CASE OF ÖCALAN v. TURKEY (No. 2) [Extracts]

Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);No violation of Article 7 - No punishment without law (Article 7-1 - Nulla poena sine lege);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading punishment;Inhuman punishment) (Substantive aspect);Pecuniary and non-pecuniary damage - finding of violation sufficent

András Sajó;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque;Peer Lorenzen

The applicant, a Turkish national, was born in 1949 and is currently being held in İmralı Prison.

The facts of the case up to 12 May 2005 were presented by the Court in the Öcalan v. Turkey judgment ([GC], no. 46221/99, ECHR 2005IV). They may be summarised as follows.

On 15 February 1999 the applicant was arrested by members of the Turkish security forces in an aircraft in the international area of Nairobi airport. The applicant was returned to Turkey from Kenya and taken into custody at İmralı Prison on 16 February 1999. The inmates at this prison had meanwhile been transferred to other prisons.

On 23 February 1999 the applicant appeared before a judge of the Ankara National Security Court, who ordered that he should be detained pending trial.

By a judgment of 29 June 1999, the Ankara National Security Court found the applicant guilty of carrying out acts designed to bring about the secession of part of Turkey’s territory and of training and leading a gang of armed terrorists for that purpose, and sentenced him to death under Article 125 of the Criminal Code. It found that the applicant was the founder and principal leader of an illegal organisation, namely the PKK (the Workers’ Party of Kurdistan – hereafter “the PKK”). The National Security Court found that it had been established that, following decisions taken by the applicant and on his orders and instructions, the PKK had carried out several armed attacks, bomb attacks, acts of sabotage and armed robberies, and that in the course of those acts of violence thousands of civilians, soldiers, police officers, village guards and public servants had been killed. The court reiterated that the applicant had acknowledged that the Turkish Government’s estimate of the number of those killed (almost 30,000) or wounded as a result of the PKK’s activities was fairly accurate, that the actual number might even be higher, and that he had ordered the attacks as part of the armed struggle being waged by the PKK. The court did not accept that there were mitigating circumstances allowing the death penalty to be commuted to life imprisonment, having regard, among other things, to the very large number and the seriousness of the acts of violence and the major, pressing threat to the country that those acts posed.

By a judgment adopted on 22 November 1999 and delivered on 25 November 1999, the Court of Cassation upheld the judgment of 29 June 1999 in its entirety.

In October 2001 Article 38 of the Constitution was amended so that the death penalty could no longer be ordered or implemented other than in time of war or of imminent threat of war, or for acts of terrorism.

By Law no. 4771, published on 9 August 2002, the Turkish Grand National Assembly resolved, inter alia, to abolish the death penalty in peacetime (that is to say except in time of war or of imminent threat of war) and to make the necessary amendments to the relevant legislation, including the Criminal Code. As a result of the amendments, a prisoner whose death sentence for an act of terrorism has been commuted to life imprisonment must spend the rest of his life in prison.

By a judgment of 3 October 2002, the Ankara National Security Court commuted the applicant’s death sentence to life imprisonment.

On 20 February 2006 Turkey ratified Protocol No. 13 concerning the abolition of the death penalty in all circumstances.

The applicant’s conditions of detention in İmralı Prison before 12 May 2005 are described in the judgment of the same date (see Öcalan, cited above, §§ 192-196).

Furthermore, the applicant was the sole inmate of İmralı Prison until 17 November 2009, when five further individuals were transferred to it; all the prisoners, including the applicant, were then housed in a new block which had just been built.

In May 2007 and January 2010, that is to say after the Court’s judgment of 12 May 2005, delegations from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) visited İmralı Prison.

Before 17 November 2009 the cell which the applicant occupied alone measured approximately 13 sq. m, and was equipped with a bed, a table, a chair and a shelf. The cell was air-conditioned and had a partially partitioned sanitary annex. There was a window overlooking an enclosed yard and the cell had adequate access to natural light and adequate artificial lighting. In February 2004 the walls had been reinforced with chipboard panels to protect them against the damp.

The time granted to the applicant to leave his cell and use the exercise yard (measuring approximately 45 sq. m), which is walled in and covered with mesh, was limited to one hour daily (divided into two 30-minute periods, one in the morning and the other in the afternoon).

The applicant was not in sensory isolation or solitary confinement. As he was the only inmate of the prison, his only contacts were with the members of staff working there, who were only allowed to talk to him about subjects falling within the scope of their duties and relating to everyday life in the prison.

The applicant had access to books and a radio which could only receive State broadcasts. He was not allowed to have a television set in his cell on the grounds that he was a dangerous prisoner and a member of an illegal organisation, and was prone to commit recurrent disciplinary offences. Nor was he given access to a telephone, for the same reasons.

The applicant, who had restricted access to daily and weekly newspapers, was allowed a maximum of three papers in his cell at any one time. The newspapers were often several days old. In fact, he received them once a week, from his family or his lawyers. In the absence of visits from family members and lawyers (owing to the inaccessibility of the island), the applicant often spent long periods without access to recent newspapers. Those papers which he did receive had always been extensively censored.

The applicant was allowed to correspond with the outside world under the supervision of the prison authorities. The mail which he received was verified and censored. Correspondence with the outside was occasionally interrupted.

The applicant remained in the same cell from the date of his transfer to İmralı Prison – after his arrest on 16 February 1999 – until 17 November 2009, that is to say for almost ten years nine months.

In order to comply with the requests put forward by the CPT and put an end to the applicant’s relative social isolation, the governmental authorities built a number of new blocks inside the grounds of İmralı Prison. On 17 November 2009 the applicant and five other inmates transferred from other prisons were moved to these new facilities.

Since that date the applicant has been on his own in a cell with an area of 9.8 sq. m (living space), with a further 2 sq. m of sanitary facilities, comprising a bed, a small table, two chairs, a metal cupboard and a kitchenette with a washbasin. The building containing the cells is properly damp-proofed. According to the CPT, although the applicant’s cell has a 1 m x 0.5 m window and a partly glazed door, both opening on to an enclosed yard, it has insufficient direct sunlight because of the 6-m-high wall surrounding the yard. The CPT’s proposal to lower the wall has not yet been accepted by the Government, whose experts have certified that the cell receives enough natural light.

