CASE OF HAMIDOVIĆ v. BOSNIA AND HERZEGOVINA

Violation of Article 9 - Freedom of thought, conscience and religion (Article 9-1 - Manifest religion or belief);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Marko Bošnjak;Vincent A. De Gaetano

The applicant was born in 1976 and lives in Gornja Maoča.

On 28 October 2011 Mr Mevlid Jašarević, a member of the local group advocating the Wahhabi/Salafi version of Islam (see, concerning this group, Al Husin v. Bosnia and Herzegovina, no. 3727/08, § 20, 7 February 2012), attacked the United States Embassy in Sarajevo. One police officer was severely wounded in the attack. In April 2012 Mr Jašarević and two other members of the group were indicted in relation to that event. Mr Jašarević was eventually convicted of terrorism and sentenced to fifteen years’ imprisonment. The other two defendants were acquitted. The relevant part of the first-instance judgment rendered in that case, depicting the religious community to which the applicant also belonged, reads as follows:

“In his Report/Findings and Opinion and at the main trial, the expert witness Prof. Azinović clarified the notions of ‘Wahhabism’ and ‘Salafism’ from a scientific perspective:

Salafi communities in Bosnia and Herzegovina, like the one in Gornja Maoča (in which the accused lived at the time of the attack), are often isolated and inaccessible. The choice of remote and isolated locations to establish settlements is often informed by the belief that true believers who live in a non-believer (or secular) country need to resort to hijrah – emigration or withdrawal from the surrounding (non-believers’) world, following the example set by the Prophet Muhammad and his followers, who moved from Mecca to Medina in 622 to establish the first Muslim community.

Despite mutual differences, most of the Bosnian Salafi groups share some common traits that are not inherent in Islamic organisations (or religious sects) only. In practice, they confirm the tendencies of certain traditional religious communities to isolate from other believers and define their holy community through their disciplined opposition to both non-believers and half-hearted believers. This pattern is inherent in fundamentalist movements and sects within almost all religious traditions. Such movements as a rule have similar characteristics despite the differences in theological doctrines, size and social composition, the scope of their influence or their tendency towards violence. Yet these fundamentalist and puritan groups mostly do not encourage or approve violence, whether it is aimed against members of the same group or against the outer world.

According to the available sources and their own declarations, members of the community in Gornja Maoča oppose the concept of a secular State, democracy, free elections and any laws that are not based on Sharia. The positions taken by this group are, inter alia, available at a number of web sites, including www.putvjernika.com, while part of its followers live in Serbia, Croatia, Montenegro, Slovenia, Austria, Germany, Switzerland, Australia and other countries.’

6.1.5.1 Punishment of the accused (Article 242 of the Code of Criminal Procedure)

Having been called by the court officer to stand up when the Trial Chamber entered the courtroom at the first hearing, the accused refused to do so. Also, the accused Jašarević and Fojnica were wearing skullcaps, which the Court could correlate with clothing details indicating their religious affiliation. Pursuant to Article 256 of the Code of Criminal Procedure, all those present in the courtroom must stand up upon the call from a court officer. The President of the Trial Chamber asked the accused to explain both their refusal to stand up and the reasons why they had entered the courtroom wearing skullcaps. The accused stated that they only respected Allah’s judgment and that they did not want to take part in rituals acknowledging man-made judgment. The Court thereupon warned the accused that standing up was a statutory obligation of the accused and that under Article 242 § 2 of the Code of Criminal Procedure, disruptive conduct constituted contempt of court, which the Court would punish by removing them from the courtroom.

After the warning, the President adjourned the hearing and provided the accused with a reasonable period of time to consult their attorneys in order to change their minds.

When the Trial Chamber returned to the courtroom, the accused did not stand up, and therefore the President removed them from the courtroom. The transcript from the hearing was subsequently delivered to the accused.

At a new hearing, the accused Fojnica and Ahmetspahić again did not want to stand up on being called by the court officer, while the accused Jašarević refused to enter the courtroom. The President therefore asked the accused to respond whether it was their definite decision to act in the same way until the completion of the trial. The accused confirmed that, until the completion of the trial, they had no intention of showing any respect, by standing up, for the Court, which they did not recognise. The Court found that to continue to bring the accused to scheduled hearings would unnecessarily expose the Court to significant expense. Therefore, the Court decided to remove the accused from the trial until its completion, with a warning that they would be notified of any scheduled hearing, and that, prior to it, they could notify the Court if they changed their mind, in which case the Court would allow them to come to the hearing. The accused Fojnica and Ahmetspahić then changed their mind and regularly appeared before the Court, while the accused Jašarević did so only at the following hearing. The Court delivered to the accused the audio-recordings and the transcripts from the hearings they had not attended in order to allow them to agree with their defence attorneys on their defence strategy.”

In the context of that trial, the Court of Bosnia and Herzegovina (“the State Court”) summoned the applicant, who belonged to the same religious community, to appear as a witness on 10 September 2012. He appeared, as summoned, but refused to remove his skullcap, notwithstanding an order from the president of the trial chamber to do so. He was then expelled from the courtroom, convicted of contempt of court and sentenced to a fine of 10,000 convertible marks (BAM) under Article 242 § 3 of the Code of Criminal Procedure. The relevant part of that decision reads as follows:

“The Court has examined the situation encountered in the courtroom with the utmost care. The Court is aware that the witness belongs to a religious community, organised under special rules in the village of Maoča, of which the accused are also members. In view of that, the Court has acquainted the witness with the provisions of Rule 20 of the House Rules of the Judicial Institutions of Bosnia and Herzegovina and the obligations of the parties in the judicial institutions, which ban visitors from entering these buildings in clothing that is not in accordance with the generally accepted dress codes within the professional environment of the judicial institutions. In addition, the Court has pointed out to the witness that, in public institutions, it is not acceptable to display religious affiliation through clothing or religious symbols, and that the Court is obliged to support and promote values that bring people closer, not those that separate them. The Court has particularly emphasised that the rights of the individual are not absolute and must not jeopardise common values.

The witness’s attention has especially been drawn to the fact that people of various religious beliefs, belonging to different religious groups, appear before the court and that it is necessary to have confidence in the court. Thus, the court is not a place where religious beliefs can be expressed in a way that discredits certain common rules and principles in a multicultural society. That is why the law obliges everyone who appears before the Court to respect the Court and its rules.

The Court finds the witness’s refusal to accept the rules of court and to show respect to the Court by accepting its warnings, to be a flagrant breach of order in the courtroom. The Court has found that this behaviour is connected to a number of other identical cases before it, in which the members of the same religious group behaved in the same manner, publicly indicating that they did not recognise this Court. The frequency of such disrespectful behaviour and contempt of court is producing dangerous criminogenic effects and undoubtedly presents a specific threat to society. It is not necessary to particularly substantiate how this behaviour impairs the Court’s reputation and confidence in the Court. A legitimate conclusion may be that it is essentially directed against the State and basic social values. Therefore, a severe and uncompromising reaction on the part of the State, taking all existing repressive measures, is crucial for dealing with such behaviour. Restraint on the part of the State in cases of this or other types of extremism can have serious consequences for the reputation of the judiciary and the stability of society in Bosnia and Herzegovina.

Bearing in mind the frequency, seriousness and gravity of this type of breach of order in the courtroom and its damaging consequences, the Court has decided to punish the witness by imposing the maximum fine of BAM 10,000. Such a severe penalty should be a message to all the parties in the courtroom that contempt of court is unacceptable. The Court must be respected and the level of respect for the Court is the same as for the State of Bosnia and Herzegovina.”

On 11 October 2012 an appeals chamber of the same court reduced the fine to BAM 3,000 and upheld the rest of the first-instance decision. It held that the requirement to remove any and all headgear on the premises of public institutions was one of the basic requirements of life in society. It further held that in a secular State such as Bosnia and Herzegovina, any manifestation of religion in a courtroom was forbidden. The relevant part of that decision reads:

“The Chamber observes that it is obvious and well known that skullcaps, hats and other headgear should be removed when entering any premises, and notably the premises of State and other public institutions, as there is no longer a need to wear them and removing a skullcap or a hat is an expression of respect for this institution and its function. The duty to remove headgear exists not only in this court but also in other courts and institutions in Bosnia and Herzegovina as well as in other States. Such rules and duties apply to all persons without exception, regardless of religious, sexual, national or other affiliation.

