. It is true that it appears that she suffers from depression, a dissociative and a post-traumatic stress disorder, but it does not appear that for this reason she would be unable to go to Afghanistan with the [applicant]. ... Noting the fact that the [applicant] and his wife married in the period during which the [applicant] worked for the Political Affairs Division, the [Minister] has justly not found it plausible that his wife was unaware of the facts held against the [applicant] in the framework of Article 1F [of the 1951 Refugee Convention].”

As regards asylum-related arguments advanced by the applicant, the Regional Court held:

“... the Court is of the opinion that the [applicant’s] argument fails. Noting the strict separation between asylum-related and regular [i.e. non-asylum-related applications for a residence permit] that follows from the system of the Aliens Act 2000, the Minister has justly referred to [the possibility of] filing an asylum application.”

On 4 March 2013, the Administrative Jurisdiction Division rejected the applicant’s further appeal on summary grounds, holding:

“What has been raised in the grievances ... does not provide grounds for quashing the impugned ruling. Having regard to section 91 § 2 of the Aliens Act 2000, no further reasoning is called for, since the arguments submitted do not raise questions which require determination in the interest of legal uniformity, legal development or legal protection in the general sense.”

No further appeal lay against this ruling.

On 6 August 2013, the Deputy Minister for Security and Justice (Staatssecretaris van Veiligheid en Justitie; the successor to the Minister for Immigration, Integration and Asylum Policy) informed the applicant that – it having been noted that it had been erroneously assumed in the proceedings having ended on 4 March 2013 that there was an obstacle for the applicant’s expulsion in the form of an interim measure issued under Rule 39 of the Rules of Court by the European Court of Human Rights – he intended to proceed with the applicant’s removal from the Netherlands.

According to a letter dated 7 August 2013 and sent to the applicant’s representative by a psychologist and a psychiatrist working for the mental health care organisation providing treatment to the applicant’s daughter A., the latter displayed psychotic features, possibly in the context of a developing schizophrenia or post-traumatic stress disorder. She was visited weekly in her home for treatment. The authors of this letter stated that they were unable to indicate whether her mental health problems were connected to or affected by the applicant’s possible removal from the Netherlands, but considered it understandable that this removal would cause tensions within the family.

On 7 August 2013, the applicant requested the Court to indicate to the Netherlands Government, under Rule 39 of the Rules of Court, to stay his expulsion to Afghanistan. On 12 August 2013, the acting President of the Third Section, to which the case had been allocated (Rule 52 § 1 of the Rules of Court), decided to adjourn the examination of the request as no practical steps aimed at the applicant’s effective removal had yet been taken by the Netherlands authorities.

On 7 October 2013, the Departure and Repatriation Service (Dienst Terugkeer en Vertrek) of the Ministry of Security and Justice informed the applicant that his removal to Afghanistan had been scheduled for 20 October 2013.

On the same day, the applicant requested the Court to determine his request to apply Rule 39 of the Rules of Court. On 15 October 2013, the Court decided not to indicate the interim measure sought by the applicant and informed him accordingly.

In her submissions of 31 March 2015 and 1 April 2015 to the Court, the applicant’s lawyer informed the Court that on 12 August 2013 the applicant had moved from the Netherlands to Germany where he had applied for asylum. This request was still pending and the applicant had been granted a provisional residence permit (Aufenthaltsgestattung), valid until 6 May 2015 with the possibility of further prolongation, pending the decision on his asylum request. His spouse had visited him in Germany.

Until 1 April 2001, the admission, residence and expulsion of aliens were regulated by the Aliens Act 1965 (Vreemdelingenwet). Further rules were laid down in the Aliens Decree (Vreemdelingenbesluit), the Regulation on Aliens (Voorschrift Vreemdelingen) and the Aliens Act Implementation Guidelines 1994 (Vreemdelingencirculaire). On 1 April 2001, the Aliens Act 1965 was replaced by the Aliens Act 2000. On the same date, the Aliens Decree, the Regulation on Aliens and the Aliens Act Implementation Guidelines were replaced by new versions based on the Aliens Act 2000. The General Administrative Law Act (Algemene Wet Bestuursrecht) applies to proceedings under the Aliens Act 2000, unless indicated otherwise in this Act.

Aliens are eligible for admission only on the basis of directly applicable international agreements, or if their presence serves an essential Dutch interest, or for compelling reasons of a humanitarian nature (section 13 of the Aliens Act 2000). Respect for family life as guaranteed by Article 8 of the Convention or risk of being subjected in the country of origin to treatment in breach of Article 3 of the Convention constitute an obligation under an international agreement.

