George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Yonko Grozev

The applicant, Mr Astrit Bejko, was an Albanian national, who was born in 1950. He was represented before the Court by Mr. S. Puto, a lawyer practising in Tirana.

On 29 December 2014 the applicant’s lawyer informed the Court of the applicant’s death and of the wish of his heirs, namely his spouse, Ms Ornela Kotherja, and his children, Mr Etis Bejko and Ms Lorena Bejko, to pursue the application. For practical reasons, use will however continue to be made of the initial applicant for the purpose of this decision, although his heirs are now to be regarded as having that status (see Dalban v. Romania [GC], no. 28114/95, § 1, ECHR 1999VI and Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, §§ 97-101, ECHR 2013)..

The Albanian Government (“the Government”) were represented by their then Agent, Ms E. Hajro of the State Advocate’s Office.

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

In 1988 the applicant sought to obtain housing from the State. At the time, housing units were owned and managed by the State. They were allocated to households by the local authorities.

On 18 April 1990 his spouse was issued with an occupancy authorisation for a two-bedroom flat by the Neighbourhood People’s Council in Tirana (autorizim nga Këshilli Popullor i Lagjes Tiranë). The authorisation also indicated the address of the flat. As a result, on 22 May 1990 a tenancy agreement (kontratë qiraje) for a State-owned flat was concluded between the applicant’s wife and the State-owned housing maintenance authority (Ndërmarrja Komunale Banesa).

On 11 August 1990 the applicant concluded an agreement (akt marrëveshje) with the local authority to vacate the flat and exchange it for another two-bedroom flat which was in the process of being constructed by the State-owned Forest Service (ndërmarrja pyjore) at an indicated address.

On 12 May 1991 the applicant’s spouse was issued with another occupancy authorisation for a two-bedroom flat. The authorisation also indicated the address of the flat and the fact that, if a contract were not concluded within ten days, the authorisation would cease to have effect. On 17 February 1992 a provisional tenancy agreement was concluded. It would appear that the applicant never occupied the flat.

On 24 February 1994, further to a decision of the municipality of Tirana (“the Municipality”), the applicant was issued with an occupancy authorisation for a two-bedroom flat that had been constructed by the Forest Service. The authorisation also indicated the address of the flat. However, the applicant was unable to occupy the flat and conclude a privatisation agreement in the light of a Municipality’s letter of 18 April 1994, which stated as follows:

“No action should be taken for the privatisation of Astrit Bejko’s flat [address indicated] until further notice (të mos veprohet për privatizimin e apartamentit të Astrit Bejkos ... deri në një urdhër të dytë).

On 10 May 1994 the Municipality revoked its decision of 24 February 1994, no reason having been given.

On 17 September 1996 the National Housing Agency (“NHA”), pursuant to an agreement it had concluded with a State-owned company, Petrolimpeks, for the construction of a block of flats through the aid of its funding, requested the Municipality and the municipal council (Këshilli Bashkiak) not to allocate, amongst others, flats nos. 7 and 8 to anyone on their list of homeless households, because those flats would be made available to employees of the State-owned company (see paragraph 20 and 25 below).

In the meantime, on 10 September 1996 an inspection report by the Ministry of Public Works and Territorial Planning found that Petrolimpeks’ funds had been erroneously used for the construction of a block of flats belonging to the Ministry of Defence. Pursuant to a Government decision the block of flats had been made available to the municipal council, which was responsible for the allocation of flats to homeless households.

On 10 October 1996 the municipal council decided to include the applicant’s name on the list of households to be provided with an occupancy authorisation in respect of flat no. 8. The relevant part of the decision reads as follows:

“...the council...decided to provide the following citizen[s] with authorisation:

Astrit Bejko in respect of flat no. 8 (a two-bedroom flat)”.

On 15 October 1996 the applicant was issued with a fresh occupancy authorisation for a two-bedroom flat. The authorisation, in so far as relevant, read as follows:

“Pursuant to council’s decision of ... 10 October 19996 Mr Astrit Bejko is allocated a two-bedroom flat located at [address indicated] flat no. 8.”

Confronted with pressing housing needs, the applicant occupied flat no. 8 immediately, no tenancy agreement having been concluded. A third party, R.B, occupied the neighbouring flat on the strength of an occupancy authorisation for a two-bedroom flat. However, upon entering the flat, the applicant found that the construction company, on instructions from the NHA, had amended the layout of the flats so that the flat occupied by the applicant had only one bedroom. The neighbouring flat, occupied by R.B, had been modified to a three-bedroom flat contrary to his occupancy authorisation for a two-bedroom flat. The applicant and R.B, following the Municipality’s approval, then converted the flats into two two-bedroom housing units.

