Aleš Pejchal;André Potocki;Angelika Nußberger;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant, Ms Amalia Perez, is a Spanish national, who was born in 1950 and lives in Madrid. She was represented before the Court by Mr E.P. Flaherty, a lawyer practising in Geneva.

The German Government (“the Government”) were represented by two of their Agents, Mr H.-J. Behrens and Mrs K. Behr, of the Federal Ministry of Justice.

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

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

The applicant is a former staff member of the United Nations (the “UN” or the “Organisation”). She joined the United Nations Development Programme (the “UNDP”) in New York in 1970. She was promoted several times and, in 1998, moved to the United Nations Volunteer Programme (the “UNV”), Headquarters Administration, in Bonn, Germany. UNV is represented worldwide through the offices of the UNDP. The applicant served as a senior manager with UNV and resided in Germany.

Until 1999 the applicant’s professional performance had consistently been rated by consecutive supervisors in her annual appraisal reports as exceeding or fully satisfying the requirements of her respective job. However, in 1999, as well as in 2000 and 2001, a new supervisor found that she had not met the performance expectations.

As a consequence of the negative appraisal reports the applicant was included in the 2002/2003 UNV reassignment exercise with a view to her redeployment. By a letter of 8 July 2002, she was informed by the UNV human resources department that she had not been selected for any post within the scope of the reassignment exercise and was given a time-limit of several months to search herself for an alternative placement in the UNDP or elsewhere in the Organisation.

On 17 July 2002 the applicant filed a rebuttal for an internal administrative review of the negative appraisal reports for the years 1999, 2000 and 2001 with a rebuttal panel (the “Rebuttal Panel”) composed of UNDP staff members jointly selected by the staff council and management.

On 1 November 2002 UNDP management decided that the applicant should be placed on annual leave during the period from 1 November to 4 December 2002. As the applicant was unable to find a post within the Organisation and following fruitless attempts by UNDP to agree on possible conditions for a termination of the applicant’s employment contract, she was given formal notice of termination by a letter dated 3 December 2002; her dismissal was to be effective as of 4 March 2003. The termination was reasoned with intended staff reduction and suppression of posts.

On 20 January 2003 the applicant requested an administrative review of the decision to dismiss her with the UN Secretary-General (the “Secretary-General”) and asked to suspend her dismissal.

On 31 January 2003 the Secretary-General, following the recommendation by the UN Joint Appeals Board (the “JAB”) of 29 January 2003, granted the applicant’s request for a suspension of her dismissal pending completion of the rebuttal process in relation to her appraisal reports, which had commenced on 22 January 2003.

On 10 June 2003 the Rebuttal Panel issued its report and concluded that the applicant’s performance ratings be maintained for the years 1999 and 2001 but found that it was not in a position to reach a final conclusion with respect to the rating for 2000 due to management’s failure to provide the relevant documentation.

On 29 August 2003 the Secretary-General, contrary to a recommendation by the JAB dated 27 August 2003, decided not to accept a further request by the applicant to suspend her dismissal.

The applicant’s employment ended on 31 August 2003.

On 7 March 2003 the applicant, represented by counsel, had lodged an appeal with the JAB challenging the decision to terminate her permanent appointment as well as the decision to place her on annual leave during the period from 1 November to 4 December 2002.

In its report on the merits of the applicant’s appeal dated 28 February 2005, the JAB found that following the applicant’s dismissal UNV management had immediately hired a staff member under a temporary assistance contract to perform the applicant’s functions and that her post had thus in reality not been suppressed but in fact had been reclassified to a higher grade. The JAB noted that it had not been established that UNDP management had taken action to assist the applicant to improve her work performance from 1999 onward. It further held that while the applicant had been placed in the reassignment exercise for 2002/2003, UNDP management had failed to make sufficient efforts to actively assist her in finding alternative employment within the Organisation. As regards the decision to place the applicant on annual leave from 1 November to 4 December 2002, the JAB noted that even though the applicant’s rebuttal process regarding her appraisal reports had been pending since 17 July 2002, the case had not yet been assigned to a Rebuttal Panel at the time she was placed on annual leave in November 2002. It had been only on 22 January 2003 and only after the applicant had applied for suspension of her dismissal, that the Organisation acknowledged that the rebuttal process had been delayed and started the rebuttal proceedings. In the JAB’s opinion it had therefore not been in accordance with the applicable staff rules to penalise the applicant by having to use her annual leave balance in November 2002.

The JAB recommended that the applicant be granted monetary compensation equivalent to six months’ net base salary for the delay in the rebuttal process as well as for the failure on the part of the Organisation to make a reasonable effort to find a suitable alternative post for her. It also recommended that annual leave wrongfully charged for the period of 1 November to 4 December 2002 be credited to her leave balance.

On 3 August 2005 the applicant was informed of the Secretary-General’s decision to credit her with her annual leave for the period from 1 November to 4 December 2002 and to grant her compensation in an amount of three months’ net base salary instead of the six months recommended by the JAB.

On 5 July 2005 counsel for the applicant lodged an appeal with the United Nations Administrative Tribunal (the “UNAT”) against the Secretary-General of the UN, requesting the tribunal to find, inter alia, that she be reinstated and awarded full compensation for losses incurred since termination of her employment on 31 August 2003, such as social security and other benefits, as well as punitive damages.

By a letter to the UNAT of 25 May 2007, the applicant further asked to be granted access to certain documents submitted by UNDP in the proceedings before the Rebuttal Panel and referred to by the latter in its report of 10 June 2003 but which she had allegedly never had an opportunity to examine.

The UNAT rendered its judgment on 28 September 2007 (No. 1345) following a written procedure. It pointed out that while the applicant’s rebuttal had been filed on 17 July 2002, the internal rebuttal proceedings had only commenced on 22 January 2003 following the applicant’s request of 20 January 2003 to suspend her dismissal and had ended on 10 June 2003. The proceedings had thus taken eleven months, a delay that, as acknowledged by the Organisation, was unacceptable. The UNAT further endorsed the JAB’s finding that the UNDP administration had failed to make every bona fide effort to secure a new post for the applicant. It ordered the Organisation to pay the applicant further compensation in the amount of three months’ net base salary in addition to the compensation she had already received and rejected the remainder of the applicant’s pleas. The applicant’s request for access to the aforementioned specific documents was not granted by the UNAT.

The United Nations were founded in 1945 and currently have 193 Member States. Germany was admitted to membership in the United Nations on 18 September 1973. The United Nations Development Programme (UNDP) and the United Nations Volunteers Programme (UNV) are subsidiary organs of the UN established by the Organisation’s General Assembly.