Indeed, this is a duty of all those who visit the State Court in whatever capacity, as explained in more detail in Rule 20 of the House Rules of the Judicial Institutions of Bosnia and Herzegovina: ‘Visitors must respect the dress code applicable to judicial institutions. Visitors shall not wear miniskirts, shorts, t-shirts with thin straps, open heel shoes and other garments that do not correspond to the dress code applicable to judicial institutions’.

It would appear from the case file that the judge in charge of this specific case first directed the witness to remove his skullcap in the courtroom, and then gave him an additional ten minutes to think about it as well as about the consequences of rejecting that order. As the witness had nevertheless failed to remove his skullcap, showing thereby wilful disrespect for the authority of the court, the President of the Trial Chamber fined him in accordance with Article 242 § 3 of the Code of Criminal Procedure.

It follows from the aforementioned that the judge in charge did not invent the duty of removing the skullcap when addressing the court, as claimed in the appeal. This is indeed a matter of a generally accepted standard of behaviour in the courtroom which applies not only to this Court but also to other courts; furthermore, it has always been applied. This duty stems from Rule 20 of the House Rules of the Judicial Institutions cited above. Therefore, the allegations made by the lawyer Mulahalilović in the appeal are not only unjustified but totally inappropriate.

The allegation in the appeal that the witness was punished simply because he was a believer who was practising his religion, and that he had thereby been discriminated against, is also unsubstantiated. The duty of removing headgear and behaving decently applies without exception to anyone visiting the court premises. All persons visiting the Court, regardless of their religion, nationality, sex or other status, have the same rights and obligations and are obliged, among other things, to remove their skullcaps, hats and other headgear. This was explained to the witness. Any behaviour to the contrary has always been interpreted and is still interpreted as disrespectful towards the court, and the appellant is aware of that. Bosnia and Herzegovina, as mentioned in the impugned decision, is a secular State in which religion is separate from public life. The Chamber therefore holds that the premises of the Court cannot be a place for the manifestation of any religion.

It clearly follows from the aforementioned that the witness Husmet Hamidović was not deprived of his right to freedom of religion and freedom to manifest religion at his home or any other place dedicated for that purpose, but not in the courtroom. Therefore, the allegations by the lawyer Mulahalilović of a violation of the rights guaranteed by the Constitution and the European Convention on Human Rights, and of discrimination on religious grounds, are unsubstantiated.

Having found that the witness’s punishment was justified and that his appeal was ill-founded in that part, the Appeals Chamber then examined the amount of the fine and decided that it was excessive.

As noted in the appeal, BAM 10,000 is the maximum fine for contempt of court. The maximum fine should be imposed in the most serious cases.

Turning to the relevant criteria, the nature and the seriousness of the conduct must certainly be taken into consideration. However, the appellant is wrong in claiming that his means should have also been taken into account, as the fine for contempt of court is not a criminal sanction, but is of a disciplinary nature.

While the witness showed a high level of determination in disrespecting the court (he again failed to remove his skullcap after a pause of ten minutes given to him to reflect) and this fact definitely affected the amount of the fine, the act itself (failure to remove headgear) is not the most serious case of contempt of court which would justify the maximum fine. Since the witness did not use offensive language, there was no need to impose the maximum fine. This is notwithstanding the fact that members of the same religious group have lately shown a pattern of disrespectful behaviour. While it is true that the general prevention is one of the aims of sanctions, including disciplinary ones, disciplinary sanctions are primarily directed at individuals. Everyone should therefore be held responsible and adequately punished for his/her conduct only, and not for that of other members of any group. This follows from Article 242 § 3 of the Code of Criminal Procedure.

In the circumstances of this case, and having regard to the nature and the intensity of contempt of court committed by this witness, the appeals chamber finds that a fine in the amount of BAM 3,000 is appropriate. The appeal by the lawyer Mulahalilović is therefore partially accepted and the impugned decision amended.”

As the applicant had failed to pay the fine, on 27 November 2012 the fine was converted into thirty days’ imprisonment pursuant to Article 47 of the Criminal Code. That decision was upheld on 13 December 2012 and the applicant served his prison sentence immediately.

On 9 July 2015 the Constitutional Court of Bosnia and Herzegovina found no breach of Articles 9 and 14 of the Convention, fully accepting the reasoning of the State Court. At the same time, it found a breach of Article 6 of the Convention because of the automatic way in which fines were converted into imprisonment and ordered that Article 47 of the Criminal Code of Bosnia and Herzegovina be amended. However, it decided not to quash the decision converting the fine into imprisonment in this case, relying on the principle of legal certainty.

The relevant part of the majority decision reads as follows:

“40. The Constitutional Court notes that the present case concerns a specific situation where the universally accepted standard of conduct in a judicial institution intertwines with the right of the appellant to manifest in a courtroom, contrary to that standard, affiliation with his religious community. The appellant claims that the State Court did not have a basis in law for imposing a fine for his failure to comply with a court order, as the Code of Criminal Procedure does not contain a provision prescribing any such measure, for which reason his right to freedom of thought, conscience and religion was violated.

Starting from the main objection raised by the appellant, that the limitation in the case at hand was not prescribed by law, the Constitutional Court notes that the European Court (The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 49, Series A no. 30) has held that two requirements flow from the expression ‘prescribed by law’ in Article 9 of the European Convention. ‘Firstly, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.’ In addition, the wording of many statutes is not absolutely precise. The need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague. The interpretation and application of such enactments depend on practice (see Kokkinakis, cited above).

Accordingly, as concerns the issue of whether the State Court, in adopting the challenged ruling, acted in accordance with the law, the Constitutional Court observes that the provision of Article 242 § 3 of the Code of Criminal Procedure provides that the judge or the presiding judge may order that a party to the proceedings who disrupts order in a courtroom or disobeys court orders be removed from the courtroom and be fined in an amount of up to BAM 10,000. The Constitutional Court also observes that the cited provision, on which the State Court relied, does not prescribe a list of all types of conduct which may be regarded as disruption of order in a courtroom, but rather each court, in the circumstances of a given case, decides whether some type of conduct may be considered disruptive or not, which falls within the scope of that court’s margin of discretion (see the Constitutional Court decision no. AP 2486/11 of 17 July 2014, § 33). This is a universally accepted standard of conduct of the courts in Bosnia and Herzegovina, which is in accordance with the position of the European Court, referred to in the Kokkinakis judgment, that the interpretation and application of such enactments that are couched in vague terms depend on practice.

The Constitutional Court notes that the State Court relied also on Rule 20 of the House Rules, providing that ‘visitors must respect the dress code applicable to judicial institutions’, as an internal act of the State Court and other judicial institutions. The Constitutional Court observes likewise that the mentioned provision does not specify what that dress code is. However, the State Court in the case at hand kept in mind that the universally accepted standard of conduct in a civilised society required that upon entering the premises of a public institution one should remove one’s headgear out of respect for that institution and its function. Likewise, the Constitutional Court is aware that the said House Rules were not published, but that is not a problem since the present case concerns a universally accepted and usual standard of conduct in a judicial institution in a civilised and democratic society that Bosnia and Herzegovina aspires to become. The Constitutional Court also holds that the standard in issue could and should have been known to the appellant. In addition, the Constitutional Court observes that the State Court clearly and unequivocally warned the appellant of that universally accepted standard of conduct, which is indeed mandatory for all visitors of judicial institutions, irrespective of their religion, sex, national origin or other status.

Moreover, the State Court clearly warned the appellant of the consequences of such conduct and, although it was not required to do so, accorded him an additional time to reconsider his position. This is clearly in accordance with the stance taken by the European Court in relation to the notion ‘prescribed by law’ (The Sunday Times, cited above). Indeed, the State Court clearly and unequivocally informed the appellant of the applicable rules in the judicial institutions and of the consequences of disobeying the rules. Moreover, at his own request, the appellant was granted additional time to think about all this. The Constitutional Court especially emphasises the fact that the limitation in question applied only while the appellant was in the courtroom, that is, during his testimony before the State Court. The Constitutional Court holds that the State Court did not thereby place an excessive burden on the appellant, given that it simply requested that the appellant adjust his conduct to the House Rules, which applied to all visitors, and only in the courtroom. Bearing in mind all the aforementioned, the Constitutional Court holds, in the circumstances of this particular case, that the State Court, using the margin of discretion referred to in Article 242 § 3 of the Code of Criminal Procedure, acted in accordance with the law, and that, contrary to the appellant’s opinion, the interference, which was of a limited nature, was lawful.

