CASE OF JAKŠOVSKI AND TRIFUNOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

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

Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Paul Mahoney;Robert Spano;Ksenija Turković

The applicants were born in 1959 and 1946, and live in Ohrid and Tetovo, respectively.

Following allegations raised by a lawyer (which were subsequently withdrawn), V.V., a member of the State Judicial Council (“the SJC”), a body vested with jurisdiction to decide, inter alia, on the dismissal of judges (see Amendment XXIX to the Constitution, paragraph 20 below), made enquiries through the President of the court in which the first applicant worked as a judge. A preliminary inquiry was carried out, and on 19 April 2008 V.V. requested, under sections 55 and 58 of the State Judicial Act of 2006 (“the 2006 Act”, see paragraph 21 below) and section 5 of the Rules governing professional misconduct proceedings in respect of a judge (“the Rules”, see paragraph 25 below), that the SJC initiate professional misconduct proceedings in respect of the first applicant. In the request V.V. claimed that the first applicant had not been diligent in conducting proceedings in a civil case. The first applicant responded in writing.

On 4 June 2008 the SJC set up, under section 58 of the 2006 Act (see paragraph 21 below), a Commission for determination of professional misconduct by a judge (Комисија за утврдување нестручно и несовесно вршење на судиската функција, hereinafter “the Commission”).

On the basis of V.V.’s request and the Commission’s report as to whether the request was justified, on 3 October 2008 the plenary of the SJC initiated proceedings for professional misconduct in respect of the first applicant.

On 12 November 2008 the Commission held a hearing at which it heard evidence from V.V. and the first applicant. It also took other evidence into account. On 1 December 2008 the Commission drew up, under section 55(6) of the 2006 Act, a report on the question whether the request for the first applicant’s dismissal had been justified. It submitted the report to the plenary of the SJC for consideration.

On 17 December 2008 the plenary of the SJC, the composition of which included V.V., dismissed the first applicant for professional misconduct.

The first applicant challenged that decision at second instance, namely before an Appeal Panel formed within the Supreme Court (“the Appeal Panel”). Such panels were set up on an ad hoc basis in each separate case. As specified under section 60 of the 2006 Act, they were composed of nine judges, of whom three were to be Supreme Court judges, four Appeal Court judges and two judges of the court of the applicant. On 24 September 2009 the Appeal Panel dismissed the first applicant’s appeal and upheld the SJC’s decision.

On 21 July 2008 R.P., a member of the SJC, applied to the SJC for professional misconduct proceedings to be instituted in respect of the second applicant. It had been alleged that, as an on-duty investigating judge, the second applicant had not been diligent in the investigation of an incident that had occurred in the Tetovo detention centre. Under section 8 of the Rules (see paragraph 25 below), the request was submitted to the second applicant for comments. He responded in writing.

On an unspecified date, the SJC set up, under section 58 of the 2006 Act, a five-member Commission in the second applicant’s case. On 12 December 2008 the Commission submitted a report to the SJC in which it sought that it initiate professional misconduct proceedings against the second applicant.

With two separate decisions delivered on 29 December 2008, the plenary of the SJC, including R.P., initiated professional misconduct proceedings in respect of the second applicant and ordered his temporary suspension. The decisions were not amenable to appeal.

On 20 January 2009 the Commission held a hearing at which R.P. and the second applicant presented their arguments and concluding remarks (завршни зборови). Evidence against the second

On 12 February 2009 the plenary of the SJC, the composition of which included R.P., dismissed the second applicant for professional misconduct. The second applicant appealed against his dismissal to the Appeal Panel that had been formed in his case within the Supreme Court, arguing, inter alia, that he had not been given the opportunity to comment on the evidence against him when the request for his dismissal had been served on him. He also asked the Appeal Panel to inform him of the date of its session. At a hearing held in private on 5 May 2009, the Appeal Panel dismissed the second applicant’s appeal.

On 25 June 2009 the second applicant challenged his dismissal before the Administrative Court by means of an administrative-dispute action (тужба за управен спор). He complained, inter alia, about the alleged refusal of his request for exclusion of Judges N.I. and J.V. who had been parties to the decision of the Appeal Panel in his case. He had requested their withdrawal because Judge N.I. had applied at the relevant time to the SJC for the post of president of a first-instance court, and Judge J.V. allegedly had a close relationship with the public prosecutor involved in the case in respect of which he had been dismissed. On 6 October 2010 the Administrative Court rejected the second applicant’s action as inadmissible. That decision was upheld by the Higher Administrative Court.

The second applicant produced copies of articles published in local newspapers on 26 January and 13 February 2009 reporting on his case. The article published on 26 January 2009 cited the then President of the SJC as saying that the Commission was still dealing with the case and that no report had yet been submitted to the SJC for consideration. On 13 February 2009 the newspaper announced that the second applicant had been removed from office.


Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The first applicant, Orde van Register Adviseurs Nederland (Association of Chartered Advisers Netherlands, “OvRAN”) is an association under Netherlands law based in Wassenaar. Mr Antonius Johannes Boer was born in 1946 and lives in Delft; Mr Nicolaas Plug was born in 1948 and lives in Noordwijk; Mr Cornelis Bernardus Antonius Spil was born in 1941 and lives in Deventer; and Mr Rein Wierdsma was born in 1965 and lives in Leeuwarden. All four individual applicants are Netherlands nationals and all state their occupation as “Accountant/Consultant”. The applicants are represented by Mr A.W. Eikelboom, a lawyer practising in Amsterdam.

In the Netherlands, accountants are either chartered accountants (registeraccountants) or accountants-administrative consultants (accountants-administratieconsulenten) depending on their training and qualifications. Both chartered accountants and accountants-administrative consultants are required to be members of their respective professional organisations, the Netherlands Institute of Chartered Accountants (Nederlands Instituut van Registeraccountants, “NIvRA”) and the Netherlands Association of Accountants-Administrative Consultants (Nederlandse Orde van Accountants-Administratieconsulenten, “NOvAA”).

In 2009, a group of chartered accountants who were displeased by particular developments which they perceived within NIvRA, set up a separate professional organisation, which following a name change was called OvRAN by the time of the events complained of, intending it to be an alternative to NIvRA. Membership of OvRAN was open to members and former members of both NIvRA and NOvAA.

NIvRA and NOvAA brought actions against OvRAN in the civil courts, the result of which was that OvRAN and those of its members who were not also members of NIvRA or NOvAA were no longer permitted to use the title “accountant” or perform statutory audits. No details have been given of these proceedings.

On 19 October 2009 OvRAN, represented by the applicant Mr Spil as its president, wrote to the Director of Financial Markets within the Ministry of Finance asking for:

an interpretation of section 1(4) of the Chartered Accountants Act and section 2(4) of the Accountants-Administrative Consultants Act (see below) in order that its members be entered on the registers of chartered accountants or accountants-administrative consultants, as the case might be, and permitted to use the title “accountant”, without having to be members of NIvRA and NOvAA; and

the application of section 28 of the Organisations of Accountants (Supervision) Act (Wet toezicht accountantsorganisaties) in order that its members be permitted to carry out legal audits.

On 19 November 2009 the Director of Financial Markets sent a reply to the effect that only the courts could give a binding interpretation of legislation and pointing to the status of NIvRA and NOvAA as public bodies invested with delegated legislative powers.

On 30 November 2009 OvRAN lodged objections (bezwaarschriften) against the letter of the Director of Financial Markets, invoking Article 11 of the Convention and denouncing certain actions of NIvRA and NOvAA as unethical.