Under section 29 of the Aliens Act 2000, an alien is eligible for a residence permit for the purpose of asylum if, inter alia, he or she is a refugee within the meaning of the 1951 Refugee Convention, or he or she has established that he or she has well-founded reasons to assume that he or 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.

If the exclusion clause under Article 1F of the 1951 Refugee Convention (see paragraphs 45-49 below) is held against an asylum seeker, the alien concerned loses any protection which might have been available under that Convention and, consequently, becomes ineligible for a residence permit for asylum under section 29 of the Aliens Act 2000 (section 3.107 of the Aliens Decree 2000 and Chapter C1/4.6.4 of the Aliens Act Implementation Guidelines 2000).

The admission policy for family reunification (gezinshereniging) purposes is laid down in Chapter B1 of the Aliens Act Implementation Guidelines 2000. A partner or spouse of a person lawfully residing in the Netherlands is, in principle, eligible for admission, if certain further conditions relating to matters, such as, public policy and means of subsistence are met.

Under the Aliens Act 2000, judicial review by the Regional Court and the Administrative Jurisdiction Division in administrative law appeal proceedings only addresses whether the executive authority concerned has exercised its administrative powers in a reasonable manner and, in the light of the interests at stake, could reasonably have taken the impugned decision (marginale toetsing). Both before the Regional Court and the Administrative Jurisdiction Division it is possible to apply for a provisional measure (voorlopige voorziening) pending the outcome of the appeal proceedings.

In a ruling of 3 December 2008 (Landelijk Jurisprudentie Nummer [National Jurisprudence Number] BG5955), the Administrative Jurisdiction Division held that, apart from judicial review by the Regional Court and the Administrative Jurisdiction Division in administrative law appeal proceedings, in principle no further remedy lay against a decision to reject an alien’s request for admission to the Netherlands, as the lawfulness of the consequences of that decision had already been judicially determined in the administrative appeal proceedings. It nevertheless accepted that in certain exceptional circumstances, such as a relevant change of circumstances having occurred during the delay between the refusal of the admission request and an act aimed at effective removal (daadwerkelijke uitzettingshandeling), an objection (bezwaar) and subsequent appeal (beroep) may be filed against an act aimed at effective removal. Under the terms of section 72 § 3 of the Aliens Act 2000, such an act can be equated with a formal decision within the meaning of the General Administrative Law Act which can be challenged in separate administrative law appeal proceedings.

In accordance with Article 5 of Regulation (EC) No. 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) and Article 21 of the Convention Implementing the Schengen Agreement of 14 June 1985 (CISA) a third country national holding a valid residence permit issued by one of the states of the Schengen area may – on the basis of that permit – stay for a maximum period of ninety days per six months in the territory of another country within the Schengen area.

Article 1F of the 1951 Refugee Convention reads:

“The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.”

On 4 September 2003 the United Nations High Commissioner for Refugees (UNHCR) issued the “Guidelines on International Protection No. 5: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees”. They superseded “The Exclusion Clauses: Guidelines on their Application” (UNHCR, 1 December 1996) and “Note on the Exclusion Clauses” (UNHCR, 30 May 1997) and are intended to provide interpretative legal guidance for governments, legal practitioners, decision-makers and the judiciary, as well as UNHCR staff carrying out refugee status determination in the field. These guidelines state, inter alia, that where the main asylum applicant is excluded from refugee status, his/her dependants will need to establish their own grounds for refugee status. If the latter are recognised as refugees, the excluded individual is not able to rely on the right to family unity in order to secure protection or assistance as a refugee (paragraph 29).

The Netherlands authorities do not wish the Netherlands to be a refuge for war criminals or human rights offenders, and consider it undesirable that victims who have been granted protection in the Netherlands still feel unsafe by the presence in the same country of those who are actually responsible for the fact that they were forced to flee their country of origin (for the policy statement sent on 28 November 1997 by the Deputy Minister of Justice to the Lower House of Parliament; see, H. and J. v. the Netherlands (dec.), nos. 978/09 and 992/09, § 56, 13 November 2014). Accordingly, if in the context of a request for an asylum-based residence permit, any signs appear that crimes or acts referred to Article 1F of the 1951 Refugee Convention have been committed by the petitioner, a special Unit of the Immigration and Naturalisation Service, composed of employees who are specifically trained for this purpose, investigates whether Article 1F of the 1951 Refugee Convention is applicable.

Following a so-called “1F investigation”, it will be decided whether or not to hold the exclusion clause under Article 1F against the person concerned. Where Article 1F is applied, the asylum request is rejected and the person concerned is obliged to leave the Netherlands. This decision, taken in the context of asylum proceedings, may be challenged in administrative law appeal proceedings (see § 38 above).