The prison is equipped with a sports room with a pingpong table and two other rooms with chairs and tables, all three rooms enjoying plentiful natural daylight. Every inmate, including the applicant, has two hours of outdoors exercise every day alone in the exercise yard reserved for each cell. Moreover, all the prisoners can spend one hour per week alone in a recreation room (where no specific activities are on offer) and two hours per month alone in the prison library. Furthermore, every prisoner takes part in collective activities, including one hour’s conversation per week with the other prisoners.

Following its visit in January 2010 the CPT observed that the prison regime applied to the applicant was only a very modest step in the right direction, particularly as compared to the regime applied in the other F-type prisons for the same category of convicted prisoners, who could engage in outdoor activities all day long, with non-supervised collective activities with the other prisoners for between three and seven days a week.

In the light of these observations, the authorities responsible for İmralı Prison undertook to relax the regime in question, so that the İmralı inmates, including the applicant, can now engage alone in out-of-cell activities for four hours per day, receive newspapers twice (instead of once) a week and spend three hours (instead of one) per week together to talk to each other. All the İmralı inmates can engage, for one hour per week, in any of the following collective activities: painting and handicraft activities, table tennis, chess, volleyball and basketball. According to the prison registers, the applicant in fact plays volleyball and basketball but does not take part in the other activities. The prison authorities also informed the CPT that they were considering providing inmates with two hours per week of additional collective activities (painting/handicraft, board games and sport). The applicant therefore apparently spends a great deal of time outside his cell, that is to say, depending on his choice of collective activity, up to a maximum of 38 hours per week, including a maximum of ten hours in the company of the other prisoners.

Since 20 March 2010, in the wake of new technical arrangements, the applicant, like the other İmralı inmates, has been allowed ten minutes’ telephone calls to the outside every fortnight.

In its report of 9 July 2010 the CPT recommended that the Government should ensure that the applicant could accompany the other inmates for outdoor activities, and that he and the other prisoners could spend a reasonable part of the day (eight hours or more) outside their cells, engaged in purposeful activities of a varied nature. The CPT also recommended allowing the applicant to have a television set in his cell, like all other persons held in high-security prisons. The prison authorities did not act on these latter recommendations on the grounds that the applicant still held dangerous prisoner status and failed to comply with the prison rules, particularly during visits by his lawyers. On 12 January 2012 the applicant was supplied with a television set.

The applicant has received many visits from his lawyers and relatives, but not as many as he and his visitors would have liked, mainly because of “poor weather conditions”, “maintenance work on the ferry boats between the island and the mainland” and “the inability of the boats to cope with prevailing weather conditions”.

In fact, the old ferry boat İmralı 9 was still in service but could only sail when there was little wind. The larger ferry boat, Tuzla, which the Government had promised when the previous Öcalan case was pending before the Grand Chamber of the Court, began operating in 2006. The Tuzla, being better suited than the İmralı 9 to difficult weather conditions, provides more frequent crossings between İmralı Island and the mainland. It sometimes suffers technical breakdowns, entailing repairs which sometimes take several weeks.

As regards visits, between March and September 2006, for example, twenty-one out of thirty-one requests for visits were refused. These refusals continued into October 2006, with five out of six requests being refused, and November 2006, with six out of ten requests refused. After a brief improvement in December 2006 (one out of six requests refused), January 2007 (two out of six requests refused) and February 2007 (all four requests granted), visit frequency once again dropped off in March 2007 (six out of eight requests refused) and April 2007 (four out of five requests refused), picking up again in May 2007 (one out of five requests refused) and June 2007 (one out of four requests refused). The number of family visits totalled 14 in 2005, 13 in 2006 and seven in 2007. In fact, between 16 February 1999 and September 2007, the applicant received 126 visits from his brothers and sisters and 675 from his lawyers or advisers.

For the remainder of 2007 and in 2008, 2009 and, broadly speaking, 2010, the frequency of visits by lawyers and members of the applicant’s family regularly increased. In 2009, for example, forty-two visits out of the fifty-two requested took place on the scheduled date or the day after (because of unfavourable weather conditions).

In 2011 and 2012 the ratio of refusals to requests increased significantly. In 2011, for example, the applicant only received two family visits out of the six requested. Again in 2011, he only received twenty-three of the sixty-seven requested visits by his lawyers. Three lawyers’ visits took place in January, two in February, five in March, three in April, four in May, four in June and two in July 2011. Between August and December 2011 the applicant received no visits apart from one family visit on 12 October 2011, with thirty-three refusals. The prison authorities explained their refusals by poor weather conditions and ferry breakdowns.

In 2012 the applicant received a few visits from his brother, and none from his lawyers.

As a general rule, persons in prison in Turkey can talk to their lawyers on working days, during working hours, without any restrictions as regards frequency over any given period. Since İmralı Island is only accessible by means of the shuttle boat provided by the İmralı Prison administration, the applicant’s lawyers’ visits, in practice, always took place on a Wednesday, the day of the crossing.

As a general rule, prisoners can communicate with their lawyers completely confidentially, without supervision. On 1 June 2005, however, Law no. 5275 on the enforcement of sentences and preventive measures came into force, replacing the previous legislation on this matter. Under section 59 of the new Law, if it emerges from documents and other evidence that visits by lawyers to a person convicted of organised crime are serving as a means of communication within the criminal organisation in question, the post-sentencing judge may, at the request of the prosecution, impose the following measures: presence of an official when the convicted prisoner is talking to his lawyers, verification of documents exchanged between the prisoner and his lawyers during such visits, and/or confiscation of all or some of these documents by the judge.

On 1 June 2005 the applicant was visited by his lawyers. Just before the interview the prison authorities communicated to the applicant and his lawyers a decision by the Bursa post-sentencing judge applying section 59 of Law no. 5275 to that visit. An officer was therefore present during the interview, the conversation between the applicant and his lawyers was tape-recorded and the documents supplied by the lawyers were submitted to the judge for examination.

In order to protest against the new procedure, the applicant interrupted the interview after a quarter of an hour and asked his lawyers to pay no further visits to him until the said procedure had been revoked. He informed the prison authorities that the procedure infringed the confidentiality of the interview between the lawyers and their client and “rendered the visit and the interview pointless in terms of preparing his defence”.

During subsequent visits an official was in attendance during interviews. Moreover, the conversation between the applicant and his lawyers was again tape-recorded and submitted to the post-sentencing judge for examination.