On 18 December 2009 the Director of Financial Markets dismissed the objections. The refusal to give an interpretation of statutory provisions was not a “decision” in the sense of having an intended legal effect, which meant that an objection against it was inadmissible. Objections and appeals against a refusal to adopt statutory or delegated legislation were ruled out by the General Administrative Law Act (Algemene wet bestuursrecht; see below).

On 21 January 2010 OvRAN lodged an appeal with the Industrial Appeals Tribunal (College van Beroep voor het Bedrijfsleven), citing the Minister of Finance as the defendant. It relied on the same grounds as in the objection proceedings and additionally on Article 13 of the Convention. OvRAN asked for its appeal to be joined with related appeals lodged by the applicants Mr Boer, Mr Plug and Mr Spil.

The Industrial Appeals Tribunal gave its decision on 15 February 2011. It held that the Minister of Finance had rightly taken the view that the letter of 19 November 2009 did not comprise a decision within the meaning of section 1:3 of the General Administrative Law Act. Nor could the applicants rely on Article 13, since legal remedies were available through NIvRA and NOvAA. The appeal was therefore inadmissible.

As relevant to the case, the Civil Code at the relevant time provided as follows:

“1. The legal person shall commission a chartered accountant or an accountant-administrative consultant in relation to whom a note as referred to in section 36(3) of the Accountants-Administrative Consultants Act has been added to the entry in the register referred to in section 36(1) of that Act to audit its annual accounts. An organisation in which eligible accountants cooperate may be commissioned. ...”

Provisions of the Chartered Accountants Act (Wet op de Registeraccountants) relevant to the case were the following:

“1. There shall be an association of chartered accountants, by the name of Netherlands Institute of Chartered Accountants [i.e. NIvRA], hereinafter the Association. Its members shall be those entered in the register of accountants referred to in section 55.

The Association shall be based in Amsterdam. It shall be a public body within the meaning of Article 134 of the Constitution.

The task of the Association shall be the promotion of the proper exercise by chartered accountants of their profession and the protection of their common interest. ... Its task shall also include caring for the honour and position of chartered accountants and organising, or causing to be organised, the [obligatory three-year] traineeship ...

In derogation from the first paragraph, those entered in the register of chartered accountants under section 58(b) in conjunction with section 59(2) [i.e. chartered accountants with a license to audit delivered by another Member State of the European Union or European Economic Area] shall be members of the Association only if they have expressed such a wish in writing to the governing body of the Association.”

“1. The general meeting shall make the bye-laws which it considers necessary to fulfil the task set out in section 1.

For the proper exercise of chartered accountants’ professional activities, the general meeting shall set professional rules and rules of conduct in a bye-law, which shall be binding on all those who are entered in the register referred to in section 55.

“1. There shall be a register of accountants, in which those who meet the standards set by this Act shall be entered at their request. ...”

“A person who is entered in the register referred to in section 55 has the right to use the title chartered accountant and its abbreviation (registeraccountant, afgekort RA).

“It is forbidden a person who is not entered in the register of accountants referred to in section 55 to use the title chartered accountant without any addition or in any composite or abbreviated form, or to behave in such a way that the public must reasonably be under the impression that he is entitled to use that title.”

Provisions of the Accountants-Administrative Consultants Act (Wet op de Accountants-Administratieconsulenten) relevant to the case were the following:

“1. There shall be an Association of Accountants-Administrative Consultants [i.e. NOvAA], whose members shall be those entered in the register of accountants referred to in section 36.

The Association shall be based in The Hague. It shall be a public body within the meaning of Article 134 of the Constitution.

The task of the Association shall be the promotion of the proper exercise by accountants-administrative consultants of their profession and the protection of their common interest. ... Its task shall also include caring for the honour and position of Accountants-Administrative Consultants and organising, or causing to be organised, the [obligatory three-year] traineeship ...

“1. The general meeting shall make the bye-laws which it considers necessary to fulfil the task set out in section 2(3).

For the proper exercise of accountants-administrative consultants’ professional activities, the general meeting shall set professional rules and rules of conduct in a bye-law, which shall be binding on accountants-administrative consultants.

“1. The rules prescribed in the bye-law referred to in section 24(2) relating to the exercise of professional activities concerning the carrying out of legal audits by accountants-administrative consultants within the meaning of section 1(j) of the Organisations of Accountants (Supervision) Act shall have the same content as the rules thereto pertaining set out in the bye-law referred to in section 24(2) of the Chartered Accountants Act.

For the purpose of implementing the first paragraph a draft of the provisions thereto pertaining shall be drawn up by a committee consisting of an equal number of members of the Netherlands Institute of Chartered Accountants and the Netherlands Association of Accountants-Administrative Consultants. ...”

“1. There shall be a register of accountants, in which those who meet the standards set by this Act shall be entered at their request as accountants-administrative consultants.

When entering a person who [meets the necessary standards of training and professional competence] a note shall be added indicating that he may be commissioned to audit annual accounts as referred to in Article 2:393 § 1 of the Civil Code. ...”

“A person who is entered in the register referred to in section 36 has the right to use the title accountant-administrative consultant and its abbreviation (accountant-admministratieconsulent, afgekort AA).

“It is forbidden a person who is not entered in the register referred to in section 36 to use the title accountant-administrative consultant without any addition or in any composite or abbreviated form, or to behave in such a way that the public must reasonably be under the impression that he is entitled to use that title.”

As relevant to the case before the Court, the Organisations of Accountants (Supervision) Act provided as follows:

“An external accountant shall be a chartered accountant or an accountant-administrative consultant in relation to whom a note has been added in the register as referred to in section 36(3) and who complies with the rules set by or under the Chartered Accountants Act or the Accountants-Administrative Consultants Act in so far as these relate to the commissioning or carrying out of a legal audit.”

“Section 27 may be declared ineffective by statutory instrument (algemene maatregel van bestuur) with a view to securing the public function of the audit statement.”

As relevant to the case, the General Administrative Law Act provides as follows:

“1. The expression ‘decision’ shall be understood to mean: a written decision of an administrative organ comprising a legal act under public law. ...”

“For the purpose of applying legal provisions on objection and appeal proceedings, the following shall be equated with a decision:

(a) a refusal to take a decision;...”

No appeal can be lodged against:

(a) a decision comprising a generally binding prescription or a policy rule; ...”


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies;Six month period);Preliminary objection dismissed (Article 34 - Victim);Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

András Sajó;Ann Power-Forde;Dean Spielmann;Dmitry Dedov;Ganna Yudkivska;George Nicolaou;Guido Raimondi;Helen Keller;Ineta Ziemele;Josep Casadevall;Julia Laffranque;Mark Villiger;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen;Vincent A. De Gaetano

The applicant was born in 1954 and lives in Rome.

In 2002 she had recourse to assisted reproduction techniques, undergoing in vitro fertilisation (“IVF”) treatment with her partner at the Centre for reproductive medicine at the European Hospital (“the centre”) in Rome. The five embryos obtained from the IVF treatment were placed in cryopreservation.

Before the embryos could be implanted the applicant’s partner died, on 12 November 2003, in a bomb attack in Nasiriya (Irak) while he was reporting on the war.

After deciding not to have the embryos implanted, the applicant sought to donate them to scientific research and thus contribute to promoting advances in treatment for diseases that are difficult to cure.