Where in a case Article 1F has been applied, the Immigration and Naturalisation Service notifies the public prosecution service hereof. This does not mean, however, that criminal proceedings are automatically initiated in that case. This depends on various legal and practical factors, in particular factors related to evidential issues such as, inter alia, the availability and safety of witnesses. In accordance with the discretionary powers held by the public prosecution service (opportuniteitsbeginsel), it remains for that service to decide in each individual case and in line with the general policy rules defined by the Board of Procurators General (College van procureurs-generaal) whether to prosecute or not.

On 29 February 2000, the Netherlands Ministry of Foreign Affairs issued a general official country report (algemeen ambtsbericht) on security services in communist Afghanistan (1978-1992) AGSA, KAM, KhAD and WAD. It qualifies these security services as notorious because of their particularly brutal behaviour, including arbitrary arrests, routine torture and extrajudicial executions. The description in the report focuses on the Khadimat-e Atal’at-e Dowlati (KhAD) and the Wazarat-e Amaniat-e Dowlati (WAD). It states that the KhAD – the successor to AGSA (Da Afghanistan da Gato da Satalo Adara; Organisation for the Protection of the Interests of Afghanistan) created in 1978 and later renamed to KAM (Kargarano Amniyyati Mu’assassa; Workers’ Intelligence Service) – was set up in 1980 and transformed into a ministry in 1986 and that this ministry, called “WAD”, remained in existence until the fall of the communist regime in 1992. The report concentrates on whether and, if so, which former members of the Afghan security services, especially those of the KhAD and the WAD, committed human rights violations.

The report further states that detainees and prisoners were systematically tortured in the interrogation and detention centres of the KhAD and the WAD, that their agents were very inventive in choosing their torture methods and that thousands of suspects were tortured to death by KhAD and WAD agents. If the KhAD or WAD thought that a suspect was guilty, they could kill him or her without further investigation or judicial intervention. According to the report, it is estimated that during the communist regime in Afghanistan 200,000 citizens were arrested and detained by the Afghan security services (AGSA, KAM, KhAD and WAD), whereby about 50,000 Afghans lost their lives, mostly after being tortured or sentenced to death.

On the basis of this report, the Netherlands immigration authorities adopted the position that Article 1F of the 1951 Refugee Convention could be held against virtually every Afghan asylum seeker who, holding the rank of third lieutenant or higher, had worked during the communist regime for the KhAD/WAD.


André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Síofra O’Leary

The applicant, Mr Stevan Stevančević, is a Bosnian and Serbian national, who was born in 1945 and lives in Igalo, Montenegro. He was represented before the Court by Mr G. Latinović, a lawyer practising in Igalo.

The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent at the time, Ms M. Mijić.

The Serbian Government, having been informed of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), indicated that they did not wish to exercise that right.

The applicant was an officer of the JNA, the armed forces of the former Socialist Federal Republic of Yugoslavia. The present case concerns his attempt to regain possession of his pre-war flat in Sarajevo.

The detailed background concerning socially owned flats, military flats and the involvement of foreign armed forces in the 1992-95 war in Bosnia and Herzegovina is provided in Đokić v. Bosnia and Herzegovina, no. 6518/04, §§ 5-17, 27 May 2010 and Mago and Others v. Bosnia and Herzegovina, nos. 12959/05 et al., §§ 5-8, 3 May 2012.

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

In 1984 the applicant was allocated an occupancy right to a military flat in Sarajevo.

On 13 February 1992 he bought that flat under the terms of the Military Flats Act 1990 and paid the full purchase price in the amount of 595,066 Yugoslav dinars (approximately 7,067 German marks (DEM) at the time).

When the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, the applicant continued his military career in the VJ forces and left Sarajevo. His military service was terminated in 1999.

During the 1992-95 war in Bosnia and Herzegovina the flats of those who had fled were declared “abandoned” and allocated to new occupants (see Mago and Others, cited above, § 53). On 7 September 1998 the applicant applied for the restitution of his flat to the competent administrative authority in the Sarajevo Canton.

Following one remittal on procedural grounds, on 14 November 2002 his application was rejected pursuant to section 3a of the Restitution of Flats Act 1998. On 28 July 2003 the competent Ministry of the Sarajevo Canton upheld that decision.

On 25 September 2006 the Sarajevo Cantonal Court (“the Cantonal Court”), following an application for judicial review, upheld the second-instance decision of 28 July 2003.

On 10 June 2009 the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) rejected the applicant’s constitutional appeal and upheld the impugned decisions.

On 11 February 2001 the applicant complained to the Human Rights Chamber (a domestic human-rights body set up under Annex 6 to the Dayton Peace Agreement) about his inability to repossess his pre-war flat. He relied on Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention.

