Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant, Mr C.M.M., is a national of the Democratic Republic of the Congo (“DRC”) who was born in 1962. He is currently living in the Netherlands. He was initially represented before the Court by Ms M. de Boer, a lawyer practising in Utrecht. She was succeeded by Mr W. Boelens, who is also a lawyer practising in Utrecht.

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

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

On 3 August 2001 the applicant entered the Netherlands and applied for asylum, fearing persecution within the meaning of the 1951 Geneva Convention Relating to the Status of Refugees (“the 1951 Refugee Convention”). On 14 August 2001, the immigration authorities held a first interview (eerste gehoor) with the applicant concerning his identity, nationality and travel itinerary. A written record of this interview was prepared and the applicant, assisted by a lawyer, was given the opportunity to submit corrections and additions, which he did on 15 August 2001. On 16 August 2001 a second interview (nader gehoor) was held with the applicant about his reasons for seeking asylum. A written report was drawn up and the applicant, assisted by a lawyer, submitted corrections and additions on 17 August 2001.

On 16 August 2001 the Deputy Minister of Justice (Staatssecretaris van Justitie) issued a notice of her intention (voornemen) to reject the applicant’s asylum application. On 17 August 2001, assisted by a lawyer, the applicant submitted written comments (zienswijze) on the notice of intent.

On 20 September 2001, on the basis of his written comments of 17 August 2001, the immigration authorities held a supplementary interview (aanvullend gehoor) with the applicant. A written report of this interview was drawn up and the applicant, assisted by a lawyer, submitted corrections and additions on 22 October 2001.

During these three interviews, the applicant gave the following statement. He was a national of the DRC. His parents had died. He was married but his wife had remained in the DRC together with their six children, who were born between 1988 and 1999. He also had two brothers and one sister, all of whom were living in the DRC. He gave the address of his home (N. street no. ... in the N’djili borough of Kinshasa) and described the surroundings of the house where he had lived for the previous two years. He stated that it was near to a nameless football field located at M. or K. street, and that there was a protestant school on the opposite side of the street. Behind this school there was a street without a name and he had lived in a side street of this nameless street. For identification purposes, he provided the Netherlands authorities with a formal declaration of loss of identity documents (attestation de perte des pièces d’identité) bearing the number 6436/POP/2000, which had been issued on 31 August 2000 by the mayor of one of the Kinshasa boroughs and contained the applicant’s particulars − including his personal address − but no specification of the nature of the identity documents lost. For the same purpose, he submitted a work pass issued by the “Service de l’Aéronautique Civile du Zaire” on 19 February 1998 and valid until 15 February 2001 and attesting that the applicant was working as a loadmaster in the employment of Nigeria Airways. Although the street name of the applicant’s personal address in this work pass was the same as that on the declaration of loss of documents, the house number was not the same.

The applicant also stated that, since 2000, he had been a sympathiser of the Movement for the Liberation of the Congo (Mouvement de Libération du Congo; hereafter “MLC”). He often read MLC information material but never participated in public events such as demonstrations or party meetings. Between 1988 and 1996 he had worked as a ticket agent for Air Zaire. From 1996 until leaving the Congo, he had worked as a ground handling manager/loadmaster for Nigeria Airways, which entailed checking in and boarding passengers, carrying out ground-crew tasks and drawing up flight manifests.

In October or November 1998 the applicant and his Nigerian superior had been arrested by three officers of the DRC national police on a charge of allowing passengers with false papers onto a departing aircraft. After being held for three days in the civilian prison in the Gombe borough of Kinshasa, near to the Mamayeno Hospital, and following intervention by his employer, he had been released unconditionally. He had been beaten whilst in detention.

On 18 February 2001 the applicant had been arrested for a second time by two men who showed him passes identifying them as officers of the DRC military intelligence service (Détection militaire des activités anti-patrie; hereafter “DEMIAP”). He was accused of helping two passengers ‒ who were believed to have been involved in an attack on President Laurent Kabila ‒ to flee the country rather than reporting them to the immigration service. The applicant had denied the accusation; it had not been his task to guide passengers to or through immigration checks. He had been detained in a military subterranean prison which, he believed, was located in the Gombe borough of Kinshasa. On the third day of his detention, the applicant’s home had been searched, during which two MLC pamphlets had been found. His passport had also been found and seized during this search. As a result of the severe maltreatment he had suffered during his detention, in mid-March 2001 the applicant had been admitted to the Gombe military hospital for treatment. His wife had been allowed to visit him in hospital once at the end of March 2001. On that occasion she had given him a Bible in which some money and his identity papers had been concealed. With the help of a friend of his brother-in-law’s, the applicant had managed to escape at the end of June 2001. Three soldiers had taken him from the hospital to a house in a place near Kinshasa. On 2 August 2001 he had been taken to Kinshasa airport and on the same day had managed to flee the DRC by plane.

On 15 November 2001 the Deputy Minister of Justice issued a fresh notice of her intention to reject the applicant’s asylum application. On 11 December 2001, assisted by a lawyer, the applicant submitted written comments on the new notice of intent.

In a decision of 17 January 2002, the Deputy Minister rejected the applicant’s asylum application. On 11 February 2002, the applicant filed an appeal against this decision with the Regional Court of The Hague.

On 3 October 2003 the applicant submitted, as additional grounds of appeal, a copy of a summons which he had received only on that date, although it had been issued on 2 November 2001 by the DRC judicial police (police judiciaire des parquets) of the Prosecution Service of the DRC State Security Court (Parquet général près la Cour de sûreté de l’Etat). It ordered the applicant to present himself on 3 November 2001 before a named inspector of the judicial police in order to be questioned about “facts of which he would be informed”.

The applicant also submitted on 3 October 2003 a report commissioned by “Docu Congo”, a non-governmental organisation (NGO) in the Netherlands, which had been compiled by another NGO, namely the International Society for Human Rights (hereafter the “ISHR”). The author of the ISHR report was the president of the Congo Section of the ISHR, Reverend Placide Tshisumpa Tshiakatumba. For the purposes of this report the researcher(s) had visited the applicant’s address in Kinshasa − as given in the record of his first interview and on the declaration of loss of identity documents (see paragraphs 4 and 7 above) − and N’djili (Kinshasa) International Airport. They had interviewed a former secretary at Nigeria Airways, amongst others, and had sought information from two people working for the Prosecution Service of the State Security Court. The report confirmed, in its relevant part, that the applicant had worked for Nigeria Airways at Kinshasa airport, that he had been arrested by the DEMIAP on the grounds stated, and that he had lived at the address he had provided. The report also stated that Nigeria Airways had had to cease its activities at Kinshasa airport for various reasons including the failure to respect airport rules and procedures, fraudulently embarking passengers, and “above all for that manifesto matter” (“surtout pour cette affaire de manifeste”). It also states that the applicant’s wife had left for an unknown destination. Through their sources at the State Security Court, the researcher(s) confirmed that the applicant was wanted for endangering state security (“Monsieur [C.M.M.] est recherché par les services de sécurité pour des motifs grâves d’attente [sic] à la sécurité de l’état”), that the person who signed the summons was indeed an inspector for the State Security Court and that the applicant would be immediately arrested and detained if found.

On 14 October 2003, the applicant was informed that the impugned decision of 17 January 2002 had been withdrawn and a fresh decision would be taken.

On 14 January 2004 the applicant was informed that the Netherlands Ministry of Foreign Affairs was initiating an investigation in the DRC in response to the material the applicant had submitted in support of his asylum request.

