No violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (the United States of America)

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

The applicant was born in 1982 in Venezuela and is currently detained in Valdemoro Prison.

The applicant has been living in Spain with his family since 2003.

In an indictment filed on 15 November 2005 in the United States (hereinafter, “the US”) District Court for the Eastern District of New York, the applicant was charged with one count of conspiracy to import one or more kilograms of heroin, a Schedule I controlled substance, into the United States in violation of Title 21, United States Code, sections 952(a), 960(a)(1), 960(b)(1)(A), and 963, and Title 18, United States Code, sections 3551 et seq. (Count Four); and one count of conspiracy to distribute and possess with intent to distribute one or more kilograms of heroin, a Schedule I controlled substance, in violation of Title 21, United States Code, sections 841(a)(1), 841(b)(1)(A)(I), and 846, and Title 18, United States Code, sections 3551 et seq. (Count Five). Each of those offences carried a possible maximum term of life imprisonment.

By diplomatic note of 6 December 2013, the US authorities transmitted a request to the Spanish authorities for the applicant’s provisional arrest with a view to his extradition.

On 13 December 2013 the applicant was arrested in Lugo by the Spanish police. The Central Court of Investigation No. 4 (Juzgado Central de Instrucción) initiated extradition proceedings on the same day and ordered his provisional release. The extradition request was then allocated to the Criminal Section of the Audiencia Nacional.

On 31 March 2014 the Public Prosecutor’s Office agreed to the applicant’s extradition.

On 1 October 2014 the Audiencia Nacional granted the extradition request on condition that the US authorities provided a guarantee that any life sentence that was handed down would not be irreducible. The applicant lodged an appeal against that decision.

On 3 November 2014 the ruling was upheld by the Plenary of the Criminal Section of the Audiencia Nacional. The applicant subsequently lodged a plea of nullity (incidente de nulidad de actuaciones) against that decision. On 19 December 2014 the Plenary of the Criminal Section of the Audiencia Nacional ruled against the applicant, arguing that the object and purpose of annulment proceedings was not to serve as a second appeal instance against an extradition decision, but to correct possible violations of a fundamental right committed in a decision which was not subject to appeal.

On 3 December 2014 the U.S. Embassy issued a note verbale, which provided the following answer:

“The United States notes that the bilateral extradition treaty between the United States and Spain does not provide a basis for conditioning extraditions on assurances relating to life sentences. While the United States is not, therefore, obligated to provide the assurance requested, in consideration of the request of the Spanish Court and given the intentions of the U.S. prosecutor, the United States is prepared in this particular case to inform the Government of Spain as follows: Should LOPEZ ELORZA be convicted of either of the charges in the indictment filed on 15 November 2005 for which extradition is sought, he will not be subject to an unalterable sentence of life imprisonment because, if a life sentence is imposed, he may seek review of his sentence on appeal and he may subsequently seek relief from his sentence in the form of a petition for a pardon or commutation to a lesser sentence ...”

On 19 January 2015 the note verbale was communicated to the interested parties. On 23 January 2015 the Public Prosecutor submitted a report stating that the guarantees provided by the United States were adequate and that consequently extradition should be granted.

On 24 February 2015 the Audiencia Nacional issued a decision (providencia) assessing the US guarantees, deeming them to be “sufficient”.

The applicant brought two súplica appeals against that decision, the first of which was lodged on 28 February 2015. The applicant argued that the decision of 24 February 2015 should be declared null and void since the matter should have been addressed through an auto, instead of a providencia. Secondly, the applicant contested the argument that the US Government had provided sufficient guarantees, stating that they were identical to the ones that had already been analysed by the Court in the case of Trabelsi v. Belgium (no. 140/10, ECHR 2014 (extracts)) and found to be in violation of Article 3 (inter alia). The second súplica appeal was lodged on 2 March 2015 and included three different requests. First, he requested that the decision on whether the US guarantees were sufficient be addressed and dealt with by the Plenary of the Audiencia Nacional. He also sought the recusal of three judges who were members of the bench which had initially issued the decision of 24 February 2015. Lastly, he lodged an application for the general recusal of all the judges of the Audiencia Nacional who “had been invited by the United States of America on holiday trips” which had been paid for by that country.

On 25 March 2015 the Audiencia Nacional issued a decision stating the following:

“FIRST - We will examine in the first place the plea for a referral to the Plenary formation of this Court of the decision about the sufficiency of the assurances given by the U.S. Government concerning the possibility for two life sentences to be imposed on the extradited person. This Chamber, given that the President of this Court has duly empowered it to decide about this matter, considers that the referral is not necessary as the assurances given are correct and sufficient, and furthermore show compliance with the ECtHR case-law in the Trabelsi vs Belgium case referred to by the appellant ....

Therefore, if the assurances given by the U.S. Government are the following:

“Should LOPEZ ELORZA be convicted of either of the charges in the indictment filed on 15 November 2005, he will not be subject to an unalterable sentence of life imprisonment, he may seek review of his sentence on appeal and he may subsequently seek relief from his sentence in the form of a petition for a pardon or commutation to a lesser sentence;”

we can conclude that the warranty expresses the actual existing legal means for the revision of a sentence of life imprisonment in a way that shows that this punishment is not irreducible during the whole life-span of the person, complying with what the ECtHR has requested in order to consider that there has been no violation of Article 3 of the Convention.

That is why there is no need to refer a decision on this matter to the Plenary formation of this Court.”

Additionally, the Audiencia Nacional agreed on opening a procedure aimed at addressing the issue of the recusals requested by the applicant through a full report, at the same time ordering the suspension of the extradition proceedings until the recusal proceedings had been terminated.

On 12 May 2015 the Audiencia Nacional issued a decision (acuerdo gubernativo) dismissing the applicant’s request.

On 25 May 2015 the Audiencia Nacional ordered the applicant’s provisional detention (auto). The applicant lodged another súplica appeal against that decision and requested that the extradition proceedings be suspended on the grounds that no decision had been taken on the issues complained of in the first súplica appeal of 28 February 2015.

In a decision of 28 May 2015 the Audiencia Nacional rejected the applicant’s request to stay the extradition proceedings, finding that the complaints contained in the first súplica appeal had already been dealt with in the decision of 25 March 2015.

On 1 June 2015 the applicant lodged another súplica appeal against the decisions of 25 May 2015 and 28 May 2015, contesting the reasoning as regards his request to stay the extradition proceedings and emphasising that no decision had been taken on the issues complained of in the first súplica appeal of 28 February 2015.

On 3 June 2015 the Audiencia Nacional issued a new decision dismissing the súplica appeals lodged by the applicant and confirming the decision on the applicant’s imprisonment pending extradition to the United States. In particular, the decision stated the following:

“The applicant considers that his súplica appeal lodged against the decision of 24 February 2015 has not been answered ... .

This Court refers at this point to what was already established in its decision of 25 March 2015 ... .

Nevertheless, in order to clarify any doubts that the applicant might have concerning whether or not he has received an answer to his súplica appeal, we [the Court] will resolve here the issued raised in that appeal.

The guarantees provided have been considered sufficient for the Court. Consequently, regardless of the judgment mentioned by the applicant, we consider that they comply with the requirements established in the ECtHR’s judgment Hutchinson v. United Kingdom [(no. 57592/08, 3 February 2015)], as well as the judgment of 13 November 2014 [Bodein v. France, no. 40014/10, 13 November 2014)], lodged by a French citizen...

Taking into consideration the above-mentioned reasoning, the Court

Decides

to dismiss the súplica appeals referred to in the present ruling, maintaining the order of imprisonment for Andrés López Elorza, in view of his extradition to the United States of America”.

On 19 June 2015 the applicant was detained for the purposes of being extradited to the United States.

On 22 June 2015 the applicant lodged an amparo appeal with the Constitutional Court against the extradition decision. He asked for interim measures, requesting the Constitutional Court to order a stay of the extradition while the case was still pending. He contended, inter alia, that the assurances provided by the US authorities did not fulfil the criteria for assessing the reducibility of a life sentence and that the extradition would amount to a violation of his right not to be subjected to inhuman or degrading treatment or punishment.

On 1 July 2015 the Constitutional Court issued a decision declaring the amparo appeal and the request for interim measures inadmissible. In particular, it found that the part of the amparo appeal concerning the validity of the assurances given by the US authorities and about a possible violation of the applicant’s right not to be subjected to inhuman or degrading treatment had been lodged too late as the alleged violations stemmed from the decision of 25 March 2015, thus the 30-day timelimit established in section 44(2) of the Organic Law on the Constitutional Court No. 2/1919 had already passed when he had lodged his amparo appeal.

On 2 July 2015 the applicant lodged a request for interim measures with the Court under Rule 39 of the Rules of Court. He requested the Court to indicate to the Spanish Government that his extradition should be stayed pending the outcome of proceedings before the Court. The request was granted on the same day on a temporary basis until 1 August 2015, and the Government were asked the following questions:

“a.- Does the applicant risk under US criminal law, in respect of the charges, a maximum penalty that precludes early release and/or release on parole?

b.- What are the concrete mechanisms and under what US legal basis is the applicant entitled to review his possible final life sentence? In this sense, are the appeal, pardon and other review mechanisms referred to in the note verbale of 3 December 2014 the ones described in the case of Trabelsi v. Belgium (application no. 140/10, 4 September 2014, § 27)?”