Pursuant to Article 105 § 1 of the Charter of the United Nations the Organisation shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes.

The Convention on the Privileges and Immunities of the United Nations (the “General Convention”) of 13 February 1946, to which Germany has been a party since 5 November 1980, provides:

“Article II

Section 2. The United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity ...

Article VIII

Section 29. The United Nations shall make provisions for appropriate modes of settlement of:

(a) disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party; ...”

The General Convention is complemented by the Agreement between the UN and the Federal Republic of Germany concerning the headquarters of the UNV (the “Headquarters Agreement”) of 10 November 1995, which stipulates in its Article 4 that the General Convention shall apply to the UNV. In addition, it contains in its Article 9 § 1 and Article 26 § 1 (a) provisions similar to sections 2 and 29 (a) of the General Convention respectively.

Under the UN internal appeals system in force at the time of the dispute at issue, UN staff members who considered that a decision by the UN administration had violated the terms of their employment could seek an administrative review of such decision by the UN Secretary-General. If the Secretary-General did not reply within the allotted time-limit as stipulated in the relevant regulations or if his reply was unfavourable, the staff member could submit an appeal to the Joint Appeals Board (the “JAB”). The JAB, composed of three staff members, following an examination of the case, made a non-binding recommendation to the Secretary-General who took the final decision on the appeal.

The Secretary-General’s final decisions could then be challenged before the United Nations Administrative Tribunal (the “UNAT”). The UNAT was established in 1950 by the General Assembly, for the purpose of resolving employment-related disputes between United Nations staff and the Organisation.

The judges of the UNAT, who had to possess judicial experience in the field of administrative law, were appointed by the General Assembly for four years and could be reappointed once. No member of the UNAT could be dismissed by the General Assembly unless the other members were of the unanimous opinion that he or she was unsuited for further service (Article 3 of the UNAT’s Statute, adopted by the General Assembly by resolution 351 A (IV) on 24 November 1949 and as applicable at the time of the dispute at issue).

As to the proceedings before the UNAT, each written statement and additional document submitted to the UNAT at the request of its president was to be communicated to the other parties, unless at the request of one of the parties and with the consent of the other parties, the UNAT decided otherwise (see Article 10 of the Rules of the Administrative Tribunal of the United Nations adopted by the Tribunal on 7 June 1950, as amended and applicable at the time of the dispute at issue). An applicant could present his case before the Tribunal in person, in either the written or oral proceedings. He could also designate a staff member of the United Nations to represent him, or could be represented by counsel authorized to practice in any country a member of the organization concerned (Article 13 of the Rules of the UNAT). Oral proceedings were to be held if the presiding member so decided or if either party so requested and the presiding member agreed (see Article 15 § 1 of the Rules of the UNAT).

If the Tribunal found that an application was well-founded, it had to order the rescinding of the decision contested. At the same time, it had to fix the amount of compensation to be paid to the applicant for the injury sustained should the Secretary-General decide, in the interests of the UN, that the applicant should be compensated without further action being taken in his or her case. Such compensation should, as a rule, not exceed the equivalent of two years’ net base salary of the applicant (see Article 10 § 1 of the Statute).

In January 2006 the UN Secretary-General established the Redesign Panel on the United Nations system of administration of justice (the “Redesign Panel”) in reply to a request by the UN General Assembly expressed in its resolution 59/283 to establish a panel of external, independent experts to review and possibly redesign the system of administration of justice at the United Nations. The Redesign Panel issued its report on 28 July 2006. The relevant parts of the report read as follows:

“Summary

... The Redesign Panel found that the United Nations internal justice system is outmoded, dysfunctional and ineffective and that it lacks independence ...

II. Overview

The Redesign Panel found that the administration of justice in the United Nations is neither professional nor independent. The system of administration of justice as it currently stands is extremely slow, underresourced, inefficient and, thus, ultimately ineffective. It fails to meet many basic standards of due process established in international human rights instruments ...

... establishing a professional system of internal justice is essential if the United Nations is to avoid the double standard – which currently exists – where the standards of justice that are now generally recognized internationally and that the Organization pursues in its programmatic activities are not met within the Secretariat or the funds and programmes themselves. These international standards include the right to a competent, independent and impartial tribunal in the determination of a person’s rights, the right to appeal and the right to legal representation.

... Hearings, too, are a clear requirement in international standards whenever there are disputed issues of fact. ...

V. The Formal system

A number of the difficulties within the formal justice system stem from the Statute and the jurisprudence of UNAT. By article 10.1 of its Statute, UNAT may order specific performance. However, it is required at the same time to fix compensation (normally limited to two years’ net base salary), which the Secretary- General may decide to pay as an alternative if that is considered to be in the interests of the Organization. The power of the Secretary-General to choose between specific performance and the payment of limited compensation can, and sometimes does, result in inadequate compensation, particularly in cases of wrongful termination or non-renewal of contract. A system that cannot guarantee adequate compensation or other appropriate remedy is fundamentally flawed. More significantly, a system that does not have authority to finally determine rights and appropriate remedies is inconsistent with the rule of law.

The decisions of UNAT are not always consistent, and its jurisprudence is not well developed. In particular, it does not have a coherent jurisprudence as to the duties of an international organization to its staff. Thus, there is a widespread view, which is largely correct, that the formal justice system affords little, if any, protection of individual rights, such as the right to a safe and secure workplace or the right to be treated fairly and without discrimination.

VI. Legal representation

The Panel of Counsel, which was formally established in 1984 and which has the responsibility to provide legal assistance and representation to United Nations staff members in proceedings within the internal justice system, is extremely underresourced and is not professionalized. ...

The Redesign Panel notes that legal assistance to the management of the Organization is undertaken not by volunteers without legal training, but by a cadre of professional lawyers in the Department of Management and the Office of Legal Affairs. This disparity in legal resources available to the management and staff members has created an egregious inequality of arms in the internal justice system.”

In 2007, based on the recommendations of the Redesign Panel and acting on a proposal by the Secretary-General, the General Assembly decided to introduce a new system for handling internal disputes and disciplinary matters in the United Nations. The new two-tier judicial system with a United Nations Dispute Tribunal and a United Nations Appeals Tribunal became operational on 1 July 2009.