On 12 May 2005 the Human Rights Commission (the legal successor of the Human Rights Chamber) found a violation of Article 6 of the Convention on account of the length of the restitution proceedings and awarded the applicant 1,000 convertible marks (BAM; approximately 500 euros (EUR)) for non-pecuniary damage in this connection. As regards the complaint under Article 1 of Protocol No. 1, the Commission concluded that the interference with the applicant’s right to the peaceful enjoyment of his possessions had been justified. However, it ordered the Government of the Federation of Bosnia and Herzegovina to secure the applicant’s right to compensation for his pre-war flat envisaged under section 39e of the Privatisation of Flats Act 1997, without further delay and at the latest within three months from the delivery of that decision.

On 5 July 2005 the government of the Federation of Bosnia and Herzegovina requested the applicant to provide his contact and bank account details in order to pay the awarded compensation. The applicant provided those details.

On 28 January 2006 the applicant appealed to the Constitutional Court against the decision of the Human Rights Commission of 12 May 2005. On 14 March 2006 the Constitutional Court declared that it lacked jurisdiction to examine the case.

On 5 July 2004 the applicant initiated proceedings before the Sarajevo Municipal Court (“the Municipal Court”) seeking to establish the validity of the purchase contract of 13 February 1992 (see paragraph 8 above) and to register his title to the flat in the land register.

On 19 June 2005 the Municipal Court declared the purchase contract legally valid. However, it rejected the applicant’s claim to have his title registered. Under the Privatisation of Flats Act 1997 those who served in foreign armed forces after the 1992-95 war, like the applicant, were not entitled to repossess their pre-war military flats and to register their title, but were entitled to compensation. On 19 November 2008 the Cantonal Court upheld that judgment.

The Government did not dispute the facts submitted by the applicant. However, they provided additional information as follows.

On 20 April 2007 the applicant received BAM 42,085.04 (approximately EUR 21,496.24) in compensation for his pre-war flat in accordance with section 39e of the Privatisation of Flats Act 1997 as ordered by the Human Rights Commission (see paragraph 15 above). The amount was transferred to his bank account in Montenegro.

The relevant domestic law and practice were outlined in Aleksić v. Bosnia and Herzegovina (no. 38233/05, §§ 16-18, 3 February 2015).


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in 1974 and lives in Sisak.

In 1993 the applicant took up employment with the Sisak-Moslavina Police Department (Policijska uprava sisačko-moslavačka) as a police officer. On 1 January 1998 he was assigned to a post in the Dvor Police Station (Policijska postaja Dvor).

Dvor is a municipality that receives special State support as defined by the legislation in force at that time, namely the Act on Areas receiving Special State Support (Zakona o područjima posebne državne skrbi, Official Gazette, nos. 44/1996, 57/1996, 124/1997 and 73/2000; hereinafter: the “Special State Support Act”). Among other things, that Act guaranteed to those employed in the public sector in areas receiving special State support a special salary uplift, which in the case of the Dvor municipality amounted to 50% of the salaries received in other parts of the country.

The amendments to the Special State Support Act which entered into force on 29 July 2000 (Official Gazette no. 73/2000) guaranteed the right to a special salary bonus only to those public sector employees in areas receiving special State support who had both their registered domicile (prebivalište) and also actually resided (borave) in the area at issue.

In May 2001 the applicant was assigned to another post in the Sisak-Moslavina Police Department, with his place of work being Sisak.

On 29 September 2000 the applicant brought an action against the State in the Kutina Municipal Court (Općinski sud u Kutini), seeking payment of a salary bonus in accordance with the Special State Support Act.

Soon afterwards the Kutina Municipal Court decided that it was not competent to hear the case and transferred it to the Hrvatska Kostajnica Municipal Court (Općinski sud u Hrvatskoj Kostajnici).

During the proceedings before the Hrvatska Kostajnica Municipal Court, the Sisak State Attorney’s Office (Općinsko državno odvjetništvo u Sisku) ‒ representing the State ‒ objected to that court’s territorial jurisdiction, arguing that the applicant had his domicile and lived in Majur, which was also within an area receiving special State support but outside the territorial jurisdiction of the Hrvatska Kostajnica Municipal Court. The Sisak State Attorney’s Office also submitted that the applicant had been receiving expenses for travel between Sisak and Dvor and that he was not entitled to the special salary bonus as provided under the Special State Support Act because Sisak was not an area receiving special State support.

The applicant replied to these submissions with the argument that during his tenure in Dvor he had had authorisation to use a police car, and that he had in fact lived in Majur, but since his house had not been fully reconstructed after the war, he had also spent some time in Sisak.