On 22 December 2004 the Ministry of Foreign Affairs released a person-specific official report (individueel ambtsbericht) based on an investigation carried out in the DRC. It had been found, inter alia, that – contrary to the ISHR report – the street name given by the applicant as his home address during his first interview as also on his declaration of loss of identity documents did not exist in the Kinshasa borough where he had allegedly been living during his last two years in the DRC and that, for this reason, it had not been possible to verify whether the applicant’s spouse and/or other relatives were still living there. It had also become apparent that the declaration of loss of identity documents no. 6436/POP/2000 and the summons submitted by the applicant (see paragraphs 7 and 13 above) were forgeries, and it had not been possible to verify the authenticity of the work pass submitted by the applicant (see paragraph 7 above). Moreover, in so far as known, there was no subterranean prison attached to the DEMIAP office in the Gombe borough in Kinshasa and no military hospital existed in Gombe.

On 25 February 2005 the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie; hereafter “the Minister”) issued a fresh notice of intent rejecting the applicant’s asylum request. Observing that the applicant had not submitted any evidential material (such as a boarding pass, a luggage label, an in-flight magazine or other in-flight item bearing the name of the airline) attesting to his journey, that he had not submitted any documents in support of his asylum application and that he had provided only very cursory information about his periods of detention and hospitalisation, and having noted the content of the personspecific official report of 22 December 2004, the Minister concluded that there were sufficiently persuasive arguments for attaching no credence to the applicant’s asylum statement.

On 2 March 2005, under the provisions of the Government Information (Public Access) Act (Wet Openbaarheid van Bestuur), the applicant requested that the documents underlying the person-specific official report of 22 December 2004 be disclosed. This request was transmitted to the Minister of Foreign Affairs on 14 March 2005.

On 25 March 2005, assisted by a lawyer, the applicant submitted written comments on the fresh notice of intent of 25 February 2005. He contested the findings set out in the person-specific official report, whilst pointing out that the non-disclosure of the documents underlying that report and of the working methods employed by the person(s) involved in the inquiry meant that he could do so to only a limited extent. The applicant also requested a reasonable extension to the four-week period allowed for the submission of additional written comments, as he had requested Docu Congo to commission a new expert report to counter the Ministry of Foreign Affairs’ person-specific official report. He therefore asked the Minister to stay her decision pending submission of this counter-report.

On 31 March 2005 the Minister of Foreign Affairs provided the applicant with the documents on which the person-specific official report had been based, at the same time restricting his access to certain parts of the documents containing information about the identity of agents or informants who had assisted in the investigation, information about investigation methods and techniques used, and information about their level of knowledge (so as to avoid facilitating an improvement in the quality of forgeries).

In her decision of 16 December 2005 the Minister rejected the applicant’s asylum application. She noted that on 25 March 2005 the applicant had requested an extension in order to allow Docu Congo to produce a report to counter the person-specific official report and that this request had been granted on 1 April 2005. She also noted that, by letters dated 20 June, 18 July, 16 August, 28 October and 25 November 2005, the applicant had been asked to indicate when submission of the counter-report could be expected and that neither the applicant nor his lawyer had been able to answer this question. Finding that the applicant had had ample time to submit his comments on the person-specific official report, the Minister decided to proceed with her decision. The Minister took into account the fact that the Ministry of Foreign Affairs’ inquiry had been based on the applicant’s submissions, including the ISHR report (see paragraph 14 above), and that – following the so-called “REK check” (see D.T. v. the Netherlands and Georgia (dec.), no. 28199/12, §§ 25-26, 15 September 2015) – it had been found that the person-specific official report had been drawn up with due care, both substantively and procedurally, and was comprehensible. The Minister also found that the applicant had submitted no evidence capable of casting doubt on the finding that the declaration of loss of identity documents no. 6436/POP/2000 and the summons submitted by the applicant (see paragraphs 7 and 13 above) were forgeries and once again concluded that no credence could be attached to the applicant’s asylum statement.

On 11 January 2006, the applicant filed an appeal against this decision with the Regional Court of The Hague and, on 10 March 2006, submitted a report commissioned by Docu Congo which had been published on 27 January 2006 by the NGO Comité pour la Democratie et les Droits de l’Homme (hereafter the “CDDH”). The author of the CDDH report was its Secretary-General, Mr René Kabala Mushiya. For the purposes of compiling the report, he had managed to contact the applicant’s spouse as well as some people working at N’djili Airport who had known the applicant when he was an employee of Nigeria Airways.

The applicant’s spouse had explained that the street address given by the applicant was in fact a path across a cemetery. According to information provided by the N’djili Borough Population Service (Service de la Population de la Commune de N’djili), illegal dwellings had been built around the cemetery and that was where the applicant and his spouse had lived. When visiting the cemetery in November 2005, the applicant’s spouse had been unable to orientate herself as a result of major rebuilding work carried out in the neighbourhood after 2003, when the local authorities had decided to transform the cemetery into a residential area. This transformation was confirmed in an appended written statement by the local neighbourhood leader (chef de quartier). The applicant’s spouse had also stated that, together with some Nigeria Airways employees, she had visited the applicant in the Gombe medical centre at about 8 p.m. one evening in mid-March 2001. For his part, the applicant submitted written statements by three individuals working in the airline industry, who all declared that they had personally known the applicant, confirmed that he had worked for Nigeria Airways and described the nature of his work for the airline. The report drawn up by the CDDH does not contain any information about the declaration of loss of identity documents or the summons of 2 November 2001 (see paragraphs 7 and 13 above).

The Regional Court of The Hague sitting in ‘s-Hertogenbosch found on 11 April 2006 that the restrictions applied to the applicant’s access to the underlying documents (see paragraph 21 above) were justified under section 8:29 of the General Administrative Law Act (Algemene Wet Bestuursrecht). This decision was communicated to the applicant on the same day, with a request to indicate whether or not he had given his consent for the Regional Court to take into account these underlying documents in determining his appeal on 11 January 2006 without their being disclosed to the parties.

In its judgment of 7 December 2006, the Regional Court of The Hague sitting in ‘s-Hertogenbosch rejected the applicant’s appeal of 11 January 2006. It noted that the parties had given their consent under the terms of section 8:29 § 5 of the General Administrative Law Act to take into account the documents underlying the person-specific official report of 22 December 2004. It held, inter alia, that the Minister could reasonably find that the applicant had failed to demonstrate that the absence of documents supporting his asylum statement was not a shortcoming for which he was to blame, and that the Minister could reasonably held against the applicant the fact that he had not provided a detailed and verifiable statement about his purported travel itinerary and that this detracted from the reliability and credibility of the applicant’s asylum statement. As regards the two reports commissioned by Docu Congo, and relied upon by the applicant, and the person-specific official report of 22 December 2004, the Regional Court held:

“18. It appears from the investigation carried out by the CDDH that the neighbourhood where the appellant claims to have lived changed in 2003 into a residential area after improvised (illegal) buildings were erected around an old cemetery. The appellant has argued that, since it has been demonstrated that the investigation of the address [by the Minister of Foreign Affairs] was incomplete, the reason for believing that the ‘attestation de perte des pièces d’identité’ he submitted is forged has become groundless.

The court does not agree with this conclusion by the appellant. The findings of the CDDH do not alter the conclusion that the ‘attestation de perte des pièces d’identité’ is a forgery. The court reaches this conclusion after having studying the documents underlying the person-specific official report, in particular the additional statement of 28 October 2004 [containing a detailed explanation as to why it was clear that this document was a forgery]. It appears therefrom that the document concerned – irrespective of the correctness of the street name indicated – contains deletions as a result of which it can no longer be regarded as authentic. It follows that the appellant, by relying on the findings in the CDDH report, has not adduced concrete evidence calling into doubt the correctness of the conclusions in the person-specific official report.