The applicant’s lawyers also lodged an appeal with the Bursa Assize Court against the Bursa post-sentencing judge’s decision ordering attendance by an officer during interviews and the recording of the conversations. By decisions of 27 April and 9 June 2006, the Assize Court dismissed the appeal on the grounds that the impugned measures were geared to preventing the transmission of orders within a terrorist organisation, that they did not affect the applicant’s defence rights and that in any case the transcription of the conversations showed that they had not concerned the applicant’s defence in any set of proceedings but the internal functioning of the PKK and the strategy to be adopted by this illegal organisation.

During the lawyers’ visit on 29 March 2006, one of the officers present in the room in which the interview was taking place interrupted the conversation on the ground that it was not confined to preparing the applicant’s defence before a judicial authority. The applicant’s lawyers filed a complaint against the officer in question for abuse of office. On 21 April 2006 the Bursa public prosecutor’s office issued a decision not to prosecute.

It appears from the records of the lawyers’ visits that the conversations very often began with a statement by the lawyers on recent developments concerning the PKK. The applicant consulted his lawyers on changes of persons at the different structural levels of the organisation, the various activities and meetings organised by the PKK bodies (at regional and national levels, and also abroad), the political line adopted by the party leaders, competition among the leaders and losses sustained by armed militants in combating the security forces. The applicant, who presented himself as “the leader of the Kurdish people”, commentated all the information provided by his lawyers and mandated them to transmit his ideas and instructions with a view to reshaping the PKK’s policies in Turkey (he broadly advocated recognising the rights of the Kurdish minority in a completely democratic Turkey) or in other countries. Moreover, he approved or rejected executive appointments to the various PKK bodies and advised on the party’s internal organisation. He also recommended that the PKK lay down its weapons when the Government had ended hostilities and the PKK’s demands had been met.

At the request of the Bursa public prosecutor, the Bursa post-sentencing judge several times refused to hand over copies of the records to the applicant and his lawyers on the grounds that they contained direct or indirect instructions by the applicant to the PKK, which used them to reshape its strategy and tactics.

Since May 2005 the applicant had remained actively involved in the political debate in Turkey on the PKK armed separatist movement, which identified him as its main representative, and his instructions as transmitted through his lawyers had been closely monitored by the general public, prompting a variety of reactions, some of which had been very extreme. A section of the Turkish population considered him as the most dangerous terrorist in the country, who was still active even in prison. His supporters saw him as their leader and the ultimate head of the separatist movement.

The applicant also stated that he had taken part in negotiations with certain State officials with an eye to resolving the problems posed by the armed separatist movement, but that most of his calls for the discontinuation of the armed conflict had been heard neither by the Government nor by his armed movement.

The applicant was placed in solitary confinement on the ground that he had transmitted instructions to the organisation of which he was the leader during his lawyers’ visits on the following dates: 30 November 2005, 12 July and 27 September 2006, 4 April, 4 July and 7 November 2007, 9 April and 14 May 2008, and 2 January and 4 November 2009.

Therefore, according to the tape recording of the conversation of 30 November 2005 between the applicant and his lawyers, the applicant told his legal representatives how he considered that PKK members could invite citizens of Kurdish origin to demonstrate in order to demand the right to education in the Kurdish language.

On 12 December 2005 the İmralı Prison disciplinary board, considering that the applicant’s words corresponded to “training and propaganda activities within a criminal organisation”, sentenced the applicant to 20 days’ solitary confinement. Pursuant to this sanction, the prison administration removed all the applicant’s books and newspapers for twenty days.

The applicant’s appeal against this disciplinary measure was dismissed on 22 December 2005 by the Bursa post-sentencing judge on the grounds that the applicant had incited women and children to organise illegal demonstrations, thus carrying out what might be described as training and propaganda activities within a criminal organisation.

On 7 February 2006 the Bursa Assize Court dismissed the appeal lodged by the applicant’s lawyers against the decision of 22 December 2005. The Assize Court considered that the impugned decision was in conformity with the law.

The applicant was subjected to a further sanction of 20 days’ solitary confinement on the ground of a conversation with his lawyers which had taken place on 12 July 2006. His appeals against this decision having been dismissed, he served this sentence from 18 August to 7 September 2006. The applicant’s lawyers were not apprised of this sanction until 23 August 2006, when a request for a visit to the applicant was rejected.

Visits by relatives of the applicant (in practice, his brothers and sisters) are limited to one hour every fortnight. These visits originally took place in a visiting room comprising a barrier to separate the prisoner from his visitors, as the visiting areas where the prisoner and his visitors could sit together at a table were reserved for relatives of the first degree under Rule 14 of the Rules on visits to prisoners and detainees. On 2 December 2009 the State Council annulled this provision. Without waiting for this decision to become final, the İmralı Prison Governing Board granted the applicant the right to see his brothers and sisters unseparated by any barrier. On 26 July 2010, therefore, the applicant was able to meet his brother “around a table” for the first time.

Where a visit is cancelled owing to weather conditions, the authorities can organise another visit a few days later, at the family’s request. In practice, Wednesday visits which are cancelled are not replaced because the visitors have never requested such replacement.

Furthermore, visits by family members have not been as frequent as the applicant and his relatives would have wished because of the inadequacy of the available means of transport under unfavourable weather conditions. Almost half of all the visits requested have been rejected owing to shuttle boat breakdowns or poor weather conditions.

Article 151/3-4 of the new version of the Code of Criminal Procedure, which came into force on 1 June 2005, provides that lawyers who have been prosecuted for crimes linked to terrorism may be banned from representing persons convicted of terrorist activities. This provision is intended to prevent leaders of terrorist organisations who have been convicted from continuing to lead their organisations from their place of incarceration through the intermediary of their lawyers.

By a decision of 6 June 2005, the Istanbul prosecutor’s office invited the Istanbul Assize Court to apply this measure to some of the applicant’s lawyers.

By a decision of 7 June 2005, the 9th Assize Court deprived twelve lawyers of their status as counsel to the applicant for a period of one year.

On 20 June 2005, the 10th Assize Court of Istanbul dismissed the applicant’s appeal against that decision.

On 23 November 2011, on instructions from the Istanbul public prosecutor’s office, the law enforcement agencies arrested and took into custody 36 lawyers representing the applicant in 16 Turkish departments (including six lawyers representing the applicant before the Court), searched their offices and seized all the documents relating to the applicant. The prosecution suspected the lawyers in question of having acted as messengers between the applicant and the other PKK leaders.

By a letter of 7 March 2007 the applicant’s representatives informed the Court that they had asked a Strasbourg medical laboratory to analyse six hairs which they considered to be from the applicant and that the analyses carried out on 5 February 2007 demonstrated the presence of abnormally high doses of chromium and strontium.