By a letter of 6 February 1997 the municipal council was asked to transfer the applicant’s authorisation to another flat located at a difference address, because flat no. 8 had already been allocated to other households (see paragraph 20 and 25 below). Consequently, on 15 May 1997 the municipal council decided to amend the applicant’s occupancy authorisation of 15 October 1996 by allocating the applicant another flat whose construction had not yet started. The decision reads, in so far as relevant, as follows:

“The council, [which was] convened on 15 May 1997, (...) decided:

The authorisation issued in respect of apartment[s] ... 8 [address indicated] pursuant to the decision ... of 10 October 1996 should be transferred to [address indicated] whose construction will commence [shortly] (autorizimet e dhëna për apartamentet nr ... 8 sipas vendimit ... dt 10.10.1996 ... të transferohen në seksionin ... që do të fillojë së ndërtuari).

The decision enters into force immediately.”

On an unspecified date the applicant instituted legal proceedings seeking the nullity of the municipal council’s decision of 15 May 1997. These proceedings, which continued until 27 January 2003 at various levels of jurisdiction, ended with the dismissal of the applicant’s claims.

On an unspecified date in May 2001 the applicant began a hunger strike to protest against the injustices he believed he had suffered. He submitted newspaper clips as evidence of this.

On 4 September 2001 the applicant was informed of the municipal council’s decision of 20 July 2001, which had decided to allocate the applicant the flat indicated in its decision of 10 October 1996 and the authorisation of 15 October 1996. The relevant parts of the decision read as follows:

“The council, [which was] convened on 20 July 2001, ... decided:

The authorisations issued by way of the council’s decision ... of 15 May 1997 should be transferred to apartment[s] nos. ... 8 at [address indicated] (autorizimet e dhëna me Vendim të Këshillit Bashkiak nr ... dt. 15.05.1997 të transferohen në apartamentet nr. ... 8 në seksionin ...).”

In the meantime, on 28 January 1997 R.S, who was an employee of the State-owned company Petrolimpeks, was issued with an occupancy authorisation for a one-bedroom apartment in respect of flat no. 8. On 30 January 1997 R.S concluded a provisional contract with the NHA for the sale of the flat, while the final contract of sale by way of payment of instalments (kontratë për shitje apartamenti me pagesë me këste) was concluded on 24 February 1997.

On 25 September 1997 R.S initiated legal proceedings against the applicant requesting him to vacate the flat, which the applicant had allegedly occupied unlawfully since 15 October 1996. R.S relied on the authorisation granted to him and the provisional and final sale contracts of 30 January and 24 February 1997.

The domestic proceedings continued before various levels of jurisdiction. On 21 November 2002 the Supreme Court finally found that R.S had acquired property rights over the flat by virtue of the sale contract of 24 February 1997 and the payment of the sale price. The applicant could not be regarded as a lawful occupant, because the occupancy authorisation of 1996 had been revoked in 1997. Furthermore, the domestic courts had ruled against the applicant in the proceedings he had instituted in relation to the nullity of the municipal council’s decision 1997 (see paragraph 17 above).

In October 2001 the applicant was forcibly evicted from his flat by the police. In 2002 he left the country for Italy.

In September 2002 the applicant instituted legal proceedings against R.S alleging that the sale contract between R.S and the NHA was null. The proceedings were concluded on 9 December 2004 in favour of R.S.

On an unspecified date either in 1995 or 1996 F.D, who was an employee of the State-owned company Petrolimpeks, was issued an occupancy authorisation for a three-bedroom apartment in respect of flat no. 7. On 6 August 1996 F.D concluded a provisional contract with the NHA for the sale of the flat, while the final contract was concluded on 11 March 1997.

On 20 January 1998 F.D instituted legal proceedings against the applicant and R.B. He requested that the applicant vacate and restore him the room he had occupied as a result of the modification to the layout of the flat (see paragraph 15 above).