According to the information provided at the hearing before the Grand Chamber, the applicant made a number of unsuccessful verbal requests for release of the embryos at the centre where they were being stored.

In a letter of 14 December 2011 the applicant asked the director of the centre to release the five cryopreserved embryos so that they could be used for stem-cell research. The director refused to comply with her request on the grounds that this type of research was banned and punishable as a criminal offence in Italy under section 13 of Law no. 40 of 19 February 2004 (“Law no. 40/2004”).

The embryos in question are currently stored in the cryogenic storage bank at the centre where the IVF treatment was carried out.


GAVRILOV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant, Mr Gorančo Gavrilov, is a Macedonian national who was born in 1966 and lives in Štip. He was represented before the Court by Mr F. Medarski, a lawyer practising in Skopje.

The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov.

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

The applicant is the owner and manager of a local radio station in Štip. Between 1998 and 2008 he was also President of the National Association of Radio Broadcasting Companies. In that capacity, he reported to the relevant State authorities some irregularities in the operation of company R., a cable TV broadcasting company owned by Mr R.D. According to the applicant, on account of that criticism, Mr R.D. had threatened on several occasions to kill him. As established in the criminal proceedings described below, in a reported incident of 13 November 2002 Mr R.D. issued verbal threats against the applicant. Other alleged incidents, the latest dated 29 December 2007, were not reported to the police.

On 27 March 2008 the public prosecutor indicted Mr R.D., Mr D.M. and Mr G.S. for the attempted murder of the applicant. The charges concerned an incident occurring on 26 January 2008 in which Mr D.M., a member of the special military forces known as the Wolves, and Mr G.S., had allegedly assaulted the applicant with the intention of killing him. Both accused had allegedly worn black masks and used metal clubs to beat the applicant. The applicant sustained head and body injuries. Three of his fingers were broken. In the assault, Mr D.M. allegedly fired a shot, which did not hit the applicant. As stated in the indictment, Mr R.D., who had threatened on 29 December 2007 to kill the applicant, had incited Mr D.M. and Mr G.S. to carry out the attempted killing.

The proceedings were conducted before the Štip Court of First Instance (“the trial court”). At the trial, the court heard oral evidence from the accused and several witnesses and confronted the applicant with Mr R.D. It also admitted a considerable volume of documentary evidence, including several expert reports; lists of temporarily seized objects; detailed lists of calls on mobile phones confiscated from the accused; reports on identity parades set up during the trial; excerpts from several daily newspapers, and other items of evidence. On 30 April 2008 the trial court delivered a judgment acquitting the accused. The applicant was instructed to pursue possible compensation claims against the accused by means of a separate civil action for damages. In the judgment, the trial court examined the available evidence. It did not give weight to an expert report according to which strands of textile found on one of the metal clubs used in the attack matched fibres from jeans like those confiscated from Mr G.S. It further disregarded an expert report which stated that a residue of saliva on a cigarette butt found at the scene of the incident immediately after the assault was consistent with blood group A, which was Mr D.M.’s blood group. It did so because a DNA analysis of the saliva had excluded the possibility that the cigarette butt belonged to Mr D.M. Because of some irregularities in the identity parade held by the police, the court also disregarded the fact that the applicant and two witnesses had identified Mr G.S. as one of the assailants. Lastly, it had not been confirmed that Mr R.D. had threatened the applicant. The confrontation between the two men had not supported the applicant’s allegations in that respect. According to the receipt slip, this judgment was served on the applicant on 8 May 2008.

On 29 September 2008 the Štip Court of Appeal dismissed an appeal by the public prosecutor and upheld the trial court’s judgment. It found that the lower court had established the facts correctly and had provided sufficient reasons for its judgment. Further to the assessment of the evidence carried out by the trial court, the Court of Appeal examined evidence regarding the bullet found at the scene after the incident. Forensic ballistics tests confirmed that its calibre corresponded to ammunition used by an American-produced gun of a type that had been reported stolen from a military unit in Iraq in which Mr D.M. had served at one time. That finding, coupled with the fact that the gun from which the bullet had been fired had not been found, had been insufficient, in the court’s opinion, to attribute any guilt to Mr D.M. The Court of Appeal concluded that the lower court had given a clear and lawful judgment. The Government provided a copy of a receipt slip according to which the applicant was served with this judgment on 30 October 2008. In the comments submitted in reply to the Government’s observations, the applicant did not contest the date of service of this judgment.

On 9 January 2009 the public prosecutor challenged the lower courts’ judgments by lodging, of his own motion, a request for the protection of legality (барање за заштита на законитоста) with the Supreme Court.

On 25 March 2009 the Supreme Court granted the request and stated that the lower courts had violated section 355(1), paragraph 11, and (2) read in conjunction with section 14 of the Criminal Proceedings Act of 1997 (“the 1997 Act”) (see paragraphs 12 and 13 below) in favour of the accused. Referring to section 408(2) of the 1997 Act, it stated that its judgment would not affect the final judgment. The Supreme Court found that, on the basis of the evidence in the case file, the reasons given in the trial court’s judgment had been unclear and contrary to the evidence adduced. The lower court had erred on the facts and had assessed the available evidence incorrectly, in particular evidence provided by the applicant and other witnesses who had identified the accused as the perpetrators of the crime. It stated that the trial court had established the facts solely on the basis of the evidence in favour of the defence. Evidence against the accused had been disregarded, with reasoning which lacked any substantiation. The Supreme Court further criticised the way in which the trial court had assessed the expert evidence. It also observed that the Court of Appeal had upheld the trial court’s judgment despite being vested with jurisdiction to ascertain of its own motion whether there had been any procedural flaws. The applicant was served with this judgment on 1 September 2009.

On 30 October 2009 the applicant lodged a constitutional appeal with the Constitutional Court seeking protection of his right to freedom of expression, which had allegedly been violated owing to the failure of the State to identify and punish those responsible for the incident. Since the Supreme Court’s judgment had no bearing on the final judgment acquitting the accused, he alleged that he had also been denied the opportunity to claim compensation from the accused. The applicant reiterated that the incident of 26 January 2008 had been connected to his criticism of company R. and had been intended to silence him.

On 23 December 2009 the Constitutional Court rejected (отфрла) the applicant’s appeal. It found that the criminal courts had been required to establish whether any liability could be attributed to the accused. They had neither adduced any evidence nor established the facts in respect of whether the assault had been intended to restrict the applicant’s freedom of expression. The intention to commit the crime was of importance for identifying the perpetrators and determining the penalty. Furthermore, the protected interest damaged by the alleged crime was the right to life and not freedom of expression. The assault in question had happened at a time and place that could not be directly linked to the applicant’s freedom of expression. The Constitutional Court accordingly found that the judgments of the first and second-instance courts had not been of any relevance to the applicant’s freedom of expression. It further stated that the Supreme Court had no jurisdiction, in view of the proscription of reformatio in pejus set forth in section 408(2) of the 1997 Act, to remit the case for re-examination or decide it on the merits. The State could not therefore be held responsible for failing to punish the perpetrators. Lastly, it had been open to the applicant to claim monetary compensation in civil proceedings as he had been instructed to do by the criminal courts.

Under section 14 of the 1997 Act, the courts were responsible for establishing the relevant facts correctly and completely and assessing with equal diligence the evidence against and in favour of the accused.

Section 355(1), paragraph 11, and (2) of the 1997 Act provided that there was a substantial procedural flaw if a judgment contained no reasoning or the reasoning was incomprehensible or inconsistent, or if the court did not apply a statutory provision or applied it incorrectly.