However, analyses of samples taken directly from the applicant at the prison failed to disclose any trace of toxic elements or elements endangering health.


Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (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)

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković

The applicant was born in 1975 and lives in Krasnoyarsk.

On 5 February 2006 Mr V.N. informed the local office of the Federal Drug Control Service (“DCS”) that he had purchased heroin from the applicant. The DCS officers then decided to organise a covert operation of the test purchase of the drug.

At about 3 p.m. on 6 February 2006 the DCS officers arrived at the applicant’s block of flats and rang at the door of a flat located next to that of the applicant in which two sisters, Ms E.N. and Ms T.N, resided. The DCS officers asked the two women to ring at the applicant’s door so that he would open it unaware of the DCS officers’ presence. Ms E.N. and Ms T.N. refused to cooperate.

The DCS officers then waited on the stairway for the applicant to leave the flat. At some point the applicant stepped out of his flat.

According to the applicant, three DCS officers forcibly dragged him out of the flat, pushed him to the floor and beat him on the stairway. According to the Government, the applicant showed active resistance by beating and kicking the DCS officers. They had to resort to physical force in order to overcome his resistance, and handcuffed the applicant.

Ms E.N. and Ms T.N. observed through the open door that three men were beating and kicking the applicant.

According to the Government, the applicant voluntarily allowed a visual inspection of his flat. According to the applicant, he was forced to make a written statement agreeing to the inspection. It is common ground between the parties that the DCS officers then proceeded to carry out the inspection in the presence of two attesting witnesses and discovered syringes with traces of heroin and pieces of aluminium foil.

The officers took the handcuffs off the applicant so that he could sign an inspection report. At some point the applicant rose to his feet suddenly and ran at a cupboard with glass doors, ramming it with his head. The cupboard fell on the applicant.

The applicant was then brought to the DCS premises. At about 1.50 a.m. on 7 February 2006 he was formally detained as a suspect in a temporary detention cell.

Two of the DCS officers presented their hierarchical superior with reports dated 6 February 2006 on the use of physical force in the course of the applicant’s arrest, claiming that the force had been used legitimately to overcome the violent resistance offered by the applicant.

On 7 February 2006 the applicant was brought to a trauma centre and then to hospital. He was diagnosed with a closed cerebral injury.

On the same day the Kirovskiy District Court of Krasnoyarsk authorised the applicant’s detention.

On 9 February 2006 the applicant was transferred to a remand prison. On arrival he was examined by a doctor and diagnosed with a closed cerebral injury as well as injuries to his face and head.

On 15 February 2006 the applicant complained to the Kirovskiy district prosecutor’s office of Krasnoyarsk (“the district prosecutor’s office) about the alleged ill-treatment.

On 2 March 2006, having conducted a pre-investigation inquiry, the district prosecutor’s office refused to institute criminal proceedings against the DCS officers who had allegedly beaten the applicant on 6 February 2006. They referred to statements made by the DCS officers and one of the attesting witnesses who had been present during the inspection in the flat and concluded that the applicant had resisted lawful arrest and that the use of force and handcuffing had thus been lawful and justified in the circumstances. The district prosecutor’s office also established that the applicant had thrown himself against the cupboard, which had collapsed on the applicant causing him injuries.

On 15 November 2006 the Leninskiy District Court of Krasnoyarsk convicted the applicant of drug-related crimes and sentenced him to six years’ imprisonment. The applicant admitted the unlawful procurement and possession of heroin but pleaded not guilty to the charges of supplying the drug to others, inter alia on 5 and 6 February 2006.

Between March 2006 and February 2007 the pre-investigation inquiry into the allegation of ill-treatment was resumed on six occasions as the decisions refusing to open a criminal investigation were quashed by either the district prosecutor’s office or the Krasnoyarsk regional prosecutor’s office.

On 2 February 2007 the district prosecutor’s office issued another decision refusing to open a criminal investigation.

On 13 February 2007 the Krasnoyarsk regional prosecutor’s office quashed the decision of 2 February 2007 on the grounds that the applicant’s neighbours, the N. sisters, had consistently alleged that the applicant had been beaten by the officers; another neighbour had not been questioned at all; and the forensic expert report had not been completed.

On 13 February 2007 the Krasnoyarsk Regional Court upheld the conviction of 15 November 2006 on appeal.

On 20 February 2007 the district prosecutor’s office ordered a forensic expert examination of the applicant in order to establish the origin of the injuries that he had sustained on 7 February 2006.

On 26 February 2007 a forensic expert drew up a report based on medical certificates and X-rays dated February 2006 and the explanations given by the applicant on 22 February 2007. According to the report, the initial diagnosis of a closed cerebral injury had not been confirmed and the bruises could have “resulted either from a beating with a hard blunt object(s) or from falling and hitting the said object(s)”.

On 1 March 2007 the district prosecutor’s office again refused to open a criminal investigation into the alleged ill-treatment. They argued, in particular, that the statements by Ms E.N. and Ms T.N. could not be regarded as reliable evidence owing to the fact that “according to the information received, both the N. sisters [were] prostitutes and acquaintances of Mr Zelenin, with whom they [maintained] a friendly relationship, and thus [were] interested in the outcome of Mr Zelenin’s arrest”. They concluded that the DCS officers had used legitimate force to effect the applicant’s arrest.

On 28 May 2007 the Kirovskiy District Court of Krasnoyarsk upheld the above decision on judicial review. On 6 September 2007 the Krasnoyarsk Regional Court upheld the first-instance decision.

On 26 October 2007 the Investigative Department of the Investigative Committee of the Prosecutor’s Office of Russia for the Krasnoyarsk Region (“the regional investigative committee”) quashed the decision of 1 March 2007.

On 15 November 2007 the Investigative Unit of the Investigative Department of the Investigative Committee of the Prosecutor’s Office of Russia for the Kirovskiy District of Krasnoyarsk (“the district investigative committee”) again refused to open a criminal case. Again it was argued that the statements by Ms E.N. and Ms T.N. were to be disregarded since “according to the information received, both the N. sisters [were] prostitutes and acquaintances of Mr Zelenin, with whom they [maintained] a friendly relationship, and thus [were] interested in the outcome of Mr Zelenin’s arrest”.