As to the question whether the interference in the present case had a legitimate aim, the Constitutional Court notes that the State Court simply relied on a universally accepted standard of conduct in a judicial institution, which requires all the visitors of judicial institutions to respect ‘the dress code applicable to judicial institutions’. That court further relied on the inadmissibility of the manifestation in public institutions of religious affiliation and religious symbols which were contrary to the usual standards of conduct, and in so doing it took into account its obligation to support the values that bring people closer and not those that separate them. The Constitutional Court notes that the State Court underlined in that regard that Bosnia and Herzegovina was a secular State where religion was separated from public life and that therefore no one could manifest his/her religion or religious affiliation in a courtroom. Considering the position of the European Court that in democratic societies in which several religions coexist (as is the case of Bosnia and Herzegovina) it may be necessary to place restrictions on the freedom of religion (Kokkinakis, cited above), in the context of the obligation of an independent judicial institution to support the values that bring people closer, and not those that separate them, the Constitutional Court holds that the restriction in the present case, which was of a temporary nature, aspired to achieve legitimate aims. Finally, the Constitutional Court reiterates that Article 242 § 3 of the Code of Criminal Procedure is primarily designed to allow the State Court unhindered and effective conduct of proceedings. A judge or the president of a chamber is thereby given the possibility of imposing a fine for any inappropriate behaviour which is directed at disrupting order in a courtroom or at damaging the reputation of the State Court. In the present case, the State Court considered the repeated refusal of the appellant to comply with an order of the court to be damaging to the reputation and the dignity of a judicial institution. Therefore, the Constitutional Court finds that the restriction in issue, which was of a limited nature, was in accordance with the legitimate aim of maintaining the dignity of a judicial institution for the purposes of Article 9 of the European Convention.

Finally, as to the question whether the decision was necessary in a democratic society in order to achieve one of the legitimate aims under Article 9 of the European Convention, the Constitutional Court reiterates that, according to the settled case-law of the European Court, the Contracting States have a certain margin of appreciation in assessing the existence and extent of the need for interference, but this margin is subject to European supervision, embracing both the law and the decisions applying it, even those given by independent courts (Dahlab, cited above). Furthermore, under the well-established case-law of the European Court, the Court is called upon to establish whether the measures undertaken at the national level were justified in principle – that is, whether the reasons given by the national authorities to justify them were ‘relevant and sufficient’ and whether the measures were proportionate to the legitimate aim pursued (The Sunday Times, cited above, § 50).

of Criminal Procedure enabling the courts to fine participants in proceedings who refuse to obey court orders, with a view to conducting proceedings efficiently and maintaining the authority and dignity of courts. The Constitutional Court took into account the fact that owing to his failure to pay the fine, the appellant’s fine was converted to a prison sentence pursuant to Article 47 of the Criminal Code. However, the Constitutional Court will examine that factor in the following paragraphs of this decision concerning the right to a fair trial. Therefore, in view of the above and the circumstances of this particular case, the Constitutional Court holds that the impugned restriction did not constitute an excessive burden for the appellant, that the measure undertaken by the State Court pursued legitimate aims within the meaning of Article 9 of the European Convention, and that there was a reasonable relationship of proportionality between the restriction and the legitimate aim pursued.

Accordingly, the Constitutional Court concludes that the impugned decision did not breach the appellant’s right to manifest his religion under Article II § 3 (g) of the Constitution of Bosnia and Herzegovina and Article 9 of the European Convention.”

Two out of the eight judges of the Constitutional Court appended dissenting opinions. They disagreed with the majority as concerns Articles 9 and 14 of the Convention. In particular, given that the applicant had appeared as summoned and had stood up while addressing the court, they considered that his conduct had not been disrespectful. They further maintained that, unlike public officials, private citizens, such as the applicant, did not owe a duty of neutrality. Therefore, the applicant’s punishment for refusing to remove a religious symbol in a courtroom constituted, in their opinion, disproportionate interference with his right to freedom of religion.


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant lodged his application under the name M.I. In his application form, he stated that he was an Ajanib (registered stateless) Kurd born in 1977 in Syria. He is currently living in Istanbul.

The applicant, who had been granted legal aid, was represented before the Court by Ms N. Charalambidou, a lawyer practising in Nicosia. The Cypriot Government (“the Government”) were represented by their Agent at the time, Mr P. Clerides, Attorney-General of the Republic of Cyprus.

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

According to the applicant, he left Syria illegally on 15 April 2008 and entered Cyprus illegally on 18 July 2008 after travelling from Turkey. He applied for asylum on 23 July 2008 under the name M.I.

In his application for asylum, the applicant claimed that he had fled Syria for three reasons. Firstly, he alleged that his human rights had been violated as he was an Ajanib Kurd. He furnished the authorities with a document from the Syrian Ministry of Foreign Affairs under the name M.I. stating that he was registered in the Al-Hasakah governorate’s register of foreigners. The applicant claimed that as an Ajanib Kurd, he could not open his own business, continue his studies or get married. Secondly, he was an active member of the Azadi Kurdish Party (which opposed the Syrian government) and the Syrian authorities had sought to make him their informer. Thirdly, he claimed that he would be imprisoned if he returned to Syria, as he had left the country illegally.

The Asylum Service held an interview with him on 9 January 2009.

His asylum application was dismissed on 27 January 2009 on the grounds that he did not fulfil the requirements of the Refugee Law of 20002007, in that he had not shown that he had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular group or political opinion or a well-founded fear of serious and unjustified harm for other reasons. The Asylum Service held that the applicant had not established that he was in danger of persecution as a member of the Azadi Kurdish Party or by reason of being an Ajanib Kurd. Furthermore, it considered that there was no possibility of the applicant being subjected to inhuman or degrading treatment if returned to Syria. It therefore held that his asylum application had not been substantiated.

On 25 February 2009 the applicant lodged an appeal with the Reviewing Authority for Refugees (hereinafter “the Reviewing Authority”) against the Asylum Service’s decision. On 12 January 2010 the decision was upheld and the appeal dismissed.

The Reviewing Authority pointed to contradictions in the applicant’s claims and held, having regard to all the information and evidence available, that they were unsubstantiated. It stressed, inter alia, that Ajanib Kurds were not persecuted on the basis of their ethnicity when they were not involved in anti-regime activities. The applicant had neither alleged that he had been harassed by the Syrian authorities nor that he had been persecuted because of his participation in the Azadi Kurdish Party’s activities. Furthermore, the Reviewing Authority observed that unless a person was an opponent of the regime, there was no real risk that leaving Syria illegally would result in persecution on their return. It also noted that according to its own research, Ajanib Kurds were entitled to, among other things, work in the public and private sector, receive an education and register their marriages and property.

The Reviewing Authority concluded by observing that the applicant had not established that he was at risk of persecution and, if he returned to Syria, that his life would be in danger or he would be imprisoned. Nor did he satisfy the conditions for temporary residence on humanitarian grounds.

In February or March 2010 the applicant applied for legal aid for the purpose of bringing a “recourse” (judicial review proceedings) under Article 146 of the Constitution to challenge the Reviewing Authority’s decision (for the relevant domestic law see M.A. v. Cyprus, no. 41872/10, § 76, ECHR 2013). The respondent Government argued that the application for legal aid should fail as the recourse did not have a reasonable chance of success.

On 26 March 2010 the Supreme Court granted the applicant legal aid. It held that the case raised issues concerning the status of Ajanib Kurds and the consequences that this entailed, which had not been examined by it before. It considered that it should not dismiss, in advance, the possibility that the applicant could be successful in his recourse without giving him the opportunity, in view of the particularity of his case and after considering the lengthy documents submitted, to develop his arguments. It also observed that his refusal to be an informer for the Syrian authorities had obvious consequences and therefore it could not say that the recourse did not have a reasonable chance of success.

On 29 March 2010 the applicant brought a recourse before the Supreme Court (first-instance revisional jurisdiction) challenging the Reviewing Authority’s decision of 12 January 2010.

On 12 April 2012 it was dismissed.

On 22 May 2012 the applicant lodged an appeal with the Supreme Court (appellate revisional jurisdiction), which appears to be still pending.

On 17 May 2010 the Yekiti Party and other Kurds from Syria organised a demonstration in Nicosia. The applicant took part and was arrested on 11 June 2010 when the authorities conducted an operation to remove the protesters. A detailed description of the relevant events can be found in the case of M.A. (cited above, §§ 29-43).