The Federal Constitutional Court has jurisdiction to deal with constitutional complaints which concern acts of a “public authority” (see Article 93 § 1 no. 4 (a) of the Basic Law). Under the Federal Constitutional Court’s well-established case-law, this comprises not only acts of German public authorities, but also acts of supranational organisations which concern the beneficiaries of fundamental rights in Germany (see, for instance, Federal Constitutional Court, file no. 2 BvR 2134, 2159/92, judgment of 12 October 1993, Collection of the decisions of the Federal Constitutional Court (BVerfGE), vol. 89, pp. 155 ss., 174 s. (Maastricht judgment); file no. 2 BvR 1458/03, decision of 3 July 2006, § 12 (of the internet version)).

However, the Federal Constitutional Court only exercises its jurisdiction over supranational acts of international organisations under the condition that the complainant sufficiently substantiated that the level of protection of fundamental rights by the international organisation was generally and manifestly below the level required by the Constitution (see, for instance, Federal Constitutional Court, file no. 2 BvR 197/83, decision of 22 October 1986, BVerfGE, vol. 73, pp. 339 ss., 387 (Solange II); file no. 2 BvL 1/97, decision of 7 June 2000, BVerfGE, vol. 102, pp. 147 ss., 164; file no. 2 BvR 2368/99, decision of 4 April, §§ 9 ss.; file no. 2 BvR 1458/03, decision of 3 July 2006, § 21).

The Federal Constitutional Court’s decision of 28 November 2005 (file no. 2 BvR 1751/03) concerned the decision of the European Patent Office not to admit the applicant as a representative before that Office as he had not passed the ability test.

The Federal Constitutional Court declined to consider the applicant’s constitutional complaint. It found that the complaint was directed against an act of a “public authority” as the decision at issue had a direct effect on a beneficiary of fundamental rights in the German legal order.

However, the level of protection of fundamental rights guaranteed by the European Patent Convention satisfied the requirements which had to be met under the Basic Law in case of a transfer of sovereign powers. The applicant had failed to substantiate sufficiently that the level of human rights protection under the European Patent Convention in respect of admissions as a representative was generally and manifestly below the level required by the Constitution. The same applied if a duty of protection on the part of the State was assumed as the applicant would also have been obliged to demonstrate that there was a structural lack of legal protection which the Federal Government should have addressed. The Federal Constitutional Court therefore did not exercise its jurisdiction.

The Federal Constitutional Court’s decision of 22 June 2006 (file no. 2 BvR 2093/05 – the impugned decision in the case of Klausecker v. Germany, no. 415/07) concerned the European Patent Office’s decision not to recruit the applicant.

The Federal Constitutional Court declined to consider the applicant’s constitutional complaint against the European Patent Office’s decision. It found that the complaint, in which the applicant had argued, in particular, that his constitutional right of access to court had been breached, was inadmissible. A constitutional complaint only lay against acts of a “public authority” and the applicant had failed to demonstrate that such an act was at issue in his case.

The Federal Constitutional Court confirmed that the European Patent Organisation had immunity from the jurisdiction of the domestic courts within the scope of its official activities under the European Patent Convention. It further reiterated that acts of a “public authority” were not only acts of German State authorities. The term also covered acts of supranational authorities, such as the European Patent Organisation and its executive organ, the European Patent Office, which had an impact on the beneficiaries of fundamental rights in Germany.

However, the decision of the President of the European Patent Office here at issue could not be qualified as an act which had an impact on the beneficiaries of fundamental rights in Germany because it did not have any external legal effects within the German legal order. Measures relating to the relationship between the international organisation and its staff or candidates for posts, as a rule, only concerned the internal sphere of the organisation. This conclusion was not altered by the fact that the applicant was a German national living in Germany who, had he been employed, would have worked in Germany. The court conceded that the applicant’s recruitment would have been an act of a supranational nature which, changing his legal status, would have had a concrete effect within the German legal order. The refusal to employ him did not, however, have such an effect. The Federal Constitutional Court’s jurisdiction did not extend to such internal measures.

The Federal Constitutional Court further found that in view of the inadmissibility of the applicant’s constitutional complaint, it did not have to decide the question whether the level of protection in respect of staff issues within the European Patent Organisation complied with the standards set by the Basic Law, which had to be observed in the event of a transfer of sovereign powers.

The Federal Constitutional Court’s decision of 3 July 2006 (file no. 2 BvR 1458/03) concerned the temporary denial of access of the complainants, staff members of the European Patent Office, to the internal e-mail system of that organisation.

The Federal Constitutional Court dismissed the complaint as inadmissible as it had not been shown that it concerned an act of a “public authority”. It stressed that such acts included acts of supranational organisations to which Germany had transferred sovereign powers and which had direct legal effects within the German legal order, that is, which altered the legal position of individuals within it. However, the impugned measure did not alter the complainants’ position in the German legal order. It further spoke against the existence of an act of a “public authority” that the European Patent Office enjoyed immunity from jurisdiction in respect of employment-law disputes.

Furthermore, as the Federal Constitutional Court had previously found (it referred to its decision of 28 November 2005, file no. 2 BvR 1751/03, see paragraphs 35-37 above), there could be a duty of protection incumbent on the State (Schutzpflichtenansatz) where the internal sphere of an international organisation was affected. In that sphere, legal protection could only be granted if the German legislature and the Federal Government used means that were suitable for ensuring that any conditions within the intergovernmental organisation which were contrary to fundamental rights were removed. The failure of the German State authorities to take action in connection with the final decision on the impugned act would then constitute an act of a “public authority”.

The complainants had, however, failed to make any submissions in this respect. Just as in the sphere of an organisation’s supranational powers, it was necessary for complainants to claim in a substantiated manner that there was a structural deficiency in legal protection within the organisation. The Federal Constitutional Court further noted that it had previously confirmed that the system of fundamental rights protection within the European Patent Convention and in the proceedings before the Administrative Tribunal of the International Labour Organisation generally complied with the standards of the Constitution.


Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

The applicant, Mr Jānis Maļinovskis, is a Latvian national, who was born in 1969 and is currently detained in a prison in Daugavpils. He was represented before the Court by Ms A. Kalēja, a lawyer practising in Riga.

The Latvian Government (“the Government”) were represented by their Agent at the time, Ms I. Reine, and subsequently by Ms K. Līce.

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

According to the Government, on 25 May 2007, at around 8.45 p.m. (around 8.40 p.m. according to the documents provided by the Government) the duty prison officer B.Z. noticed a rope stretched between the window of the applicant’s cell (no. 265) in Central Prison and Matīsa Prison (on 1 November 2008 these prisons were merged into a single prison: Riga Central Prison (Rīgas centrālcietums)). The rope was being used to pass a certain item between the buildings. B.Z. immediately ordered a search of cell no. 265.