Sections 403 and 404 provided that the public prosecutor could lodge a request for the protection of legality (барање за заштита на законитоста) against final court judgments. The Supreme Court determined such requests.

Under section 406(1) and (3), the Supreme Court was limited to examining the violations alleged in the request for the protection of legality. If such a request was lodged in favour of the convicted person, the Supreme Court could not amend the lower courts’ judgments to his or her detriment regarding the legal classification of the crime and the penalty imposed.

Under section 408(1), if the Supreme Court granted the request for the protection of legality it could issue the following judgments: it could overturn the final judgment; it could annul the first and second-instance courts’ judgments or only the second-instance court’s judgment and remit the case for re-examination; or it could merely acknowledge the violation. Under sub-section 2 of that provision, if a request was lodged to the detriment of the accused and the court found the request well-founded, it would acknowledge that there had been a violation of the law. The judgment of the Supreme Court would not affect the final judgment.

In October 2004 the word “accused” in section 408(2) of the 1997 Act was replaced with the words “convicted person” (Official Gazette no. 74/2004).

The 2010 Criminal Proceedings Act, which came into operation on 1 December 2013, contains the same provision as section 408(2) of the 1997 Act, as amended in 2004 (section 461(2)).

The Government submitted copies of several judgments (Кзз.бр.42/2011; Кзз.бр.53/2011; Кзз.бр.35/2012; Кзз.бр. 5/2013 and Кзз.бр.12/2013) in which the Supreme Court had granted requests for the protection of legality lodged by the public prosecutor and found that the law had been violated by the lower courts’ judgments in which the accused had been acquitted. In all these judgments the Supreme Court, relying on section 408(2) of the 1997 Act, had held that its findings would not affect the final judgments of the lower courts. In these cases, the first-instance courts’ judgments were given between March 2010 and May 2012.


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

The applicants – Mr Mircea Bârză, Mr Ştefan Necşuleu, Ms Marcela Felicia Necşuleu, Mr Ioan Voicu, Ms Maria Voicu, Mr Viorel Zudor, Ms Livia Zudor, Mr Cornel Oprița, Mr Ioan Muntean, Ms Ana Muntean, Mr Ioan Şeican, Ms Victoria Şeican, Ms Maria Voic, Ms Mariana Voic and Ms Ioana Voic – are Romanian nationals who were born in 1950, 1951, 1954, 1930, 1937, 1952, 1954, 1949, 1928, 1928, 1949, 1951, 1928, 1953 and 1953, respectively, and live in Alba-Iulia. They were represented before the Court by Mr E.A. Popescu, a lawyer practising in Alba-Iulia.

The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Romanian Ministry of Foreign Affairs.

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

The applicants had lived on the same street for over thirty years. The street they lived on had been built – in order to afford them easy access to their homes – on their own private land.

By Government Decision no. 974/2002 confirming the inventory of the public property owned by Alba County, the street on which the applicants’ houses were located was transferred, as public property, to Alba County.

On an unspecified date the applicants lodged a preliminary complaint (procedura prealabilă) with the Government, seeking to have Government Decision no. 974/2002 cancelled on the ground that they were the owners of the land on which the street their houses were located on was built.

On 11 April 2007 the Romanian Government dismissed the preliminary complaint on the grounds that the impugned decision had been lawful and that the complaint was time-barred.

On 8 May 2007 the applicants instituted court proceedings against the Romanian Government and Alba-Iulia Local Council seeking the annulment, inter alia, of part of attachment no. 12 to Government Decision no. 974/2002. They argued that the domestic authorities had unlawfully transferred to public ownership the street, which had been built on their private land. Moreover, they argued that Government Decision no. 974/2002 had been issued on the basis of Article 108 of the Romanian Constitution and Article 21(3) of Law no. 213/1998 on public property. Consequently, it had been of a normative character and had therefore – under Article 11(4) of Law no. 554/2004 – not been subject to statutory limitation. Furthermore, the applicants supported their claim that the impugned decision had been of a normative character by relying on, inter alia, the Court of Cassation’s judgment no. 1511 of 2 May 2006.

The domestic authorities argued that the applicants’ action was timebarred.

On 13 July 2007 the Alba-Iulia Court of Appeal dismissed the applicants’ action. It noted that in 2003 the applicants had instituted court proceedings against Alba-Iulia Local Council and a third party, seeking an injunction against Alba-Iulia Local Council and that third party to acknowledge the applicants’ ownership of the land on which the street their houses were located on was built. During those proceedings, on 19 March 2004 the Alba-Iulia Mayor’s Office had expressly informed the applicants that the street their houses were located on had been transferred to public ownership and had been mentioned in attachment no. 12 to Government Decision no. 974/2002. The court held that the attachment was undoubtedly a unilateral administrative act of an individual character because it contained an inventory of the properties transferred to public ownership and was published in the Official Gazette (no. 701(bis.) of 25 September 2002). Moreover, the applicants had expressly been made aware of the transfer by the information note of 19 March 2004 sent to them by the Alba-Iulia Mayor’s Office. The applicants had initiated the proceedings before the court on 8 May 2007. The proceedings were therefore time-barred, given the statutory time-limit provided by Article 11(2) of Law no. 554/2004 on actions before administrative courts.

The applicants appealed on points of law (recurs) against the judgment and reiterated the arguments they had raised before the firstinstance court. Moreover, they contended that the Court of Cassation’s judgment no. 1511 of 2 May 2006 had already established (in proceedings initiated by another third party) that Government Decision no. 974/2002 was an administrative act of a normative character and that it could therefore be challenged at any time.

By a final judgment of 7 March 2008 the Court of Cassation dismissed the applicants’ appeal on points of law. It held that the firstinstance court had correctly established that under Article 11 of Law no. 554/2004 the proceedings initiated by the applicants were timebarred. Moreover, the applicants’ argument, unsupported by reasons, that the impugned decision was a unilateral administrative act of a normative character could not be accepted. The aforementioned decision was in fact a unilateral administrative act of an individual character because it attested that the property in question was in the public ownership of Alba County and it concerned specific legal entities operating in the county, as well as the individual properties mentioned in the annexes.

On 14 April 2010 the Court of Cassation allowed a third party’s action against the Romanian Government and Alba-Iulia Local Council seeking the annulment of part of attachment no. 12 to Government Decision no. 974/2002. It held, inter alia, that the third party had been made aware of the impugned decision in December 2007 and had initiated the court proceedings within the statutory time-limit.

On 26 November 2013 the Court of Cassation informed the Government that it had developed a rich case-law which had classified government decisions similar to the one challenged by the applicants as unilateral administrative acts of an individual character. It supported its submission by referring to thirty-four judgments delivered by it between January 2009 and November 2011 that had been published either on the Court of Cassation’s website or had been referred to in legal articles.

Article 11(2), (4) and (5) of Law no. 554/2004 on actions before administrative courts provides that normative administrative acts may be challenged at any time, whereas individual administrative acts may be challenged no later than a year from the date on which they were issued.

Article 108 of the Romanian Constitution provides, inter alia, that the Government may issue decisions or ordinances. Such decisions may be issued in order to implement laws. The Government’s decisions shall be signed by the Prime Minister and the ministers responsible for their implementation and shall be published in the Official Gazette. Failure to publish such decision renders it ineffective.

Article 21(3) of Law no. 213/1998 on public property and rules governing it provides that inventories of property under public ownership shall be drawn up by the county councils or the Bucharest General Council and sent to the Government in order for the latter to attest by a decision that the property has been included in the public ownership of the county.