Deportation and detention orders were issued against the applicant on 11 June 2010 pursuant to section 14(6) of the Aliens and Immigration Law (Cap. 105, as amended) on the grounds that he was an illegal immigrant by virtue of section 6(1)(k) of the Law (see M.A., cited above, § 62). Subsequently, on the same date, a letter was prepared in English by the Civil Registry and Migration Department informing the applicant of the decision to detain and deport him (ibid., § 42).

In the meantime, a letter dated 1 June 2010 was sent to the applicant requesting him, in view of the Reviewing Authority’s dismissal of his appeal on 12 January 2010, to start making the necessary arrangements for his departure from Cyprus.

On 12 June 2010 the applicant, along with forty-three other individuals of Kurdish origin, submitted a Rule 39 request in order to prevent their imminent deportation to Syria.

On 14 June 2010 the President of the First Section decided to apply Rule 39, indicating to the respondent Government that the detainees should not be deported to Syria until the Court had received and examined all the documents relating to their claim. The parties were requested under Rule 54 § 2 (a) of the Rules of Court to submit information and documents concerning the asylum applications and the deportation. The applications were granted priority on the same date (Rule 41).

On 21 September 2010 the President of the First Section reconsidered the application of Rule 39 in the light of information provided by the parties. He decided to maintain the interim measure in respect of five of the applications, including that of the applicant.

On 19 January 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

The applicant was released on 20 May 2011.

In the meantime, on 24 January 2011 the applicant lodged a habeas corpus application with the Supreme Court (first-instance jurisdiction).

On 23 February 2011 it was dismissed (for the relevant details of the proceedings, see M.A., cited above, §§ 50-55).

The applicant lodged an appeal with the Supreme Court (appellate jurisdiction) on 17 March 2011.

It was dismissed on 15 October 2012 on the grounds that the application was without object as the applicant had in the meantime been released.

In a fax dated 1 August 2012 the applicant’s representative notified the Court that she had been informed by members of the Kurdish Syrian community in Cyprus that the applicant had been deported.

The Government replied in a fax dated 6 August 2012 that the authorities did not hold any records showing that the applicant had been deported or that he had even left Cyprus.

The applicant’s representative eventually managed to establish contact with the applicant with the aim of clarifying the circumstances of his departure from Cyprus. The applicant informed her that he had tried, in mid-July 2012, to leave Cyprus from Larnaca airport with a false European passport. He alleged that he had been apprehended by the police, to whom he had presented a Syrian passport under the name F.A., apparently his real passport. He had been detained for one night at the airport and during his detention had made an arrangement with the immigration authorities/police to be sent to Egypt with his Syrian passport, as Egypt did not require a visa for Syrian nationals. He had wanted to leave Cyprus as soon as possible to avoid being prosecuted for attempting to travel with false documents. He alleged that he had then made his way from Egypt to Turkey.

Following receipt of this information, the Government informed the Court that the authorities did not hold any records indicating the departure or deportation of anyone named F.A from Cyprus. They therefore suggested that the applicant might have left Cyprus from the occupied areas.

On 9 January 2013 the President of the Fourth Section, in the light of the information provided by the parties and the circumstances of the applicant’s departure from Cyprus, decided to lift the measure indicated under Rule 39. She also decided on the same date to change the name of the application to reflect what the applicant now claimed to be his true name.


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

Angelika Nußberger;Vincent A. De Gaetano

The applicant was born in 1986 and lives in Ljubljana.

The applicant served his prison sentence in the closed section of Ljubljana prison in the period between 5 August 2009 and 5 October 2009. He was held in cell 119 which measured 17.51 square metres (including a separate 1.74 square metre sanitary facility), with four or five other prisoners, having between 2.63 and 3.15 square metres of personal space. From 5 August 2009 to 15 September 2009 and from 24 September 2009 to 5 October 2009 six prisoners were held therein, from 15 September 2009 to 24 September 2009 five prisoners were held therein.

As regards the general characteristics of the cells, material conditions inside the cells, sanitary conditions and health care, see the judgment in Štrucl and Others v. Slovenia, nos. 5903/10, 6003/10 and 6544/10, §§ 21 to 32, 20 October 2011.

As to the out-of-cell time in the closed section, the Court found in the aforementioned judgment that sentenced prisoners in the closed section of the prison were locked up in their cells and were only able to leave them if they applied for certain activities, most of which were to take place in the recreation room. There was, however, only one 50square-metre recreation room per floor, which was to be used by ten inmates at most (Štrucl and Others § 86).

As regards the cell temperature, the data provided by the Government showed that the average temperature in the cells in the late afternoon (55.30 p.m.) in the second half of July and August 2009 had been approximately 28oC, exceeding 30oC on seven days.


Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković

A list of the applicants is set out in the appendix.

The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

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

On 22 August 1991 Dragan Bekić, Nenad Pajić, Miland Kladar and Radovan Kragulj, the applicants’ respective close relatives, were killed.

On 12 June 2006 the applicants’ legal representative lodged a criminal complaint with the Sisak County State Attorney’s Office against I.K., V.C., V.K., and M.Š. on charges of war crimes against the civilian population, which concerned the killing of fifteen individuals, including the applicants’ close relatives mentioned in paragraph 4 above.

The Sisak County State Attorney’s Office concluded that the applicants’ relatives had been killed in combat between paramilitary groups of the so-called “Serbian Autonomous Region of Krajina” and the Croatian Army or as collateral victims of that combat, so on 11 December 2006 it dismissed the criminal complaint.

The applicants took over the prosecution, and on 27 December 2006 lodged a request for an investigation with the Sisak County Court. On 29 January 2007 the court invited the applicants to amend their request to satisfy the requirements prescribed under the Code of Criminal Procedure. The applicants did not reply, and on 23 April 2007 the court declared the request inadmissible. This decision became final on 9 May 2007.

The relevant provisions of the Criminal Code (Kazneni zakon, Official Gazette no. 110/1997) read as follows:

“(1) Criminal proceedings in respect of criminal offences shall be instituted by the State Attorney’s Office in the interest of the Republic of Croatia and its citizens.

(2) Exceptionally, in respect of certain criminal offences, it may be prescribed by law that criminal proceedings shall be instituted by private prosecution or that the State Attorney’s Office shall institute criminal proceedings by [private] application.”

The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and 62/2003) provide as follows:

“(1) Criminal proceedings shall be instituted and conducted at the request of an authorised prosecutor only.

(2) In cases involving criminal offences subject to public prosecution, the authorised prosecutor shall be the State Attorney, and in cases involving criminal offences to be prosecuted privately, the authorised prosecutor shall be a private prosecutor.

(3) Unless otherwise provided by law, the State Attorney shall undertake a criminal prosecution where there exists a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution, and there are no legal impediments to the prosecution of that person.

(6) Where the State Attorney finds no grounds to institute or conduct criminal proceedings, the injured party acting as a subsidiary prosecutor may take his place under the conditions prescribed by this Act.”

Articles 47 to 61 regulate the rights and duties of private prosecutors and injured parties acting as subsidiary prosecutors. The Criminal Code distinguishes between these two roles. A private prosecutor (privatni tužitelj) is the injured party who brings a private prosecution in respect of criminal offences for which such prosecution is expressly prescribed by the Criminal Code (offences of a lesser degree). An injured party acting as a subsidiary prosecutor (oštećeni kao tužitelj) takes over criminal proceedings in respect of criminal offences subject to public prosecution where the relevant prosecution authorities have, for whatever reason, decided not to prosecute.

“(1) Requests to prosecute shall be lodged with the competent State Attorney’s Office and private prosecutions with the competent court.

(2) Where the injured party has lodged a criminal complaint ... it shall be considered that he or she has also thereby lodged a request to prosecute.

(3) Where the injured party has lodged a criminal complaint or a request to prosecute, but the [competent authorities] establish that the criminal offence in question should be prosecuted by private prosecution, the criminal complaint or request to prosecute shall be treated as a timely private prosecution if it has been submitted within the time-limit prescribed for [bringing] a private prosecution...”

Pursuant to Article 55 § 1, the State Attorney is under a duty to inform the injured party within eight days of a decision not to prosecute and of the party’s right to take over the proceedings, as well as to provide instructions to that party regarding the steps to be taken.

“(1) Private prosecutions, bills of indictment, requests to prosecute, legal remedies and other statements and information shall be submitted in writing unless otherwise provided by law.