On 23 July 2015 the Government submitted their response and attached a document issued by the Office of International Affairs of the US Department of Justice called “supplemental information to Spain on Sentencing Issues in Relation to Andres Lopez Elorza, a/k/a ‘Andres Lopez Flores’ (hereinafter, “the US report”). The report stated the following:

“By way of introduction, Lopez Elorza’s extradition is sought in order for him to stand trial on federal narcotics offenses in the Eastern District of New York. In essence, Lopez Elorza, a veterinarian, is charged with having been a member of a conspiracy between September 2004 and January 2005, the goal of which was to import heroin into the United States for subsequent distribution, in which Lopez Elorza’s role was to surgically implant packages of liquid heroin into the bodies of dogs that later were transported to the United States. The charges followed the search, in January 2005, of a farm Lopez Elorza operated in Medellin, Colombia, in which law enforcement authorities seized six puppies into which three kilograms of liquid heroin had been surgically implanted. The six puppies were bound for the United States, and the heroin they carried was surgically removed. After the search of his farm, Lopez Elorza fled Colombia.”

As regards the first question put to the Government, the US report argued that there were pretrial factors that could affect the applicant’s sentencing. In particular, the report noted the following:

“Before any trial, Lopez Elorza could, with the advice of his lawyer, decide to give up the right to a trial and plead guilty to the charges in the indictment, with or without the agreement of the prosecution. See Federal Rule of Criminal Procedure 11(a). A timely admission of guilt is a factor which could reduce the sentence the judge decides to impose following a conviction. In the United States, the vast majority of criminal cases are resolved by guilty pleas. Lopez Elorza may seek to reach an agreement with the prosecution wherein he would plead guilty in exchange for certain favorable actions, such as an agreement to allow him to plead guilty to fewer than all the charges in the indictment (with the remainder of the charges to be dismissed at sentencing), or even to lesser charges, or in exchange for the government’s promise to affirmatively recommend to the court that a particular lesser sentence be imposed. The agreement may also include the parties’ recommendation as to the appropriate sentence that - depending upon the type of plea agreement that is negotiated - may or may not bind the judge regarding the sentence that will be imposed. Such agreements are within the discretion of the government to enter into, and the judge may also decline to approve an agreement she or he does not believe to be in the interests of justice. The agreement may include, inter alia, an agreement to cooperate with U.S. authorities. Thus, if Lopez Elorza were willing and able to provide substantial assistance to the United States in the investigation or prosecution of another person who had committed a crime, a plea agreement might include a promise by the government attorneys, in exchange for his guilty plea, to file a motion with the court asking that Lopez Elorza’s cooperation be taken into account and permitting the Court to impose a lower sentence that it might otherwise impose. Title 18, United States Code, Section 3553(e); United States Sentencing Guidelines, Section 5K1.1. In such cases, it is not atypical for a judge to impose a sentence that is significantly less than the Guidelines recommendation.”

It also observed that “[i]f, however, Lopez Elorza decides not to plead guilty and instead exercise his right to a trial, and if he is found guilty of one or more charges, his sentencing exposure will vary, depending on the nature of the charges on which he is found guilty. Moreover, the judge will have broad discretion to determine the appropriate sentence [...]”.

As regards the estimated sentence that the applicant could face, the US report stated firstly that, “In imposing a sentence in a federal criminal case, the judge must consult the U.S. Federal Sentencing Guidelines”. It added that the Guidelines were advisory since the judge had “the discretion to impose a sentence outside the applicable Guidelines range so long as the court states ‘with specificity,’ both at sentencing and in the written judgment and commitment order, its reason for doing so”. It additionally stated that,”. Moreover, the decision whether to sentence a person convicted of multiple counts concurrently or consecutively was at the discretion of the court. Section 3584 of Title 18 of the US Code, states, in part, that “[m]ultiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively”. The report further stressed the following:

“Prior to sentencing, a probation officer will prepare a presentence report that contains information about the defendant’s offense, his criminal history, other background information, and a calculation of the advisory sentencing range under the Sentencing Guidelines. The defendant has the right to object to the information and conclusion in the present report. Later, during the sentencing phase of the proceedings, defense counsel will be able to present to the judge various mitigating factors to consider that may result in the reduction of his sentence. Specifically, under Title 18, United States Code, Section 3553(a), in determining the particular sentence imposed on a defendant, the court shall consider: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed to promote respect for the law, punishment for the offense, deter the defendant or others from committing similar criminal conduct, and the need to protect the public; (3) the kinds of sentences available; (4) the applicable guideline range; (5) the need to provide the defendant with educational or vocational training, medical care, or other correctional treatment; (6) the need to avoid unwarranted sentence disparities; and (7) the need to provide restitution to the victims of the offense(s). In assisting the court in considering the above seven factors, defense counsel will be able to present to the court in detail any mitigating factors relating to these criteria. This would enable the defense to provide to the sentencing court information regarding Lopez Elorza’s background and circumstances, including: his family environment and relationships, the environment in which he was raised, his work history,... socioeconomic factors including educational opportunities or lack thereof, his physical and psychological well-being and any past or current treatment, prior criminal conduct, if any, and any resultant rehabilitative programs and periods of probation, incarceration, and parole, as well as Lopez Elorza’s longterm educational, vocational, and sociological goals”.

The report noted that there were many factors that contributed to the imposition of a sentence and that it was “impossible to address every conceivable permutation that could occur or every possible scenario that might arise”. However, the report indicated that according to the US Federal Sentencing Guidelines, the advisory sentencing range was “188 to 235 months incarceration, far less than the possible life sentence provided for under the statutes with which he was charged”.

Furthermore, the report stated that under section 3553(a) of Title 18 of the US Code, there was a “need to avoid unwarranted sentence disparities”. In that regard, the report stated that several of the applicant’s co-conspirators had already been sentenced in a related case before the same judge who had been assigned to the applicant’s case. One of the co-conspirators “faced a Guidelines range of 188 to 235 months and received a sentence of 72 months incarceration”, another “faced a Guidelines range of 78 to 87 months and received a sentence of 14 months incarceration” and a third had “faced a Guidelines range of 70 to 87 months and received a sentence of Time Served (approximately 12 months incarceration)”. The US report also noted that none of those defendants had entered into cooperation agreements with the government. Consequently, the sentences imposed on the applicant’s co-conspirators by the same judge who had been assigned to the applicant’s case “[could] be of value in assessing the sentence that will be imposed on him”.

The report concluded that while it was possible that any available maximum sentence could be imposed for an offence, under the circumstances present in this case, “the risk of López Elorza receiving such a sentence is low”.

As regards the second question, the US report stated that if the applicant was sentenced to a life term, he could benefit from a variety of mechanisms to seek to have the sentence invalidated or reduced or to obtain early release.

Concerning the applicant’s right to invalidate or reduce his sentence, the Government stated that the applicant would have the right under US law to lodge an appeal with the Court of Appeals, asking for a reversal of his conviction “based on an error in the proceedings”. The applicant would also be able to “ask the Court of Appeals to review the appropriateness of his sentence”. He could argue that a life sentence was “unreasonable” in the circumstances of his case. The report also stated that even after the applicant had exhausted his rights at trial and on appeal, he could under US law file “a motion in the trial court claiming that his life sentence was imposed ‘in violation of the Constitution or the laws of the United States’, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack”.

Concerning the applicant’s right to obtain early release, the report specifically stated that “since 1987, there has been no federal parole system in the United States”. The applicant, however, could ask for early release if he provided substantial assistance after his conviction and the imposition of his sentence. In addition, US law also allowed for compassionate release under section 3582 of Title 18 of the US Code. The report specifically stressed that the Bureau of Prisons could reduce the applicant’s sentence if it found that there was “an extraordinary and compelling reason to do so; for example, if a medical condition arose with López Elorza that would warrant such a modification”. Finally, the applicant could also seek executive clemency in the form of commutation (reduction) of his sentence. The report noted that in cases similar to the applicant’s, commutation of life sentences was not “a rare occurrence”. It gave as an example that of 13 July 2015, when President Obama had commuted the life sentences of “fourteen persons who had been convicted of drug related offenses”.

On 31 July 2015 the interim measures under Rule 39 were extended and the Court requested that the Government stay the applicant’s extradition to the United States while the proceedings were pending before the Court.


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

The applicant, A.S., is a British national, who was born in 1957 and resides in the United Kingdom.

In May 2005 the applicant, a police officer, was arrested and charged with what he describes as serious sexual offences. His trial took place in January 2006 and he was acquitted. He was permitted to return to police work in April of that year, although subject to certain unspecified restrictions. Moreover, the applicant states that because of his relatively uncommon name it is easy to find news reports on the Internet about the charges brought against him, his trial and his acquittal.

In light of the seriousness of the charges, information about them will be retained by the police until the date of his 100th birthday in accordance with current policy, and may be disclosed in certain circumstances as explained below. The applicant did not take any domestic legal proceedings in relation to his complaint.

The law and practice in relation to the retention and disclosure by police of personal information (arrests, charges, convictions, acquittals and so forth) which were current at the time of the applicant’s trial are referred to the Court’s judgment in M.M. v. the United Kingdom, no. 24029/07, 13 November 2012 (see §§ 33-45 regarding retention and §§ 48-60 regarding disclosure).