By a final judgment of 2 May 2006 (no. 1511) the Court of Cassation allowed the proceedings brought by a third party against, among others, the Romanian Government, seeking the annulment of part of attachment 12 to Government Decision no. 974/2002. It held that the impugned decision was a normative administrative act issued on the basis of Article 108 of the Romanian Constitution and of Article 21(3) of Law no. 213/1998 on public property during the final stages of the special procedure establishing an inventory of Alba Country’s public property. On that legal basis it appeared that irrespective of whether Government Decision no. 974/2002 was a normative or individual, it was an act that determined property falling under public ownership and established the rules that would apply to such property. Therefore, the proceedings seeking the partial annulment of the aforementioned decision had not been subject to the time-limits stipulated by Article 11 (2) of Law no. 544/2004 and the decision to dismiss those proceedings as time-barred had amounted to a misinterpretation of the law. The conclusion reached by the first-instance court had been incorrect, even if it could have been accepted that the impugned decision had not been an administrative act of a normative character, given that the proceedings had been initiated within one year of the time when the victim the third party had been made aware of that decision.


Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Public hearing);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in 1959 and lives in Vienna.

On 3 October 2000 the applicant was stopped by the police at 11.05 p.m. while driving his car on a public road. He was ordered to undergo a breathalyser test. After nine attempts to measure the amount of alcohol, among which only one was valid, the test was discontinued. The applicant’s conduct was considered to amount to a refusal to undergo the breathalyser test and his driving licence was temporarily withdrawn. Two different sets of proceedings were initiated against the applicant.

On 15 December 2000 the Melk District Administrative Authority (Bezirkshauptmannschaft, DAA) issued a decision to withdraw the applicant’s driving licence for a period of four months as a preventive measure to secure road safety. The DAA observed that, according to the case-law of the Administrative Court, it amounted to a refusal to undergo a breathalyser test if the person who had been ordered to undergo the test had made four invalid attempts out of five. According to the statements of police officers W. and R. and the paper print outs of the test results, the applicant had been allowed to make much more attempts, namely nine and only one had produced a valid result. When the applicant had claimed that the breathalyser had been defective, police officer R had made himself two attempts using the same mouthpiece as the applicant and both attempts had produced valid results. The DAA also noted that technical tests of the breathalyser had been carried out on 15 May 2000 and on 9 November 2000 and each time the breathalyser had been found fully functioning. On the basis of this evidence it was safe to conclude that the applicant had refused to undergo the breathalyser test. The DAA also ordered that an appeal had no suspensive effect because it was necessary to avoid the risk that a person lacking trustworthiness for road traffic might drive. Moreover the applicant was ordered to follow driver improvement training before his driving licence would be returned.

The applicant appealed and argued that the DAA should have obtained the report of a technical expert on the functioning of the breathlyser as only such an expert could clarify whether the machine was working properly.

On 19 December 2005 the Lower Austria Regional Governor (Landeshauptmann) dismissed the applicant’s appeal. He found that according to the paper print out of the breathalyser test the applicant had made nine attempts of which only one had been valid whereas during the other attempts the applicant had not blown sufficient air into the mouth-piece. Thereupon two attempts with the same mouth-piece as used by the applicant had been made by police officer R., which both produced valid results. Thus, there were no indications that the breathalyser did not function properly or that it had not been handled correctly by the police officers who had been specially trained for this task. In such circumstances a request for obtaining a report by a technical expert, without giving clear indications in what the malfunctioning of the breathalyser might have consisted, amounted to an inadmissible request for evidence (Erkundungsbeweis). The Regional Governor concluded that refusing to undergo a breathalyser test was as serious as driving under the influence of alcohol because it prevented the authorities from verifying whether a person was actually drunk. The additional measure imposed on the applicant was therefore justified in order to improve his attitude.

On 8 February 2006 the applicant lodged a complaint with the Administrative Court and requested an oral hearing. In his complaint he argued that the Lower Austria Regional Government had not been competent to decide on his case as he resided in Vienna. He further complained about the authority’s assessment of evidence, as the statements of the police officers who had ordered him to undergo the breathalyser test were contradictory and stated that they should be questioned on the precise circumstances in which breathalyser test had been carried out. Lastly he complained that the authority had wrongly applied the law because it should not have refused to obtain the opinion of a technical expert on the functioning of the breathalyser.

On 27 September 2007 the Administrative Court dismissed the applicant’s complaint. It found that on the basis of the evidence before them the authorities had arrived at the conclusion that the applicant had refused to undergo the breathalyser test. The applicant had failed to raise any substantial arguments against these findings and had not shown that the assessment of the evidence carried out by the authorities was contradictory or implausible. In accordance with Section 39 § 2 of the Administrative Court Act (Verwaltungsgerichtshofgesetz) the Administrative Court dismissed the applicant’s request for a hearing as it found that an oral hearing was not likely to contribute to the clarification of the case. This decision was served on the applicant’s counsel on 25 October 2007.

On 20 April 2001 the DAA issued a penal order (Straferkenntnis) and imposed a fine for refusal to take the breathalyser test.

On 30 April 2001 the applicant appealed.

On 30 September 2005 the Lower Austria Independent Administrative Panel found that, since no decision had been taken within the prescribed time limit of 15 months after the lodging of the appeal, the fine imposed by the DAA had expired ipso iure.


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

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić

The applicant was born in 1959 and lives in İzmir.

In March 2002, the applicant, who was a working as a civil servant, was dismissed due gross misconduct. He applied to the administrative courts to have the annulment of that decision. In the course of the proceedings, on 4 July 2006 Law no. 5525, granting amnesty to civil servants who had been subjected to disciplinary proceedings, entered into force. Accordingly, in the light of this new amnesty law, on 10 April 2009 the Supreme Administrative Court decided that there was no need to examine the merits of the case.

In the meantime, on 30 September 2005 the criminal proceedings initiated against the applicant had ended with the decision of the criminal court, convicting him of abuse of office.

Following the entry into force of the amnesty law, the applicant applied to the administration and asked to be reinstated. His request was refused on 19 December 2006. The applicant initiated proceedings to have the annulment of that decision.

By a decision dated 8 January 2008, the Ankara Administrative Court found in line with the applicant’s claims and decided to annul the decision of the authorities by which they had refused to reinstate the applicant.

Following appeal, the case was transferred before the Supreme Administrative Court. In the course of the proceedings, the Chief Public Prosecutor at the Supreme Administrative Court filed his written opinion. This opinion included substantial grounds on the merits of the case with a proposal to quash the decision of the first instance court. On 25 May 2009, relying also on the opinion of the Chief Public Prosecutor, the Supreme Administrative Court quashed the decision of 8 January 2008. In particular, the appeal court referred to its previous leading case which had been delivered on 17 October 2008 on a similar case and held that the amnesty law did not put an obligation on the administration to reinstate the applicant.

The case was accordingly remitted before the Ankara Administrative Court. On 9 October 2009 the first instance court adhered to the judgment of the appeal court and dismissed the applicant’s case. This decision was served on the applicant on 13 November 2009.


CASE OF ISLAM-ITTIHAD ASSOCIATION AND OTHERS v. AZERBAIJAN

Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association)

The Association, which has now been dissolved, was a nonprofitmaking non-governmental organisation (NGO). It was active between 1991 and 2003. Mr Azer Samadov was Chairman of the Association, and Mr Ilgar Allahverdiyev was a member of its management board. They were born in 1961 and 1973, respectively, and live in Baku.