On 10 December 2002 the Supreme Court held that the municipal council should not have allocated flats, which had been constructed with the funding of State-owned companies, to homeless households found on its lists. F.D, being an employee of the State-owned company Petrolimpeks, was entitled to the allocation of flat no. 7. The Supreme Court considered that the sale contract was lawful and stated that the flat had also been registered in the immovable property register. It further held that the municipal council had annulled its authorisation of 1996. As regards the nature of the authorisation, it stated as follows:

“The authorisation to a flat merely serves planning purposes; as long as no consequences have derived therefrom, it may be revoked, as in the instant case, by the authority that adopted it (autorizimi për banesë është thjesht një akt planifikimi dhe deri sa nuk ka sjellë pasoja mund të revokohet nga vetë organi që e ka dhënë si kundër është vepruar edhe në rastin konkret).

The applicant’s constitutional complaint, a copy of which was not submitted to this Court, was dismissed by the Constitutional Court on 3 February 2005 as follows:

“The only ground of appeal related to F.D’s lack of standing, which was rejected by the ordinary courts, including the Supreme Court. The Constitutional Court considers that the claim raises no legal argument so as to examine the complaint.”

The relevant part of Chapter V of the Constitution, which is entitled “Social Objectives”, reads as follows:

Article 59

“The State, within its constitutional powers and the means available to it, and in the fulfilment of the private initiative and responsibility, aims at:

b. the fulfilment of the housing needs of its citizens.

The 1992 Act established the organisation of local government in the country. Three administrative units were established: the commune (komunë), the municipality (bashkia) and the district (rreth). The organs of the municipality were the mayor and the municipal council. One of the responsibilities of the municipal council was to take measures to provide employment and housing (section 14 § 14). It had power to issue orders (urdhëresa) and decisions (vendime) (section 14 § 21).

The 2000 Act, which repealed the 1992 Act, introduced two administrative units in addition to the commune and municipality: the region (qarku) and the sub-division (nëndarja). Section 10 recognises the municipality’s responsibility for urban planning, land-management and housing as provided for in the relevant legislation.

This Act aimed at privatising State-owned housing units and creating a free housing market, empowering tenants to become owners. It enabled individuals residing, by virtue of a tenancy agreement, in flats owned by the State to transfer their flat into their private ownership, upon compliance with a set procedure, payment of the full privatisation price and registration of the property at the mortgage registry.

Under Council of Ministers’ ordinance no. 1 of 7 July 1989, one of the spouses or another adult member of the household had the right to lodge a housing request with the Neighbourhood People’s Council (Këshilli Popullor i Lagjes – sections 1, 4 and 7) or the City People’s Council, which had authority to provide that person with an occupancy authorisation (autorizim). The authorisation indicated the number of the flat as well as its location.

State companies or institutions, which had contributed by way of their funding to the construction of a block of flats, could issue an occupancy authorisation to their homeless employees (sections 9-11). A commission for the allocation of housing units was established for this purpose (komisioni i shpërndarjes së banesave në qendrën e punës – “the Commission”). The local government councils had the right to withhold approval of the Commission’s decisions if they were considered unjust (section 12).

A tenancy agreement was to be concluded, within ten days from the date of the authorisation, between the tenant and the State-owned housing maintenance authority (Ndërmarrja Komunale Banesa). Failing the conclusion of the tenancy agreement within the prescribed time-limit, the authorisation became invalid.

The decision provided for the establishment of the NHA, which was responsible for financing, constructing and administering housing units (banesa) in the country. Some of its responsibilities included the conclusion of contracts for the construction, completion and sale of flats and cooperation with local authorities in fulfilling their housing obligations. The NHA’s funds consisted of allocations by the State and local budgets, loans by domestic and international financial institutions, donations and revenues resulting from privatisation of State-owned housing units.

The decision determined the criteria for the classification of homeless citizens. The commune or city councils were tasked to draw up local lists of homeless citizens. The lists would be deposited with the NHA.

The decision provided that State companies and institutions could use their profits to construct flats to accommodate the housing needs of their homeless employees (punonjësit e pastrehë). The funding would be transferred to the NHA, which constructed housing units in accordance with the domestic legislation. The allocation of flats by way of an authorisation was carried out by the Commission set up within the State company or institution, according to a list of homeless employees. The list of beneficiaries was deposited with the local authority. The NHA was responsible for concluding sale contracts with the homeless employees who had been provided with an authorisation.

The decision provided that the NHA would conclude a sale contract with a homeless citizen, who was required to make a down payment, the remaining amount to be paid in instalments over a twenty-five-year period with zero interest rate. The upfront payment of the entire sale price resulted in a reduction of the total price.