In summary, and as the applicant has indicated, under the ACPO Retention Guidelines, information relating to the charges brought against him as well as the fact of his acquittal will be retained on the Police National Computer until the date of his 100th birthday. The Guidelines make detailed provision for the “stepping-down” of information held by the police. Information that has been “stepped down” is accessible only to the police. None of the other bodies with which police forces share information may gain access to it. Where a person has been acquitted, the information is stepped down immediately. It would only be disclosed as part of an enhanced criminal record check if the police decided that it was relevant to the purpose of such a request and not disproportionate to do so.


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home)

Erik Møse;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The applicant was born in 1978 and lives in Kalush.

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

In 1996 V.D., the applicant’s future husband and his parents living in corporate housing (“flat A”) owned by “K.T.”, a State company (hereinafter “the K.T. company”), were offered the chance by the latter to exchange this accommodation for larger corporate housing accommodation (“flat B”), which was also owned by the same Company. Having accepted this offer, the three of them signed a written undertaking to vacate flat A when they moved to flat B.

In July 1997 the applicant married V.D. and joined him, his parents and brother to live in flat A.

In 1998 the applicant’s and V.D.’s son was born. Along with the applicant, he was registered by the local authority as a co-tenant of flat A on the grounds that both of them had become members of the original tenants’ family.

In 1999 the K.T. company transferred ownership of flat A to the municipality.

At various subsequent dates the applicant’s husband and parents-in-law moved out into flat B and registered their residence at the new address.

According to the Government, the applicant and her son also moved into flat B at the material time.

According to the applicant, she and her son remained residents in flat A, as her marriage with V.D. was falling apart and living together had become intolerable.

In August 2004 V.D. and the applicant divorced.

On 20 July 2005 the K.T. company decided to reallocate flat A to the family of R., its employee, who lived in an accommodation hall (гуртожиток).

In October 2005 the K.T. company lodged a claim in the Kalush Town Court, seeking, in particular, to evict the applicant and her son from flat A. It argued that there was no legal basis for them to remain in the property, which had been reallocated to a new tenant (R.).

On 25 July 2006 the court dismissed the claim for the eviction of the applicant and her son. It found, in particular, that the applicant had lawfully moved into flat A as a member of the original tenants’ family and so had acquired all the rights of a social tenant, within the meaning of Article 64 of the Housing Code (1983). She and her son had never promised to relocate and had remained residents of flat A at the material time. They had not been included in the occupancy voucher («ордер») of flat B and had not been provided with any other housing. They could therefore not be evicted without being provided with alternative accommodation. Moreover, in 1999 the K.T. company had transferred flat A to municipal ownership. It had therefore had no standing in 2005 to reallocate the same flat to R.’s family or to bring the present proceedings.

The K.T. company appealed, referring to Article 55 of the Housing Code.

On 14 September 2006 the Ivano-Frankivsk Regional Court of Appeal quashed the judgment of 25 July 2006 and ordered the applicant’s and her son’s eviction “without provision of any other accommodation”. It held that the Kalush Court, having properly established the relevant facts, had interpreted the law incorrectly. Notably, according to Articles 55 and 99 of the Housing Code, the applicant (together with her son) – having settled in flat A as a member of the original tenants’ family – was bound by the duty of the original tenants to vacate the flat. There was therefore no legal basis for the applicant’s and her son’s continued residency in flat A, and this fact constituted a sufficient basis for their eviction without the provision of any other housing. Furthermore, the Kalush Court had erred in respect of the K.T. company’s legal standing. Under Article 55 of the Housing Code, notwithstanding the transfer of the property to the municipality, the K.T. company had retained the right to allocate the flat to one of its employees. It had therefore had legitimate standing to seek the vacation of the flat by its previous tenants.

The applicant lodged a request for leave to appeal in cassation. She noted that she and her minor son had been lawful and registered residents of the disputed flat for eight years. During this period, she had dutifully engaged in the payment of all expenses relating to her occupancy of the flat. Unlike her former husband and in-laws, she and her son had not given any promises to vacate flat A and had not acquired any rights to live in flat B with them. Accordingly, her and her son’s eviction would effectively render them homeless.

On 16 November 2006 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal in cassation, ruling that her submissions did not contain any argument creating an appearance that there could be a problem under applicable law.

On 15 December 2006 the applicant requested the Kalush Court to postpone her eviction, in particular, because she had no other accommodation and her salary was too small for her to rent private-sector housing.

On 21 December 2006, while the applicant’s request was pending consideration, the State bailiffs arrived at flat A and had the applicant vacate it and surrender the keys.

On 25 December 2006 the local registration authority annulled the applicant’s and her son’s registration as residents of flat A.

On 29 December 2006 the Kalush Court allowed the applicant’s request for her and her son’s eviction to be postponed; it postponed their eviction for three months, referring to her indigent status and the interests of a minor child.

According to the applicant, after her eviction she had to seek emergency refuge in the home of a colleague and subsequently rented odd accommodations at various places. She submitted testimony given by various acquaintances and copies of some fixed-term lease agreements.

The Government contested this account, insisting that the lease agreements were fictitious and the applicant had de facto lived in flat B permanently since 2004 without proper registration.


No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

András Sajó;Iulia Motoc;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in 1957 and lives in Góis.

At the relevant time, the applicant was a chief corporal in the National Republican Guard (Guarda Nacional Republicana), working at the Góis territorial post.

On 7 November 2009 the applicant sent an email to the General Inspectorate of Internal Administration (Inspecção-Geral da Administração Interna) on the subject “Suspected misuse of money”, in which he made reference to an alleged misuse of money by Commander M.C. of the Arganil territorial post in accordance with what he had heard in a conversation with colleagues at the Arganil territorial post. He asked the General Inspectorate to investigate the alleged facts, stating as follows:

“In the month of December 2008 the Coimbra [National Republican Guard] Territorial Group distributed money to the territorial posts of its area of command ... for the Christmas dinner ...

The only members of the military [in Arganil] who attended the dinner were the Commander of the post and Corporal M.; the total amount of money that had been given to the military from the [territorial] post [to pay for the dinner] was paid to the restaurant’s manager in exchange for a receipt ... it seems that the Commander has since then been going with his family to the mentioned restaurant, where the cost of his meals is deducted from the money that was not spent [on the above dinner] ... Note: I have just become aware of this matter through rumours within the military of the mentioned post, who claim that they have not reported the situation for fear of reprisals, and because of that [fear of reprisals] I ask you for secrecy during the investigation because I am also a member of the military ...”

On an unknown date the General Inspectorate of Internal Administration forwarded the email to the General Command of the National Republican Guard (Comando Geral da Guarda Nacional Republicana) and to the Lousã public prosecutor’s office (Ministério Público).

On an unknown date the Lousã public prosecutor’s office opened an investigation into the applicant’s allegations. On 28 February 2010 the Lousã public prosecutor’s office discontinued the proceedings on the grounds that, following investigations by the criminal investigation police (Policía Judiciária), it had found no evidence of the criminal offence denounced by the applicant.

The General Inspectorate of Internal Administration also conducted an inquiry into the applicant’s allegations. On 21 June 2010 the inquiry was discontinued.

The General Command of the National Republican Guard also started an internal inquiry into the allegations on 4 December 2009. On 23 December 2009 Commander M.C. was heard in that respect. He then became aware of the email of 7 November 2009 and its content. On 9 February 2010 the inquiry was converted into disciplinary proceedings against Commander M.C. at the request of the official in charge of the inquiry on the grounds that the management of the cafeteria of the Arganil territorial post showed signs of lack of transparency which required further investigation.

On 30 July 2010 the disciplinary proceedings against Commander M.C. were discontinued on the grounds that there was insufficient evidence to take disciplinary action. The decision to discontinue the disciplinary proceedings also took into account the decision of the Lousã public prosecutor’s office to discontinue the criminal proceedings against Commander M.C.

On 22 April 2010 Commander M.C. lodged a criminal complaint before the Lousã public prosecutor’s office, accusing the applicant of defamation. He alleged that the applicant’s email had disseminated injurious statements about him.

On 7 July 2011 the public prosecutor brought charges (acusação) against the applicant for aggravated defamation on the grounds that the statements made in his email called into question Commander M.C.’s honesty, honour and professional reputation, which the applicant had intentionally attacked.

On 21 September 2011 Commander M.C. lodged a claim for damages against the applicant in the amount of 5,000 euros (EUR).

In a judgment of 17 January 2012 the Lousã Criminal Court convicted the applicant of aggravated defamation and sentenced him to eighty day-fines, totalling EUR 720 euros. The applicant was also ordered to pay EUR 1,000 in damages to Commander M.C. The Court described its findings of fact and the manner in which it had assessed the evidence, and held as follows:

“... since the existence of such a rumor has not been proved in any way, the court is fully convinced that the defendant’s intention was to undermine the honour of the offended party, once he knew that this was just a rumour and that therefore he was making an allegation that was not true.

The allegation made in the defendant’s complaint, by its content, put into question the offended party’s honesty, honour and professional reputation as commander of a territorial post of the National Republican Guard – which was well known to the defendant.

The defendant has therefore acted in a free, voluntary and conscious way, with the achieved aim of attacking the offended party’s honour and personal and professional reputation.

The disclosure of irregular situations has to be seen as a duty (as the performance of an obligation) when it falls within the competence and responsibilities of the whistle-blower and when it does not go beyond the facts which were effectively observed. [Whistle-blowing] cannot be used as a basis to cast suspicion which cannot be supported by any factual element.