The Association was registered by the Ministry of Justice (“the Ministry”) on 12 January 1995 and acquired the status of a legal entity.

Clause 1.1 of the Association’s Charter defined it as an association with voluntary membership of citizens of the Republic of Azerbaijan, conducting its activities within the framework of the Constitution and the laws of the Republic of Azerbaijan, as well as its own Charter.

According to clause 2 of its Charter, the main aims of the Association included the repair and maintenance of abandoned mosques and other places of worship, organising pilgrimages to Islamic shrines, providing material and moral aid to orphanages as well as elderly, ill and disabled people, and publishing books with a religious content.

The Association’s actual activities included the repair and maintenance of several mosques and projects aimed at promoting respect for human rights and building a civil society. The Association also engaged in a number of humanitarian activities, such as assistance to disabled children, campaigning against drugs and alcoholism, and a programme dedicated to promoting tolerance between representatives of different religions in Azerbaijan.

The highest governing body of the Association was the general assembly of members, held once a year, as provided for in clause 4 of its Charter. At the general assembly, the members elected the Association’s chairman and the three members of its management board. They also discussed and commented on the Association’s annual activity and submitted their proposals for its future activity.

It appears from the documents submitted to the Court that at the general assembly held on 8 August 1997 the members discussed the Association’s annual activity and decided to assist financially orphaned children and economically disadvantaged sections of the population and to raise awareness about the historical and religious values in the society.

The Association held its next general assembly on 4 January 1998. According to the minutes of the assembly, after having discussed the Association’s annual activity, the members decided to repair the Juma mosque in Baku and to participate actively in the process of building a civil society in the country by raising this issue in the media. They further decided to inform the public about the unlawfulness of the existing monopoly in organising pilgrimages to Islamic shrines. It was also decided to provide pilgrims with relevant information about the organisation of their visits.

On 29 December 2001 the Association held another general assembly at which the members adopted the Association’s annual activity report and decided, inter alia, to hold a conference on Prophet Muhammad on the occasion of his birthday and to prepare for the forthcoming seminar on the dialogue between civilizations, which would be held in Baku. They also agreed on the necessity to write articles in the media about subjects relating to existentialism and humanism.

On an unspecified date in 2002, the Ministry commenced an inspection of the Association’s activities in order to determine whether its activities had been carried out in compliance with its Charter.

According to an undated inspection report, the Association had twenty-seven members who did not pay any membership fees. The sources of the Association’s financing were not clear. It did not have a bank account. It was also noted in the report that, despite having a different registered legal address, the Association’s actual headquarters were located in a mosque. The Association’s chairman was also the head of a religious community and all of the Association’s members were also members of that community. The inspection concluded that, generally, it was difficult to establish whether the Association functioned as a non-governmental organisation or a religious organisation.

On 4 February 2002 the Ministry sent an official warning to the Association, claiming that its primary activities involved religious propaganda and agitation. The Ministry noted that, in accordance with the Law on Non-Governmental Organisations (Public Associations and Funds), public associations were not allowed to engage in religious activities. The Association was requested to remedy this breach of the law and, within ten days, report to the Ministry about the measures taken. The relevant part of the letter reads as follows:

“Religious activity is without any exception the duty and function of religious organisations and their status is governed by the Law on Freedom of Religion. In accordance with Article 7 of this Law, religious organisations are ‘voluntary organisations established for the purpose of spreading religious belief and religion’. In accordance with Article 1.4 of the Law on Non-Governmental Organisations (Public Associations and Funds), this Law is not applicable to religious organisations.

Therefore, any religious activity on the part of your association is unlawful.”

On 3 August 2002 the Association replied to the Ministry, claiming that it had carried out numerous social programmes providing assistance to the population, as well as activities related to the establishment of a civil society and the promotion of human rights. The Association denied any involvement in religious activities, noting that the Ministry had failed to specify which of the Association’s activities was qualified as “religious activity”. Moreover, the Association pointed out that Azerbaijani legislation did not provide any precise definition of what constituted a “religious activity”.

On 6 September 2002 the Ministry sent a second written warning to the Association, demanding that it cease its unlawful activities. It appears from the letter that the Ministry considered as “religious activities” some of the decisions taken by the Association’s general assembly. The relevant part of the letter reads as follows:

“Although it was denied in your letter of 3 August 2002 that the Association engaged in religious activities, the decisions of the Association’s general assembly, as well as some provisions of the Association’s Charter, confirm that it carries out religious activities.

In fact, at the general assemblies held on 4 January 1998, 7 January 1999 and 29 December 2001, religious matters were included in the agenda and discussed, and relevant decisions were taken. We reiterate that non-governmental organisations have no right to engage in religious activities.”

On 3 October 2002 the Ministry sent a third written warning. It pointed out that, despite two prior warnings, it had not been informed about any measures taken by the Association to comply with the Ministry’s demands that the Association cease its religious activities.

On 2 July 2003 the Ministry lodged an action with the Sabail District Court. It claimed that the Association unlawfully engaged in religious activities and requested the court to order its dissolution. In support of its claim, the Ministry noted that the fact that the questions relating to pilgrimages to holy shrines and the activity of the Caucasus Muslims Board (Qafqaz Müsəlmanlar İdarəsi, the official governing body of Muslim religious organisations in Azerbaijan) had been discussed at the Association’s general assembly proved that the Association had been engaging in religious activities.

In reply to the Ministry’s action, on an unspecified date the Association lodged an objection with the court, claiming that it had not engaged in religious activities. In particular, the Association submitted that decisions such as holding a conference dedicated to the birthday of Prophet Muhammad or criticising the Caucasus Muslims Board’s monopoly in the organisation of pilgrimages to Islamic shrines did not constitute religious activities. The Association also noted that all of its activities had been carried out in compliance with its charter, which the Ministry had never requested it to modify.

On 28 August 2003 the Sabail District Court ordered the Association’s dissolution. The court found that the Association had unlawfully engaged in religious activities and, despite three warnings by the Ministry, had failed to take any measures to cease such activities. The relevant part of the judgment reads as follows:

“It appears from minutes no 5 of the Islam-Ittihad Association dated 4 January 1998 ... that the fifth and eighth points relating to questions on the agenda concerned, respectively, ‘active participation in building a civil society’ and ‘pilgrimages to holy shrines’. One of the participants in the assembly, A.N., took the floor on this matter, stating that the Association should take an active stance in building a civil society in the country and proposed to participate in it actively by appearing in the media. This proposal was voted on and adopted unanimously.

It appears from minutes no 6 of the Islam-Ittihad Association dated 7 January 1999 ... that the sixth point relating to questions on the agenda was about ‘the Caucasus Muslim Board’ and M.Q., who took the floor on this matter, criticized the position of the Caucasus Muslim Board. Those who participated in the discussions said that this organisation had a monopoly on Islam in the country and that its officials had weakened the social and moral situation of the country, which was already low, by accusing each other of corruption in the media ...

In accordance with Article 7 of the Law on Freedom of Religion, ‘religious organisations are voluntary organisations established for the purposes of spreading religious belief.’

Article 8 of this Law provides that the religious community is a voluntary religious organisation of devout persons associated for exercising together prayer and meeting other religious needs ...

The court considers that in compliance with this requirement of the Law any religious activity by non-governmental organisations is unlawful.