On 30 January 2008 the Kirovskiy District Court of Krasnoyarsk upheld the decision of 15 November 2007 on judicial review. On 5 June 2008 the Krasnoyarsk Regional Court upheld the first-instance ruling.

On 23 March 2009 the applicant was released on probation.


András Sajó;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant, Mrs Maria Alfredina da Silva Carvalho Rico, is a Portuguese national, who was born in 1942 and lives in Porto. She was represented before the Court by Mr J. J. Ferreira Alves, a lawyer practising in Matosinhos.

The applicant is a pensioner eligible to receive social-security benefits under the public-sector pension scheme. In 2009 she was granted a retirement pension which amounted to 1,980.72 euros (EUR) gross per month.

In April 2011 Portugal requested financial assistance from the European Union (EU), the euro area Member States and the International Monetary Fund (IMF). An Economic Adjustment Programme was negotiated in May 2011 between the Portuguese authorities and officials from the European Commission, the European Central Bank (ECB) and the IMF including a joint financing package of EUR 78,000,000,000 (EUR 26,000,000,000 from the European Financial Stabilisation Mechanism, EUR 26,000,000,000 from the European Financial Stability Facility and EUR 26,000,000,000 from the IMF). The programme was agreed and formally adopted on 17 May 2011 at a Eurogroup/ECOFIN meeting in Brussels, where the Portuguese Government signed a Memorandum of Understanding on Specific Economic Policy Conditionality (the “M.o.U.”) with the EU, the ECB and the IMF and thereafter two related documents: the Technical Memorandum of Understanding and the Loan Agreement.

The M.o.U. set out the economic and social policies, including tax and social-security measures, that Portugal should implement for the duration of the programme (2011-2014) in order to improve its financial situation and receive financial support from the EU. It stipulated, inter alia, that Portugal would:

“... 1.11 Reduce pensions above EUR 1,500 according to the progressive rates applied to the wages of the public sector as of January 2011, with the aim of yielding savings of at least EUR 445 million.”

On 31 December 2012 the Official Journal (Diário da República) published Law no. 66-B/2012 on the State budget (Lei do Orçamento de Estado para 2013, hereinafter “the 2013 State Budget Act”), which was designed to continue the implementation of the M.o.U. initiated by Law no. 64-B/2011 of 30 December 2011 on the 2012 State Budget. Pursuant to section 78 of the 2013 State Budget Act, the scope of application of the existing extraordinary solidarity contribution (contribuição extraordinária de solidariedade, hereinafter “the CES”) was extended in order to include pensioners receiving a gross amount of EUR 1,350. This provision was to apply in 2013 and only during that year.

The applicant’s pension was subsequently taxed at 3.5% on a part corresponding to EUR 1,800 and 16% on the part exceeding it. The excess was EUR 180.72. The total amount deducted because of the CES thus amounted to EUR 91.92.

With the entry into force of the 2013 State Budget Act, the applicant’s pension was reduced accordingly, resulting in a cumulative loss of EUR 1,286.88 in 2013. This loss amounted to 4.6% of the applicant’s total annual social security benefits.

On 31 December 2013, the Official Journal published the 2014 State Budget Act (Law no. 83-C/2013), which reintroduced the CES for 2014 with the same threshold and rates as the ones applied under the 2013 State Budget Act. Consequently, the CES was again applied to the applicant’s pension as provided for in section 76 of the 2014 State Budget Act.

On 14 March 2014 a law amending the 2014 State Budget Act entered into force (Law no. 13/2014). Pursuant to the amendments to section 76, the scope of application of the CES was extended to pensions of a gross amount of EUR 1,000, while the rates applied to larger pensions were increased. The rates applied to the applicant’s pension remained unchanged.

In 2014 the applicant sustained a cumulative loss of EUR 1,286.88, amounting to 4.6% of her total annual pension payment.

In June 2014 Portugal exited the three-year Economic Adjustment Programme and is currently under post-programme surveillance until at least 75% of the financial assistance received has been repaid.

“1. All citizens have the same social dignity and are equal before the law.”

“1. Everyone is entitled to social security.”

The extraordinary solidarity contribution, introduced in Portugal by section 162 of Law no. 55-A/2010 of 31 December 2010 on the 2011 State Budget (Lei do Orçamento de Estado para 2011), reads as follows:

“Pensions, grants and any other benefits of a similar nature paid to a single person, whose monthly amount is above EUR 5,000, are subject to an extraordinary contribution at a 10% rate applicable to the amount exceeding that value.”

When the 2012 State Budget Act (Law no. 64-B/2011 of 30 December 2011) entered into force, the CES was increased to 25% on the part of pensions which exceeded EUR 5,030.64 and 50% on the part that exceeded EUR 7,545.96.

With the entry into force of the 2013 State Budget Act (Law no. 66-B/2012 of 31 December 2012) the CES was again reconfigured. Accordingly, section 78 of the 2013 State Budget Act was to be applied to pensions between EUR 1,350 and EUR 1,800 at a 3.5% rate. With regard to pensions between EUR 1,800 and EUR 3,750, the CES was set at 3.5% on the first EUR 1,800.01, and at 16% on the part exceeding that amount. As to pensions exceeding EUR 3,750, the CES was payable at 10%. As a budgetary measure provided for in the 2013 State Budget Act, the CES was only to be applied in 2013.

On 1 January 2014 the CES was reintroduced in Portugal through the enactment of the 2014 State Budget Act (Law no. 83-C/2013 of 31 December 2013). Pursuant to section 76, its scope of application remained the same as the one provided for in the 2013 State Budget Act. According to the 2014 Budget Act, the CES was an exceptional and temporary measure applicable in 2014.

Following the tenth EC/ECB/IMF review mission to Portugal in February 2014, the Portuguese Government amended the 2014 State Budget Act including, inter alia, the scope of application of the CES through the adoption of Law no. 13/2014 of 14 March. Pursuant to the amendment, the CES became applicable to pensions of EUR 1,000 and above.

The 2015 State Budget Act (Law no. 82-B/2014 of 31 December 2014) provided for a new reconfiguration of the CES by raising the threshold at which it applies, which is currently set at EUR 4,611 at a 15% rate. Pensions exceeding EUR 7,127 are currently taxed at a 40% rate (section 79).

On 2 January 2013 the President of the Portuguese Republic challenged the constitutionality of section 78 of the 2013 State Budget Act before the Constitutional Court on the grounds that its provisions were in breach of the principle of equality, the principle of proportionality and the principle of protection of legitimate expectations (princípio da confiança).