In the instant case, the defendant accuses the offended party of facts which are objectively dishonorable without having any evidence to substantiate them. Indeed, by submitting that the offended party and his family were using the existing credit to have dinner at the mentioned restaurant, the defendant knew that he was accusing the offended party of a dishonorable deed, all the more because he knew that the offended party was in charge of the National Republican Guard’s Arganil territorial post. He further knew that the allegation was inconsistent with the truth and that he could easily have clarified its authenticity with the restaurant owner.

Through such conduct, the defendant acted of his own free will and in the knowledge that ... [his actions] were not allowed.”

On an unknown date the applicant appealed against the judgment to the Coimbra Court of Appeal. In particular, he contested the established facts as, in his opinion, he had not acted with the intention of attacking Commander M.C.’s honour and reputation.

On 19 September 2012 the Coimbra Court of Appeal upheld the first-instance court’s decision. It considered that there were no reasons to change the facts established by the first-instance court and, as such, no reasons to reach a different conclusion with regard to the applicant’s guilt and conviction.

On 3 August 2011 the General Command of the National Republican Guard instituted disciplinary proceedings against the applicant.

On 20 February 2013 the official in charge of the inquiry within the disciplinary proceedings against the applicant submitted a final report in which he concluded that the applicant had breached his duties. The relevant passage of the report reads as follows:

“... the defendant breached the duty of loyalty... as being on duty and being part of the Góis Territorial Post in the quality of Deputy Commander of the Post, he did not inform his hierarchical superiors, in clear disregard of the functional hierarchy principles, of the acts allegedly committed ...”

In the report it was also taken into account that the applicant’s allegations had been investigated by different authorities, all of which had discontinued their investigations. Additionally, it had regard to the fact that the applicant had been convicted by the domestic courts in the criminal proceedings against him. The report further analysed the existence of a fine which Commander M.C. had imposed on the applicant before the latter had sent the impugned email. However, the official responsible for the report considered that fact to be innocuous and irrelevant.

On 27 March 2013, at the request of the official responsible for the disciplinary proceedings, the General Command imposed on the applicant a disciplinary sanction consisting of suspension from duty for six days, its enforcement being suspended for a period of twelve months.

According to the material submitted in the case file, it seems that the applicant did not lodge an appeal against the disciplinary sanction with the Minister of Home Affairs.


CASE OF TRAPEZNIKOVA AND OTHERS v. RUSSIA

Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect)

Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicants, Ms Natalya Borisovna Trapeznikova, Ms Yuliya Sergeyevna Trapeznikova and Ms Anastasiya Sergeyevna Antonova, are Russian nationals who were born in 1969, 1985 and 2004 respectively and live in Novosibirsk. The applicants are members of the family of Mr Sergei Antonov.

On 1 June 2006 Mr Antonov started serving a three-year prison sentence in correctional colony no. IK-8 in the Novosibirsk Region. When examined by a doctor on 5 June 2006, he stated that following a craniocerebral injury he had been under psychiatric supervision since 1996 and that he had been suffering from drug addiction since 2004.

On 4 May 2006 Mr Antonov had swallowed several metal objects, including a spoon, and had cut himself on his stomach. On 5 May 2006 he had been taken to hospital and had been treated until 19 May 2006.

On 20 July 2007 Mr Antonov was transferred to disciplinary cell no. 14 for smoking outside the designated area. On 22 July 2007 he complained of a headache and of feeling ill. At 7.10 p.m. Doctor M. examined Mr Antonov, noted that he had high blood pressure and gave him an injection. On the doctor’s recommendation, Mr Antonov was transferred to another cell in the disciplinary section, where he was detained alone. As requested by the doctor, he was provided with bed linen. Doctor M. examined Mr Antonov again at 9.25 p.m. and noted that his condition had improved. At 9.40 p.m. the cell where Mr Antonov was held was locked and the alarm system was turned on. The guards in charge of the disciplinary cells observed Mr Antonov at 1.06 a.m. on 23 July 2007 through a peephole in the cell door. He was lying on his bed. During the next round of visits at 1.30 a.m. the guards saw Mr Antonov, hanging. They reported this to the duty officer. After entering the cell, the officers discovered Mr Antonov hanging by a ligature fashioned out of a bed sheet. They cut the rope and put his body on the floor. Doctor M. examined Mr Antonov’s body and noted no injuries apart from the ligature mark on his neck.

According to the death certificate, Mr Antonov died on 22 July 2007.

According to an autopsy conducted on 24 July 2007, the cause of death was asphyxiation by hanging. In addition to the ligature mark on his neck, the forensic expert Ch. documented bruises on the deceased’s head behind the left ear, at the corner of his right eye, on the right cheek and on the right side of the lower jaw. The expert decided against conducting a histological examination given that he had no doubts about the cause of Mr Antonov’s death.

On an unspecified date the acting head of the correctional colony conducted an internal inquiry. He established that despite Mr Antonov’s condition the administration of the correctional colony had not provided him with any psychiatric supervision or treatment. It had been obvious from Mr Antonov’s case file that he had had suicidal tendencies.

On 28 July 2007 the deputy city prosecutor K. refused to institute a criminal investigation into Mr Antonov’s death. The investigator based his decision on the reports filed by Doctor M. and the officers who had discovered Mr Antonov’s body, the report on the inspection of the cell where Mr Antonov had been found and on his body, and on his medical file. He also questioned prisoners Bel., F. and Ber. who had been detained with the deceased in cell no. 14, where he had been held prior to his removal to a cell where he was found. They submitted that they had not had any conflicts with him.

On 31 July 2007 the first applicant asked the regional prosecutor to institute a criminal investigation into Mr Antonov’s death. Referring to the numerous injuries on Mr Antonov’s body, she challenged the official version that he had committed suicide by hanging himself.

On 22 August 2007 the city prosecutor P. quashed the decision of 28 July 2007 and ordered a further inquiry into the circumstances of Mr Antonov’s death. Referring to the first applicant’s complaint, he considered it necessary to determine the existence and origin of the injuries on Mr Antonov’s body.

On 28 August 2007 deputy city prosecutor K. refused to open a criminal investigation into Mr Antonov’s death. The prosecutor again questioned F., Ber. and Bel., who had been detained with Mr Antonov in cell no. 14 on 22 July 2007. They submitted that it had been very stuffy in the cell and that at around 4 p.m. Mr Antonov had complained of a headache. He had been sitting at the table, had stood up and had then fallen down, hitting his head against the table. They had not noticed any injuries on Mr Antonov. The prosecutor concluded that Mr Antonov had committed suicide by hanging himself.

On 13 September 2007 the first applicant appealed against the decision of 28 August 2007.

On 23 September 2007 the deputy regional prosecutor A. quashed the decision of 28 August 2007 and ordered a further inquiry. He noted that it was necessary to obtain information concerning Mr Antonov’s health, to determine whether the medical assistance provided to him had been sufficient and prompt and to establish whether it had been known that Mr Antonov had intended to commit suicide. The prosecutor also ordered the noose used by Mr Antonov to be found and for it to be examined. Lastly, the prosecutor noted that the inquiry had failed to take into account the injuries on Mr Antonov’s head and that it was necessary to determine their origin and whether they had had any connection with his death.

On 18 October 2007 investigator Fom. refused to open a criminal investigation into Mr Antonov’s death, repeating verbatim the findings of the previous inquiry.

On 29 October 2008 a supervising prosecutor quashed the decision of 18 October 2007 as premature and unsubstantiated.

On 8 November 2007 investigator Fom. again refused to open a criminal investigation into Mr Antonov’s death. In addition to the earlier findings the investigator examined Mr Antonov’s medical file. He again questioned Doctor M. about the state of Mr Antonov’s health on 22 July 2007. The doctor explained that following the treatment he had been given Mr Antonov had been in a satisfactory condition and that it had been possible to leave him alone in a cell. The investigator also questioned the forensic medical expert Ch., who had conducted the autopsy. The expert considered that the injuries on Mr Antonov’s head could have been due to convulsions which had caused an impact with blunt, solid objects.

On 12 November 2007 the supervising prosecutor dismissed the first applicant’s complaint against the decision of 8 November 2007.

On 18 January 2008 the first deputy head of the regional investigative committee quashed the decision of 8 November 2007 and ordered a further inquiry, noting that the prosecutor’s instructions of 23 September 2007 had not been followed.

On 1 February 2008 investigator Am. refused to institute criminal proceedings. Relying on the materials of the previous inquiries, the investigator confirmed the earlier finding that Mr Antonov had committed suicide. The investigator could not establish the cause and time of the injuries on Mr Antonov’s body, but he noted that they were not related to his death.

On 16 September 2008 the head of the regional investigative committee quashed the decision of 1 February 2008.

On 30 September 2008 investigator V. again refused to open a criminal investigation, relying on the earlier findings. On 13 October 2008 that decision was quashed on the grounds of the incompleteness of the inquiry.

The investigating authorities subsequently refused to open a criminal investigation into Mr Antonov’s death on 25 October 2008 and 2 January 2009. On 8 December 2008 and 12 January 2009 respectively the supervising prosecutor quashed those decisions and ordered a further inquiry into the matter, noting each time that the inquiry had been incomplete and the findings contradictory. In particular, on 8 December 2008, the regional prosecutor noted that the reports of 23 July 2007 and 23 October 2008 concerning the inspection of the cell where Mr Antonov had been found had given different and mutually contradictory descriptions of the layout of the cell.