The decision provided that the NHA would conclude a provisional sale contract with a homeless citizen within one month from the commencement of construction works. At the time of the conclusion of the provisional sale contract, the homeless citizen was required to make a down payment. Failure to make the down payment would result in the loss of use of the authorisation. A final sale contract would be concluded at the completion of the construction works.

The decision reiterated that the lists of homeless citizens were drawn up by local authorities and were deposited with the NHA. State companies and institutions would transfer their funding to the NHA for the construction of blocks of flats. State companies and institutions would draw up lists of homeless citizens to be housed in these blocks of flats. The lists would be deposited with the NHA, which would conclude sale contracts with those citizens.


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 other complaints under Article 13 of the Convention.


Branko Lubarda;Carlo Ranzoni;Johannes Silvis;Kristina Pardalos;Luis López Guerra

The applicant, Mr D.T., is a Georgian national, born in 1973, and currently staying in the Netherlands. He was represented before the Court by Ms M. de Boer, a lawyer practising in Lelystad.

The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs.

The Government of Georgia, having been informed of their right to intervene (Article 36 § 1 of the Convention and Rule 44 § 1 (a) of the Rules of Court), did not avail themselves of this right.

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

On 14 May 2007, the applicant entered the Netherlands where on 29 May 2007 he applied for asylum, submitting in the course of three interviews with immigration officials that he had been working as a military trained senior border guard at the border between Georgia and Azerbaijan. Between the respective border posts lies a neutral zone via which drugs are being smuggled into Georgia. One of the applicant’s main responsibilities had been to combat drug trafficking.

On 10 April 2007 the applicant had been ordered by his superior officer to escort a person, Mr X, from the neutral zone to Georgia, evading the normal border controls. On 16 April 2007 he had again been ordered to escort X across the border to Georgia on 17 April 2007. On the same day, he had received a tip that a drugs trafficker had been sighted in the neutral zone. The applicant had gone to the market located in the neutral zone where he was discretely shown the trafficker whom he recognised as X. The applicant had passed on this information to his superior, Mr L., who responded by telling the applicant that he had checked this information and that it was wrong.

On 20 April 2007 the applicant had once more been ordered by Mr L. to escort X across the border. The applicant had refused. One hour later he had received a telephone call from his mother who apparently was held hostage by one of the applicant’s colleagues. He had then felt compelled to take X across the border into Georgia, which he had done.

On 21 April 2007 the applicant had asked his superior, Mr L., for explanations and informed his superior that he intended to do something about it. He had then written a memo to Mr B., the Chief of the Border Police as well as to the Deputy Minister of Internal Affairs, explaining the situation and asking for an inquiry, or to transfer or dismiss the applicant. He had left this memo at Mr B.’s secretariat. The next day, he had been summoned to his superior Mr L. who showed him the memo and told him that he should stop writing and follow orders. The applicant had then resumed his work and nothing special had occurred until 7 May 2007. On that day, Mr L. had ordered the applicant for a fourth time to escort X across the border. The applicant was told that it would be the last time and he saw on Mr L.’s table a proposal to promote the applicant to the next rank, which promotion had been planned already for some time.

The applicant had taken X across the border into Georgia and had returned with his car to an agreed spot at 7 p.m. to pick up X again and bring him back to the neutral zone. When he had arrived at the designated place, X had been accompanied by two persons, one of them wearing a jacket bearing the letters SOD – which stands for Special Operations Department – and the other one dressed in plain clothes. The two men brought X to the applicant’s car. X and the plain-clothed man took a seat next to each other in the car and the applicant was given to understand that they had something to discuss and needed some privacy. Thereupon the applicant and the SOD man had walked away some 70 metres from the car. The SOD man had taken an interest in the applicant’s service weapon. The applicant had then heard that X and the plain-clothed man had started shouting at each other. The plain-clothed man had then approached the applicant and the SOD man, telling the latter that X had not agreed. The SOD man, who was then holding the applicant’s service weapon in his hands, had walked to the car, opened the door and fired three shots, killing X. The applicant had then run away as fast as he could and, it already being dark, had managed to hide himself in the nearby forest. After a short unsuccessful search for the applicant, the men had left.