Under Articles 1 and 4 of the Law on Public Associations, a public association may not be established for political purposes. Moreover, a non-governmental organisation may not carry out activities contrary to the aims provided for in its charter ...

At the court hearing the respondent failed to submit to the court any reliable evidence proving that it did not really engage in any religious activity.”

On an unspecified date the Association appealed against that judgment, reiterating that it had not engaged in religious activities. It complained that the court had put the burden of proof on the Association, holding that the respondent had failed to prove that it had not engaged in religious activities. It also complained that although it had been dissolved on account of its alleged engagement in religious activities, the relevant legislation provided no definition of “religious activity”.

On 20 November 2003 the Court of Appeal dismissed the Association’s appeal. The wording of the appellate court’s judgment was identical to the first-instance court’s judgment.

On 26 February 2004 the Association lodged a cassation appeal, reiterating its previous complaints. It also submitted that actively participating in building a civil society and criticising the activity of a religious authority were not unlawful activities.

On 21 July 2004 the Supreme Court upheld the Court of Appeal’s judgment.


Preliminary objection dismissed (Article 35-3 - Ratione temporis);Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3-c - Defence in person)

Anatoly Kovler;André Potocki;Angelika Nußberger;Ann Power-Forde;Corneliu Bîrsan;Dean Spielmann;Dmitry Dedov;Elisabeth Steiner;Erik Møse;Guido Raimondi;Helena Jäderblom;Ineta Ziemele;Isabelle Berro-Lefèvre;Ján Šikuta;Josep Casadevall;Khanlar Hajiyev;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Mark Villiger;Nebojša Vučinić;Peer Lorenzen;Zdravka Kalaydjieva;Ksenija Turković

The applicant was born in 1961 and is currently serving a prison sentence in Lepoglava State Prison.

On 19 December 1991 the Osijek Police Department lodged a criminal complaint against the applicant and five other persons with the Osijek County Court, alleging that the applicant, a member of the Croatian army, had killed several civilians.

On 20 April 1993 the Osijek Military Prosecutor indicted the applicant before the Osijek County Court on charges of murder, inflicting grievous bodily harm, causing a risk to life and assets, and theft. The relevant part of the indictment reads:

“The first accused, Fred Marguš

On 20 November 1991 at about 7 a.m. in Čepin ... fired four times at S.B. with an automatic gun ... as a result of which S.B. died;

At the same time and place as under (1) ... fired several times at V.B. with an automatic gun ... as a result of which V.B. died;

On 10 December 1991 took N.V. to the ‘Vrbik’ forest between Čepin and Ivanovac ... and fired at him twice with an automatic gun ... as a result of which N.V. died;

At the same place and time as under (3) fired at Ne.V. with an automatic gun ... as a result of which she died;

On 28 August 1991 at about 3 a.m. threw an explosive device into business premises in Čepinski Martinovec ... causing material damage;

On 18 November 1991 at 00.35 a.m. in Čepin placed an explosive device in a house ... causing material damage ...;

On 1 August 1991 at 3.30 p.m. in Čepin ... fired at R.C., causing him slight bodily injury and then ... kicked V.Ž ... causing him grievous bodily injury ... and also kicked R.C. ... causing him further slight bodily injuries ...;

Between 26 September and 5 October 1991 in Čepin ... stole several guns and bullets ...;

He was further charged with appropriating several tractors and other machines belonging to other persons.

On 25 January 1996 the Osijek Deputy Military Prosecutor dropped the charges under counts 3, 4, 6, 7 and 9 of the indictment as well as the charges of appropriating goods belonging to others. A new count was added, by which the applicant was charged with having fired, on 20 November 1991 at about 7 a.m. in Čepin, at a child, Sl.B., causing him grievous bodily injury. The former count 8 of the indictment thus became count 4.

On 24 September 1996 the General Amnesty Act was enacted. It stipulated that a general amnesty was to be applied in respect of all criminal offences committed in connection with the war in Croatia between 17 August 1990 and 23 August 1996, save in respect of those acts which amounted to the gravest breaches of humanitarian law or to war crimes, including the crime of genocide (see paragraph 27 below).

On 24 June 1997 the Osijek County Court, sitting as a panel presided over by Judge M.K., terminated the proceedings pursuant to the General Amnesty Act. The relevant part of this ruling reads:

“The Osijek County Court ... on 24 June 1997 has decided as follows: the criminal proceedings against the accused Fred Marguš on two charges of murder ... inflicting grievous bodily harm ... and causing a risk to life and assets ... instituted on the indictment lodged by the Osijek County State Attorney’s Office ... on 10 February 1997 are to be concluded under section 1(1) and (3) and section 2(2) of the General Amnesty Act.

The indictment of the Osijek Military State Attorney’s Office no. Kt-1/93 of 20 April 1993 charged Fred Marguš with three offences of aggravated murder under Article 35 § 1 of the Criminal Code; one offence of aggravated murder under Article 35 § 2(2) of the Criminal Code; two criminal offences of causing a risk to life and assets ... under Article 153 § 1 of the Criminal Code; one criminal offence of inflicting grievous bodily harm under Article 41 § 1 of the Criminal Code; one criminal offence of theft of weapons or other fighting equipment under Article 223 §§ 1 and 2 of the Criminal Code; and one criminal offence of aggravated theft under Article 131 § 2 of the Criminal Code ...

The above indictment was significantly altered at a hearing held on 25 January 1996 before the Osijek Military Court, when the Deputy Military Prosecutor withdrew some of the charges and altered the factual and legal description and the legal classification of some of the offences.

Thus, the accused Fred Marguš was indicted for two offences of murder under Article 34 § 1 of the Criminal Code, one criminal offence of inflicting grievous bodily harm under Article 41 § 1 of the Criminal Code and one criminal offence of causing a risk to life and assets ... under Article 146 § 1 of the Criminal Code ...

After the military courts had been abolished, the case file was forwarded to the Osijek County State Attorney’s Office, which took over the prosecution on the same charges and asked that the proceedings be continued before the Osijek County Court. The latter forwarded the case file to a three-judge panel in the context of application of the General Amnesty Act.

After considering the case file, this panel has concluded that the conditions under section 1(1) and (3) and section 2(2) of the General Amnesty Act have been met and that the accused is not excluded from amnesty.

The above-mentioned Act provides for a general amnesty in respect of criminal offences committed during the aggression, armed rebellion or armed conflicts .... in the Republic of Croatia. The general amnesty concerns criminal offences committed between 17 August 1990 and 23 August 1996.

The general amnesty excludes only the perpetrators of the gravest breaches of humanitarian law which amount to war crimes, and certain criminal offences listed in section 3 of the General Amnesty Act. It also excludes the perpetrators of other criminal offences under the Criminal Code ... which were not committed during the aggression, armed rebellion or armed conflicts and which are not connected with the aggression, armed rebellion or armed conflicts in Croatia.

The accused, Fred Marguš, is indicted for three criminal offences committed in Čepin on 20 November 1991 and one criminal offence committed in Čepin on 1 August 1991.

The first three of these offences concern the most difficult period and the time of the most serious attacks on Osijek and Eastern Croatia immediately after the fall of Vukovar, and the time of the most severe battles for Laslovo. In those battles, the accused distinguished himself as a combatant, showing exceptional courage and being recommended for promotion to the rank of lieutenant by the commander of the Third Battalion of the 106th Brigade of the Croatian army, who was his superior officer at that time.