On an unspecified date a senior investigator, S., started another inquiry in response to the first applicant’s complaint. The investigator questioned the correctional colony officers who had been on duty on 22 July to 23 July 2007 and had seen or observed Mr Antonov on those days. She also saw Ozh., the prison psychiatrist, and a drug counsellor, Kot. Ozh. stated that he had never seen Mr Antonov or prescribed him any psychiatric supervision or treatment. After studying Mr Antonov’s medical file, the investigator established that he had a history of drug addiction, one instance of self-harming and had undergone treatment in a psychiatric institution prior to his incarceration. The investigator noted that the cell where Mr Antonov had been found dead had been mistakenly indicated in the inquiry case file as no. 38 and conducted an examination of cell no. 00. On 11 February 2009 the investigator talked to the forensic expert Ch., who submitted that his superior had advised him against making any written statements about the autopsy. If necessary, the investigator could question him as a witness within the framework of the criminal proceedings. On 13 February 2009 S. concluded that Mr Antonov had committed suicide and refused to open a criminal investigation into his death. She also considered that the injuries found on Mr Antonov’s head had resulted from convulsions which had caused his body to repeatedly strike against a metal grill.

The senior investigator’s decision was subjected to judicial review at two levels of jurisdiction. On 11 March and 27 April 2009 the Dzerzhinskiy District Court of Novosibirsk and the Novosibirsk Regional Court respectively upheld the investigator’s findings on Mr Antonov’s death.


Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);No violation of Article 5 - Right to liberty and security (Article 5-2 - Information on reasons for arrest;Prompt information);No violation of Article 5 - Right to liberty and security (Article 5-2 - Information on reasons for arrest;Prompt information);No violation of Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens-{general} (Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens)

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

The applicants, A.H. (“the first applicant”) and J.K. (“the second applicant”), who are wife and husband, are Syrian nationals of Kurdish origin and were born in Syria in 1985 and 1979 respectively. They live in Paphos.

The second applicant left Syria on 25 August 2004 and entered Cyprus illegally on 9 September 2004 after travelling from Turkey.

He applied for asylum the next day.

The first applicant left Syria at a later date in order to join the second applicant in Cyprus as they had been engaged to be married. She entered Cyprus illegally on 29 November 2007 after travelling from Turkey.

The applicants married in Cyprus on 4 December 2007 and the first applicant applied for asylum on 6 February 2008.

The applicants’ asylum applications were examined jointly by the Asylum Service.

The Asylum Service held an interview with the applicants on 3 March 2009.

Their applications were dismissed on 26 March 2009 on the ground that they did not fulfil the requirements of the Refugee Law of 2000-2007 (as amended up to 2007), in that they had not shown that they 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 noted that there had been contradictions in the account of facts given by the second applicant with regard to his participation in a demonstration concerning the Qamishli events which raised doubts as to his credibility. Furthermore, it considered that there was no possibility of the second applicant being subjected to inhuman or degrading treatment if returned to Syria. Consequently, it held that the asylum applications had not been substantiated.

On 24 April 2009 the applicants lodged an appeal with the Reviewing Authority against the Asylum Service’s decision.

On 26 March 2010 the Asylum Service’s decision was upheld and the appeal dismissed.

The Reviewing Authority underlined the contradictions and inconsistencies in the second applicant’s claims. It pointed out that he had not given the same reasons for leaving Syria in his written application and in his interview. In the former he had stated that he had come to Cyprus to find work whereas in his interview he claimed that he had left Syria because he feared arrest following his participation in a demonstration. Further, the Reviewing Authority gave weight to the fact that the second applicant had stated that following the demonstration he had allegedly participated in, nothing had actually happened to him and that he had not been sought by the authorities. In his asylum application he had stated that he had not been arrested, detained, harassed, persecuted or wanted by the Syrian authorities. He had also been able to leave Syria legally. The second applicant’s claims were therefore unsubstantiated. No issue arose in respect of the first applicant as she had stated that she had left Syria in order to join the second applicant and marry him and had admitted that she did not face any problems in Syria.

The Reviewing Authority concluded by observing that the applicants had not established that they were at risk of persecution if they returned to Syria. Nor did they satisfy the conditions for temporary residence on humanitarian grounds.

On 15 May 2010 the second applicant brought a “recourse” (judicial review proceedings) before the Supreme Court (first-instance revisional jurisdiction) under Article 146 of the Constitution challenging the decision of the Reviewing Authority. A subsequent application to amend the recourse by adding the first applicant as a complainant was withdrawn as the time-limit of seventy-five days had in the meantime expired (see paragraph 89 below).

On 14 June 2010 the applicants filed the present applications with the Court. The second applicant, in his application form stated that on 13 March 2004 he had taken part in a demonstration in his village in Derit. The purpose of the demonstration was to go to Qamishli to show solidarity with the Kurdish demonstrators following the events of 12 March 2004. Following the intervention of the authorities this had not been possible. The second applicant stated that the police had attacked the demonstrators killing two persons. After going into hiding for a month in a neighbouring village, the second applicant was arrested in Qamishli. He was detained for fourteen days and subjected to torture. He was subsequently transferred to the central prison of Damascus where he was detained for two and a half months. After bribing the authorities he was released on the condition that he would present himself to the authorities in Damascus every fifteen days. He did not do so, however, out of fear to be detained and tortured again.

On 8 October 2013 the Supreme Court dismissed the second applicant’s recourse. It upheld the Reviewing Authority’s decision of 26 March 2010 after examining all the grounds of annulment put forward by the second applicant. The court noted, inter alia, that the main ground for which the second applicant’s asylum claim had not been accepted was the lack of plausibility of his principal allegations and the existence of significant contradictions and omissions which had undermined his credibility. The second applicant had not substantiated that he was at risk of persecution if returned to Syria because he had allegedly participated in a demonstration. Furthermore, the fact that the second applicant was of Kurdish origin was not sufficient in itself to justify the granting of refugee status. The Supreme Court also held that new grounds and allegations concerning his detention, arrest and ill-treatment following the events could not be taken into account. Its jurisdiction under Article 146 of the Constitution was limited to reviewing his claim as it had been made before the Asylum Service and the Reviewing Authority (see paragraph 89 below). Grounds for annulment that had not been put before the Reviewing Authority could not be examined for the first time by the court.

No appeal was lodged against the first instance judgment.

In the meantime, on 17 May 2010 the Yekiti Party and other Kurds from Syria organised a demonstration in Nicosia, near the Representation of the European Commission, the Ministry of Labour and Social Insurance and the Government Printing Office. They were protesting against the restrictive policies of the Cypriot Asylum Service in granting international protection. About 150 Kurds from Syria, including the applicants, remained in the area around the clock, having set up about eighty tents on the pavement. According to the Government, the encampment conditions were unsanitary and protesters were obstructing road and pedestrian traffic. The encampment had become a hazard to public health and created a public nuisance. The protesters performed their daily chores on the pavement, including cooking and washing in unsanitary conditions. The sewage pits had overflown, causing a nuisance and offensive odours. The public lavatories were dirty and the rubbish bins of the Government buildings were being used and, as a result, were continuously overflowing. Furthermore, the protesters were unlawfully obtaining electricity from the Printing Office. Members of the public who lived or worked in the area had complained to the authorities. The Government submitted that efforts had been made by the authorities to persuade the protesters to leave, but to no avail. As a result, the authorities had decided to take action to remove the protesters from the area.

On 28 May 2010 instructions were given by the Minister of the Interior to proceed with the deportation of Syrian-Kurdish failed asylum seekers in the normal way.

On 31 May 2010 the Minister requested the Chief of Police, among others, to take action in order to implement his instructions. Further, he endorsed suggestions made by the competent authorities that deportation and detention orders be issued against Syrian-Kurdish failed asylum seekers who had passports and did not have Ajanib or Maktoumeen status and that the police execute the orders starting with the ones issued against the leaders of the protesters. The police were also directed to take into account the policy guidelines and to use discreet methods of arrest.

According to the Government, letters were sent by the Civil Registry and Migration Department to a number of failed Syrian-Kurdish asylum-seekers informing them that they had to make arrangements to leave Cyprus in view of their asylum applications being turned down (see M.A. v. Cyprus, no. 41872/10, § 32, ECHR 2013 (extracts)). They submitted a copy of such a letter which was dated 1 June 2010 and addressed to the applicants.

From documents submitted by the Government it appears that from 31 May until 7 June 2010 the authorities kept the area under surveillance and kept a record of the protesters’ daily activities and of all comings and goings. In the relevant records it is noted that invariably, between 1.30 a.m. and 5.30 a.m., things were, in general, quiet, and everyone was sleeping apart from those keeping guard. During the above-mentioned period a large-scale operation was organised by the Police Emergency Response Unit, “ERU” (“ΜΜΑΔ”), and a number of other authorities, including the Police Aliens and Immigration Unit, for the removal of the protesters and their transfer to the ERU headquarters for the purpose of ascertaining their status on a case-by-case basis.