The parties agreed that the search was carried out between 8.45 p.m. and 9 p.m.

According to the Government, prison wardens D.B. and I.R. commenced the search and B.Z. joined them shortly afterwards. The search was carried out in the presence of the applicant, who was the only inmate in the cell.

According to information received from the Ministry of Justice, the Central Prison’s log recording special measures (speciālo līdzekļu pielietošanas protokolu reģistrācijas žurnāls) did not indicate that any force or special measures had been applied to the applicant during the search.

The applicant alleged that the search had been brutal and that prison staff had inflicted injuries on him. Replying to the Government’s observations, the applicant specified that his nose had been broken and had not healed properly, and that he had sustained bruises in the thorax and chest area and on the neck and face.

According to the record of the search, ten CDs, a slingshot and a rope had been confiscated. The applicant denied that the last two items had been found in his cell.

The applicant complained to B.Z., after the latter had joined prison wardens D.B. and I.R., that he had been beaten. Immediately after the search B.Z. therefore ordered the applicant’s medical examination by a doctor of the Central Prison.

The same day, at 9 p.m., a doctor, P., noted that the applicant’s health condition was satisfactory. The doctor did not record any injuries to the applicant.

On 28 May 2007 the applicant complained to a governor of the Central Prison. According to the applicant’s written submission, on 25 May 2007 his property had been stolen and he had been physically maltreated by being kicked and punched in the kidney area and still had pain in his kidneys. The applicant said that he would inform the media and commit suicide if the unlawful conduct continued.

The applicant’s complaint was forwarded to the Central Prison’s investigation division.

On 30 May 2007 the applicant completed a complaints form, addressed to the Central Prison’s investigation division. He provided the following description of the events of 25 May 2007:

“... approximately seven to eight ... employees broke in. That may have been between 6 p.m. and 8 p.m. [The applicant] does not know their names and it is difficult to give a physical description of them because, first, they were in uniforms [and] looked alike and, second, [the applicant] was in a state of shock. At first one of the fattest started to hit [the applicant] ... after [the applicant] started shouting, started to strangle ... one of the broad-shouldered [ones] hit [the applicant] on the torso, more on the sides ... [the applicant] would be able to identify them ... [The applicant’s] beating could be heard in several cells: no. 226 [V.], no. 249 [S.] and all the cell [not visible on the copy] ...

... at the doctor ... the doctor was writing something and without carefully looking at [the applicant] answered: ‘But I do not see anything.’ Even though [the applicant] could see a swelling and a bruise on [his] left arm ... [the applicant] suspects that [his] nose was broken while [he] was being strangled between the beds because [he] heard the sound of a crack and started bleeding ...”

The applicant also complained that some of his property had been unlawfully removed and damaged.

According to doctors’ notes from the Central Prison, on 31 May 2007 the applicant was re-examined by the prison doctor’s assistant, V. The applicant stated that he had sustained injuries on 25 May 2007 during the search in cell no. 265 and had pain in his ribs and nose. V. recorded that no visible injuries could be seen on the applicant. An X-ray was performed on the left side of the applicant’s thorax and the bridge of his nose. On 7 June 2007 a doctor, S., recorded that the X-ray examination had not revealed any pathology.

The applicant, however, indicated that during the X-ray a doctor had asked him: “When was your nose broken?” In his submissions to the Court, the applicant said that, according to the X-ray, there had been a fracture “that had been there a while ago”. Yet, the applicant did not specify on what evidence he was relying in support of that contention.

In the beginning of June 2007, the Central Prison employees B.Z., D.B. and I.R. gave their explanations (paskaidrojumi). They submitted that no physical force had been applied to the applicant.

In the beginning of June 2007 other prisoners provided their explanations.

In particular, on 25 May 2007 V.K. had heard the applicant shouting through the window that prison guards had been beating and strangling him. However, V.K. had neither heard nor seen the applicant being beaten. V.K. stated that he would not have been able to hear or see him because his cell was located far away from the applicant’s cell. V.K. was in cell no. 226, which was on the second floor, and the applicant’s cell was on the fourth floor.

Another inmate, S.B. declared that his cell, no. 249, was located beneath the applicant’s cell. On 25 May 2007 S.B. had been listening to music. He had just heard some noise in the cell above. He could not affirm that the applicant had been beaten or had been screaming. In the evening S.B. had heard the applicant shouting through the window that prison guards had beaten him.

According to the written submissions of two other inmates from the neighbouring cell, no. 264, they had not heard anything on 25 May 2007. With regard to the individuals detained in cell no. 264, however, the applicant submitted to the Court that they had said that they had heard a noise and the applicant’s shouts about being beaten. However, the applicant did not specify on what evidence he was relying to that effect.

On 11 June 2007 the head of the Central Prison’s investigation division, I.P., refused to institute criminal proceedings. Reference was made to section 373(1) of the Criminal Procedure Law (no grounds on which to institute criminal proceedings) and section 377(1) (no crime committed).

I.P.’s conclusions of 11 June 2007 on the internal investigation referred to the applicant’s allegations and noted that the following had been established:

“On 25 May 2007 at around 8.40 p.m. ... [B.Z.] saw a rope between the Central Prison cell no. 265 and Matīsa Prison ... a certain item was being transmitted ... [B.Z.] ordered that ... [D.B.] immediately carry out a search of cell no. 265, where [the applicant] was being held ...

The search of cell no. 265 was carried out on 25 May 2007 at 8.45 p.m. by [D.B.] and [I.R.] in [the applicant’s] presence. After the search in cell no. 265 had commenced [B.Z.] arrived and the search was continued in his presence ...

As [the applicant] complained to [B.Z.] that he had been beaten, immediately after the search he was taken to a duty doctor, who examined [the applicant] and did not establish any bodily injuries.

On 31 May 2007 [the applicant] ... was referred for a further examination by a doctor, who carried out an X-ray; however no bodily injuries were recorded (doctors’ notes of 31 May 2007 [and] 7 June 2007).

In the course of the internal investigation explanations were collected from the detainees in cells nos. 226 and 249, [V.K.] and [S.B.], who explained that they could not confirm that in the evening of 25 May 2007 prison employees had beaten up the detainee in cell no. 265 [the applicant] ...

Accordingly, the materials gathered during the internal investigation have not confirmed the [allegation] that ... [the applicant] had been beaten during the search ... ... [the applicant’s] allegations in his submissions of 28 and 30 May 2007 are false ...”