As an Azeri drug trafficker had been killed with the applicant’s service weapon and in the applicant’s car, and as the perpetrators had also tried to kill him, the applicant felt trapped between two fires and had decided to flee the country, fearing problems from the side of the SOD and/or the Azeri drugs mafia. With the help of a colleague, who had managed to remove a plastic bag with documents belonging to the applicant from the applicant’s office room and give these to the applicant, the applicant had managed to flee the country on 5 May 2007. Via Turkey, he had travelled to the Netherlands.

On 11 February 2008, the Deputy Minister of Justice (Staatssecretaris van Justitie) requested the Minister of Foreign Affairs to conduct an inquiry in relation to the applicant’s asylum request.

In August 2008, the applicant was informed by his mother that she had had a visit from an official of the Georgian Ministry of Interior Affairs who had known that the applicant was in the Netherlands and who had asked her questions relating to the applicant’s asylum account given to the Netherlands authorities and who had shown her documents submitted by the applicant to the Netherlands authorities. The applicant’s comments about this visit to the Netherlands refugee aid agency led to a conversation on 13 October 2008 between the applicant and the person at the Ministry of Foreign Affairs dealing with the inquiry in Georgia.

On 8 December 2008, the Minister of Foreign Affairs transmitted a person-specific official report (individueel ambtsbericht) concerning the applicant to the Deputy Minister of Justice. According to this report, two identity documents and a veteran’s card in the applicant’s name – submitted by the applicant in the asylum proceedings – were authentic but there was a reasonable doubt about the authenticity of another document. The report further contained the verified registration as home owner of the applicant’s mother and brother at a specific address. However, it had not been possible to verify whether the applicant had been registered as living at that address or at the address of the military base. The report also stated that the applicant had worked as a border guard until May 2007, that reportedly he had been dismissed due to a reorganisation, that various sources had indicated that he was not wanted by the SOD, and that he was not wanted in relation to the commission of a criminal offence. It further contained names and functions of persons mentioned by the applicant in his account.

On 19 December 2008, after having been granted access to the underlying materials of the person-specific official report of 8 December 2008, the Immigration and Naturalisation Department (Immigratie- en Naturalisatiedienst) of the Ministry of Justice concluded that this report, both as regards its content and procedure, had been drawn up in a careful manner and that it provided insight in a transparent manner, and informed the Minister of Foreign Affairs accordingly.

On 16 April 2009 the Deputy Minister of Justice rejected the applicant’s asylum request. Mainly on the basis of the outcome of the investigation carried out by the Minister of Foreign Affairs of the applicant’s claims as set out in the person-specific official report, the Deputy Minister concluded that no credence could be attached to the applicant’s account and that it had not been established that the applicant, if expelled to Georgia, would be exposed to risks from the side of the Georgian authorities or the drugs mafia from Azerbaijan.

On 18 May 2009, the applicant filed an appeal against this decision with the Regional Court of The Hague and filed the grounds for this appeal on 22 June 2009.

On 27 August 2009, the applicant was informed that the impugned decision of 16 April 2009 had been withdrawn and that a fresh decision would be taken.

In a fresh decision taken on 12 November 2009, the Deputy Minister of Justice again rejected the applicant’s asylum request. Although accepting the veracity of the applicant’s account that, at the orders of his superiors, he had taken a person – who turned out to be a drug trafficker – across the border into Georgia without the papers and luggage of this person being checked and his account of the killing of this trafficker, the Deputy Minister rejected as not credible the claimed risk of persecution, taking into account that – according to the contents of the person-specific official report – several sources had stated that the applicant was not wanted by the SOD and that he was not wanted either as a suspect of a criminal offence. The Deputy Minister further considered that the general situation in Georgia was not such that all persons from that country qualified for an asylum-based residence permit and that the applicant could turn for protection to the Georgian authorities in so far as the alleged Article 3 risk would emanate from corrupt officials or the Azeri drugs mafia.

The applicant’s appeal against this decision was accepted on 23 December 2010 by the Regional Court of The Hague sitting in Utrecht. It quashed the decision of 12 November 2009 and ordered the Minister for Immigration, Integration and Asylum Policy (Minister voor Immigratie, Integratie en Asiel; the successor to the Deputy Minister of Justice) to take a fresh decision. It accepted the applicant’s argument that the investigation on which the person-specific report was based had been incomplete as his registration as living at the address of his mother and brother could have been easily verified on the internet by consulting an electoral list and as it could be deduced from the underlying materials that a document of 8 August (year unknown) referred to in the underlying materials was missing. The court also accepted the applicant’s argument that the finding in the person-specific official report that the applicant had been dismissed following a reorganisation was contradicted by the applicant’s statements, which had not been rejected as not credible, that until his departure from Georgia he had followed professional training programmes and that he was about to be promoted. The Regional Court lastly disagreed with the Deputy Minister that the applicant could have turned to the Georgian authorities for protection.