In the meantime, between 28 May 2010 and 2 June 2010 orders for the detention and deportation of forty-five failed asylum seekers were issued following background checks. Letters were sent by the District Aliens and Immigration Branch of the Nicosia Police to the Director of the Aliens and Immigration Service and the Ministry of Justice and Public Order, containing a short paragraph with information as to the immigration status of each person. This information included the date of rejection of the asylum application or the closure of the asylum file by the Asylum Service, the date of dismissal of the appeal by the Reviewing Authority, where lodged, and the date some of those concerned had been included on the authorities’ “stop list” (a register of individuals whose entry into and exit from Cyprus is banned or subject to monitoring). The letters recommended the issuance of deportation and detention orders. The Government submitted copies of two such letters with information concerning thirteen people.

On 2 June 2010, letters were also prepared in English by the Civil Registry and Migration Department informing those concerned of the decision to detain and deport them. The Government submitted that, at the time, the authorities did not know whether those individuals were among the protesters.

The removal operation was carried out on 11 June 2010, between approximately 3 a.m. and 5 a.m. with the participation of about 250 officers from the Police Aliens and Immigration Unit, the ERU, the Nicosia District Police Division, the Traffic Division, the Fire Service and the Office for Combating Discrimination of the Cyprus Police Headquarters. The protesters, including the applicants, were led to buses, apparently without any reaction or resistance on their part. At 3.22 a.m. the mini buses carrying the male protesters left. The women, children and babies followed at 3.35 a.m. A total of 149 people were located at the place of protest and were transferred to the ERU headquarters: eighty-seven men, twenty-two women and forty children. Upon arrival, registration took place and the status of each person was examined using computers which had been specially installed the day before. The Government submitted that during this period the protesters had not been handcuffed or put in cells but had been assembled in rooms and given food and drink. It appears from the documents submitted by the Government that by 6.40 a.m. the identification of approximately half of the group had been completed and that the whole operation had ended by 4.30 p.m.

It was ascertained that seventy-six of the adults, along with their thirty children, were in the Republic unlawfully. Their asylum applications had either been dismissed or their files closed for failure to attend interviews. Those who had appealed to the Reviewing Authority had had their appeals dismissed. Some final decisions dated back to 2006. A number of people had also been included on the authorities’ “stop list”. Deportation orders had already been issued for twenty-three of them (see paragraph 31 above).

The authorities deported twenty-two people on the same day at around 6.30 p.m. (nineteen adults and three children). Forty-four people (forty-two men and two women), including the applicants, were arrested. The persons against whom deportation and detention orders had been issued on 2 June 2010 were detained under these orders. The remaining persons, including the applicants, were charged with the criminal offence of unlawful stay in the Republic under section 19(2) of the Aliens and Immigration Law (see paragraph 86 below). They were all arrested and transferred to various detention centres in Cyprus. The applicants were placed in the immigration detention facilities in the Nicosia Central Prisons (Blocks 9 and 10 respectively). Further, on humanitarian grounds, thirteen women whose husbands were detained pending deportation and who had a total of twenty-seven children between them were not arrested themselves.

According to the Government the applicants and their co-detainees were informed orally that they had been arrested and detained on the basis that they had been staying in the Republic unlawfully and were thus “prohibited immigrants” (see paragraph 84 below). They were also informed of their rights pursuant to the Rights of Persons Arrested and Detained Law 2005 (Law 163(I)/2005) (see paragraph 113 below) and, in particular, of their right to contact by phone, in person and in private, a lawyer of their own choice. The applicants submitted that they had not been informed of the reasons for their arrest and detention on that date.

On the same day letters were sent by the District Aliens and Immigration Branch of the Nicosia Police to the Director of the Aliens and Immigration Service and the Ministry of Justice and Public Order, recommending the issuance of deportation and detention orders. The letters contained a short paragraph in respect of each person with information as to his or her immigration status. This included the date of rejection of the asylum application or the closure of the asylum file by the Asylum Service and the date of dismissal of the appeal by the Reviewing Authority where lodged. Some letters also referred to the date the asylum application had been lodged and the date some of the individuals concerned had been included on the authorities’ “stop list”. The Government submitted copies of letters concerning thirty-seven people (most of these letters referred to groups of people).

Deportation and detention orders were also issued in Greek on the same day in respect of the remaining fifty-three people detained (see paragraph 34 above), including the applicants, pursuant to section 14 (6) of the Aliens and Immigration Law on the ground that they were “prohibited immigrants” within the meaning of section 6(1)(k) of that Law. These were couched in identical terms. In respect of two people the orders also mentioned sections 6(1)(i) and 6(1)(l) of the Law.

Subsequently, on the same date, letters were prepared in English by the Civil Registry and Migration Department informing all the detainees individually, including the applicants, of the decision to detain and deport them. The Government submitted thirty-seven copies of these letters, including those addressed to the applicants, the text of which was virtually identical, a standard template having been used.

The text of the letter reads as follows:

“You are hereby informed that you are an illegal immigrant by virtue of paragraph (k). section 1, Article 6 of the Aliens and Immigration law, Chapter 105, as amended until 2009, because you of illegal entry [sic]

Consequently your temporary residence permit/migration permit has been revoked and I have proceeded with the issue of deportation orders and detention orders dated 11th June 2010 against you.

You have the right to be represented before me, or before any other Authority of the Republic and express possible objections against your deportation and seek the services of an interpreter.”

The only differences was that some letters referred to illegal stay rather than illegal entry and that the letters issued earlier referred to 2 June 2010 as the date of issuance of the deportation and detention orders (see paragraph 32 above).

On the copy of the letters to the applicants provided by the Government, there is a handwritten signed note by a police officer stating that the letters were served on the applicants on 18 June 2010 but that they refused to receive and sign for them. The other letters had a similar note or stamp on them with the same date, stating that the person concerned had refused to sign for and/or receive the letter. In a letter dated 7 September 2010 the Government stated that the applicants had been served on 18 June 2010. In their subsequent observations the Government submitted, however, that this was the second attempt to serve the letters, the first attempt having been made on 11 June 2010, that is, the day of the arrest.

The applicants submitted that they had never refused to receive any kind of information in writing. They claimed that it had only been on 14 June 2010 that they had been informed orally that they would be deported to Syria on the same day but that the deportation and detention orders were not served on them on that date or subsequently. They submitted that they had eventually been informed by their lawyer, following the receipt of information submitted by the Government to the Court in the context of the application of Rule 39 of the Rules of Court, that deportation and detention orders had been issued against them.

From the documents submitted by the Government, it appears that at least another fourteen of the detainees were to be deported on 14 June 2010 (this figure is stated in documents submitted by the Government with no further details).

On Saturday, 12 June 2010, the applicants, along with forty-two other persons 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 had the opportunity to receive and examine all the documents pertaining 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.

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 cases, including the present ones. Rule 39 was lifted with regard to the thirty-nine remaining cases (for further details see M.A., cited above, § 58).

Rule 39 was subsequently lifted with regard to three cases, but remained in force in the present two applications.

On 24 January 2011 the applicants filed habeas corpus applications with the Supreme Court claiming that their continued detention from 11 June 2010 had violated Article 15 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Members states for returning illegally staying third-country nationals, “the EU Returns Directive”. The applicants, relying on the Court’s judgment in Chahal v. the United Kingdom, 15 November 1996, (Reports of Judgments and Decisions 1996V) and the Commission’s report in Samie Ali v. Switzerland (no. 24881/94, Commission’s report of 26 February 1997) also claimed that their detention had breached Article 11 (2) of the Constitution and Article 5 § 1 of the Convention (see M.A., § 50, cited above).

The Supreme Court set the applications for directions for 31 January 2011. On that date the Government asked for a few days so they could file an objection to the applications. They were given until 4 February 2011 and the habeas corpus applications were set for hearing on 9 February 2011. The parties were also requested to prepare a short note with the issues they would address and to produce it on the day of the hearing.

The Government filed their objection on 4 February 2011.

On 10 February 2011 the parties appeared before the court and submitted their written addresses. The hearing of the applications was held. Judgment was reserved on the same day.

On 23 February 2011 the Supreme Court dismissed the applications. With regard to the preliminary issues raised, the Supreme Court first of all held that it had the competence to examine the applications as it was called upon to examine the lawfulness of the applicants’ protracted detention and within the context of a habeas corpus application, examine the conformity of their detention with Article 15 (3) of the EU Returns Directive and Article 11 (2) not the lawfulness of the deportation and detention orders. The applicants were not estopped from bringing a habeas corpus application just because they had not challenged the deportation and detention orders issued against them. Even if the lawfulness of the detention was assumed, detention for the purpose of deportation could not be indefinite and the detainee left without the right to seek his release. The Supreme Court also rejected the argument that the applicants were estopped from bringing the application because their continued detention had been brought about by their own action, that is, by their application to the Strasbourg Court for an interim measure suspending their deportation.

The Supreme Court then examined the substance of the applications. It noted that the EU Returns Directive had direct effect in the domestic law, as the period for transposition had expired and the Directive had not been transposed. It could therefore be relied on in the proceedings. However, it went on to hold that the six-month period provided for in the Directive had not yet started to run. The applicants had been arrested on 11 June 2010 with a view to their deportation but had not been deported by the Government in view of the application by the Court on 14 June 2010 of Rule 39 and the issuing of an interim measure suspending their deportation. Consequently, the authorities had not been able to deport them even though, as they stated before the court, they had been ready to do so from 18 June 2010. As the applicants themselves had taken steps to suspend their deportation, the ensuing time could not be held against the Government and could not be taken into account for the purposes of Article 15 (5) and (6) of the Directive. The six-month period would start to run from the moment that the interim measure had been lifted. From that moment onwards the Government had been under an obligation in accordance with Article 15 (1) of the Directive to proceed with the applicants’ deportation with due diligence. The situation would have been different if the deportation had not been effected owing to delays attributable to the authorities.