(2) The submissions referred to in paragraph 1 shall be comprehensible and contain the necessary information for the authorities to act upon them.

(3) Unless otherwise provided in this Act, the court conducting the proceedings shall invite a person who has made submissions which do not contain the necessary information or are incomprehensible to supplement them. Where the submissions have not been amended as required, the court shall declare them inadmissible.

(4) In its invitation to amend the submissions, [the court conducting the proceedings] shall warn the person concerned about the consequences of not complying with the instructions.”

“(1) Citizens shall report criminal offences subject to public prosecution.

“(1) A [criminal] complaint shall be lodged with the competent State Attorney’s [Office] in writing or orally.

Article 188 governs, inter alia, the required contents of a request for an investigation, namely details of the person in respect of whom the request is being submitted, a description and the legal classification of the relevant offence, the circumstances confirming there exists a reasonable suspicion that the person concerned has committed the offence, and any existing evidence.

Article 205 § 1 allows a private prosecutor and the injured party acting as a subsidiary prosecutor to lodge with an investigating judge of a competent court a request for prosecution and other submissions.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Robert Spano;Vincent A. De Gaetano

The applicant was born in 1975 and is detained currently in Matīsa Prison. The relevant facts of the case, as submitted by the parties, may be summarised as follows.

On 21 March 2002 the State Police telephoned the applicant and asked him to appear at their station. According to the applicant, at the State Police station, prior to any formal charges being laid against him, he was accused of murdering Ģ.Č. The police officers used physical force against him in order to obtain a confession to the crime. As a result of the duress brought to bear upon him, the applicant made a written confession.

On 23 March 2002 the applicant was transferred to a short-term detention facility.

On 23 May 2002 the police opened an investigation into the alleged misconduct of police officers at the time of the applicant’s questioning. On 25 June 2005 a prosecutor concluded that the complaint was no longer subject to the prosecutor’s review. The prosecutor referred to the judgment of the Supreme Court of 26 April 2005 (see paragraph 40 below) dismissing the allegation of ill-treatment.

Further details in relation to the events following the applicant’s appearance on 21 March 2002 at the State Police station are set out in the decision in Cesnieks (cited above), where the Government acknowledged, inter alia, that the applicant had been ill-treated while in police custody and there had been a lack of effective investigation of the applicant’s complaint of a violation of Article 3 of the Convention (ibid., §§ 30, 32 and 36).

The typewritten transcript of the applicant’s questioning as a witness dated 21 March 2002 from 5.20 p.m. to 6.40 p.m. recorded the applicant’s statement to the police.

The applicant declared that he had given Ģ.Č. documents concerning his late father’s company, T.S.C., because Ģ.Č. had been looking for a company to carry out the leasing of motor vehicles. Later, Ģ.Č. had asked the applicant whether he knew anyone who could make withdrawals at the bank. The applicant had suggested his acquaintance Z.K. Occasionally Z.K. had sent Ģ.Č. sums of money that he had withdrawn from the bank via the applicant.

On the applicant’s evidence at the end of January 2002 he travelled to Moscow. While there Ģ.Č. had called him looking for Z.K., because Ģ.Č. had needed Z.K. to collect money at the bank.

The applicant gave further information in his police statement about meeting Z.K. in Riga upon his return from Moscow and Z.K. telling him about a withdrawal of the funds and their handover to Ģ.Č.

The applicant stated that he had learnt of Ģ.Č.’s murder from the police officers on the day the police had contacted him.

In the applicant’s handwritten confession dated 22 March 2002, he stated that in October 2001 he had borrowed the sum of 4,500 Latvian lati (LVL), which he had been unable to pay back.

On 25 January 2002 the applicant together with his acquaintance O.O. had travelled to Moscow hoping to obtain money there, but they were unsuccessful.

The applicant had told O.O. about the transfers of money to Ģ.Č. by Z.K. and himself. O.O. had also learnt that the sum of LVL 17,000 would arrive in the coming days in the bank account, to be sent on to Ģ.Č., and had told the applicant that he could resolve the issue of the debt if the applicant gave him full information.

On 1 February 2002 they had left Moscow and had arrived the next day in Riga. At around 2 p.m. the applicant had phoned Z.K., who later gave him LVL 5,600 and told him that the remaining amount would be withdrawn on Monday. On Sunday O.O. called the applicant, saying that everything was in order. Later the applicant realised that something terrible had occurred.

The same handwritten confession contained an addendum to the effect that O.O. had said that he would murder Ģ.Č.

According to the typewritten transcript of the applicant’s questioning as a suspect dated 22 March 2002 from 11 a.m. to 12.30 p.m., the applicant confirmed the truthfulness of his confession.

He added that he had concealed the circumstances and the purpose of his travel to Moscow.

He declared that he had borrowed a sum of money from his acquaintance O.O. which he had failed to return. O.O. had demanded to be repaid in a threating manner and to go with the applicant to Moscow. O.O. had insisted that the applicant keep the money intended for Ģ.Č. and give him some of it in repayment of the debt instead. O.O. had told the applicant to forget about Ģ.Č., meaning that O.O. had decided to kill him.

After their return to Riga, on 3 February 2002 O.O. had told the applicant over the phone that he could now forget about Ģ.Č. and that nobody would ever find him. The applicant had understood him to mean that Ģ.Č. had been murdered.

A typewritten transcript of a further interview of the applicant as a suspect dated 22 March 2002 from 11.30 p.m. to 12.50 a.m. indicated that the applicant wished to supplement his previous statement.

The applicant stated that he had concealed the fact that he had sought the killing of Ģ.Č. in order to obtain the LVL 17,000 belonging to Ģ.Č. He had wanted Ģ.Č.’s money because he had been experiencing serious financial difficulties. He had ordered parts for his sports car from Japan but did not have the means to pay for them.

The applicant added that while in Moscow Ģ.Č. had phoned him, looking for Z.K. The applicant then had learnt that Z.K. was to withdraw the sum of LVL 17,000 for Ģ.Č. On 31 January 2002 the applicant had asked O.O. to kill Ģ.Č. That same day, using the applicant’s phone, O.O. had called an acquaintance in Riga about the job and told his acquaintance that he would give details later. In the evening they had again phoned the same person from a hotel. That person had been Latvian and had had difficulty understanding Russian. O.O. had passed the phone over to the applicant, who had provided more information about Ģ.Č. On 1 February 2002, while on a bus to Riga, O.O. had again called the same person.

Both transcripts of the applicant’s questioning recorded that he had wished to give a statement in the absence of a lawyer.

The applicant and three co-accused O.O., V.Z. and J.G. were brought before the Riga Regional Court (Rīgas apgabaltiesa) to stand trial on charges related to the murder of Ģ.Č.

On 11 October 2004 the Riga Regional Court found V.Z. and J.G. guilty of aggravated murder. The Regional Court established that V.Z. and J.G. had murdered Ģ.Č. on 2 February 2002, which they had partly admitted in the course of the trial.

The Regional Court was unable to establish the guilt of the applicant and O.O.

With reference to the applicant, the Regional Court reasoned that at trial he had pleaded not guilty to the criminal offences he was charged with and recanted the statements he had given to the police. According to the applicant, he had provided these statements as a result of ill-treatment by police officers, who had beaten him and broken his nose. In this regard the Regional Court reasoned:

“In assessing the [applicant’s] explanation the court does not have a reason to not believe it, because, as is evident from the case materials, on 21 March 2002 from 5.20 p.m. to 6.40 p.m. [the applicant] was questioned as a witness ... however ... he was taken into custody on 21 March at 8 p.m. ... [but] he was not transferred to a detention facility until 1 a.m. on 23 March, remaining in the premises of the Riga police station (Rīgas rajona policijas pārvalde)...

The fact that [the applicant] had been asked at around 11 a.m. on the morning [of 21 March] to attend the police station was confirmed by the witness [S.R.], an employee of the Department for the Combat of Organised Crime (Organizētās noziedzības apkarošanas pārvalde)...

The foregoing was also confirmed by witnesses [A.B.], a police employee, and [I.K.], an inspector, who were unable to explain to the court why [the applicant] had not been released from the police station after having been questioned as a witness.

The fact that [the applicant] ... suffered bodily injuries while in custody is confirmed by the expert reports contained in the file...”

In that light, the Regional Court found that Article 3 of the Convention had been violated with respect to the applicant, irrespective of the fact that the criminal case against the police employees had been terminated.