Unlike the appellant, the court does not find that the investigation lacked due care. ...

In so far as the appellant has expressed doubts as regards the objectivity and reliability of the confidential contact person [who carried out the investigation in the DRC], the court points out that the appellant has not submitted any concrete evidence to suggest that this confidential contact person might have been untrustworthy and acted carelessly. The claim that the confidential contact person acted out of resentment has likewise not been substantiated by the appellant. Moreover, contrary to the appellant’s submissions, it is not apparent from the underlying documents that the ISHR report was found to be inaccurate. ...

In assessing whether the Minister acted in a reasonable manner, the court finds that, in referring to the person-specific official report, [the Minister] adduced sufficient arguments to support the finding that the appellant’s asylum statement is not credible.

In the appeal proceedings the appellant also submitted that, if returned to the DRC, he would be exposed to a real risk of being subjected to treatment within the meaning of Article 3 of the Convention. ...

Since the court has held, in the light of the above, that [the Minister] had good reasons for finding that the asylum statement was not credible, it cannot be concluded therefrom that the applicant would be exposed to a real and foreseeable risk of being subjected to treatment prohibited by Article 3 if he were removed to the DRC. ...”

The applicant’s further appeal was rejected on the basis of a summary reasoning issued on 30 May 2007 by the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State). It found that the further appeal did not provide grounds for quashing the impugned rulings. Pursuant to section 91 § 2 of the Aliens Act 2000 (Vreemdelingenwet 2000), no further reasoning was required as the arguments submitted did not raise any questions requiring a determination in the interests of legal unity, legal development or legal protection in the general sense. No further appeal lay against that ruling.

To date, the applicant has not been removed from the Netherlands nor has he filed a fresh asylum application in the Netherlands.

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

Details concerning the preparation of person-specific official reports (individuele ambtsberichten) and their use in asylum-related proceedings have been set out in D.T. v. the Netherlands and Georgia (cited above, §§ 24-27).

On 27 September 2007 the Netherlands National Ombudsman (Nationale Ombudsman) – an independent institute charged with protecting individuals against improper government conduct by conducting investigations of its own motion or on the basis of an individual’s complaint, and making non-binding recommendations to government agencies – released report no. 2007/200 on the manner in which personspecific official reports are compiled and used in asylum proceedings. The report was entitled “The credibility of official reports. How asylum statements are confirmed or confuted.” (“De geloofwaardigheid van ambtsberichten. Hoe asielverhalen worden bevestigd of ontkracht.”). In this report, the Ombudsman formulated a number of recommendations addressed to the Minister of Foreign Affairs and the Minister of Justice seeking to reinforce the position of asylum seekers in asylum proceedings and thus the compliance of such proceedings with the common standards of propriety.

In a letter of 19 September 2008 to the President of the Lower House of Parliament (Tweede Kamer) about the follow-up generated as a result of this report, the Ombudsman stated that, although it had led to a number of laudable improvements, the Ministers had not accepted two important recommendations concerning the degree of disclosure of documents underlying person-specific official reports to the decisionmaking civil servant and the asylum seeker concerned.

In March 2009, the Ombudsman filed comments on the consolidated seventeenth to eighteenth periodic reports on compliance with the International Convention on the Elimination of All Forms of Racial Discrimination, which had been submitted by the Netherlands Government to the United Nations Committee on the Elimination of Racial Discrimination. The Ombudsman’s comments contain the following observations in respect of general country assessment and person-specific official reports as used by the Netherlands immigration authorities in their decision-making process:

“Feedback from interest groups indicated a great deal of dissatisfaction with the quality of these official country reports. They allegedly contained information that was insufficiently relevant, insufficiently current, and incomplete, or sometimes even incorrect. One of the key problems was the fact that official country reports do not provide an overview of the available facts but rather a conclusion concerning certain facts. The underlying facts are often not available to the asylum seekers and their representatives, which makes it essentially impossible to enter into a discussion concerning the substance of the conclusions drawn. The IND [Immigration and Naturalisation Department] employee who makes the decision is thus not able, in preparing the decision, to consult this file to assess whether the contents of the individual official country report are supported by the underlying documents. Only a more highly-qualified IND employee is allowed to do so. This more highly-qualified IND employee will subsequently pass on his findings to the employee who makes the decision. Neither the asylum seeker nor his representative is able to inspect this file [Footnote 41: Subject to application of Article 8:29 General Administrative Law Act]. The Ombudsman found that this working method fails to recognise the responsibility of the state to present sufficient valid facts during the asylum procedure and to facilitate a fair hearing on the basis thereof [Footnote 42: National Ombudsman, The credibility of person-specific official reports, report 2007/200]. The Ombudsman made several recommendations to improve the position of foreign national/asylum seekers during the asylum procedure, but not all of these were implemented.”

The Committee on the Elimination of Racial Discrimination considered the consolidated seventeenth to eighteenth reports of the Netherlands at its 1986th and 1987th meetings, held on 23 and 24 February 2010. At its 2003rd meeting, held on 5 March 2010, it adopted its concluding observations on these reports, which did not address the quality of general country assessment reports and/or person-specific official reports.

Section 8:29 of the General Administrative Law Act reads as follows:

“1. Parties who are obliged to provide information or submit documents may, if there are substantial reasons (gewichtige redenen) to do so, refuse to provide such information or submit such documents, or may inform the administrative tribunal that it alone shall be allowed to inspect the information or the documents.

In the case of an administrative body, there can exist no such substantial reasons since there is an obligation, pursuant to the Government Information (Public Access) Act, to accede to any request for information contained in the documents to be submitted.

The administrative tribunal shall decide whether the refusal or restriction of inspection referred to in the first paragraph is justified.

If the administrative tribunal has decided that the refusal is justified, the obligation shall no longer exist.

If the administrative tribunal has decided that the restriction of inspection is justified, it may give judgment based on that information or those documents only with the permission of the other parties. If such permission is refused, the case shall be remitted to another chamber.”

According to the most recent official country assessment report on the DRC, published in December 2014 by the Ministry of Foreign Affairs, the general situation in the eastern provinces of North-Kivu, South-Kivu, Haut-Uele and Bas-Uele has continued to be unsettled and unpredictable and the general security situation in the province of Katanga has deteriorated due to actions by armed factions. In the other provinces of the DRC the general security situation has remained stable, apart from some isolated incidents. As to the general situation in Kinshasa, the report states:

“On 30 December 2013 in Kinshasa, three separate groups simultaneously attacked the headquarters of the Congolese army, the National Radio and N’Djili international airport. Since then no major security incidents have taken place. In instances where the police and the Agence Nationale de Renseignements (ANR) used violence, this was not directed against specific (population) groups. The rate of street crime in Kinshasa remains high. Armed gangs, kuluna, commit burglaries, extortion, threats and kidnappings. On 7 December 2013 the police in Kinshasa arrested ten such gangs as part of an operation called “Likofi” (the word for “punch” in Lingala). On 14 December 2013 operation Likofi II started, focussing on kuluna in uniform. The latter allegedly killed ten people within one month in shootings in the neighbourhoods of Ma Campagne and Binza Ozone in Ngaliema borough. On 25 February 2014 the Minister of the Interior announced that operation Likofi would be expanded to tackle armed bandits at national level. In the operations Likofi I − against the Kuluna in Kinshasa − and Likofi II − against undisciplined soldiers and police in Kinshasa − a total of 925 individuals have been apprehended and 593 brought before an investigating judge. Two police officers have been sentenced to death, three military and two civilian accused have been sentenced to 15 years’ imprisonment, one policeman to 20 years’ and one civilian to 10 years’ imprisonment for illegal possession of weapons.