On 20 June 2007, the applicant appealed to the prosecution against the aforementioned decision of 11 June 2007 refusing to institute criminal proceedings. The applicant argued, inter alia, as follows:

“[The applicant] has grounds to believe that in the course of the inquiry persons favourable to the administration, who protect the interests of the administrative employees (secret employees), were called from the adjacent cells and [the applicant] has grounds to believe that detainees who could testify truthfully were not questioned. [Furthermore], as there were no physical traces by the time of the inquiry, independent doctors were not invited to conduct an examination...”

The applicant also complained that his ten CDs had been stolen.

On 24 July 2007 a prosecutor, R.K., upheld the refusal to institute criminal proceedings. The prosecutor noted that statements had been collected in the course of the internal investigation from persons named by the applicant. They had not confirmed that the applicant had been beaten. Nor did the medical documentation establish any injuries. Accordingly, R.K. concluded that the internal investigation had been thorough and impartial and that there had been no violations.

On 3 August 2007 the applicant challenged that decision before a higher-ranking prosecutor. The applicant complained with respect to his ten CDs. He noted, without providing further details, that injuries had been inflicted on him.

A higher-ranking prosecutor, S.D., replied on 28 August 2007. She noted that all the material had been analysed again and found that the previous prosecutor had drawn a lawful conclusion.

On 3 September 2007 the applicant contested S.D.’s finding. He alleged that the prosecutor had covered up the unlawful acts of the prison administration. He stated, further, that it was practically impossible to prove violence against an inmate in a place of detention. The applicant further alleged that the taking of his CDs had constituted theft.

On 9 October 2007 another prosecutor, D.U. found that prosecutor S.D. had examined the material collected by the Central Prison’s investigation division and had duly investigated the applicant’s allegations of ill-treatment. D.U. therefore upheld the refusal to institute criminal proceedings. That decision was final.

In a separate set of criminal proceedings, on an unspecified date, the applicant was ordered to undergo a forensic medical examination to assess his injuries.

Section 10 of the Medical Treatment Law (Ārstniecības likums), as in force at the material time, provided that the Inspectorate of Quality Control for Medical Care and Working Capability (“the MADEKKI”) was responsible for controlling the professional quality of health care in medical establishments.

The provisions of the Regulation of the Cabinet of Ministers no. 218 (2005) (Medicīniskās aprūpes un darbspējas ekspertīzes kvalitātes kontroles inspekcijas nolikums), in force from 6 April 2005 until 8 February 2008, read with respect to the MADEKKI as follows:

“3. The Inspectorate has the following functions:

3.1. to control the professional quality of medical care ... in medical institutions...

The Inspectorate, in order to fulfill its functions, has the following tasks:

4.1. to conduct assessments (ekspertīzes) and give reports (atzinumus) on the quality of medical care ... in a medical institution...

4.4. to control compliance with legislation binding upon medical institutions in the area of medical care...

4.6. to issue, where provided for by legislation, administrative acts (administratīvais akts) in the area of medical care...

4.7. to examine submissions (iesniegumus) by persons in the area of medical care...


Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano;Ksenija Turković

The applicant was born in 1956 and lives in Istanbul.

The applicant was the director of the Eminönü district branch of HADEP (Halkın Demokrasi Partisi – the People’s Democracy Party) in Istanbul at the time of the events giving rise to the application.

On 24 June 2000 a number of trade unions organised a demonstration in Istanbul. During the demonstration, some participants carried signs and chanted slogans in support of Abdullah Öcalan, the leader of the PKK (Kurdistan Workers’ Party), an illegal armed organisation. These demonstrators were identified by the police as members of HADEP.

On 26 June 2000 the public prosecutor at Istanbul State Security Court applied for a warrant to search the offices of four branches of HADEP to obtain incriminating evidence concerning the PKK.

On the same date the Istanbul State Security Court issued a search warrant.

That same evening police officers from the Istanbul police headquarters conducted a search of the Eminönü branch office of HADEP. The search protocol, which was signed by the applicant, indicated that illegal publications and flags and symbols of the PKK had been found there, together with pictures, articles and books pertaining to Mr Öcalan.

On the same date the applicant was taken to the Istanbul police headquarters for questioning. The police officers informed the applicant of his right under Article 135 (3) of the former Code of Criminal Procedure to request a lawyer. However, the applicant did not ask for a lawyer. In his statement, the applicant contended that, although he was the director of the Eminönü district office of HADEP, he was not always present at the office and that he had not been aware of the existence of the pictures and symbols regarding Mr Öcalan and the PKK found in the office. He similarly denied responsibility for the illegal publications and books which had been found on the premises, which he claimed had been brought in by publishers or other persons visiting the office without his knowledge. He claimed that whenever he came across similar pictures and symbols, he requested their removal. This statement was signed by the applicant.

On 27 June 2000 the applicant was questioned by the Istanbul public prosecutor, to whom he repeated the statement he had previously made to the police. The applicant also waived his right to request a lawyer before the public prosecutor.

On 30 June 2000 the Istanbul public prosecutor filed a bill of indictment against the applicant, charging him with praising and condoning acts punishable by law under Article 312 § 1 of the former Criminal Code.

On 19 January 2001 the Istanbul Criminal Court held the first hearing. At the end of the hearing, to which the applicant attended, the court decided to hold the next hearing on 15 June 2001.

On 15 June 2001, at the second hearing, the Istanbul public prosecutor presented his opinion (esas hakkında mütalaa) to the firstinstance court in the absence of the applicant. In his opinion, the public prosecutor advised that the court should find the applicant guilty as charged. The Istanbul Criminal Court accordingly convicted the applicant at the end of the hearing, and sentenced him to six months’ imprisonment and a fine of 91,260,000 old Turkish liras (TRL). In its judgment the domestic court held that the applicant’s defence lacked credibility and that the display of symbols and pictures pertaining to the PKK and Mr Öcalan in the party building amounted to the offence of praising and condoning acts punishable by law.

Through his lawyer the applicant appealed against this judgment. He claimed that he had not been duly reminded of his right to request a lawyer under Article 135 of the Code of Criminal Procedure during his questioning. He further argued that he had missed the hearing as he was delayed in traffic and the firstinstance court had taken its decision in his absence without giving him the opportunity to defend himself against the allegations of the public prosecutor.

On 5 June 2002 the Court of Cassation quashed the fine imposed, but upheld the remainder of the judgment. On 11 July 2002 this decision was deposited with the registry of the first-instance court.

On 31 January 2003 the applicant started serving his sentence. On 13 April 2003 he was released on parole.