In a ruling of 22 April 2013 the Constitutional Court considered that section 78 of the 2013 State Budget Act was not disproportionate or excessive, bearing in mind its exceptional and transitory nature. In the court’s opinion, the CES was, therefore, not unconstitutional.

The Constitutional Court’s decision contained in particular the following considerations:

“75. ... Imposing an obligation on pensioners to contribute to the financing of the social-security system in order to reduce the need for public financial allocation, within a framework of distinct and articulated fiscal consolidation measures which also include tax increases and other cuts in public expenditure, is based on a coherent reasoning in line with a strategy still within the margin of the “free policy prerogative” of the legislature.

... The CES was solely designed, in conjunction with other measures, to overcome the situation of economic and financial crisis which has temporarily also required, within the framework of the basic options open to the executive and legislature, an urgent strengthening of the financing of the social-security system at the expense of its beneficiaries.

[Background factors are as follows:] ... a decrease in revenues accruing to the social-security system; the dramatic increase in unemployment; the reduction of wages; new migration trends; an increase in expenditure on support given to those in unemployment and poverty, and the consequent need for the State to finance the social-security system thereby aggravating the public deficit. As a result, the legislature, exceptionally and in an emergency situation, chose to extend to pensioners the payment of contributions into the social-security system from which they are directly or indirectly beneficiaries for the present tax year only.

Compliance with the underlying principles of the democratic rule of law must be evaluated, therefore, in light of the exceptional and temporary nature of this measure and its purpose of meeting the public deficit targets demanded by the Economic and Financial Assistance Programme.

... However, given the constraints that surrounded the implementation of the CES, not only do the expectations of continued financial stability appear to be diminished, there is also a particular, relevant and defensible public interest that justifies an exceptional and temporary discontinuation of the State’s normal conduct.

The public interest needs to be safeguarded, as has already been stated in the course of the balancing exercise carried out in earlier cases with regard to the principle of legitimate expectations, is of crucial importance and urgent which gives it a clear prevalence, even though the depth of the sacrifice caused to the private sector by the new contribution should not be ignored.

There is not, therefore, any evidence in this whole context of an infringement of the principle of protection of legitimate expectations.

Neither does it seem that the principle of proportionality could be considered to have been breached in any of the aspects of adequacy or necessity or due measure.

In the current case, it is clear that the imposition of this extraordinary tax on pensioners as a means of reducing, exceptionally and temporarily, expenditure on payment of pensions in order to obtain additional financing for the social-security system, is an appropriate measure for the purposes set out by the legislature.

As to whether, in order to achieve this goal, the means chosen are actually necessary or required owing to the possible existence of other more suitable or effective means which could achieve the same result in a less burdensome way for those affected, analysis of the evidence shows that there are no other alternatives which could maintain a consistency with the system in which these measures are established, and which could attain public interest objectives to the same degree, and which could affect the holders of the these legal expectations to a lesser degree.

Accordingly, the measure complies with the principle of necessity.

... In the light of the above, the court holds that section 78 is not unconstitutional.”

In March 2014, Law no. 13/2014 amending section 76 of the 2014 State Budget Act was challenged before the Constitutional Court by a group of members of the Portuguese Parliament within the framework of an ex post facto review, on the grounds, inter alia, that the CES was no longer temporary and exceptional on account of its re-introduction in 2014. In particular, the group of members of the Portuguese Parliament challenged the amendments made to section 76 of the 2014 State Budget Act. On 30 July 2014 the Constitutional Court found that the relevant provision was not unconstitutional. In its ruling the court took into account that it had already weighed up the constitutionality of the CES in previous rulings and considered that the reconfiguration of the measure remained within the limits outlined by the constitutional-law principle of legal certainty. The Constitutional Court further considered that the CES was an exceptional and transitory measure imposed through a budgetary law and had been designed to respond to an economic and financial emergency in Portugal. As to the proportionality of the reconfigured CES, the court ruled that there had been no breach of this principle and that there were no reasons to depart from its previous ruling on the appropriateness of and need for a CES.

“4. ... The court is aware that ... considerations with regard to the generic nature of the CES have been raised, and also considerations in relation to its scope and extension; thus the measure must be analysed in the light of the fundamental right to social security, from which a constitutional right to a pension results. However, according to the applicants, it is the differences vis-à-vis the solution previously analysed by this court in 2013, in particular the extension of the measure, that justify a separate ruling to the one then adopted.

... Thus, one cannot fail to recognise that, in the way in which it was normatively brought about – that is, a budgetary measure designed to be in force for the year 2014 – the CES has, indeed, an exceptional and temporary nature which is directly related to the immediate objectives pursued by the legislature of achieving a balanced budget and sustainability of public finances. Therefore, it is with regard to the CES in and of itself, as normatively set, and with regard to its own nature without taking into account the different nature of any potential subsequent and functionally substitute measure, that the ruling about its temporariness should be made.

We can thus conclude that it is permissible for the Constitutional Court, following its previous case-law, to consider that section 76 of Law no. 83-C /2013, as amended by Law no. 13/2014, still establishes a transitory or temporary measure, which should be taken into account in the weighting underlying the assessment of constitutionality.

... In fact, as recognised in Ruling no. 187/2013, legitimate expectations of the State are not as consistently present with regard to an extraordinary and transitory measure, thus justifying an exceptional and temporary discontinuation of the State’s conduct. Given the exceptionality of the facts that increased the need for assistance – the financial and economic emergency that has reduced transfers from the State budget to the social protection system – the lower the expectations of those who were affected by it appear to be.

There are no reasons to depart in the present case from the ruling delivered by the court on the adequacy and necessity of the CES as part of a balanced budget programme. Indeed, this is highlighted by the conflict – established on the basis of the principle of proportionality – between the measure under scrutiny and the objective pursued. It is clear that, in general, the extension of the threshold of the CES is not an inappropriate means of achieving a balanced budget...

And the same can be said with regard to the necessity or enforceability of the option chosen – the second test of proportionality – since, in the light of the aim pursued and of the potential alternative solutions, it cannot be considered that the extension of the scope of application of the CES is not the least burdensome measure for those adversely affected by the achievement of that goal.

... And with regard to the contribution affecting pensions between EUR 1,350 and EUR 4,650, the previous regime remains unchanged.

... Indeed, various reasons indicate that the reconfiguration of the CES by Law no. 13/2014 of 14 March is still within the limits of reasonableness.