The Regional Court also added that the applicant’s statements of 22 March 2002 had been contradictory. It deemed unreliable an expert report finding that there were no signs that the applicant had written the confession “in the circumstances of anxiety, fear or physical ill-treatment”. The Regional Court reasoned that the expert report did not contain “a study section” (izpētes daļa) that would allow it to understand how the expert had arrived at her conclusion.

Accordingly, the Regional Court ruled that the applicant’s statements of 22 March 2002 could not be used in the applicant’s conviction.

It further held that no other evidence had been obtained to the effect that the applicant had in any way organised, assisted or incited another person to commit Ģ.Č.’s murder. The evidence established that transactions involving money transfers had taken place between the applicant, Z.K. and Ģ.Č. This was corroborated by the evidence of witness I.Š., a police inspector who testified about an ongoing criminal investigation into illegal transactions involving all three individuals.

The Regional Court in its judgment referred to telephone call records admitted in evidence. On 1 February 2002 at 5.27 p.m. a phone call had been made from the applicant’s mobile number to V.Z.’s mobile number. At the same time, it reasoned that V.Z. had never testified having spoken on the phone to the applicant or having previously known him. In addition, the Regional Court considered that it had no reason to conclude that O.O.’s testimony that he had used the applicant’s phone in order to contact V.Z. about a vehicle had been false. It was evident from the telephone call records that on several occasions between 20 January and 18 March V.Z. had been contacted from a number which according to O.O. was his.

The first-instance judgment was appealed against to the Criminal Cases Chamber of the Supreme Court (Augstākās tiesas Krimināllietu tiesu palāta) on behalf of the prosecution, the victim and both co-accused convicted at first instance.

On 26 April 2005 the Supreme Court overturned the applicant’s acquittal and found him guilty of the aggravated murder of Ģ.Č.

The judgment of the Supreme Court noted that in the appeal proceedings the applicant had continued to deny his initial statements and maintain that he had given them as a result of ill-treatment by police employees. In that regard, the Supreme Court reasoned as follows:

“The Regional Court groundlessly (nepamatoti) accepted that [the applicant’s] statements and [his] confession given during the pre-trial investigation were not truthful.

The file does not contain impartial evidence affirming [the applicant’s] assertion that he gave these statements as a result of physical and psychological ill-treatment by police employees, [and] that police employees dictated the testimonies [to him]. That it was merely a coincidence that during the commission of the crime [the applicant] was together with [O.O.] ... [and] that a call was made from his phone at that time to [V.Z.].

The criminal case ... against police employees that they possibly had exceeded their powers and inflicted injuries on [the applicant] has been terminated and [the applicant’s] defence has not disputed this decision...

The Regional Court groundlessly rejected the expert report ... which concluded that the confession had been written by [the applicant] and [that there was] no indication ... of it being written in the circumstances of anxiety, fear or physical ill-treatment ... because the said expert report provides answers to the questions put to the expert. The expert report contains a study section providing the manner in which the expert reached the conclusion.

Furthermore ... in comparing [the applicant’s] complaint of 25 March 2002 ... and the confession written on 22 March 2002 ... [there can be] no doubt ... that it is [the applicant’s] free style (brīvais stils) [of handwriting].”

The Supreme Court allowed the applicant’s statement of 22 March 2002 to be admitted in evidence and relied on it in its judgment.

The applicant was sentenced to eleven years’ imprisonment, with confiscation of property and police control for two years. The applicant was immediately taken into custody.

The defence lodged an appeal on points of law with the Criminal Cases Department of the Senate of the Supreme Court (Augstākās tiesas Senāta Krimināllietu departaments), arguing that the Supreme Court had convicted the applicant in violation of Articles 3 and 6 of the Convention because he had given the pre-trial confession and other statements relied upon by the court as a result of ill-treatment by police employees. The defence presented an extensive volume of evidence and pointed out that the applicant had been injured while in police custody and the circumstances of the injuries had not been explained. They submitted that there had been no other evidence in the file attesting to the applicant’s guilt. The court had been under an obligation to assess the material in the criminal case against the police employees and not merely to rely on the fact that the case against them had been terminated. In the defence’s submission, on 7 April 2004 they had appealed against the decision terminating that criminal case. Pursuing appeal had subsequently become impracticable “because the criminal case regarding the [applicant’s] beating had been joined, as evidence, to the criminal case concerning [Ģ.Č.’s] murder”.

On 26 August 2005 the Senate of the Supreme Court decided to dismiss the appeal without holding a hearing.

The decision of the Senate of the Supreme Court in its relevant part read as follows:

“... contrary to the [requirements of the] Criminal Procedure Code, the appeals filed ... are not substantiated with [submissions as to] a violation of the said provisions of the law, but [rather] factual submissions are put forward [with the aim of obtaining] a re-evaluation of the evidence on which the appeals court’s guilty verdict is based.

Pursuant to the Criminal Procedure Code ... the re-evaluation of evidence and establishment of new facts ... is not within the competence of the cassation court.

The reference in the appeal on points of law to a violation of ... the relevant international Convention in the course of [the lower court’s] adjudication is not based on the materials of this case and is therefore [purely] formal in nature.”

The decision of the Senate of the Supreme Court was not subject to appeal.


Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicants, Ms T.M. and Mr Y.A., are a mother and son of Iranian nationality. They were born in 1961 and 1988 respectively and are currently living in the Netherlands. The duty judge decided that the applicants’ identities should not be disclosed to the public (Rule 47 § 4 of the Rules of Court). They were represented before the Court by Mr P.C.M. Schijndel, a lawyer practising in The Hague.

The applicants entered the Netherlands on 23 March 2014 holding a Schengen visa issued by the Netherlands consulate in Tehran, Iran for the purpose of visiting a family member. Their visa expired on 28 April 2014. On 27 May 2014 the applicants applied for asylum in the Netherlands. The applicants were interviewed individually by the Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst, “the IND”) on 19 August 2014 and 22 September 2014.

Both applicants submitted that three or four days prior to their scheduled return to Iran from the Netherlands, the first applicant, who had been staying at a family member’s house, had been called by her daughter, E. The daughter had warned the applicants not to return to Iran as they were in danger because the house church which they attended had been raided by the Iranian authorities. Several people, including E.’s husband, had been arrested. The applicants had not been able to get in touch with E. since. They stated that that was the direct reason for their asylum application.

In her interviews the first applicant stated that a colleague in Iran, with whom she had worked since July or August 2013, had proselytised her. The colleague held house church meetings which the first applicant had attended for the first time in October or November 2013. During that visit, which the first applicant later confirmed had taken place on 24 November 2013, she had said a prayer in order to convert to Christianity. She had then informed her son, the second applicant, about her conversion after which the latter had joined her at the next house church meeting a week later. Prior to her visit to the house church she had been provided with a Bible by her colleague, which she had shared with her son and had kept on the open shelves of a bookcase in her house. She had chosen Christianity because she had been suffering because of Islam and therefore resented that religion, especially after she had been raped by a local mullah. She had taken the Bible with her to the Netherlands, despite being aware of possible negative repercussions if it had been discovered by the Iranian authorities at the airport. She had covered it with the outside of an Iranian newspaper and had hidden it among her clothes in her suitcase.

The second applicant stated in his interviews that at a certain point in time he had been introduced to Christianity by his mother, that this had triggered his curiosity about that religion, and that he had gone to the house church meetings with her. He had started to read more about Christianity on the Internet while in Iran and as a result his beliefs had strengthened. Also, he resented Islam, which he considered a violent religion, in contrast to the Christian faith, which appealed to him because of the precepts of forgiveness and love. The second applicant also stated that house church meetings had often been held at his mother’s colleague’s house and that no security measures had been taken to prevent their activities being discovered by the authorities. During such meetings the attendees would read the Bible or extracts from it and then hold a discussion. The second applicant added that he had shared a Bible with his mother and that it had been placed in different rooms in their house, including in a bookcase that could be partly closed. He added that although he said prayers during the house church meetings he had not said a prayer specifically for his conversion, which had been a process that had happened over the course of several meetings.

The applicants also stated that they had converted E. and her husband in December 2013. They added that they had been attending church services in the Netherlands and that their baptism was scheduled for October 2014.

The applicants were baptised at the Tilburg Evangelical Baptist Church (Evangelische Baptisten Gemeente Tilburg) on 19 October 2014.