With regard to the contentious submissions of the parties, the Hrvatska Kostajnica Municipal Court heard evidence from the applicant, who pointed out that during his tenure in Dvor his registered domicile had been Majur, where he had actually resided ‒ some of the time in his own house and some of the time with his sister, since his house had needed reconstruction. He also explained that he had had authorisation to use a police car and had also been entitled to travel expenses, even though he had actually lived in Majur.

On 2 October 2003 the Hrvatska Kostajnica Municipal Court accepted the applicant’s civil action, ordering the State to pay compensation for his special salary bonus in the total amount of 67,214.69 Croatian kunas (HRK), together with the statutory default interest, for the period between 1 February 1998 and 1 May 2001, and to reimburse him the costs of the proceedings in the amount of HRK 7,978.80.

The Hrvatska Kostajnica Municipal Court pointed out that the applicant’s statement as to his domicile and his residence was credible and nothing called it into doubt. It also stressed that the Sisak State Attorney’s Office had neither provided any evidence nor challenged the veracity of the applicant’s statement. Instead, it had argued in its submissions that the applicant had both his domicile and his residence in Majur, within an area receiving special State support. As to the submission concerning travel expenses, the Hrvatska Kostajnica Municipal Court considered that this was a matter relating to the employment conditions of civil servants, which did not in itself have any bearing on the applicant’s domicile and residence. Against this background, the Hrvatska Kostajnica Municipal Court found that the applicant’s claim should be accepted.

On 22 October 2003 the Sisak State Attorney’s Office challenged the first-instance judgment before the Sisak County Court (Županijski sud u Sisku) contending that the applicant had only had his domicile in Majur, whereas the travel expenses suggested that he had in fact lived in Sisak. It thus considered that the applicant did not satisfy the criteria of the Special State Support Act necessary to qualify for a special salary uplift.

In a decision of 26 February 2004 endorsing all the factual and legal findings of the first-instance judgment, the Sisak County Court dismissed the appeal by the Sisak State Attorney’s Office. The first-instance judgment thus became final.

On 19 April 2004 the Kutina Municipal Court opened enforcement proceedings against the State on the basis of the final and enforceable judgment in the applicant’s favour.

The judgment was fully enforced on 26 April 2004 by payment of the due amount to the applicant.

On 20 May 2004 the State Attorney’s Office of the Republic of Croatia (Državno odvjetništvo Republike Hrvatske) lodged a request for the protection of legality (zahtjev za zaštitu zakonitosti) with the Supreme Court (Vrhovni sud Republike Hrvatske) against the part of the final judgment of the Hrvatska Kostajnica Municipal Court by which the applicant had been awarded HRK 19,238.59 for the period between 11 August 2000 and 5 May 2001 on account of the special salary uplift. It reiterated that the travel expenses which the applicant had received suggested that he had actually resided in Sisak in the period at issue, which could also be deduced from the fact that he had provided an address in Sisak in the civil action he lodged before the Kutina Municipal Court. Thus, once the 2000 amendments to the Special State Support Act had entered into force (see paragraph 8 above), the applicant had no longer been entitled to the special salary bonus since he had no longer resided in an area receiving special State support, which was a precondition for the special uplift, as explained in the judgment of the Supreme Court no. Gzz-190/03 of 18 February 2004.

The applicant challenged the request for the protection of legality, arguing that it could not be used as a remedy and that it substantially contradicted the general position on the matter adopted at the meeting of the Civil Division of the Supreme Court on 13 June 2003.

On 14 April 2005 the Supreme Court approved the request for the protection of legality, quashed the second-instance judgment in the impugned part, and remitted the case to the Sisak County Court. The Supreme Court held that the 2000 amendments to the Special State Support Act made it clear that civil servants employed in an area receiving special State support who applied for a special salary bonus should also have their domicile and residence in that area. It therefore ordered the Sisak County Court to reassess the appeal arguments of the Sisak Municipal State Attorney’s Office as to whether or not such conditions had been met in the applicant’s case.

On 7 December 2006 the Sisak County Court accepted the Sisak Municipal State Attorney’s Office appeal, reversing the first-instance judgment of the Hrvatska Kostajnica Municipal Court in the part in which the applicant was granted HRK 19,238.59 for the period between 11 August 2000 and 5 May 2001 on account of the special salary uplift, and ordering the applicant to repay that amount together with the statutory default interest. The Sisak County Court also reversed the first-instance judgment in the part concerning the costs of the proceedings.

The Sisak County Court held that the evidence adduced before the first-instance court suggested that in the period at issue the applicant had not in fact resided in an area receiving special State support, and thus had not met all the requirements under the 2000 amendments to the Special State Support Act concerning the right to a special salary uplift.

On 30 January 2007 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) against the judgment of the Sisak County Court of 7 December 2006, challenging the use of a request for the protection of legality in his case.