Firstly, the CES still maintains the characteristics of exceptionality and transience that in 2011 marked its entry into the tax universe. ... In an absolutely exceptional financial situation including a fiscal imbalance that led to international and European commitments, the CES constitutes an exceptional measure which, in conjunction with other measures, aims to overcome the seriousness of that situation.

For all these reasons, it is acceptable that the monthly contribution required of the beneficiaries of social security affected by the expansion of the scope of application of the CES, owing to its temporariness of the norms supporting it and the objectives it seeks to pursue, does not amount to a particularly excessive and unreasonable sacrifice which would involve a violation of the principle of proportionality, constitutionally objectionable.”

In a series of rulings, the Constitutional Court established the legal principles applicable to cases in which restrictions on social rights could be allowed within a constitutional framework with a particular reference to the concept of “proviso of the possible” (reserva do possível, known in German as the Vorbehalt des Möglichen).

“6. ...

It should be noted that, within the scope of economic, social and cultural rights, the responsibility of the legislature is to ensure that social benefits integrate those rights, within the budgetary constraints, the economic and financial plans and the social conditions of the country.

As Gomes Canotilho has said, the fulfilment of economic, social and cultural rights are made within a “proviso of the possible”, as these rights depend on “economic resources”.

“24. Thus, the legislature is not prohibited from changing the way it brings about the right to a pension as it may change or even reduce its amount by taking into account the evolving economic or social circumstances. However, the legislature is prohibited from eliminating the provision of “retirement, old-age, invalidity or survivor’s pensions” or even their essential scope.

Indeed, the right to a pension is particularly dependent on State financial resources and is, accordingly, more vulnerable to the “pressure of circumstances” in particular in the most critical times of economic uncertainty. That particular vulnerability is justified not only by the fact that the right to a pension allocates immediate financial resources, but also because of the particular structure of the law. The right to a pension is subject to a medium and long term time frame within which the economic circumstances of the State may change radically.

On the other hand, in addition to their prolonged duration, pensions are still particularly dependent on the “proviso of the possible”, simply because they are part of the inter-generational social contract.

“18. Under these constraints, the legislature has leeway to outline the specific or final scope of the right to a pension subject to the relevant constitutional limits.

The right to a pension is indeed particularly dependent on State financial resources and is, accordingly, more vulnerable to the “pressure of circumstances”, in particular in the most critical times of economic uncertainty. That particular vulnerability is justified not only by the fact that the right to a pension allocates immediate financial resources, but also because of the particular structure of the law. The right to a pension relies on a medium and long term time frame during which the economic circumstances of the State may change radically.

On the other hand, in addition to its prolonged duration, pensions are still particularly dependent on this “proviso of the possible”, simply because it is part of the inter-generational social contract.”

However, it is important to reaffirm that the legislature, in confirming the right to a pension is, at any moment, in time legally bound by constitutional rules and principles. Thus, despite a clear recognition that the legislature is free to change the conditions of, and the rights to enjoyment of, and the calculation of pensions, even in the most demanding way, it has to respect the existing constitutional limits, namely those which derive from the rule of law. Thereby, the changes that the legislature intends to pursue must have reasonable grounds – in particular the financial sustainability of the system – and cannot affect either the social minimum or the principles of equality and human dignity or the protection of legitimate expectations.”

The relevant information with regard to the EU assessment of the 2011 economic situation in Portugal can be found in the case of Da Conceição Mateus and Santos Januário v. Portugal (dec.), nos. 62235/12 and 57725/12, § 11, 8 October 2013.

As part of the economic adjustment programme, the EU and the IMF organised regular review missions to Portugal in order to monitor the implementation of the M.o.U. signed between Portugal and the European Commission, the European Central Bank and the International Monetary Fund on 17 May 2011, and to assess the results of the reforms prepared by the Portuguese Government.

The relevant excerpts of the EU mission reports conducted in 2013 and 2014 read as follows:

The Economic Adjustment Programme for Portugal - Eighth and Ninth Review (November 2013)

“13. Social Security recorded a positive cash balance in the first eight months of the year. ... Nevertheless, the overall collection of social contributions is in line with projections due to the over-performance of the ‘extraordinary solidarity contribution’ (CES) on pensions, the better macroeconomic environment and increased collection efficiency.

The fiscal consolidation is predominantly based on the savings measures identified in the framework of the public expenditure review (PER). ... The PER aimed at identifying savings and the potential for streamlining processes in the public administration ... The savings identified include permanent expenditure-reducing measures amounting to EUR 3.1 billion (1.8 percent of GDP) in 2014. ... The ‘extraordinary solidarity contribution’ introduced in 2013, worth 0.3 percent of GDP, will be maintained. However, this measure will be adapted to take into account the cumulative impact of other pension reforms.

The Economic Adjustment Programme for Portugal - Tenth Review (February 2014).

“29. The fiscal plans for 2014 received a setback on 19 December 2013, when the Constitutional Court ruled the provision aimed at aligning the rules of the public-sector pension scheme with the general pension scheme as unconstitutional. This measure was foreseen to yield EUR 321 million (0.2 percent of GDP) in net terms (after accounting for losses in PIT revenue and for the non-accumulation of this measure with the ‘extraordinary solidarity contribution’ on pensions, (CES). The Government has proposed to fill this gap by redesigning two measures: (i) an increase in the CES including through the lowering of the threshold below which pensions are exempted and of the thresholds from which the highest contribution rates apply ... The changes to the CES will be implemented via a Supplementary Budget. ...”


No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Hungary)

The applicant was born in 1995 and currently lives in Rein.

He entered Austria on 20 October 2011 and lodged an asylum application. It remained undisputed by the Austrian authorities that at that time he was still a minor, even though his exact date of birth is unknown. He was not accompanied by any family members, nor were any of his relatives present in another member State of the European Union.

The applicant stated that he had left his village in Afghanistan three months earlier, crossed the border to Iran and then the border to Turkey by foot. With the aid of a trafficker he reached Istanbul, where he stayed for three days. Together with a group of other refugees, he crossed into Greece by boat, where he was arrested and processed. He was released shortly after with an order to leave the country. He travelled to Athens, where he stayed for a month. He then left Greece together with two other refugees via the Former Yugoslav Republic of Macedonia and Serbia, from where he crossed the border to Hungary by foot.