Preliminary objections dismissed (Article 35-1 - Effective domestic remedy);Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Violation of Article 13+10-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 10 - Freedom of expression -{General};Article 10-1 - Freedom of expression);Pecuniary and non-pecuniary damage - award

András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

The applicants were born in 1977, 1974 and 1971 and live in Budakeszi, Budapest and Gödöllő, respectively.

At the material time, the applicants were members of the Hungarian Parliament and the opposition party LMP.

On 21 June 2013 Parliament held a final vote on a new law, Bill no. T/7979 on Transfer of Agricultural Lands and Lands of Forestry. The legislative proposal was quite controversial and generated intense reactions among opposition members. In protest during the final vote on the bill, Ms Lengyel placed a small, golden wheelbarrow filled with soil on the table in front of the Prime Minister, while Ms Szél and Ms Osztolykán stretched a banner containing the inscription “Land distribution instead of land robbery!” in front of the Speaker’s pulpit; meanwhile, Ms Lengyel used a megaphone to speak. She had previously delivered two speeches during the detailed debate and one speech during the final debate on the bill, filing three amending motions, and introduced two amending proposals just before the final vote.

On 25 June 2013 the Speaker presented a proposal to fine Ms Szél and Ms Lengyel respectively 131,410 Hungarian forints (HUF) (approximately 430 euros (EUR)) and Ms Osztolykán HUF 154,600 (approximately EUR 510) for having seriously disrupted the plenary proceedings, in application of section 49(4) of Act no. XXXVI of 2012 on Parliament.

The Speaker proposed that the maximum fine (a third of their monthly remuneration) was to be applied, given the extraordinary situation that had developed during the voting process. The reason given by the Speaker was that the applicants had gravely disrupted the plenary’s work by displaying their poster and using a megaphone.

A decision approving the proposal of the Speaker was adopted by the plenary on 26 June 2013, without a debate.

A constitutional complaint was filed, concerning a sanction for disruptive conduct, by MP E.N., a member of the opposition party Jobbik, and rejected by the Constitutional Court on 4 November 2013 (decision nos. 3206/2013. (XI.18.) AB and 3207/2013. (XI.18.) AB); see paragraph 16 below).

The Constitutional Court found that MP E.N. had been fined under sections 48(3) and (6), 50(1) and 52(2) – rather than section 49(4) – of Act no. XXXVI of 2012 on Parliament. It held in particular that the restrictions imposed on him for conduct falling under the above provisions – that is, “gravely offensive expression” – were in compliance with the Fundamental Law. His complaint in respect of section 49(4) was rejected because this provision, concerning “gravely offensive conduct”, was not applicable in that case.

The Constitutional Court went on to observe that there was no remedy available to that complainant against the measure.

Lastly, the Constitutional Court held that parliamentary disciplinary law concerned Parliament’s interior business and the MPs’ conduct as parliamentarians, rather than citizens’ rights or obligations; and that therefore no requirement of a remedy against a parliamentary disciplinary measure could be deduced from Article XXVIII(7) of the Fundamental Law.


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)

Branko Lubarda;Dmitry Dedov;Luis López Guerra

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 and also raised other complaints under the provisions of the Convention.


CASE OF ASSOCIATION OF VICTIMS OF ROMANIAN JUDGES AND OTHERS v. ROMANIA

Remainder inadmissible;Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);Pecuniary and non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

On 28 June 2005 the applicant association lodged an application with the Bucharest District Court, seeking to be granted legal personality and to be registered as an association in the Register of Associations and Foundations kept by that court.

According to its Articles, the founders of the applicant association were the other nine applicants. The Board of the association had five members, while Ms Neagu was designated as the President of the Association.

In support of its application, the applicant association appended a document issued by the Ministry of Justice confirming that the name chosen for the association was available, as well as a copy of its Memorandum (act constitutiv) and Articles (statut), which, in their relevant parts, read:

“The goal of the association is to protect the rights and the legitimate interests of its members before all domestic authorities with the capacity to administer, supervise and/or enact justice.

The objectives of the association are:

- to support and promote the relationship between its members and those authorised by law to protect their rights and interests;

- to monitor the activity of the Romanian justice system with the aim of reporting to the relevant authorities any injustice, irregularities or illegalities committed by Romanian judges;

- to present in the media any cases of manifest unfairness or bias in the application of the law, in so far as the public has the right to be aware of any negative aspects of the activities of the Romanian justice system;

- to support its members in their undertakings before any international court;

- to organise any form of protest (marches, public gatherings, picketing), with prior authorisation from the authorities and in accordance with the law;

- to signal the gravity and the public danger represented by an non-impartial or an incompetent judicial system;

- to create a database of all cases involving its members that are pending before the authorities;

- to cooperate with the legislative bodies by providing them with ideas, projects, proposals, etc. with the aim of improving the functioning of the Romanian judicial system.”

On 30 November 2005 the court rejected the application, holding that the goal of the applicant association was in breach of Article 40 § 2 of the Romanian Constitution, which states that “an organisation which, by its aims or activity, militates against political pluralism, the principles of a State governed by the rule of law, or against the sovereignty, integrity or independence of Romania shall be unconstitutional”. The court noted as follows:

“In its Articles, the applicant [association] starts from the premise that a group of individuals who consider themselves victims of judges – as a result of having had their own cases brought before the judicial authorities – want to form an association which would promote their interests, notably by using any legal means for publicising any alleged injustice, irregularity or illegality, and also by lawfully protesting against all of these aspects.

Such a premise, also implicit in the name of the association, is profoundly unconstitutional in that a group of individuals is stating proprio motu that a judgment can be unfair or irregular or an expression of illegality. All these aspects encourage non-compliance with courts’ judgments and represent a form of attack on one of the State’s powers, namely the judiciary.(...)

The infringement is prescribed by law ... in so far as the association is not constitutional because of its aims.

The measure aims to protect public order and the rights of others. (...)

The measure is necessary in so far as the image of the justice system is currently a matter of national interest, and any attack on the courts is therefore an issue of particular gravity which justifies the refusal to grant legal personality to an association that wants to promote an unfavourable image of justice, in the light of the fact that none of its members has the authority to note (calitatea sǎ constate) any “injustice, irregularity or illegality committed by the judges” because it is only the State authorities appointed to make inquiries in that regard which have jurisdiction to pronounce a conclusion on such matters.”

The court did not consider it necessary to give the applicant association the opportunity to remedy the impugned irregularity by modifying its Articles, as prescribed by Article 9 of Government Ordinance no. 26/2000, in so far as it considered that any modification of the aims of the applicant association rendering it constitutional would alter the very essence of the association.