On 3 February 2011, the Minister for Immigration, Integration and Asylum Policy filed a further appeal to the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State. At the latter’s request, the Minister of Foreign Affairs provided the Administrative Jurisdiction Division on 28 June 2011 with the materials underlying the person-specific official report of 8 December 2008. In accordance with section 8:29 of the General Administrative Law Act (Algemene Wet Bestuursrecht), the Minister of Foreign Affairs requested the Administrative Jurisdiction Division to order that (parts of) these materials were to be disclosed only to the Administrative Jurisdiction Division. On 11 July 2011, the Administrative Jurisdiction Division decided that the access restriction requested by the Minister of Foreign Affairs was justified. It subsequently sought and obtained the parties’ consent to determine the further appeal also on the basis of those underlying materials which had not been disclosed to the parties but only to the Administrative Jurisdiction Division.

On 24 February 2012, the Administrative Jurisdiction Division accepted the Minister’s appeal, quashed the impugned judgment and rejected the applicant’s appeal against the decision of 12 November 2009. It held that the mere circumstance that the Minister of Foreign Affairs had been unable to obtain information about the applicant’s registration gave no cause to find that the inquiry into the registration or in respect of other elements had been careless and incomplete. It further rejected the applicant’s claim in respect of the allegedly missing document dated 8 August, finding that the mention thereof was an obvious clerical error and that the mention concerned had in fact referred to another document which had been taken into account in the decision-making process. It further found that the Regional Court had unjustly held that the contradiction between the applicant’s dismissal following a reorganisation and his statements about an imminent promotion concerned an essential part of his asylum account. According to the Administrative Jurisdiction Division, the core of the asylum account was the alleged fear of persecution by the SOD in that he was wanted by the SOD for having witnessed the murder of X committed by a SOD collaborator whereas it was stated in the person-specific official report that various sources had indicated that the applicant was not wanted by the SOD. It therefore did not find it established that the person-specific official report had been drawn up in a careless manner or that it was incomplete. It also found no concrete indications in the applicant’s other submissions for doubting the correctness or completeness of this report. It lastly accepted the Minister’s view that it had not been shown that the incident with the SOD collaborator was representative for the entire police apparatus in Georgia, that it had not been established by the applicant that the Head of the SOD was involved in drugs trafficking and that, bearing this in mind, the applicant could have turned for protection to the Georgian authorities. No further appeal lay against this ruling.

The relevant domestic law and practice as regards asylum proceedings and enforcement of removals are set out in K. v. the Netherlands ((dec.), no. 33403/11, §§ 16-19 and §§ 25-32, 25 September 2012).

At the material time, the Government’s policy on asylum-seekers from particular countries was devised by the Deputy Minister of Justice and his successor, the Minister for Immigration, Integration and Asylum Policy, on the basis of, inter alia, official country assessment reports drawn up by the Minister of Foreign Affairs on the countries of origin of asylum-seekers, but also reports published by United Nations agencies or NGOs (non-governmental organisations). There was no country-specific policy in respect of asylum-seekers from Georgia.

According to the Government, person-specific reports (individuele ambtsberichten) are researched with the assistance of the Netherlands diplomatic missions in the countries concerned. In investigating information and documents submitted by asylum-seekers, the Ministry of Foreign Affairs enlists the services of agents who are carefully screened for objectivity and reliability on the basis of information supplied by institutions such as NGOs, international organisations like the IOM (International Organisation for Migration) as well as third-country embassies that can make disinterested, informed assessments. Agents must satisfy high demands; they must be discreet and painstaking, and have extensive networks and access to sources of information. Agents receive instructions before they begin their investigation, and their findings are discussed in meticulous detail when they report back to the embassy. The investigation is organised in such a way that the authorities are never made aware of the alien’s identity, to ensure that the Ministry of Foreign Affairs investigation does not cause any problems for the alien in his/her country of origin.

The Ministry of Foreign Affairs never provides information to the alien concerned or to his authorised representative about the identity of the agents or informants who have assisted with the investigation, because this could expose them to serious danger from the authorities or from the alien or his relatives or associates. Nor does the Ministry ever provide information about the methods and techniques used to examine the authenticity of documents, to avoid facilitating the making of better forgeries in the future or enabling future asylum-seekers to improve their accounts in support of their applications.