On 29 April 2010 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, holding that the lower courts had acted in accordance with the law. The decision of the Constitutional Court was served on the applicant on 31 May 2010.

According to a certificate issued by the Ministry of the Interior on 30 December 2013, pursuant to the above proceedings the applicant repaid the total amount of HRK 28,700 from his salary to the State.


No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life)

Egidijus Kūris;Iulia Motoc;Paulo Pinto De Albuquerque

The applicant was born in 1970 and lives in Râmnicu-Vâlcea.

In 1993 the applicant married N.E.C. and their daughter M.A. was born in 2001. Following the couple’s divorce on 28 February 2007, the mother was granted physical custody of the child. As the parents had reached an agreement regulating the applicant’s contact with the child, the visiting rights were not discussed in the divorce proceedings.

Until December 2009, the applicant had unhindered opportunity to talk to his daughter on the phone and to take her to his home whenever he wished. After that date, N.E.C. stopped answering the phone and the only possibility for the applicant to see his daughter was outside her school.

Consequently, on 7 July 2011 the applicant instituted contact proceedings before the Râmnicu-Vâlcea District Court, as a result of which on 16 December 2011 a visiting schedule was established in favour of the applicant.

N.E.C. appealed, arguing that the applicant had never been prevented from visiting the child but that since the divorce he had not visited her more than once every three months and had not contributed in any way to the continuous medical treatment she required. During the proceedings the parties reached an agreement about the visiting schedule. On 17 May 2012 the County Court questioned M.A. and noted:

“The parents divorced about 5-6 years ago and after that she often used to visit her father up until about 6 months ago, when her mother stopped allowing her to answer the phone, because the father only wanted to make [N.E.C.] angry. Since then, she can no longer answer the phone and her father has not seen her.

From her mother’s accounts, she understood that her father was a bad person who caused trouble to [N.E.C.] as they both had businesses selling the same products, and her father had taken away her mother’s employees by promising them higher salaries.

She does not wish to visit her father because that would make her mother upset and she does not want that because she cares a lot about her mother. Her mother does not wish her to visit her father, who has a new family and a small child. (...).”

In a decision of 15 June 2012 (hereinafter “the contact order”) the County Court took note of the parents’ agreement as to the visiting schedule and considered that it was beneficial for the child to maintain contact with her father.

N.E.C. lodged an appeal on points of law, unhappy that the child would have to go to the applicant’s home. In a final decision of 19 November 2012 the Piteşti Court of Appeal upheld the County Court’s decision. It noted that the child was used to going to her father’s home and continuing this habit would help consolidate their relationship. It found:

“The consolidation of the relationship between the applicant and the minor by means of complying with the County Court’s decision is even more necessary since, from the report of the interview with the minor, it appears that the minor had been visiting her father after the parents’ separation until about six months before the hearing, [when the mother] stopped allowing her to talk on the phone with the applicant; from the same report it appears that the minor does not wish to see her father in order not to upset her mother.

In these circumstances, the [County Court] has correctly decided that the visits should take place in the applicant’s home, in order to allow the normal parental ties to develop and to avoid the possibility of inculcating feelings of hatred towards the father, which would run counter to the child’s harmonious psychological development.”

As N.E.C. continued to oppose any contact with the child, on 13 March 2013 the applicant contacted a court bailiff and started enforcement proceedings. On 23 March 2013 the application was allowed by the Brezoi District Court, which ordered enforcement of the contact order.

The bailiff invited N.E.C. to bring the child to his office on 5 April 2013, which she failed to do. On 3 May and 7 June 2013 and on 7 March 2014 he went to her home together with the applicant, the police and representatives of the Vâlcea Directorate General on Social Welfare and Child Protection (“the child protection authority”). On each occasion they found no one there, despite prior notification.

On 11 April 2013, at the applicant’s request, the bailiff lodged with the Brezoi District Court an application for penalties against N.E.C., under the provisions of Article 905 of the Code of Civil Procedure (“the CCP”, see paragraph 27 below). N.E.C. reiterated that, as M.A. was refusing to see her father, she would not agree that the child be taken against her will to the applicant’s home. On 20 June 2013 the court ordered N.E.C. to pay a fine of 500 Romanian Lei (RON – approximately 115 euros (EUR) at the relevant time) for each day of non-enforcement of the contact order, starting from the date on which the District Court decision was notified to her. The District Court reiterated the findings of the report of 17 May 2012 concerning the interview with M.A. (see paragraph 8 above) and found that the mother was responsible for the failure to enforce the visiting schedule. It found:

“From the same report it appears that, although the minor likes to visit her father, she does not wish to do so any more because she does not want to upset her mother.