The applicant association appealed against the judgment before the Bucharest County Court. It stressed that, according to its Articles, all the association’s activities had to be conducted in compliance with the law and its aim could therefore not be regarded as unconstitutional.

On 16 February 2006 the Bucharest County Court dismissed the appeal, upholding the reasoning given by the first-instance court. The court referred also to the provisions in the applicant association’s Articles, according to which the Board of the association was competent to accept or reject a membership request on the basis of its own assessment of whether or not the aspiring member was a victim of a breach of his or her rights in a trial before a judge. Such competence was unlawful in so far as the Board thus exercised a form of discretion in assessing whether there were breaches of rights, legitimate interests and/or law by the judges. In claiming to have such competence, the Board was attempting to usurp the domestic and international institutions empowered to make such assessments, which was unconstitutional, illegitimate and unlawful.

Furthermore, the court held that the Articles did not comply with legal requirements concerning the disposal of the association’s assets in the event of its dissolution. The Articles prescribed that “in event of dissolution, the disposal of the assets would be decided by the General Meeting, in compliance with the provisions of Article 60”, while the law, namely article 6 § 3 g) of the Ordinance “required that the procedure should be set down in the Articles itself”.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

The applicant was born in 1985 and lives in Ljubljana.

He was detained in the remand section of Ljubljana prison from 1 June 2011 to 16 July 2012.

He was held in cell no. 82 measuring 16.37 square metres (not including a separate 1.82 square metres sanitary facility). For two hundred and twelve days he was held therein with four other inmates with 3.27 square metres of personal space and for nine days he was held therein with five other inmates with 2.73 square metres of personal space. For one hundred and ninety days he shared the cell with two or three other inmates with more than 4 square metres of personal space.

The cell for six detainees, where the applicant was held, was equipped with three bunk beds with a total of six sleeping places, one large and one small table, six chairs and a set of cupboards for each of the detainees. Detainees could freely open or close windows in cells. On 14 November 2011 the sixth bed was removed.

As regards the general characteristics of the cells in the remand section of Ljubljana prison, material conditions inside the cells and sanitary conditions, see the judgment in Mandić and Jović v. Slovenia, nos. 5774/10 and 5985/10, §§ 10 to 23, 20 October 2011.

As to the out-of-cell time in the remand section, the Court found in the aforementioned judgment that detainees in the remand section were confined to their cells day and night, save for two hours of daily outdoor exercise, and an additional two hours per week in a recreation room (see Mandić and Jović, cited above, § 78). According to the information supplied by the Government in the present case, on 9 February 2011 the time spent outdoors was extended to two hours and a half per day and in November 2011 the outside yard was covered by a roof.

As regards the cell temperature, the data provided by the Government showed that the average temperature in the cells in the late afternoon (5-5.30 p.m.) in July and August 2011 had been approximately 27oC, exceeding 30oC on ten days and in the second half of June and the first half of July 2012 it had been 30oC, exceeding 30oC on twelve days.


No violation of Article 2 - Right to life (Article 2 - Extradition) (Conditional) (Kosovo);No violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Kosovo)

André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Gabriele Kucsko-Stadlmayer

The applicant was born in 1973, lives in Austria since 2001 and is currently in detention pending extradition at Vienna-Josefstadt Prison.

The application concerns proceedings for extradition from Austria to Kosovo, which have the following background:

S.Lu. is the former husband of the applicant’s sister, T.L. In the course of an argument on 9 October 2001, S.Lu. stabbed the applicant in the chest. On 27 May 2002 S.Lu. was convicted in Austria of attempted intentional homicide (versuchter Totschlag) committed in a comprehensible state of emotion (in einer allgemein begreiflichen heftigen Gemütsbewegung) under Articles 15 and 76 of the Criminal Code (Strafgesetzbuch) and sentenced to five years’ imprisonment. The applicant testified as a witness during that trial.

After S.Lu. was released from prison in 2005, the applicant’s sister reported him to the police for having repeatedly raped her during their marriage, and for threatening to kill her and her family. Out of fear of her husband, she changed her and her children’s names. An order to determine S.Lu.’s whereabouts (Ausschreibung zur Aufenthaltsbestimmung) was issued by the Vienna public prosecutor’s office in 2008 and is in effect until 2 February 2018.

On the basis of an international arrest warrant issued by the Mitrovica District Court (Kosovo) on 26 November 2010 and 6 May 2011, the applicant was apprehended and taken into detention pending extradition by a decision of the Vienna Regional Criminal Court (Straflandesgericht Wien – hereinafter “the Criminal Court”) of 15 January 2016. On 20 January 2016 the Ministry of Justice of Kosovo requested the applicant’s extradition. According to the arrest warrant, the applicant was suspected of aggravated murder under Article 147 § 7 in conjunction with Article 24 of the Kosovo Criminal Code. He had allegedly ordered L.Q. in July 2010 to murder S.Lu. (his former brother-in-law) for a payment of 30,000 euros (EUR). On 3 August 2010 L.Q. fired gunshots at a car in the vicinity of the intended victim S.Lu., but instead killed N.Lu., S.Lu.’s cousin.

During the extradition proceedings, the applicant alleged that he had nothing to do with the murder in Kosovo. He claimed that the accusations had been invented by S.Lu. as revenge for the applicant’s having testified against him during the criminal proceedings in Austria. Furthermore, the “Lu. clan” (the family of S.Lu.) was very influential in Kosovo and had connections to the highest Government officials and the justice authorities there, which is why the applicant could not expect a fair trial in that jurisdiction. In addition, the conditions of detention in Kosovo prisons were deplorable and would amount to torture, inhuman and degrading treatment. Because of the threat emanating from S.Lu. and his family, the applicant would have to fear for his life there. They could easily get to him in prison by using their connections.

On 24 February 2016, after having held an oral hearing, the Criminal Court declared the applicant’s extradition to Kosovo permissible. It held that during the extradition proceedings, the court was not called on to examine whether the applicant was guilty or innocent, but merely to assess whether there was enough evidence to raise suspicions against him, which according to the documents submitted by the Kosovo authorities was the case. None of the evidence offered by the applicant had been capable of dispelling these suspicions immediately and without doubt, as would have been required by section 33(2) of the Extradition and Legal Aid Act (Auslieferungs- und Rechtshilfegesetz – hereinafter “the Extradition Act”). The fact that S.Lu. had been convicted of attempted intentional homicide in 2002 and the allegation that he wanted to take revenge on the applicant did not dispell the suspicion either. Furthermore, the court remarked that S.Lu.’s cousin had actually been killed, which called into question the applicant’s theory of that being a contrived story. It could equally be argued that the applicant had wanted to take revenge on S.Lu. for stabbing him. Concerning the applicant’s fear for his life in Kosovo, the court stated that the mere possibility of inhuman or degrading treatment did not suffice. The applicant had failed to adduce specific evidence of an actual, individual threat of treatment contrary to Article 3 of the Convention. Furthermore, in case of extradition to a member state of the Convention, the responsibility of the extraditing state was limited, as the person concerned could seek protection against a violation of the Convention in the receiving state.