In a ruling given on 16 April 1998, the Legal Uniformity (Aliens Affairs) Division (Rechtseenheidskamer; “REK”) of the Regional Court of The Hague held that the duty of due care when preparing a decision of an administrative law nature includes providing access to the documents on which a person-specific report is based. In cases in which a decision is based on a person-specific report, an employee of the Ministry of Security and Justice’s Office for Country Information and Language Analysis (Bureau Land en Taal) must examine the report to determine, on the basis of the underlying materials, whether due care was taken in drawing it up, both substantively and procedurally, and whether the report is clear. This is referred to as the “REK check”.

Furthermore, with the parties’ consent, the Regional Court and/or the Administrative Jurisdiction Division may base its judgment also on information that has not been made available to the alien concerned. Before doing so, the Regional Court and/or the Administrative Jurisdiction Division decides, using a different panel of judges, whether the restrictions placed on the alien’s access to the underlying document of a person-specific report are justified.

The most recent general official country assessment report (algemeen ambtsbericht) on Georgia was published by the Ministry of Foreign Affairs on 15 December 2009. It covers the period from May 2006 to September 2009. As regards corruption it reads:

“In order to professionalise the judiciary and to combat corruption, the government of Georgia started in 2005 an extensive and fundamental reform of the judiciary. Many judges of the old regime were dismissed or placed on a reserve list. In addition, several judges resigned themselves. During the reporting period various measures were taken to increase the quality and independence of the judiciary. ...

One of the most visible reforms after the Rose Revolution of November 2003 concerns the police force. Corruption, abuse of power, extortion, torture practices and a dismissive attitude towards those seeking protection against criminality were being associated with the police in the past. With the assistance of the OSCE [Organisation for Security and Cooperation in Europe] the police was fundamentally reorganised. The number of staff was reduced drastically and the salaries of agents in active duty were increased by tenfold. After the reorganisation, the police force consists of traffic patrol police, criminal investigation police and border police. The new police force falls under the competence of the Ministry of Interior Affairs. In addition, in June 2006, an improved Code of Ethics for the police entered into force. Corruption within the police force has almost entirely disappeared and the trust of the general population in the functioning and actions of the police during the reporting period has increased. Citizens with complaints about the police can file them at specifically designated reporting points.”


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković

The applicant was born in 1962 and lives in Sinj.

On 29 December 2005 M.R. brought a civil action against the applicant before the Sinj Municipal Court (Općinski sud u Sinju), seeking that a will be declared null and void. M.R. was represented by lawyers, V.Lj. and Ž.V.

On 8 December 2006 the Sinj Municipal Court adopted a judgment in the applicant’s favour.

The plaintiff lodged an appeal with the Split County Court (Županijski sud u Splitu). The Civil Division of that Court has over forty judges. On 27 August 2009 a panel of three judges presided over by Judge D.P., sitting in a closed meeting, reversed the first-instance judgment and upheld the appeal. It held that the first-instance court had correctly established the facts but had wrongly applied the relevant law.

The applicant lodged an appeal on points of law with the Supreme Court (Vrhovni sud Republike Hrvatske) alleging, inter alia, that she had not had a fair hearing before an independent and impartial tribunal because Judge D.P. was the father of a trainee lawyer working at the law office of V.Lj. and Ž.V., who had both represented the plaintiff in the proceedings.

On 14 September 2011 the Supreme Court dismissed the applicant’s appeal on points of law as unfounded and upheld the second-instance judgment. It held in particular:

“The case file shows that N.P., Judge D.P.’s son, did not participate in any manner in the proceedings at issue. This court therefore considers that there are no circumstances which put the impartiality of Judge D.P. in such doubt as to exclude his participation in the adoption of the appeal judgment.”

In a constitutional complaint of 29 June 2012 the applicant argued that even though N.P. had not participated at the hearings held in the proceedings at issue, there were no indications that he had not been otherwise involved in the case. He had been in a relationship of subordination (employer-employee) to the opposing party’s legal representative and the law office concerned had employed only a very small number of people. The applicant noted that the first-instance judgment in her favour had also later been reversed on appeal. The constitutional complaint was declared inadmissible on 3 October 2012 by the Constitutional Court.