In so far as the applicants’ complaints under Article 11 (2) of the Constitution and Article 5 § 1 of the Convention were concerned, the Supreme Court distinguished the applicants’ situation from those in the cases they relied on and in which responsibility for the protracted detention lay with the authorities. Further, it held that it had not been shown that the continued detention of the applicants had been arbitrary, abusive and contrary to the Court’s case-law (see paragraph 48 above).

The applicants lodged two separate appeals with the Supreme Court (appellate jurisdiction) on 17 March 2011. Another two appeals were lodged at the same time by M.A. (see M.A., §§ 54, cited above) and another Syrian of Kurdish origin (see K.F. v. Cyprus, no. 41858/10, § 62, 21 July 2015).

The applicants sent a letter dated 13 April 2011 to the Registrar of the Supreme Court requesting that the appeals be fixed for pre-trial within a “short period of time” and then for hearing.

The applicants were released on 20 May 2011 following revocation of the deportation and detention orders of 11 June 2010 by the Permanent Secretary of the Ministry of the Interior. They were informed on 17 May 2011 by a letter dated 10 May 2011 that they would be issued with a special residence/employment permit under the Aliens and Immigration Law and the relevant Regulations for a period of six months from the date of their release with a possibility of further renewal. However, prior to the issuance of this permit they were obliged to sign a contract of employment with an employer indicated and approved by the Department of Labour. The applicants were also asked to report to the police once a month.

On 15 July 2011 the Supreme Court informed the applicants that one of the other appeals that had been filed at the same time as theirs was set down for hearing for 12 September 2011.

On 7 September 2011 the applicants’ lawyer filed an application for joining the four appeals (see paragraph 55 above).

On 12 September 2011 the Supreme Court issued an order joining the appeals and also instructed the parties to file their written addresses. The applicants submitted that on this date the court was informed that they had been released.

On 8 November 2011 the applicants filed an application requesting an extension of twenty days for filing their written addresses. These were filed on 28 November 2011.

On 17 March 2012 the appeals were set for directions.

On 18 July 2012 the Government filed an application requesting the parties to appear before the Supreme Court and requested a forty-day extension for filing their written address. This was granted and the appeals were set down for hearing on 11 September 2012.

In the meantime, the Government filed their written address on 28 August 2012.

On 11 September 2012 the hearing was held and judgment was reserved.

The appeals were dismissed on 15 October 2012. The Supreme Court held that as the applicants had, in the meantime, been released, the application was without object (see M.A., cited above, § 55).

The applicants submitted that following their release on 20 May 2011 the authorities did not grant them residence permits. The applicants were not able to fulfil the terms and conditions imposed by the Ministry of Interior in order to have residence permits. Their issuing was subject to finding an employer approved by the Department of Labour and to present to the immigration authorities an approved contract of employment. The applicants could not find and/or were not referred by the Department of Labour to an approved employer despite their numerous attempts to that effect. Their situation was explained to the competent authorities in a letter dated 28 July 2011 to which they never received a reply. As a result they were not able to regularise their stay in Cyprus and had no access to any rights apart from a tolerated residence status.

On 24 November 2012, at 9.45 a.m., the applicants, along with another Syrian couple who had three children, were stopped at Paphos airport while they attempted to take a flight to Bergamo-Milano in Italy by using false Bulgarian passports. During passport control, the police officer in charge suspected that their passports were false because the colour of the page containing the biometric data differed to that used in genuine passports. The applicants were then requested to give a sample of their signatures. These did not correspond to those in the passports they had presented. After having being questioned by the officer they admitted that the passports were not their own and revealed their true personal details. An immigration officer carried out a search of their immigration status and ascertained that they were failed asylum seekers as their appeal to the Reviewing Authority been dismissed and they did not have valid residence permits.

According to the statement of the police officer taken on the same date, the applicants were arrested for committing the flagrant offences of personation and unlawful stay in the Republic (see paragraphs 86 and 114 below). The second applicant was arrested at 1 p.m. and the first applicant at 1.05 pm. In his statement the police officer stated that he had drawn their attention to the law and that the second applicant replied “I made a mistake”. The officer also noted that their legal rights had been explained to them in the Arabic language by an interpreter. The other couple was also arrested and the social welfare office was contacted concerning the children. Around 2 p.m. they were all taken to the Paphos Criminal Investigation Department (CID).

The second applicant along with the other man, was then arrested by virtue of an arrest warrant issued by the District Court of Paphos at 2.20 pm the same day pursuant to section 18 of Criminal Procedure Law (Cap. 155; see paragraph 116 below) on the ground that there had been reasonable suspicion based on evidence that he had been involved in a conspiracy to commit a felony, forgery, circulation of a forged document, personation and unlawful stay in the Republic between 15 September 2009 and 14 November 2012. There is a handwritten signed note on the warrant by the arresting police officer stating that he arrested the second applicant at 2.40 p.m. at Paphos CID and that with the assistance of an interpreter he had informed him of the reasons for his arrest, had drawn his attention to the law and that the second applicant had replied “I did it for a better life”.

The second applicant also signed a document containing his rights to communication as set out in sections 3 and 4 of Law 163(I)/of 2005 (see paragraphs 36 above and 113 below). The copy of the document signed by him was in Arabic.

The second applicant was then questioned by a police officer with the assistance of an interpreter and gave a written statement. The statement was then translated into Arabic. The first part of the statement contains the information given to him by the police officer which reads as follows:

“I inform you that I am investigating a case of conspiracy to commit a felony, forgery, uttering false documents and personation and unlawful stay on the territory of the Republic, offences that were committed between 26 March 2010 and 24 November 2012 in Paphos, for which I have evidence which gives me reasonable suspicion that you are implicated. I wish to question you and to take your statement. You are not obliged to say anything unless you wish to do so but anything you say may be written down and used as evidence”.

The second applicant signed next to this paragraph.

In his statement the second applicant stated that he had decided to leave Cyprus, as following his release and the expiry of the six-months, he was not given another residence and work permit (see paragraph 57 above). He also admitted that he had bought the passports from a Kurdish national for the amount of 1100 euros (EUR) and explained how these were secured. The applicants intended to leave Cyprus and go to Germany through Italy. He also apologised for what happened “today” and that he had done it because he could no longer live in Cyprus. The statement was read to the applicant by the interpreter; he confirmed it and signed it. A statement was also given by the interpreter.

According to the relevant police report of Paphos CID, the first applicant and the other woman stated that they did not know anything about the passports and that their husbands had organised everything.

At around 4.10 p.m. both women were released from custody as they were both pregnant and the one also had three children.

The following day, 25 November 2012, the second applicant was taken to the Paphos District Court and was remanded in custody for four days for the purposes of further investigation of the alleged commission of a number of offences by the applicants under the Criminal Code and the Aliens and Immigration Law; in particular, the offences of conspiracy to commit a felony, forgery, uttering false documents and personation (sections 371, 331, 333, 334, 337, 339 and 360 of the Criminal Code, Cap. 154) and unlawful stay in the Republic (section 19 (l) (l) of the Aliens and Immigration Law)(see paragraphs 86, 114 and 115 below).

On 28 November 2012, following the conclusion of the police investigation, the case file was transmitted to the office of the Attorney-General for the purposes of deciding whether the applicants would be subject to criminal prosecution. The Attorney-General at the time, decided not to prosecute the applicants because of the particularity of their cases. He gave instructions to the police to proceed with the deportation of the applicants when the situation in Syria would allow it.

On 29 November 2012, upon expiry of the second applicant’s remand, detention and deportation orders were issued pursuant to section 14(6) of the Aliens and Immigration Law on the ground that the second applicant was a prohibited immigrant within the meaning of section 6 (1) (k) and (l) of that law (see M.A., § 62, cited above). On the same day the second applicant was served with a letter informing him of the decision to detain and deport him on the ground that he was an illegal immigrant as he had stayed unlawfully in the Republic. It also informed him that he had the right to file a recourse against these orders before the Supreme Court.

The Government submitted that on the same day the execution of the deportation order was suspended as “it transpired” that the Court’s interim measure under Rule 39 was still in force.

The second applicant was detained at Paphos Police Station Detention Facility until 21 December 2013 when he was released following a decision by the Permanent Secretary of the Ministry of the Interior to revoke the deportation and detention orders. The conditions attached to his release were set out in a letter dated 20 December 2013 given him on the date of his release. In particular, the second applicant was requested to hand over his passport to the Aliens and Immigration police. He would be given a certified copy of the passport which would allow the issuance of a residence permit or any other permit. A special residence/employment permit would then be issued for a period of six months. Prior to the issuance of this permit, however, the second applicant would have to sign a contract of employment with an employer indicated and approved by the Department of Labour. The second applicant was also obliged to report to the nearest police station once a month and to inform the authorities of a change of address.

The second applicant submitted that although he found employment he was informed by the Department of Labour that the employer in question did not fall within the categories entitled to employ him. The Department of Labour did not refer him to an eligible employer. The first applicant submitted that she was not given any terms or conditions of residence. They both therefore remained in an irregular situation.


No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion;Positive obligations;Article 8-1 - Respect for family life)

Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra

The applicants were born on 22 April 1996 and 13 June 1992 respectively and live in Geneva.