New police force

On 6 April 2014, during a parade in the Kintambo cycle stadium in Kinshasa, General Célestin Kanyama – the chief police commissioner of Kinshasa in charge of the Likofi operation – presented the “new” police force, comprising law-abiding, disciplined officers who are immune to corruption. The police asked for a salary increase and better working conditions. On 1 October 2014 Prime Minister Matata Ponyo opened the national criminal investigation centre of the police, which has been built with funding from the British development aid and the EU. As from that date, the general population could use the toll-free emergency number 112.”

The official report of December 2014 does not deal specifically with people who have been involved with the MLC, mentioning only that an Amnesty Law approved by the DRC legislature on 3 February 2014 and signed by President Kabila on 11 February 2014 granted amnesty for acts of insurgency, acts of war and political offences committed between 18 February 2006 and 20 December 2013 by, amongst others, military personnel who had participated in the armed MLC uprising.

The Democratic Republic of Congo assessment of April 2001, compiled by the Immigration and Nationality Directorate (Country Information and Policy Unit) of the United Kingdom (UK) Home Office, observed:

“2.7 Most sectors of the economy are in a serious state of decline. Production and incomes continue to fall. The infrastructure of the country is also in a serious state of decline. Financial institutions have collapsed and the public health and education system have seriously deteriorated. The economy is characterised by subsistence activities, a large informal sector and widespread bartering. The public sector cannot provide basic public services and public sector employees are not paid on a regular basis. ...

3.14 ... In November 1998, a new rebel group emerged called the Mouvement pour la Liberation du Congo led by Jean-Pierre Bemba. The MLC based itself in the Equateur Province and has large numbers of former Zairean soldiers in its ranks. The MLC developed close ties with the Ugandan Government. In January 2001, the RCD-ML rebel group merged with Jean-Pierre Bemba’s MLC rebel group to form the Congo Liberation Front (CLF). Bemba is the leader of this newly formed group. The area under the control of the CLF corresponds with the areas that were under the control of the MLC and RCD-ML.

3.15 Intensive diplomatic efforts to promote a ceasefire and a negotiated settlement which meets the security concerns of neighbouring countries resulted in a ceasefire agreement by all belligerent countries on 10 July [1999]. The rebel groups - MLC and RCD - signed up to the ceasefire agreement in August 1999. The ceasefire agreement, called the Lusaka Peace Accord, sets out arrangements for an end to the fighting and the start of a national dialogue.

3.16 Despite the ceasefire agreement, numerous violations of the ceasefire have been reported in different parts of the country with each of the warring factions blaming one another for them. ... The civilian population have been adversely affected by the ongoing fighting. The Health Minister, Dr Mashako Mamba, has recently reported that there has been an upsurge in cases of war-related stress among the country’s civilian population. ...

3.20 On 16 January 2001, President Laurent Kabila was assassinated in the Presidential Palace in Kinshasa, reportedly by one of his soldiers. A government public announcement was made on 18 January confirming that Laurent Kabila had been assassinated. The country’s airports and borders were temporarily closed for security reasons but were soon re-opened. There were no reports of widespread civil unrest. Laurent Kabila’s funeral took place a few days later and his son, Joseph Kabila, was sworn in as President of the DRC on 26 January 2001. ...

5.17 The law allows for freedom of movement but the Government restricts freedom of movement in practice. ...

5.19 In Kinshasa, police and soldiers commonly erected roadblocks in order to extract bribes from taxibus drivers and passengers. On 18 January 2000, in the Gombe district of Kinshasa, there were unconfirmed reports that security forces forced passengers who allegedly were riding in excess of the capacity of a taxibus to pay bribes. There has reportedly been no investigation into this case. Also in January 2000, FAC (government) soldiers and police erected roadblocks in various districts of Kinshasa in order to extort money from each minibus passenger who crossed the roadblocks.

5.20 The Government requires exit visas for all foreign travel. Security forces occasionally hinder foreign travel by citizens, including journalists. There have been cases where political leaders have been denied exit visas. ...”

The report “Country Information and Guidance, Democratic Republic of Congo: treatment on return” published by the UK Home Office in September 2015 includes the following observations:

“2.1 Is a FAS [failed asylum seeker] and/or FNO [foreign national offender] who is to return to the DRC (voluntarily or by force) at risk of mistreatment or harm by virtue of having claimed asylum in the UK and/or having been convicted of an offence in the UK ?

2.1.1 In the country guidance case of BM and Others (returnees – criminal and non-criminal) DRC CG [2015] 293 (IAC) heard in March and April 2015 and promulgated on 2 June 2015, the Upper Tribunal (UT) of the Immigration and Asylum Chamber found, based on the evidence put before it which included statistics indicating that there have been approximately 700 documented returns of asylum and non-asylum cases from European states plus the USA, Canada and New Zealand between 2012 and 2014 (paragraph 80), that ‘... there is no substantiated allegation of arbitrary arrest or ill treatment of any DRC national who is a failed asylum seeker or a foreign national offender returning to his or her country of origin.’ (paragraph 76)

2.1.2 The Tribunal went on to find that:

‘i) Those who have been convicted of offences in the United Kingdom are not at real risk of being persecuted for a Refugee Convention reason or serious harm or treatment proscribed by Article 3 ECHR.

‘ii) Those who have unsuccessfully claimed asylum in the United Kingdom are not at real risk of persecution for a Refugee Convention reason or serious harm or treatment proscribed by Article 3 ECHR.’ (paragraph 88)

2.1.3 However, the UT did find those persons who are wanted / suspected by the DRC authorities for criminal activity in the DRC are likely to be at risk of harm:

‘The DRC authorities have an interest in certain types of convicted or suspected offenders, namely those who have unexecuted prison sentences in DRC or in respect of whom there are unexecuted arrest warrants or who supposedly committed an offence, such as document fraud, when departing DRC. Such persons are at risk of imprisonment for lengthy periods and, hence, treatment proscribed by Article 3 ECHR.’ (paragraph 88)

2.1.4 The Upper Tribunal clarified its findings made in paragraph 119(iv) of BM and Others with regard to the risk of using a false passport (or other document) in the case of BM (false passport) [2015] UKUT 467 (IAC) (12 August 2015). The Upper Tribunal found that:

‘The mere fact that an asylum claimant utilised a false passport or kindred document in departing the DRC will not without more engage the risk category specified in [119(iv)] of BM and Others (Returnees: Criminal and Non-Criminal) DRC CG [2015] 293 (IAC). The application of this guidance will be dependent upon the fact sensitive context of the individual case. The Tribunal will consider, inter alia, the likely state of knowledge of the DRC authorities pertaining to the person in question. A person claiming to belong to any of the risk categories will not be at risk of persecution unless likely to come to the attention of the DRC authorities. Thus in every case there will be an intense focus on matters such as publicity, individual prominence, possession of a passport, the standard emergency travel document arrangements (where these apply) and how these matters impact on the individual claimant.

2.1.5 Decision makers will therefore need to determine whether a person is of interest to the authorities for criminal activity in the DRC. The onus will be on the person to demonstrate that they are of interest to the authorities, including with relevant documentary evidence. ...

2.1.7 Decision makers should note that the Upper Tribunal in BM & Others also provided country guidance on treatment of members of the political group, Alliance de Patriotes pour la Refondation du Congo (Alliance of Patriots for the Re-establishment of the Congo; APARECO), see paragraph 88(iii) of the judgement.

2.1.8 For guidance and information on categories of persons who may be at risk of serious harm or persecution, including political activists (other than members of APARECO), see OGN [Operational Guidance Note] of May 2012.