On 24 March 2016 the applicant appealed. He submitted that if extradited to Kosovo, he risked treatment contrary to Article 3, because Lu. Clan wished to take revenge on him. In fact, Sm. Lu., a very influential member of that clan, was detained at Mitrovica prison and following extradition to Kosovo, he would be detained at that prison as well. Security in prison in Kosovo was a problem, as prisoners became frequently victims of aggression, and he would therefore also risk to become the victim of an assault.

On 31 May 2016 the Vienna Court of Appeal (Oberlandesgericht Wien hereinafter “the Court of Appeal”) dismissed the applicant’s appeal. It confirmed the Criminal Court’s finding that the applicant had failed to substantiate a real and individual risk of being subjected to torture, inhuman or degrading treatment, or that the Kosovo authorities would not be able to protect him from third, private parties. Furthermore, members of the allegedly influential Lu. clan were themselves imprisoned in Kosovo. In particular, on 21 January 2008 S.Lu. was convicted in Kosovo for issuing a dangerous threat against the applicant, which demonstrated that the Kosovo authorities were indeed capable of taking adequate measures to protect the applicant. Moreover, the Lu. clan could not be that influential if it was not capable of keeping its own members out of prison. Concerning the conditions of detention, the court held that the report on Kosovo by the Committee for the Prevention of Torture (hereinafter “the CPT”) of 2011 (see paragraph 30 below) did not state that ill-treatment was the rule in Kosovo prisons, but that there were merely sporadic incidents of violence. The mere possibility of ill-treatment by prison officers did not suffice to stop the applicant’s extradition. In relation to the material conditions of detention in Mitrovica Detention Centre, where the applicant alleged he would most likely be held if extradited, the Court of Appeal again quoted the above-mentioned CPT report of 2011, where it was found that inmates were able to move freely within that facility during the day and could exercise outside on a daily basis for three and a half hours, and that fitness and computer rooms have recently been installed.

On 13 June 2016 the Austrian Federal Minister of Justice (Justizminister) approved the applicant’s extradition to Kosovo.

On 20 June 2016 the applicant requested that the Court indicate to the Austrian Government to stay his extradition to Kosovo under Rule 39 of the Rules of Court. He complained under Articles 2 and 3 of the Convention that he would run the risk of torture, inhuman or degrading treatment or even death, as the Lu. clan wanted to take revenge on him and the Kosovo authorities were not willing or able to afford him protection.

On 22 June 2016 the Court granted the applicant’s request.

On 17 June 2016 the applicant lodged applications for the reopening (Wiederaufnahme) of the extradition proceedings and a stay of the extradition with the Criminal Court. He produced a certified declaration by L.Q., who had retracted his previous confession to the police that the applicant had ordered the murder of S.Lu. He asserted that he had been tortured by the Kosovo police during his questioning and had been pressured into blaming the applicant for ordering the murder. L.Q. alleged that he had fallen unconscious several times because of the “mental and physical torture”. L.Q. averred that he did not even know the applicant in person. The applicant further submitted into evidence several sworn statements from family members and friends, who attested that his life was in danger in Kosovo because of threats from S.Lu. and his clan.

On 23 June 2016 the Criminal Court dismissed the applicant’s applications. It held that in accordance with section 33(2) of the Extradition Act, the applicant had failed to adduce evidence which would have been capable of immediately dispelling the suspicion against him raised in the extradition request. L.Q.’s declaration did not constitute objective evidence and did not indicate any violations in Kosovo of the applicant’s rights under the Convention either. The applicant appealed.

On 18 July 2016 the applicant lodged an application for a renewal (Erneuerung) of the extradition proceedings with the Supreme Court under Article 363a of the Code of Criminal Procedure (Strafprozessordnung – hereinafter “the CCP”), requesting suspensive effect at the same time.

On 6 September 2016 the Supreme Court rejected the applicant’s application. It found that the new evidence the applicant had produced in the proceedings before it were a matter for the pending reopening proceedings, not for requesting a renewal of the extradition proceedings. In relation to the alleged violations of Articles 2 and 3 of the Convention in the event of his extradition, the Supreme Court found that mere allegations referencing general reports on the human rights situation were not capable of substantiating a real and immediate risk to the applicant under these provisions. Furthermore, the Supreme Court held that the applicant did not have a right under the law to request suspensive effect, which is why that request had to be rejected.

On 24 January 2017 the Court of Appeal dismissed the applicant’s appeal against the Criminal Court’s decision of 23 June 2016 (see paragraph 20 above). The court found that the applicant had failed to produce objective evidence which would have indicated a real and immediate risk of treatment contrary to Article 3 of the Convention if extradited to Kosovo and therefore would have warranted a reopening of the extradition proceedings. While the sworn statement by L.Q. in principle raised doubts in relation to the suspicions against the applicant, it had not constituted the only evidence against him. More pertinent had been the fact that, during the criminal proceedings against L.Q. in Kosovo, a microcassette had been put into evidence by S.Lu. which had allegedly contained a conversation confirming his statements that the applicant had been to blame for the murder. In addition, L.Q.’s initial incriminating statements against the applicant had been made in the presence of his lawyer. Moreover, L.Q. had not specified what exactly the police had allegedly done to him, which had made it impossible to evaluate whether the alleged treatment had actually amounted to torture, inhuman or degrading treatment. The Court of Appeal reiterated that it was in any event for the Kosovo courts to evaluate the evidence against the applicant. In sum, it confirmed that the statement by L.Q. was not capable of immediately dispelling the suspicion against the applicant on which the extradition request was based. Lastly, the Court of Appeal found that despite not being a State Party to the Convention or the Council of Europe, Article 22 of the Constitution of Kosovo granted the Convention direct effect under and superiority to national law, therefore domestic law equally offered protection from violations of the Convention. The Court of Appeal’s decision to dismiss the applicant’s appeal was served on his counsel on 30 January 2017.