The court concludes that the non-enforcement of the obligation set down in the contact order is caused exclusively by the debtor and there is no evidence to show that the minor herself would refuse in absolute terms contact with the creditor or that she would manifest aversion towards him.”

On 21 August 2013, acting on an application lodged by the bailiff under Article 188 § 2 of the CCP (see paragraph 27 below), the Brezoi District Court fined N.E.C. RON 100 (approximately EUR 22 at the relevant time) for obstructing the enforcement proceedings.

Meanwhile, on 18 August 2014 the bailiff noted that N.E.C. was continuing to reject the visiting schedule and concluded that the enforcement had become objectively impossible. Consequently he terminated the enforcement proceedings and lodged a criminal complaint against N.E.C. (see paragraph 20 below) under the provisions of Article 911 § 2 of the CCP (see paragraph 28 below).

The applicant objected to the stay of execution and asked the Brezoi District Court to compel the bailiff to continue the enforcement proceedings. He also argued that the provisions of the CCP allowing the bailiff to stay the execution while a criminal complaint was ongoing were unconstitutional in so far as it allowed the debtor − in bad faith − to stay or obliterate the enforcement efforts and to manipulate the child’s behaviour to the point of rejecting the non-custodial parent. He did not otherwise contest the findings of the bailiff’s report. On 22 May 2015 the Brezoi District Court dismissed his objection on the grounds that it had become objectively impossible to enforce the court order and that the bailiff had correctly stayed the enforcement once the prosecutor’s office had taken over the case. On 22 March 2016 the appeal lodged by the applicant was also dismissed as unfounded by the Vâlcea County Court. The latter found that the bailiff had complied with all the obligations arising from Articles 909-913 of the CCP (see paragraph 28 below). Later on, in its decision no. 299 of 12 May 2016, the Constitutional Court dismissed the constitutional complaint raised by the applicant (see paragraph 30 below).

On 4 March 2014 the applicant asked the District Court to quantify the amount of damages to which he was entitled under Article 905 § 4 of the CCP (see paragraph 27 below). N.E.C. maintained that it had been the applicant who had distanced himself from the child and that due to the break-up of the father-daughter relationship it was impossible to comply with the contact order at that time. On 25 September 2014 the District Court ordered N.E.C. to pay the applicant RON 9,200 (approximately EUR 2,100 at the relevant time). The latter could not obtain this payment as N.E.C. had sold all her possessions and had not declared any fixed income.

On 6 January 2015 the applicant asked the child protection authority to seek a court order for three months of psychological counselling for his daughter, reiterating that N.E.C. was alienating M.A. from her father. On 9 January 2015 the child protection authority refused to intervene since the bailiff had not recorded in his report that the child had opposed the enforcement “in absolute terms”, as required by Article 912 of the CCP (see paragraph 28 below).

On 14 January 2015 the applicant reiterated his request for psychological counselling. In addition, he asked that the relationship between the parties involved be monitored for a period of six months and that N.E.C. be fined for the delays in executing the contact order. The child protection authority’s inspectors met N.E.C. on four occasions: on 29 January, 11 March, 23 April, and 17 July 2015. Subsequently, in a letter of 22 July 2015 the authority informed the applicant that N.E.C. had not allowed them to talk with the child about her relationship with her father. The child protection authority advised as follows:

“In view of the fact that for the past four years your relationship with your daughter has only consisted of a few isolated encounters, we consider that reinitiating the fatherdaughter relationship must be done gradually, bearing in mind the child’s wishes, her school programme and her extra-curricular activities. (...)

For the time being, [N.E.C.] considers that it is not in the child’s best interest to reinitiate the father-daughter relationship and refuses to lend her support to this end.

In the light of the above, we consider that it is important for the child that both you and your former spouse try to improve your communication and that you change your current attitude (complaints before courts and other institutions, enforcement proceedings (...)), in order to overcome the conflicts and to offer your daughter the support and reassurance that she requires at this age.”

Acting upon the criminal complaint lodged by the bailiff on 18 August 2014 (see paragraph 15 above), the prosecutor’s office attached to the Vâlcea County Court started an investigation into the commission of the offence of a breach of a court judgment (nerespectare a hotărârii judecătoreşti).

On 4 March 2015 the prosecutor changed the legal classification of the alleged facts into the offence of a breach of custody measures (nerespectarea măsurilor privind încredinţarea minorului).