On 20 November 2014 the applicants were notified of the intention of the Deputy Minister of Security and Justice (Staatssecretaris van Veiligheid en Justitie) to reject their asylum applications as their asylum statements had not been believed. The Deputy Minister stated that the applicant’s delay in lodging an asylum application raised doubts about the reasons for their application. The reasons they had given, that they had had difficulties in informing their family member in the Netherlands about the problems in Iran and that the first applicant had needed time to recover from an injury, did not excuse such a delay. As to the applicants’ conversion to Christianity, the Deputy Minister held that it did not appear that there had been a deep internal belief and a corresponding process of conversion, and that all of the activities they said they had been involved in Iran seemed very informal, especially considering the short length of time that had gone into their alleged conversion and for the first applicant to convert her son, daughter and son-in-law. The Deputy Minister held that the applicants’ statements about the house church meetings detracted from the credibility of their account as they had seemingly gained easy access to those meetings and because no security measures had been taken to ensure that they would not be discovered by the authorities, which was strange considering the situation for Christians in Iran. The Deputy Minister also held that both applicants had only given a superficial account of the conversion process, especially the timeline of the various events leading up to and following that process, the contacts with the first applicant’s colleague and about the people who had attended the house church meetings. Furthermore, the Deputy Minister noted that the applicants had made contradictory statements about where in their house the Bible had been kept, had also been unable to explain where the first applicant’s colleague had been able to get a copy of the Bible, and why they had taken the risk of travelling to the Netherlands with a Bible when they knew what the consequences would be if it was discovered by the Iranian authorities when leaving or returning to Iran. The Deputy Minister also noted that it was strange that the applicants had not been able to provide details about the telephone call from E., such as the information she had given about the raid at the house church, and why she had called the applicants’ relative rather than one of them directly.

On 10 December 2014, counsel for the applicants submitted their comments on the notification.

By decisions taken on 8 January 2015 the Deputy Minister, confirming the assessment in his notice of intent, rejected the applicants’ asylum applications. He added that the applicants’ baptism did not in itself constitute a fact that confirmed the sincerity of their conversion, as it was relatively easy to join a church and register oneself as a convert at a church. The fact that the applicants had demonstrated that they had some knowledge of the Bible did not invalidate the finding that their conversion lacked credibility as such knowledge was easily acquired. Furthermore, a letter of 7 August 2014 from a Mr H.W. of the Tilburg Evangelical Baptist Church, confirming the sincerity of the applicants’ conversion, was insufficient to lead to a different finding as it had still been incumbent on the applicants to make a plausible case for the genuineness of their conversion. The Deputy Minister held in that connection that the first applicant had been unable to name the church where she had intended to be, and had later been, baptised; she had only known the first name of the minister at that church, and had stated that she had only had one conversation prior to her scheduled baptism. That contradicted Mr H.W.’s letter, which referred to discussions about baptism prior to the actual ceremony. The Deputy Minister held that neither applicant had demonstrated a deep-rooted, inner conviction of being a Christian and therefore a sincere conversion had not taken place.

The applicants lodged an appeal against the Deputy Minister’s rejection of their application with the Regional Court (rechtbank) of The Hague. They argued, inter alia, that their statements could not have led the Deputy Minister to conclude that because there had not been a lengthy process leading up to their conversion then that conversion was improbable. The applicants submitted a joint letter from Mr K.J.D. and Mr A.P. of 11 January 2015 from the Appingedam Evangelical Baptist Church, and a separate letter of 19 February 2015 from Mr A.P. The first letter confirmed that the applicants had attended Bible studies and weekly church services and that they were sincere in their beliefs. The second letter stated that the applicants demonstrated that they had gone through an internal process of conversion.

Following a hearing held on 29 July 2015 in the presence of the applicants and their counsel, the Regional Court of The Hague on 25 August 2015 dismissed their appeal. As to the assessment of an asylum claim based on religious grounds, the court held:

“... the Deputy Minister applies a fixed policy in the assessment of religious grounds put forward by an alien in an asylum application. That policy involves the Deputy Minister putting questions to an alien which – in so far [as these] are applicable in a particular situation – can generally be divided into questions about the motivation for and the process of conversion, including the meaning and practical performing of baptism and a baptism ceremony, and about the personal meaning of the conversion or of the religion for an alien. Furthermore, those questions concern the general, basic knowledge about the religion’s doctrine and practices. Finally, the Deputy Minister expects that an alien who submits that attendance at church is part of his religion, is able to answer questions about that, for example, where the church he attends is located, what time the service or mass takes place, and what happens during the service or mass. Similar questions are put by the Deputy Minister to an alien about other ways in which he exercises his professed religion, such as evangelisation activities. ... the Deputy Minister rightly takes as a point of departure the fact that conversion by an alien who is from a country where conversion to another religion than the predominant one in that country is socially unacceptable should be based on a deliberate and conscious decision, which an alien should be able to explain.”

The Regional Court proceeded to uphold the Deputy Minister’s view that the applicants had failed to demonstrate that their decision to convert to Christianity and the process of conversion had been deliberate and conscious. The Regional Court referred in that regard to, inter alia, the alleged conversion of the first applicant which, she stated, had occurred at her very first house church meeting after saying a prayer; the relatively short time in which trust had been built up between the applicants and the first applicant’s colleague; the absence of measures to prevent the discovery of the house church; the contradictory statements about where the applicants kept their Bible; and the applicants’ failure to provide information about how the first applicant’s colleague had been able to obtain a copy of the Bible and to provide details about E.’s telephone call.

As regards the applicants’ argument that even if it was assumed that they had not converted in Iran then they had done so in the Netherlands, the Regional Court agreed with the Deputy Minister that it was relatively easy to join a church, study the Bible and get baptised, but that such circumstances could not be decisive. A certain amount of knowledge of the Christian religion could not, in and of itself, lead to the conclusion that a conversion had been sincere. Although the letters from H.W., K.J.D. and A.P. might be capable of corroborating a conversion, it was nevertheless incumbent on the applicants themselves to provide convincing statements about their alleged conversion and the process leading up to it. The Regional Court noted that the applicants had not been able to state the names of the churches they had attended in the Netherlands and had known only the first names of the ministers at those churches.

The Regional Court concluded that the applicants had failed to make a plausible case that they feared persecution or inhuman treatment in Iran.

On 29 September 2015 a further appeal lodged by the applicants was dismissed by the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State).

An application to the Court was lodged on 24 December 2015. On 7 January 2016 the duty judge decided to indicate to the Government of the Netherlands that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to deport the applicants to Iran for the duration of the proceedings before it (Rule 39 of the Rules of Court).

The admission, residence and expulsion of aliens are regulated by the Aliens Act 2000 (Vreemdelingenwet 2000). Further rules are laid down in the Aliens Decree 2000 (Vreemdelingenbesluit 2000), the Regulation on Aliens 2000 (Voorschrift Vreemdelingen 2000) and the Aliens Act Implementation Guidelines 2000 (Vreemdelingencirculaire 2000).

Article 3.37b of the Regulation on Aliens 2000 provides as follows:

“1. A well-founded fear of persecution within the meaning of the Refugee Convention or a real risk of serious harm can be based on events which have taken place since the alien left the country of origin.

A well-founded fear of persecution within the meaning of the Refugee Convention or a real risk of serious harm can be based on activities which have been engaged in by the alien since he left the country of origin, in particular where it is established that the activities relied on constitute the expression and continuation of convictions or orientations held by the alien in the country of origin.”

Article C2/3.2 of the Aliens Act Implementation Guidelines 2000 reads, in so far as relevant:

“The IND will grant the alien who complies with Article 3.37b of the Regulation on Aliens a temporary residence permit for the purpose of asylum. This alien will be designated as ‘refugié sur place’.

Even if the activities which the alien has been engaged in after his departure from the country of origin do not follow on from the activities in which he had already been engaged in the country of origin prior to his departure, the IND can designate the alien as a ‘refugié sur place’. This may be the case when the alien complies with the following conditions:

• the authorities in the country of origin are aware, or the alien has made a plausible case for believing that the authorities in the country of origin will become aware, of those activities; and

• the activities entail a well-founded fear of persecution within the meaning of Article 1A of the Refugee Convention.”

The section entitled “Refugees ‘sur place’” in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees provides, in so far as relevant, as follows:

“94. The requirement that a person must be outside his country to be a refugee does not mean that he must necessarily have left that country illegally, or even that he must have left it on account of well-founded fear. ... A person who was not a refugee when he left his country, but who becomes a refugee at a later date, is called a refugee ‘sur place’.