2.2 If refused is the claim likely to be certifiable as ‘clearly unfounded’ under section 94 of the Nationality, Immigration and Asylum Act 2002?

2.2.1 Given the absence of substantiated evidence of mistreatment or harm on return, where a claim falls to be refused (and the fear is based on being a FAS and / or FNO) it is likely to be certifiable as ‘clearly unfounded’ under section 94 of the Nationality, Immigration and Asylum Act 2002.”


No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)

Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani

The applicant was born in 1957 and lives in Skørping.

By an indictment of 25 October 2007 the applicant, jointly with three coaccused, was charged with violation of intellectual property rights under section 299 b of the Penal Code of a particularly aggravated nature, comprising professionally organised production, importation and sales, in which the defendants had cooperated on marketing substantial quantities of counterfeit goods in the form of designer knives, lamps and similar products.

From the beginning of 2006 the applicant was represented by lawyer A, and as from 21 August 2009, the applicant was represented by lawyer B.

By letters of 1 and 9 September 2009 A submitted his claim for legal costs to the City Court for work performed from 2006 until 2009. By decision of 24 September 2009 the City Court granted A fees in the amount of DKK 183,862.50 (approximately EUR 24,700) plus VAT and reimbursement of costs in the amount of DKK 2,060 which was provisionally to be paid by the Treasury. It appears that the transcript of the court records was sent to counsel A and the prosecutor in accordance with usual practice. Neither the applicant nor B was informed of this decision.

The case was heard before the City Court (Retten i Viborg) over 15 days between 24 September and 4 December 2009.

By a judgment of 4 December 2009, the City Court convicted the applicant and the three co-accused. The applicant was convicted on two out of fifteen counts and given a six months’ suspended sentence, and 120 hours of community service due to his good personal circumstances and the fact that his role had been a minor one. In addition the proceeds, estimated at 40,000 Danish Kroner (DKK), were confiscated, as were various copies of designer goods, such as lamps and cutlery. The applicant and B were present when the judgment was passed. The operative part of the judgment, including the matter of payment of legal costs, was read aloud when the judgment was passed.

A few days later lawyer B received a transcript of the judgment, which in the operative part relating to legal fees stated:

“Each of the accused is to pay the legal costs relating to them, including the fee to counsel appointed to them.”

The applicant did not appeal against the judgment to the High Court, nor did the public prosecution.

According to a court record of 5 January 2010, the City Court approved the costs to be paid to B in the amount of DKK 247,200 (approximately EUR 33,200) plus VAT and reimbursement of other costs amounting to DKK 32,423. It was stated that the amount was to be paid by the applicant.

On 17 January 2010, on behalf of the applicant, B appealed against the decision. He did not contest the amount granted, but claimed that it should be paid entirely or partly by the Treasury. In support thereof, and with reference to section 1008, section 2, of the Administration of Justice Act, he submitted that the applicant had only played a minor role in the criminal case; that an extensive part of the production of evidence did not relate to him; that he had been acquitted of one count; and that the total fee was of a significant amount.

On 25 January 2010, the applicant received an invoice from the police, dated 19 January 2010, requesting him to pay legal costs in the amount of DKK 573,311 (approximately EUR 77,000) including A’s and B’s fees. This was the moment when the applicant became aware for the first time of the fees that had been granted to A.

On 26 January 2010, on behalf of the applicant, B extended his appeal of 17 January 2010 also to include the payment of costs to A, which in the applicant’s view should be paid entirely or partly by the Treasury. He also requested that the City Court send him the court records of the decision to grant fees to A.

On 8 February 2010 the City Court submitted a letter to B, with which was enclosed a copy of the judgment of 4 December 2009, which on 5 February 2010 had been rectified on page 90 in the operative part as follows:

“The accused are to pay the legal costs, so that each of them pays the legal costs relating to them, including the fees for their appointed counsel.”

The court records of 24 September 2009 and A’s letters of 1 and 9 September 2009 were also enclosed with the letter.

By letter of 11 February 2010, B informed the High Court of Western Denmark that the applicant withdrew his appeal as regards the fees to be paid to B. Moreover, he requested permission to submit further observations as regards the fee that the applicant had been ordered to pay to A.

In a supplementary pleading of 4 March 2010, B maintained that A’s fees should be paid by the Treasury. He pointed out that the fees payable to A and B totalled DKK 573,311 and that therefore the payment duty would be manifestly disproportionate to the applicant’s responsibility and circumstances. Referring to section 1008, subsection 4, of the Administration of Justice Act, he thus requested that the payment duty be reduced. In his view, the time-limit for appealing against the decisions on the fees to be paid to A should, at the earliest, run from 25 January 2010, the date on which the applicant received the invoice from the police and thus became aware for the first time of the fees that had been granted to A.

By decision of 10 March 2010 the High Court dismissed the appeal as being lodged out of time. More specifically, it stated:

“The interlocutory appeal does not concern the amount of the fee granted to the applicant’s two defence lawyers; it only concerns the City Court’s decision that the applicant must pay the legal costs relating to him, including the fee to his appointed counsel. This decision was integrated in the judgment of 4 December 2009 and the applicant, who was present when the judgment was passed, was informed of the decision during that hearing. Accordingly, the time-limit must be calculated from 4 December 2009, pursuant to section 969 of the Administration Act, even if the applicant only later learned how much the legal costs, including the fees for the defence counsel, amounted to. Thus, the time-limit had expired when the interlocutory appeal was lodged on 17 January 2010.”

Leave to appeal to the Supreme Court was refused by the Appeals Permission Board on 18 June 2010.


Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1964 and lives in Voronezh (Voronezh Region).

On 9 September 2009, between 10 and 11 a.m., the applicant’s son, Mr Sergey Lykov, and his friend P. were stopped by police officers at a bus stop in Voronezh. They were given no reasons. Sergey Lykov and P. were then taken to the premises of department no. 6 of the Voronezh Region criminal police (оперативно-розыскная часть № 6 криминальной милиции главного управления внутренних дел по Воронежской области) (hereafter, “the police station”).

Inside that police station, a police officer, S., ordered the other police officers present to undress Mr Lykov and P. and to bind their hands and feet with adhesive tape. S. began punching Mr Lykov and P. on the head, urging them to confess to all the thefts that they had committed. Faced with their silence, S. and another police officer began to hit each of their heads violently against the ground, as well as against a cupboard and a table. After 15 minutes they stopped striking them and S. ordered one of the police officers to “give [P.] a fashionable haircut” by cutting locks of his hair with a knife. S. and other police officers then placed plastic bags around the heads of Mr Lykov and P. to suffocate them. Faced with the repeated nature of these actions, Sergey Lykov, who was exhausted, asked S. to tell him what he wanted to know. S. again asked him to confess to the alleged thefts. Mr Lykov then admitted that they had burgled an apartment in 2007. S. ordered the police officers to take Sergey Lykov to another room.

The police officers continued to torture P. with electricity. A few minutes later the police officer returned Sergey Lykov to the office. According to P., Sergey Lykov was “in a bad way”, although he had no obvious physical injuries. P. was taken to another office, where he began writing a confession. While he was writing, he heard Sergey Lykov betin to cry out. According to P., his cries lasted a good hour. Shortly afterwards a police officer came into the room where P. was being held and told him that they were going to the scene of the 2007 burglary. P. stated that Sergey Lykov was not with them during this visit and that he had not seen him again afterwards. P. was finally taken to a temporary detention centre, where he was examined by a doctor who noted several physical injuries (bruises and grazing on his arm). P. learned later that Mr Lykov had thrown himself out of a window.