On 4 January 2016 the prosecutor interviewed M.A. in the presence of N.E.C.’s lawyer and a psychologist from the child protection authority. M.A. refused to re-establish contact with her father and expressed her belief that her father was only trying to hurt her mother through his actions because of their work-related conflicts, of which she had been partially informed by her mother. She said:

“I believe that by his actions my father wants, in reality, to hurt my mother. Yesterday I discussed this subject with my mother, as I had done once before, and she told me that she did not wish to trouble me, as those were work-related problems created by my father. It might be that through his actions my father wants to hurt my mother. I know some aspects, but not too much about the conflict between my parents concerning my mother’s work.

It is possible that my father started these actions because he loves me and wishes to know me.

I no longer want to know him or to have personal relations with him. (...)

I think it would be best if my father left me alone. (...)

It is true that my mother has never said bad things about my father, but she has never encouraged me to have personal ties with him either.”

On 22 April 2016, acting at the prosecutor’s request, the psychologists from the child protection authority assessed M.A. They noted in their report that M.A. refused to see her father because she had been disappointed by the manner in which he had tried to get in touch with her, namely via the authorities, thereby causing upset to her mother. The expert did not consider that counselling for M.A. would be beneficial for re-establishing the relationship between the applicant and his daughter. He recommended psychological support for the parents.

On 24 February 2017 the prosecutor decided to terminate the investigation on the grounds that it had not been established beyond any doubt that N.E.C. had acted in such a manner as to repeatedly prevent the applicant from seeing his daughter and that the lack of communication was caused by M.A.’s unequivocal wish and will.

On 18 April 2017, in response to a complaint lodged by the applicant, the prosecutor in chief of the prosecutor’s office upheld the above decision. However, in a decision of 3 October 2017 the Râmnicu Vâlcea District Court allowed a complaint lodged by the applicant, quashed the prosecutor’s decision and sent the case back to the prosecutor’s office for further examination. The court considered that, because of the mother’s influence over her, the child might suffer from parent alienation syndrome which constituted a form of psychological abuse; in order to clarify this aspect, further psychological investigation was needed.

In 2016, the applicant resumed contact with his former spouse, through the offices of a new bailiff. He tried to visit her home in order to see the child on 6 May, 3 June, 1 July, and 5 August 2016. On 6 April 2017 he asked N.E.C.’s opinion as to what would be the appropriate method for him to re-establish contact with his daughter.


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

The applicant was born in 1986 and lives in Tbilisi.

The applicant was arrested on suspicion of murder on 16 April 2005. On 11 January 2007 the Tbilisi City Court convicted the applicant as charged and sentenced him to life imprisonment. The conviction was upheld on appeal by the Tbilisi Court of Appeal on 12 May 2007. The Supreme Court of Georgia rejected an appeal on points of law by the applicant as inadmissible.

According to the applicant, prior to the initiation of the criminal proceedings against him and his detention, he had no major medical problems and was in good health.

Subsequent to his arrest, the applicant was placed in Tbilisi Prison no. 5 from where he was transferred to Tbilisi Prison no. 1 and then back to Tbilisi Prison no. 5 sometime in February 2006.

According to the applicant, in October 2006 his state of health started to deteriorate. He had a fever and was coughing. He lost weight and felt extremely weak. The applicant alleged that he voiced his medical concerns with the prison administration and requested a medical check-up, however in vain as he was not provided with any medical assistance. He failed to submit a copy of any of the complaints in this connection.

On 11 January 2007 the applicant, after having complained to the prison administration, was seen by a prison doctor who prescribed him antibiotics. Two weeks later, on 28 January 2007, he was transferred to the prison hospital, where he underwent various medical examinations. On 2 February 2007 he was diagnosed with tuberculosis of the right lung MGB (+) positive, further complicated by left-arm spontaneous pneumothorax. On 5 February 2007 the applicant was placed on the DOTS programme (Directly Observed Treatment, Short-course – the treatment strategy for the detection and cure of TB recommended by the World Health Organisation) and started receiving conventional, first-line anti-TB medication. In addition, he was provided with vitamins.

On 8 October 2007 the applicant completed the course of treatment. However, a medical examination of 18 October 2007 revealed a recurrence of the tuberculosis. On 30 October 2007 the applicant was enrolled in the second phase of anti-TB treatment which he successfully completed on 6 August 2008. On 26 August 2008 the applicant underwent another bacteriological sputum smear, which was negative, that is to say it showed no evidence of the TB microbacterium.

According to the case file, since then the applicant had repeatedly undergone sputum tests. The latest medical examination of which the Court was informed, on 29 February 2012, revealed that the applicant’s TB was in a non-active phase. Thus, he did not require any anti-TB treatment.


CASE OF GAVRASHENKO AND OTHERS v. UKRAINE

Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 1 of Protocol No. 4 - Freedom of movement)

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the excessive length of criminal proceedings and of the lack of any effective remedy in domestic law. Some applicants also raised other complaints under the provisions of the Convention.