A person becomes a refugee ‘sur place’ due to circumstances arising in his country of origin during his absence. ...

A person may become a refugee ‘sur place’ as a result of his own actions, ... Whether such actions are sufficient to justify a well-founded fear of persecution must be determined by a careful examination of the circumstances. Regard should be had in particular to whether such actions may have come to the notice of the authorities of the person’s country of origin and how they are likely to be viewed by those authorities.”


CASE OF VUJOVIĆ AND LIPA D.O.O. v. MONTENEGRO

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

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström

The first applicant was born in 1956 and lives in Cetinje. The second applicant was founded in Cetinje in 1990. The first applicant is the founder, the sole owner, and the executive director of the second applicant. The facts of the case, as submitted by the parties, may be summarised as follows.

On 1 July 2013 an insolvency creditor X (stečajni povjerilac) requested the Commercial Court (Privredni sud) in Podgorica to open insolvency proceedings (stečajni postupak) in respect of the second applicant. In the proceedings before the Commercial Court the second applicant was represented by the first applicant and a lawyer duly authorised by the latter. On 27 December 2013 the Commercial Court opened insolvency proceedings in respect of the second applicant and, inter alia, appointed an insolvency administrator (stečajni upravnik).

On 23 January 2014 the second applicant, through the lawyer, lodged an appeal against the Commercial Court decision.

On 18 March 2014 the Court of Appeals (Apelacioni sud) in Podgorica rejected the appeal (žalba se odbacuje) as having been submitted by an unauthorised person, given that the lawyer had not been appointed by the insolvency administrator. The court relied on sections 75 and 76 of the Insolvency Act (see paragraphs 17-18 below). This decision was served on the applicants on 17 April 2014.

On 12 May 2014 the applicants lodged a constitutional appeal.

On 13 May 2014 the applicants’ representative filed an initiative with the Constitutional Court (Ustavni sud) seeking the assessment of the constitutionality of section 76 of the Insolvency Act in force at the time. There is nothing in the case-file as to the outcome of that initiative.

On 23 July 2014 the Constitutional Court rejected the applicants’ constitutional appeal for “not having been lodged by a party to the domestic proceedings or by a person authorised to appeal on behalf of the person whose rights and freedoms were violated”. This decision was served on the applicants on 15 October 2014.


Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Iraq)

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

The applicants, a married couple and their son, were born in 1964, 1965 and 2000, respectively. Their religious affiliation is unknown.

On 14 December 2010, the applicant husband applied for asylum and a residence permit in Sweden. On 11 July 2011, his application was dismissed since he was registered as having left the country.

On 25 August 2011, the applicant husband applied anew for asylum and a residence permit in Sweden, as did the other applicants on 19 September 2011.

Before the Migration Board (Migrationsverket), all the applicants were heard in an introductory interview on 26 September 2011. Subsequently, the adult applicants were heard anew during a longer interview, which took place on 11 October 2011 and lasted almost three and a half hours. The applicant son was interviewed briefly for a second time and the applicant husband was interviewed a third time. The applicants were assisted by appointed counsel.

The applicants maintained that upon return to Iraq they risked persecution by al-Qaeda and that the applicant husband appeared on their death list. The applicants had been brought up in Baghdad. Since the 1990s the applicant husband had run his own business exclusively with American clients and had had his office at the American base “Victoria Camp”. Several of his employees had on occasion been warned not to cooperate with the Americans.

On 26 October 2004, the applicant husband had been the target of a murder attempt carried out by al-Qaeda. He had had to stay in hospital for three months. There, unknown men had asked for him, after which he was treated in three different hospitals.

In 2005, his brother had been kidnapped by al-Qaeda who had claimed that they would kill him due to the applicant’s collaboration with the Americans. His brother had been released through bribes a few days later and had immediately fled from Iraq. The applicants had fled to Jordan and stayed there until December 2006, before returning to Iraq.

Soon thereafter, alQaeda members had placed a bomb next to their house. However, it had been detected by the applicant wife, and the Americans had arrested the perpetrator. During interrogations, the perpetrator had confessed that he had been paid by al-Qaeda to kill the applicant husband and had disclosed the names of 16 persons who had been designated to watch the applicants. Thereafter, the applicants had moved to Syria although the applicant husband had continued his business in Iraq. During this time, al-Qaeda had destroyed their home and their business stocks.

In January 2008, the applicants had returned to Baghdad. In October the same year, the applicant husband and his daughter had been shot at when driving. The daughter had been taken to a hospital where she had died. The applicant husband had then stopped working and the family had started to move around in Baghdad. The business stocks had been attacked four or five times by al-Qaeda members, who had threatened the guards. The applicant husband stated that he had not received any personal threats since 2008, as the family was moving around. The applicant son had spent most of his time indoors for fear of attacks and had only attended school for the final exams. They had never sought protection from the domestic authorities as they lack ability to protect the family and for fear of disclosing their address, knowing that al-Qaeda collaborated with the authorities. The applicant husband still had an open and infected wound on his stomach where he was shot in 2004. The applicant wife had cysts on her liver and in her uterus. They submitted several documents, including identity papers, a death certificate for the applicants’ daughter and a medical certificate for the applicant husband’s injury.

On 22 November 2011, the Migration Board rejected the application. It found that all of the applicants had proved their identity and that their asylum story was credible. However, the Board noted that the applicant husband had ended his collaboration with the Americans in 2008 and that, thereafter, he had stayed in Baghdad for two years without being victim of any attacks except for the ongoing threats against his work stocks. Moreover, the applicant couple had three daughters who still lived in Baghdad and who were not harassed. The Board acknowledged that the applicants had been the victims of severe violence and harassment but observed that they had not sought any protection from the domestic authorities in Baghdad. Although it was true that al-Qaeda had infiltrated the domestic authorities, this had to a great extent diminished. Therefore, the Board concluded that the applicants had not made probable that they would be unable to seek the domestic authorities’ protection. Furthermore, the applicants’ state of health was not poor enough to grant them asylum. Consequently, there were no grounds on which to grant the applicants asylum or residence permits in Sweden.

The applicants appealed to the Migration Court (Migrationsdomstolen) and maintained that the Iraqi authorities had been and would be unable to protect them. They had contacted the police following the fire at their home and business stock in 2006 and 2008 and the murder of their daughter in 2008, but thereafter they had not dared to contact the authorities due to the risk of disclosing their residence. Together with their written submissions, they enclosed a written translated testimony attestation allegedly from a neighbour in Baghdad, who stated that a masked terrorist group had come looking for the applicant husband on 10 September 2011 at 10 p.m. and that the neighbour had told them that the applicants had moved to an unknown place. The neighbour also stated that, just after the incident, the applicant husband had called him and been told about the incident. The applicants also submitted a translated residence certificate/police report allegedly certifying that the applicants’ house had been burned down by a terrorist group on 12 November 2011. Furthermore, the applicants submitted a recording of a public debate on TV concerning the corruption and infiltration of al-Qaeda members within the Iraqi administration. The applicants mentioned in that connection that the applicant husband had participated in the public debate, which was broadcast on the Alhurra Channel in Iraq on 12 February 2008, thus four years earlier. Finally, submitting various medical certificates, the applicants contended that the applicant husband’s health had deteriorated and that he could not obtain adequate hospital care in Iraq. Before the Migration Court the Migration Board was heard. It stated, among other things, that the documents submitted concerning the alleged incidents on 10 September and 12 November 2011 were of a simple nature and low value as evidence.

On 23 April 2012, the Migration Court upheld the Migration Board’s decision. The court stated that the criminal acts of al-Qaeda had been committed several years before and that the applicant husband no longer had any business with the Americans. In the event that a threat still remained against the applicants, the court found it probable that the Iraqi authorities had the will and the capacity to protect them. Finally, referring to the applicants’ health, the court noted that these could not be seen as exceptionally distressing circumstances. In view of the above, there were no grounds on which to grant the applicants asylum or residence permits in Sweden.

The applicants appealed to the Migration Court of Appeal (Migrationsöverdomstolen). Their request for leave to appeal was refused on 9 August 2012.

On 29 August 2012 the applicants submitted an application to the Migration Board for a re-examination of their case. They maintained that the applicant husband was under threat from al-Qaeda because he had been politically active. They enclosed a video showing the applicant husband being interviewed in English, a video showing a demonstration, and a video showing a TV debate. The applicants’ request was refused on 26 September 2012. The applicants did not appeal against the decision to the Migration Court.