In Hungary, the applicant was arrested and processed. He claimed that he was forced to lodge an asylum request and placed in an open camp. Allegedly, the Hungarian authorities did not give any consideration to the fact that he was a minor. Because he had never planned to stay in Hungary, but wanted to lodge an asylum application in Austria, he left the camp two or three days later and took a train to Vienna.

When the applicant was interviewed by the Austrian authorities on 21 October 2011, he stated that he did not want to return to Hungary. He claimed not to know the status of his asylum proceedings there because he was illiterate. In a second interview on 18 November 2011, he stated that he was arrested and detained for three days in Hungary. He was not given enough to eat and suffered from hunger in detention. He claimed that the conduct of the police towards him was rough. Officers were armed at all times, and he was woken up during the night for interviews. He further stated that he was afraid of being sent back to Serbia.

When the applicant was asked why he had left Afghanistan, he stated that his family had sent him away so he could live a safer life. His father had died in Afghanistan six years earlier. His mother lived with the applicant and his three young siblings in the Jaghori district in Ghazni province. The precarious security situation and the lack of access to subsistence and education in the region prompted him to leave the country.

On 15 December 2011 the Traiskirchen Federal Asylum Office (Bundesasylamt – hereinafter "the Asylum Office") rejected the applicant’s asylum request and established Hungary’s jurisdiction in this regard in accordance with Article 16 § 1 (c) of Council Regulation (EC) No. 343/2003 ("the Dublin II Regulation"). On 11 January 2012 the Asylum Court (Asylgerichtshof) quashed that decision pursuant to Article 66 § 2 of the Code of General Administrative Procedure (Allgemeines Verwaltungsverfahrensgesetz) on the grounds that the facts had not been established exhaustively. It stated that the Asylum Office had failed to update its country information regarding the risk of refoulement of asylumseekers from Hungary to Serbia. Furthermore, the decision had not established the legal framework under which minors could be detained in Hungary and what the conditions of detention were.

On 28 February 2012 the Asylum Office again rejected the applicant’s asylum request and ordered his expulsion to Hungary under the Dublin II Regulation. In addition to general information on the situation of asylum-seekers in Hungary, the Asylum Office referred to information obtained from the Austrian Embassy in Hungary dated 25 January and 2 February 2012. According to that information, the detention of minors could not be ordered in Hungary. If a detained refugee claimed to be a minor, an age assessment was ordered and the minor was released if his or her age was confirmed. As regards the evaluation of Serbia by Hungary as a safe third country, the Hungarian authorities stated that they did not have a list of safe third countries and evaluated each case individually. However, in most cases Serbia was considered to be a safe third country. Hungary expelled asylum-seekers to Serbia, if their first asylum proceedings were terminated and there was no obstacle under the non-refoulement rule. A person lodging a subsequent asylum request was not allowed to remain in Hungary. The same applied for Dublin returnees if their first asylum proceedings were terminated. If asylum proceedings were discontinued after an asylum-seeker left Hungary, an asylum request after his or her return under the Dublin regulation was considered a subsequent asylum request. It was further established that appeals against asylum decisions at first instance and during the first proceedings had automatic suspensive effect. However, appeals against decisions in subsequent asylum proceedings did not. It was in any event possible to lodge an appeal against the expulsion order itself. It was then up to the judge’s discretion to award the proceedings suspensive effect.

When it came to the personal credibility of the applicant, the Asylum Office stated that it found his allegations of having been detained in Hungary for three days unconvincing, as the country information had shown that the detention of minors could not be ordered in Hungary. It further held that the information had shown that Hungary did not practise refoulement to Serbia. Finally, the Hungarian authorities had assumed jurisdiction over the applicant’s asylum request under Article 16 § 1 (c) of the Dublin II Regulation, which proved that the applicant still had access to asylum proceedings on the merits in Hungary. The Asylum Office concluded that it hence did not consider itself legally obliged to make use of the sovereignty clause and rejected the asylum request.

On 20 March 2012 the Asylum Court awarded suspensive effect to the applicant’s appeal against that decision, but on 24 September 2012 dismissed it as unfounded. It pointed out that the Hungarian authorities had informed the Asylum Office that they had planned an age assessment, but could not carry it out because the applicant had left the country. Thereupon, on 24 October 2011 the Hungarian authorities had discontinued his proceedings. However, the Asylum Court assumed that because of Hungary’s acceptance of jurisdiction under Article 16 § 1 (c) of the Dublin II Regulation the applicant would have access to asylum proceedings on the merits in Hungary. In its reasoning the Asylum Court took note of a letter from the UNHCR Office in Vienna dated 3 February 2012, seemingly citing problems with the techniques of age assessment in Hungary, detention and the detention conditions for asylum-seekers, refoulement to Serbia and the fact that a Dublin-returner’s asylum request was considered a subsequent asylum request if the proceedings had been discontinued in Hungary. However, the Asylum Court noted a lack of sources in the UNHCR’s letter and referred to the recently updated country information obtained by the Austrian asylum authorities, which did not indicate systematic deficiencies in the Hungarian asylum proceedings and reception conditions that would have warranted an extensive use of the sovereignty clause of Article 3 § 2 of the Dublin II Regulation.

On 10 October 2012 the applicant lodged a complaint with the Constitutional Court, which was rejected on 22 November 2012. This decision was served on the applicant’s counsel on 30 November 2012. An arrest order stated that a transfer of the applicant to the Hungarian authorities was planned for 22 November 2012. At that time, the applicant was still a minor.

On 20 November 2012 the Court applied an interim measure under Rule 39 of the Rules of Court and requested the Austrian Government to stay the applicant’s transfer to Hungary until further notice. The Austrian Government complied with this request.

On 3 December 2012 the Hungarian Government informed the Court that the applicant’s asylum proceedings in Hungary had been discontinued on 24 October 2011. The decision had become final on 4 November 2011. The first asylum proceedings would not be reopened upon his return to Hungary. If he was returned to Hungary, an asylum request would be considered a subsequent request which would not have automatic suspensive effect if there were no new circumstances supporting his application but there was a safe third country which he could be returned to. Regarding the issue of appointing a guardian for the minor applicant, the Hungarian authorities stated that unaccompanied minor asylum-seekers were usually immediately assigned a guardian, except when the applicant would reach the age of majority before the decision on the merits was taken. Unaccompanied minors were placed in a children’s home in Fót, where care and education were provided to them according to their age. Having regard to the fact that the applicant would turn 18 on 1 January 2013, it was very unlikely that a guardian would be appointed for him upon his return.