On 7 September 2009 a decision (постановление о приводе) was issued ordering P.’s arrest for the purpose of questioning him as a witness.

On 9 September 2009 police officers found P. in a street in Voronezh, in the company of Sergey Lykov. They asked the two friends to accompany them to the police station. Mr Lykov was invited for the purpose, in particular, of “provid[ing] useful information”, in line with section 11 § 4 of the Police Act of 18 April 1991, then in force. Sergey Lykov accepted the invitation of his own free will.

After discussions with police officer T. at the police station, Sergey Lykov decided to confess to a theft purportedly committed on 4 September 2009, and provided a written statement to that effect. T. informed Mr Lykov of his constitutional right not to incriminate himself.

At 6.50 p.m., after having finished writing his confession, Sergey Lykov suddenly threw himself out of the open window of T.’s office, which was on the fifth floor.

At 7.50 p.m. Mr Lykov arrived at hospital with an emergency medical assistance team. He died at 1.10 a.m. on 10 September 2009.

Sergey Lykov’s cousin I., who had had no news of him, carried out a search and on 10 September 2009 she finally found his corpse in the Voronezh morgue. After examining the body, I. noted that it had signs of numerous physical injuries, in particular a haematoma above the left eyebrow, facial injuries and haematomas on the wrists.

On 13 September 2009 I. wrote to the Prosecutor General of Russia, requesting that an investigation be opened into the death of Sergey Lykov. She informed the Prosecutor that her cousin had been arrested on 9 September 2009 while he was with his friend P.

On 22 September 2009 police officer B. from the Tsentralny district police station in Voronezh issued a decision refusing to open a criminal investigation into the supposed theft, on the street, of a mobile telephone, to which Sergey Lykov had confessed: B. noted that the avowed offence of theft had never been recorded in the registers of complaints by victims of offences, which were held by the police.

One hour after the incident (at 8 p.m.), an investigator, Ya., from the Voronezh Leninskiy district Investigation Committee arrived on the scene and examined the premises, in particular Office no. 55, from where Mr Lykov had fallen. The investigator seized from the scene a gas mask and a telephone, as well as the sheet of paper with Sergey Lykov’s written confession. She indicated that she had not found traces of blood in the office, but only on the grass area below the window.

By a decision of 21 September 2009, investigator L. from the same department refused to open a criminal investigation into the victim’s death. Referring to Article 24 § 1 (1) of the Russian Code of Criminal Procedure, he concluded that no offence had been committed.

The investigator summarised the explanations provided by police officer T., who stated that:

– at 3 p.m. on 9 September 2009 Sergey Lykov and his friend P. had been taken to the police station by police officers S. and F.; the second individual (P.) was being sought on suspicion of theft;

– during an interview between T. and Mr Lykov, the latter had confessed voluntarily to a theft. Although he had started writing a confession, Mr Lykov suddenly stood up and climbed onto a chair, then onto a table which was beside the open window, and then finally jumped from this window;

– T. had rushed to prevent him from jumping, but he was too late;

– no police officer had struck Sergey Lykov or had forced him to confess to the offence. According to T., Sergey Lykov had no physical injuries;

– during the interview Mr Lykov had been calm, but he complained to T. that his life was difficult, since he had to care for his ill mother.

The investigator also summarised the explanation provided by police officer Sa., who stated that:

– at 2 p.m on 9 September 2009 while on patrol in the city, he and two other police officers had seen two individuals on a scooter. Since they had information that an individual suspected of theft was moving about on a scooter, they had stopped the persons concerned for an identity check. They had invited Sergey Lykov and P. to accompany them to the police station and they had agreed;

– on arrival at the police station, Mr Lykov and P. had been separated. Sa. and F. had interviewed P., while T. had had a conversation with Mr Lykov;

– on entering T.’s office at a later point, Sa. was able to note that Sergey Lykov was not handcuffed and had not been struck. He had heard Mr Lykov confess to the theft of a mobile telephone;

– he had not heard Sergey Lykov complain of ill-treatment of any kind;

– later he had learnt that Mr Lykov had attempted to take his own life.

The investigator also noted that in response to his questions, police officer S. had denied any involvement in ill-treatment of Sergey Lykov.

At the same time, the investigator noted the statements made by P., to the effect that:

– between noon and 1 p.m. on 9 September 2009 he and Sergey Lykov had been in the city centre when police officers approached, introduced themselves and asked him [and Sergey Lykov] them to accompany them to the police station. They had agreed;

– at the police station, he and Sergey Lykov had been separated and placed in different offices. Shortly afterwards, when passing in the corridor, he had seen Sergey Lykov sitting at a table writing something. He had not seen Sergey Lykov being struck, had not heard him crying out, and had not noticed any physical injury on his person;

– he had heard Sergey Lykov complain of heart pains, but never refer to an intention to commit suicide.

The investigator took note of the statements by the applicant, and also of close relatives of the victim, to the effect that he had never expressed thoughts of suicide.

The investigator noted the presence in the case file of the written confession drawn up by Mr Lykov shortly before his death.

Relying on the information communicated by the hospital in which Mr Lykov had been treated after his fall, the investigator established that death had resulted from Mr Lykov’s fall from the fifth floor. No injuries indicating kicks or punches, or the use of handcuffs, had been found on the corpse.

Lastly, the investigator noted the contents of the report from the on-site inspection conducted on 9 September 2009 (see paragraph 17 above).

On 28 June 2010 the decision of 21 September 2009 was set aside by a hierarchically superior civil servant, who ordered an additional investigation, noting, in particular, that it was necessary to:

– find witnesses who could confirm that Sergey Lykov had suicidal thoughts;

– verify that the police officers who had taken Sergey Lykov to the police station had acted in accordance with the law;

– consider whether the police officers who had not ensured the victim’s safety inside the police station bore any criminal liability.

In the meantime, on 27 October 2009 an autopsy of the body was carried out on the orders of investigator L. and a forensic report was drawn up. In that document, the forensic medical expert noted that death had resulted from multiple fractures to the head, chest and spine, and to the base and dome of the skull. According to the expert, the location of the injuries identified, and the preponderance of internal over external injuries, led to the conclusion that those injuries had originated in [Mr Lykov’s] fall from the fifth floor. The expert concluded that there was no cause-and-effect relationship between the other injuries (hematomas and scratches on the trunk and the lower and upper limbs, namely a hematoma in the fold of the right elbow measuring 4 x 3 cm; a scratch on the right forearm measuring 6 x 0.7 cm; a 4.5 x 2 cm hematoma on the right carpus; a hematoma on the left shoulder measuring 18 x 14 cm, on which there were scratches of 5 x 2.5 cm; a hematoma on the left knee measuring 7 x 6 cm, on which there was a scratch of 1.5 x 1 cm; and an oval-shaped scratch on the left ankle measuring 2 x 1.5 cm) and the death. As to the question of whether there were traces of a struggle or self-defence, the doctor indicated that it was generally accepted in forensic medicine that injuries to the arms and wrists were to be classified in that way. Thus, he noted the presence of a bruise on the right carpus and a scratch on the right forearm. He added that he was unable to ascertain how those injuries had been sustained. Lastly, the doctor noted that the corpse had been deposited in the morgue unclothed.

By a decision of 8 July 2010, investigator Ko. from the same department again refused to open a criminal investigation.

In his reasoning, he quoted from the statements given by police officers T., Sa. and S., by witness P., and also by the applicant and the deceased’s close relatives, already cited in the decision of 21 September 2009 (see paragraph 18 above).