On 17 September 2010, the applicants, who are cousins, contracted a religious marriage in Iran, where they were residing illegally. At the time, the first applicant was 14 years old and the second applicant 18 years old. Their religious marriage was not registered in Iran.

On 18 September 2011 the applicants applied for asylum in Switzerland, which they had entered from Italy on an unspecified date. Both applicants had been already registered as asylum seekers in Italy.

On 8 December 2011 and 26 March 2012 the Federal Office of Migration (the “FOM”) rejected the applicants’ asylum request, considering that Italy was the responsible State by virtue of Regulation no. 343/2003/EC (the “Dublin Regulation”).

On 19 December 2011, the first applicant had a legal guardian appointed by the Guardianship Court (Tribunal tutélaire, now Tribunal de protection de l’adulte et de l’enfant).

On 20 March 2012 the Federal Administrative Court (the “FAC”) rejected the second applicant’s appeal against the FOM’s decision. The FAC noted that the applicants had failed to submit a certificate of marriage and that in any event their alleged religious marriage could not be validly recognised in Switzerland, pursuant to Article 45 of the Federal Act on Civil International Law, because it was illegal under the relevant provision of the Afghan Civil Code, which contained an absolute prohibition on marriage for women under 15 years of age, while the first applicant was 14 years old. In any case, independently of the applicable Afghan law, the applicant’s marriage was manifestly incompatible with Swiss ordre public, since having sexual intercourse with a child under the age of 16 was a crime under Article 187-1 of the Swiss Criminal Code. The first applicant could therefore not be qualified as a member of the second applicant’s family under the Dublin Regulation and the applicants could not claim any right to family life under Article 8 of the Convention.

The decision against the first applicant entered into force on 5 April 2012, as the second applicant had not appealed against it.

On 3 May 2012 the FOM decided to reexamine the first applicant’s asylum request in Switzerland. Following this decision, the second applicant requested that his own asylum request be also reexamined in order to preserve the family unity. The second applicant’s request was rejected by the FOM on procedural grounds: as the applicant’s claim was deemed without prospects of success, he had been asked an advance judicial fee of 600 Swiss Francs (“CHF”), which he had failed to pay.

The second applicant was expelled to Italy on 4 September 2012. However, on 7 September 2012 he returned illegally to Switzerland, where he could see the first applicant “intermittently”, in the applicants’ own words.

On 18 September 2012 the applicants lodged the present application before this Court.

On 21 December 2012 the second applicant again requested the reexamination of his asylum request, which was rejected by the FOM on 10 January 2013 because the second applicant had again failed to pay the CHF 600 advance judicial fee.

On 18 March 2013, the applicants requested the recognition of their religious marriage in Switzerland. The first applicant was then 16 years and 11 months old.

On 28 November 2013, the FAC examined the second applicant’s appeal against the FOM’s decision of 10 January 2013 and ruled in favour of the second applicant. The FAC considered that the FOM had wrongly imposed on the second applicant the payment of an advance judicial fee because by then the first applicant was 17 years old and the applicants could therefore claim to be a family within the meaning of Article 8 of the Convention as interpreted by this Court and by the Swiss Federal Tribunal.

On 20 February 2014, the Government requested that the application be struck out of the list of cases pursuant to Article 37 § 1 (c) of the Convention.

On 1 April 2014, in reply to the Government’s request, the applicants submitted that their application included a complaint about a past violation, not only a prospective one, namely that on 4 September 2012 the second applicant had been expelled to Italy and thus separated from the first applicant. Such forcible separation constituted a violation of the applicants’ right to respect for their family life.

On 2 June 2014, the Court of First Instance of the Canton of Geneva recognised the validity of the applicants’ religious marriage contracted in Iran.

On 9 January 2015 the applicants informed the Court that they had been granted asylum in Switzerland by a decision of 17 October 2014.

On 23 June 2015, referring to their submissions of 1st April 2014, the applicants informed the Court that they wished to maintain their application, considering that as the alleged past violation of their right to respect for family life had neither been acknowledged nor remedied they had not lost victim status even if they had now obtained asylum in Switzerland.


Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo

The applicant, Mr Terence Brough, is a British national who was born in 1948 and lives in Liverpool. He is represented before the Court by Mr S. Cottingham of O.H. Parsons & Partners, a firm of solicitors practising in London.

The United Kingdom Government (“the Government”) are represented by their Agent, Ms A. McLeod of the Foreign and Commonwealth Office.

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

In February 2009 the Information Commissioner’s Office (“ICO”) uncovered a database managed by an organisation known as The Consulting Association (“TCA”). The database held details of the trade union membership and trade union activity of over three thousand industrial workers, predominantly from the construction sector.

In return for an annual fee, companies who subscribed to the database could access the workers’ details and add information to it. The database was therefore used to “blacklist” workers. In other words, companies could use it to vet job applicants and refuse employment to those listed on it. The workers on the database were named, but the companies who provided or accessed the information were listed by code number. The ICO has identified and released some of the names of these companies but not all of them.

The applicant is a bricklayer who has worked in the construction industry for over thirty years. During that time he was an active member of an independent trade union and between 1976 and 1982 he served as a union shop steward representing his fellow workers’ interests vis-à-vis their employer and organising industrial action.

On 11 May 2009 the applicant discovered that his name was on the TCA database.

The first entry is dated 10 July 1985. It notes that on 3 March 1976 a company identified as “1194” reported the applicant to be a “militant troublemaker”. The same 1985 entry records that on 12 January 1982 another company identified only as “1158” also reported the applicant to be a “militant troublemaker”.

The next entry, which is also dated 10 July 1985, records that a company identified as “250” checked the applicant’s details and that “L5 informed company”.

Two further entries on 2 June 1988 and 12 July 1988 record that the applicant’s details were checked by companies identified as “7013/1” and “7051/9”.

The ICO was unable to identify the companies referred to as 250, 1158 and 1194. Nor could it confirm the identity of L5. However the two companies that checked the applicant’s details in 1988 were identified.

Between June and August 1988 the applicant had been out of work. During this time he had applied for jobs with both of the companies identified by the ICO. In both cases his application was unsuccessful.

There is no record of any contemporaneous complaints about the applicant’s work, professional performance or conduct.

Following the ICO disclosure the applicant brought a claim against the two identified companies under section 137 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”) on the ground that they had unlawfully refused to offer him employment because of his trade union activities and/or membership.

Both respondent companies submitted, inter alia, that the claim was brought out of time as the 1992 Act required all claims to be brought within three months of the date of the relevant incident, unless the limit was extended by the Employment Tribunal.

The application was heard on 22 July 2010. At the hearing the respondents raised a further argument: that section 137 of the 1992 Act had only come into force on 16 October 1992 and, as such, the actions complained of had not been unlawful at the material time. The applicant’s representative conceded the point and the claim was struck out on that basis. The applicant was ordered to make a contribution towards the respondents’ costs of GBP 1,288.

On 17 September 2010 the applicant sought leave to appeal against the order to the Employment Appeal Tribunal (“EAT”). In the application he alleged that there had been a violation of his rights under Article 11 of the Convention.

The application for leave to appeal was refused on the papers on 9 February 2011. The judge held that:

“The argument in the Notice of Appeal was not raised before the Employment Tribunal and cannot therefore be raised on appeal.

In any event, the failure [if it be that] on the part of the Government to legislate to give effect to an Article 11 right could not give the [applicant] a cause of action against the Respondent.”

The applicant did not pursue any further appeal, although the possibility did exist for a further oral hearing under Rule 3(10) of the EAT Rules.

Limited protection was first introduced under section 1 of the Employment Act 1990 which made it unlawful to refuse a person employment on the grounds of their membership of a trade union. This provision was consolidated in the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”), the relevant provisions of which came into force on 16 October 1992.

Under section 137 of the 1992 Act it is unlawful to refuse a person employment for reasons related to the fact that he or she is a member of a trade union. Pursuant to subsection (2) any person who alleges that he or she was unlawfully refused employment can complain to an Employment Tribunal. Section 140 of the 1992 Act allows the Employment Tribunal to order such a remedy as it considers “just and equitable”, including the payment of compensation or a recommendation to the respondent employer.

Under section 139 of the 1992 Act a complaint under section 137 must be presented to the Employment Tribunal before the end of a period of three months from the date of the conduct to which the complaint relates. The Tribunal has a power under subsection (1)(b) to extend the period by any further period that it considers reasonable. This power may be exercised where the Tribunal is satisfied that it was not “reasonably practicable” for the claimant to present the complaint before the end of the three-month period.

Pursuant to section 7 of the Human Rights Act, a person can bring proceedings against a public authority for acting incompatibly with a Convention right. However, such proceedings cannot be brought in the Employment Tribunal. Moreover, the Tribunal does not have jurisdiction to make a declaration of incompatibility under section 4 of the Human Rights Act. Nevertheless, pursuant to section 3 of the Human Rights Act the Tribunal is required “so far as possible” to read and give effect to primary legislation in a way which is compatible with Convention rights. Furthermore, it is required to take into account any judgment, decision or opinion of the Court insofar as it is relevant to the proceedings when determining a question which has arisen in connection with a Convention right (section 2 of the Human Rights Act), and it is unlawful for the Tribunal, as a public authority, to “act in a way which is incompatible with a Convention right” (section 6 of the Human Rights Act).