The investigator also questioned certain individuals who had got to know Sergey Lykov in a café where they drank alcoholic beverages together. Those persons explained that when Sergey Lykov drank alcohol he became talkative and that, in this intoxicated state, he complained about a lack of money and difficulties with his invalid mother. He had also confided to his companions that he had committed thefts and that, were he arrested, he “would harm himself”.

The investigator also noted a directive, classified as secret, for the attention of police officers. According to that directive, the police were not personally responsible for the life and health of individuals who had freely consented to attend a police station for an interview, “except in the event of violation of the rights and freedoms of citizens proclaimed in the Russian Constitution”. Regard being had to that directive and the facts noted, the investigator concluded that officer T. could not be held responsible for the offence of negligence.

The investigator concluded that Sergey Lykov’s death had been the result of a voluntary act on the latter’s part. In consequence, the investigator refused to open a criminal investigation against the police officers F., B., Sa. and T. for an abuse of power, on the grounds, firstly, that Sergey Lykov’s arrest had not been illegal, and, secondly, that the police officers had not ill-treated him. He also concluded that there were no grounds for prosecuting the police officers for homicide, assault or incitement to suicide, given that Sergey Lykov’s death “had not been violent”.

On 11 February 2011 the applicant lodged a judicial appeal against that decision. She complained, inter alia, that her son had been placed in detention without this fact being properly recorded, and that, in consequence, her son had been deprived of legal assistance. Equally, she submitted that the investigation carried out had been incomplete and focused on a hypothesis that was favourable to the police officers. She criticised the investigative authorities for failing to conduct a forensic examination of the gas mask seized in the police station in order to obtain genetic material, including perhaps that of her son. According to the applicant, a handwriting expert’s report should also have been commissioned in order to determine her son’s psychological state when he wrote the confession. Further, referring to the autopsy report, which stated that the corpse had injuries that could be interpreted as traces of a struggle or self-defence, the applicant accused the authorities of failing to explain the origin of those injuries, and the cause of her son’s death.

On 18 April 2011 the Leninskiy District Court of Voronezh upheld the contested decision. In its reasoning, the court reiterated the arguments set out in the investigator’s decision and considered that the investigation had been complete and thorough. In response to the applicant’s arguments, the court expressed the opinion that a handwriting analysis was unnecessary, since the deceased’s family had confirmed the handwriting’s authenticity. Equally, a DNA examination of samples from the gas mask was unnecessary, since Sergey Lykov’s death had not resulted from suffocation. Thus, the court concluded that there was no evidence in support of the idea that the deceased had been subjected to ill-treatment by the police officers or that he had been arrested or detained unlawfully.

On 11 August 2011 the Voronezh Regional Court upheld the decision, on appeal, for the same reasons.

On 11 October 2012 the applicant’s lawyer sent a letter to the head of the Investigation Committee of Russia, asking him to open a new criminal investigation into the death of Mr Lykov and to entrust this investigation to the department for investigations into offences committed by State employees of the armed forces, a department that was part of the Investigation Committee of Russia in the Tsentralny federal constituency. The lawyer expressed the fear that if the requested investigation were to be carried out by investigators from the Voronezh regional department of the Investigation Committee, that investigation would be ineffective. She argued that, without having available to them locally-based agents to gather the necessary information, the investigators from the latter department would have no choice but to use officers from the Ministry of the Interior, among whom might be those involved in the victim’s death.

On 14 November 2012 the Voronezh regional department of the Investigation Committee dismissed that request, considering that the decision of 8 July 2010 had been in accordance with the law and that there were no grounds for revoking it and opening a criminal investigation.

On 10 September 2009, the day after his arrest, P. was taken to a temporary detention centre (“IVS”). During his admission, a doctor’s assistant noted the following physical injuries: a bruise on the left shoulder-blade, scratches on the elbows and knees, and a bruise on the right ear. The medical assistant drew up a report recording the injuries and noting that they were the result of a road-traffic accident that had occurred on 9 September 2009. The medical examination was carried out in the presence of police officers who had participated in the beating. According to P., it was the police officers who provided the medical assistant with the road-accident version of events, while he himself, for fear of reprisals, had been obliged to confirm it.

On 11 September 2009 P. was transferred to remand prison no. 1 in Voronezh. On admission, he was examined by a doctor who found the same injuries as those observed in the IVS.

On an unspecified date in September 2009 P. lodged a complaint about the alleged ill-treatment at the police station. According to P., this complaint led to him being taken on the following day to the police station, where he was beating in reprisal. Then – again according to his submissions –, P. withdrew his complaint in fear for his life when investigator Ya. came to the remand prison to question him about the circumstances of the ill-treatment. According to P., in response to his question about possible consequences for the police officers involved in beating Mr Lykov and himself, investigator Ya. replied that, in any event, there had been none.

On 5 October 2009 inspector Ya. from the Voronezh regional department of the Investigation Committee issued a decision refusing to open a criminal investigation. She recounted the explanation provided by police officer Sa., who had denied any ill-treatment, and, noting P.’s withdrawal of his complaint, concluded that no ill-treatment had occurred.

In the meantime, the criminal investigation against P. continued, and resulted in an examination on the merits by the Voronezh regional Court. At the public hearing on 1 February 2011 P. made a statement. He withdrew the account given by him in the context of the investigation into the death of Sergey Lykov. P. described the events of 9 September 2009 as they are set out in paragraphs 6-8 of the present judgment. He added that police officer S. had threatened him if he were to withdraw his confession to the thefts or make statements about the events surrounding the arrest and death of Mr Lykov. He added that S. had beaten him again prior to the court hearing concerning his placement in pre-trial detention, in order to prevent him lodging a complaint before the judge. He also alleged that he had been subjected to unprovoked attacks by the administration of the remand prison in which he was detained. P. asked to be placed under protection in his capacity as a witness of the ill-treatment inflicted on Sergey Lykov by police officers. He also asked that criminal proceedings be brought against police officer S. for abuse of power and for the murder of Mr Lykov. P. suggested that the criminal investigation into the death be reopened.

The judge ordered that P.’s written statement be included in the case file. With regard to P.’s requests in respect of S. and Mr Lykov, the judge replied that the latter’s death was unrelated to the ongoing trial; as for S., he was not a party to the trial proceedings. In consequence, she dismissed those requests.

At one of the subsequent hearings P. complained that, after the above statement, the remand prison’s administration threatened him.

On 30 June 2011 the prosecutor for the Leninskiy district of Voronezh set aside the decision refusing to open a criminal investigation in respect of P.’s supposed torturers. The prosecutor ordered an additional investigation. The Court has not been informed of the outcome of this investigation.

After serving his sentence, P. was released. He submits that he has received several threats in connection with the present case. For fear of reprisals, he moved to Sweden. In his letter of 20 April 2014 to the Investigation Committee, sent from abroad, P. offered to act as a witness, but he was never questioned.

On 23 December 2013 a hierarchically superior State employee in the Voronezh regional department of the Investigation Committee set aside the decision of 8 July 2010, noting that the department had received new information concerning the death of Sergey Lykov from the European Court of Human Rights. He ordered an additional investigation, in particular so that P. could be questioned and his allegations of ill-treatment verified.

On 10 January 2014 the deputy head of the Voronezh regional department of the Investigation Committee ordered the opening of a criminal investigation within the meaning of Article 146 of the Code of Criminal Procedure. In his reasoning, he noted that Ms Lykova’s application, which was being examined by the European Court of Human Rights, contained elements suggesting that Mr Lykov had been subjected to ill-treatment by the police officers.

On 16 January 2014 investigator L. from the Investigation Committee ordered a second forensic medical report, to answer, inter alia, the following questions: whether Mr Lykov’s body showed injuries and, if so, where; if the body showed injuries resulting from a struggle, ill-treatment, the use of handcuffs or restraint of the upper or lower limbs using adhesive tape; and whether there were signs of electrocution. The Government have not indicated whether that medical report was drawn up. In any event, no expert report was added to their observations.

The investigator questioned police officers Sa. and F.; the first reiterated the explanation he had provided in 2009 (see paragraph 17 above), and the second gave similar explanations. The investigator also questioned a certain V., who allegedly stated that he occasionally drank alcoholic beverages in Sergey Lykov’s company and indicated that the latter was a drug addict who committed thefts to obtain money, and that he had spoken to him about his difficulties with his invalid mother. According to V., Sergey had confided in him that, if he were arrested, he “would harm himself”.

The investigator questioned the deceased’s grandmother and cousin, who stated that, to their knowledge, Sergey did not take drugs, did not abuse alcohol, and had never expressed thoughts of suicide.

On 13 January 2014 the investigator issued a decision granting the applicant victim status.

On 27 October 2009, at the close of an internal investigation into the police officers’ conduct, the Internal Security Service of the Voronezh regional department drew up a report; its conclusions can be summarised as follows: referring to the decision of 21 September 2009 (see paragraph 17 above), the regional department considered that Sergey Lykov had indeed taken his own life and that no fault on the part of the police officers had been established. At the same time, the Service described as a lack of professionalism the fact that police officer T. had not taken sufficient care in controlling Mr Lykov’s conduct, a shortcoming that had enabled the latter individual to throw himself from the window.


Remainder inadmissible;No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Khanlar Hajiyev;Yonko Grozev

The applicant company specialises in taking soil samples by way of drilling for geological examination, inter alia, for the purpose of assessing suitability for building sites and for the construction of wells.

In the building industry in Germany, a number of collective agreements operated, which contained regulations related to the social welfare of employees working in that sector (see relevant domestic law and practice paragraphs 21-28). The employers’ associations in the building industry (Hauptverband der Deutschen Bauindustrie and Zentralverband des Deutschen Baugewerbes) and the trade union (IG Bauen-Agrar-Umwelt) concluded the Collective Agreement on Social Welfare Proceedings in the Building Trade (Tarifvertrag über das Sozialkassenverfahren im Baugewerbe, “VTV”). The VTV contained rules about contributions and entitlements in relation to both the ZVK and the Holiday and Wage Equalisation Fund of the Construction Industry (Urlaubs- und Lohnausgleichskasse der Bauwirtschaft, “ULAK”), which jointly comprised the Social Welfare Fund in the building industry which went by the common name “SOKA-BAU”.

As the Federal Ministry for Labour and Social Affairs declared the VTV generally binding (allgemeinverbindlich) pursuant to Section 5 § 1 of the Law on Collective Agreements (Tarifvertragsgesetz), it was binding on all employers in the building industry, even if they did not belong to the employers’ association (Section 5 § 4 of the Law on Collective Agreements, see relevant domestic law and practice paragraph 20). As a consequence, all employers in the building industry were obliged to contribute to the Social Welfare Fund an additional sum amounting to 19.8% of the gross wages paid to their employees.

The applicant company was not a member of an employers’ association that was party to the relevant collective agreements. It was thus not directly bound by any collective agreements by virtue of such membership.

On 10 August 2004 the Social Welfare Fund sent a letter to the applicant company with key information about the supplementary welfare schemes, including with regard to contributions to be paid and possible benefits it might receive. The applicant company did not react to this letter.

On 12 April 2005, following enquiries made in order to establish whether the applicant was obliged to pay contributions, the Social Welfare Fund sent a letter to the applicant company, informing it about its duty to pay contributions and that an account had been opened into which benefits would be paid.

On 28 April 2005 the applicant company’s lawyer sent a letter to the Social Welfare Fund, objecting to being registered with the Fund.

On 11 October 2007 the Wiesbaden Labour Court ordered the applicant company to pay 63,625.58 euros (EUR) in welfare fund arrears for the period between September 2002 and March 2004 to the ZVK. The applicant company was further ordered to submit copies of the wage slips issued to its employees between January 2006 and June 2007. The Labour Court considered that the applicant company was bound by the VTV, which was binding on all employers in the building industry even if they did not belong to one of the employers’ associations. The activities of the applicant company fell within the scope of the VTV which, in its Article 1 § 2 (v) no. 6, listed drilling as an activity within its scope.

The applicant company lodged an appeal submitting, in particular, that the generally binding effect of the VTV violated the negative aspects of its right to freedom of association. It argued that it was obliged to contribute to a fund jointly set up by the employers’ association and the trade union, even though it did not belong to either of these associations. The applicant company further complained that it was prevented from founding its own association, due to a lack of funds.

On 27 June 2008 the Hesse Labour Court of Appeal rejected the applicant company’s appeal and did not grant leave for an appeal on points of law. As well as confirming the Labour Court’s reasoning, the Court of Appeal held that the generally binding effect of the VTV did not violate the applicant company’s right to freedom of association. It observed that the generally binding effect did not entail an obligation to adhere either to one of the employers’ associations or to the Social Welfare Fund. Referring to the case-law of the Federal Constitutional Court (decision of 15 July 1980, 1 BvR 24/74, see relevant domestic law and practice paragraph 27), the Labour Court of Appeal conceded that the applicant company, which was not a member of one of the employers’ associations, had the disadvantage of not being able to assert its interests by exercising control over the activities of the Social Welfare Fund via these associations. The right to participate in the decision-making process within these associations was reserved to members of the respective association. In so far as this fact exerted a certain pressure to become a member of one of the employers’ associations, this was, however, not sufficient to amount to a violation of the negative aspect of its right to freedom of association.

The Court of Appeal further considered that the obligation to contribute to the Social Welfare Fund did not prevent the applicant company from founding its own association. It observed that the major parts of the contributions due would be reimbursed to the applicant if properly declared.

The Court of Appeal finally considered that the obligatory contribution to the Social Welfare Fund took account of the high fluctuation of employees in the building industry and served the public interest of allowing for management of the employee’s claims by the Social Welfare Fund, thus preventing a distortion of competition.

On 10 December 2008 the Federal Labour Court rejected the applicant company’s complaint against the refusal to grant leave to appeal.

On 5 February 2009 the Federal Constitutional Court refused to accept the applicant company’s constitutional complaint for adjudication without providing reasons (1 BvR 243/09).


Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro

The applicants, whose names appear in the appendix hereto, are Turkish nationals who live in Istanbul. They are the owners, executive directors, editors-in-chief, editors and members of the technical staff of nine publications which were issued on daily, weekly, biweekly or bimonthly basis: Haftalık Yorum, Politik Yorum, Ülkede Yorum, Yeni Demokratik Toplum, Yeni Demokratik Yaşam, Yeni Demokratik Ulus, Azadiya Welat, Demokratik Ulus, and Özgür Mezopotamya. They are represented before the Court by Mr Ö. Kılıç and Ms A. Taşdemir, lawyers practising in Istanbul.

On various dates between 23 June 2010 and 15 February 2012, the Istanbul Assize Courts decided to suspend the publication and distribution of the abovementioned nine newspapers for periods ranging from fifteen days to one month under section 6 (5) of the Prevention of Terrorism Act (Law no. 3713), on the ground that the newspapers had published propaganda in favour of various illegal organisations. All copies of the relevant issues were seized. The applicants raised objections to the suspension orders but these objections were dismissed shortly afterwards by the Istanbul, Assize Courts. Neither the applicants nor their representatives were permitted to participate in any of the proceedings held before the Assize Courts.

The details of the proceedings may be found in the appended table.