In the critical period concerning the first three criminal offences, the accused was acting in his capacity as a member of the Croatian army; in that most difficult period, acting as commander of a unit, he tried to prevent the fall of a settlement into enemy hands, when there was an immediate danger of this happening. The fourth criminal offence was committed on 1 August 1991, when the accused was acting in his capacity as an on-duty member of the Reserve Forces in Čepin and was dressed in military camouflage uniform and using military weapons.

The actions of the accused, in view of the time and place of the events in issue, were closely connected with the aggression, armed rebellion and armed conflicts in Croatia, and were carried out during the period referred to in the General Amnesty Act.

Against this background, this court finds that all the statutory conditions for application of the General Amnesty Act have been met ...”

On an unspecified date the State Attorney lodged a request for the protection of legality (zahtjev za zaštitu zakonitosti) with the Supreme Court, asking it to establish that section 3(2) of the General Amnesty Act had been violated.

On 19 September 2007 the Supreme Court, when deciding upon the above request, established that the above ruling of the Osijek County Court of 24 June 1997 violated section 3(2) of the General Amnesty Act. The relevant parts of the Supreme Court’s ruling read:

Section 1(1) of the General Amnesty Act provides for a general amnesty from criminal prosecution and trial for the perpetrators of criminal offences committed in connection with the aggression, armed rebellion or armed conflicts ... in Croatia. Under paragraph 3 of the same section the amnesty concerns criminal offences committed between 17 August 1990 and 23 August 1996. ...

For the correct interpretation of these provisions – apart from the general condition that the criminal offence in question had to have been committed in the period between 17 August 1990 and 23 August 1996 (which has been met in the present case) – there must exist a direct and significant connection between the criminal offence and the aggression, armed rebellion or armed conflicts. This interpretation is in accordance with the general principle that anyone who commits a criminal offence has to answer for it. Therefore, the above provisions have to be interpreted in a sensible manner, with the necessary caution, so that the amnesty does not become a contradiction of itself and call into question the purpose for which the Act in question was enacted. Hence, the expression ‘in connection with the aggression, armed rebellion or armed conflicts’ used in the General Amnesty Act, which does not specifically define the nature of that connection, has to be interpreted to mean that the connection must be direct and significant.

Part of the factual description of the criminal offences with which the accused Fred Marguš is charged ... which suggests some connection with the aggression against the Republic of Croatia or armed rebellion and armed conflicts in Croatia, relates to the arrival of the victims of these offences – S.B., V.B. and the minor Sl.B. – in Čepin, together with their neighbours, after they had all fled the village of Ivanovac on account of the attack by the so-called ‘Y[ugoslav] P[eoples’] A[rmy]’. It should be stressed that it is not in dispute that the accused Fred Marguš was a member of the Croatian army. However, these circumstances are not such as to amount to a direct link with the aggression, armed rebellion or armed conflicts in Croatia which is required for the General Amnesty Act to apply.

The factual description of the criminal offences under count 4 of the indictment states that the accused committed these acts as a member of the Reserve Forces in Čepin, after his tour of duty had terminated. This characteristic in itself does not represent a significant link between the criminal offences and the war because, were this to be the case, the amnesty would encompass all criminal offences committed between 27 August 1990 and 23 August 1996 by members of the Croatian army or the enemy units (save for those specifically listed in section 3(1) of the General Amnesty Act); this was certainly not the intention of the legislature.

Finally, the accused’s war career, described in detail in the impugned ruling, cannot be a criterion for application of the General Amnesty Act ...

The factual description of the criminal offences in the indictment ... does not show that the acts in question were committed during the aggression, armed rebellion or armed conflicts in Croatia, or that they were committed in connection with them.

On 26 April 2006 the Osijek County State Attorney’s Office indicted the applicant on charges of war crimes against the civilian population. The proceedings were conducted by a three-judge panel of the Osijek County Court, including Judge M.K. During the entire proceedings the applicant was represented by a lawyer.

A concluding hearing was held on 19 March 2007 in the presence of, inter alia, the applicant and his defence lawyer. The applicant was removed from the courtroom during the closing arguments of the parties. The applicant’s lawyer remained in the courtroom and presented his closing arguments. The relevant part of the written record of that hearing reads as follows:

“The President of the panel notes that the accused Marguš interrupted the Osijek County Deputy State Attorney (‘the Deputy State Attorney’) in his closing arguments and was warned by the panel to calm down; the second time he interrupted the Deputy State Attorney he was warned orally.

After the President of the panel warned the accused Marguš orally, the latter continued to comment on the closing arguments of the Deputy State Attorney. The panel therefore decides, and the president of the panel orders, that the accused Marguš be removed from the courtroom until the pronouncement of the judgment.

The applicant was subsequently removed from the courtroom and the Deputy State Attorney, the lawyers for the victims, the defence lawyers and one of the accused gave their closing arguments.

The pronouncement of the judgment was scheduled for 21 March 2007 and the hearing was concluded. The applicant was present at the pronouncement of the judgment. He was found guilty as charged and sentenced to fourteen years’ imprisonment. The relevant part of the judgment reads as follows:

The accused Fred Marguš ...

and

the accused T.D. ...

are guilty [in that]

in the period between 20 and 25 November 1991 in Čepin and its surroundings, contrary to Article 3 § 1 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 and Article 4 §§ 1 and 2(a) and Article 13 of the Protocol Additional to the Geneva Conventions of 12 August 1949 relative to the Protection of Victims of Non-International Armed Conflicts (Protocol II) of 8 June 1977, while defending that territory from armed attacks by the local rebel Serb population and the so-called Yugoslav People’s Army in their joint attack on the constitutional legal order and territorial integrity of the Republic of Croatia, Fred Marguš, in his capacity as the commander of Unit 2 in the 3rd Corps of the 130th brigade of the Croatian army, and the accused T.D., as a member of the same Unit under the command of Fred Marguš, [acted as follows] with the intention of killing Serb civilians;

the accused Fred Marguš

(a) on 20 November 1991 at about 8 a.m. in Čepin, recognised V.B. and S.B. who were standing ... in front of the Fire Brigade Headquarters in Ivanovac and were fleeing their village because of the attacks by the Yugoslav People’s Army, ... fired at them with an automatic gun ... which caused S.B. to sustain a gunshot wound to the head ... and neck as a result of which S.B. immediately died, while V.B. was wounded and fell to the ground. The accused then drove away and soon afterwards came back, and, seeing that V.B. was still alive and accompanied by his nine-year-old son Sl.B. and ... his wife M.B., again fired the automatic gun at them, and thus shot V.B. twice in the head ... twice in the arm ... as a result of which V.B. soon died while Sl.B. was shot in the leg ... which amounted to grievous bodily harm;

(b) in the period between 22 and 24 November 1991 in Čepin, arrested N.V. and Ne.V., threatening them with firearms, appropriated their Golf vehicle ... took them to the basement of a house ... where he tied them by ropes to chairs and kept them locked in without food or water and, together with the members of his Unit ... beat and insulted them, asked them about their alleged hostile activity and possession of a radio set, and during that time prevented other members of the Unit from helping them ... after which he took them out of Čepin to a forest ... where they were shot with several bullets from firearms ... as a result of which N.V. ... and Ne.V. died;

(c) on 23 November 1991 at about 1.30 p.m. at the coach terminal in Čepin, arrested S.G. and D.G. and their relative Lj.G. and drove them to a house ... tied their hands behind their backs and, together with the late T.B., interrogated them about their alleged hostile activity and in the evening, while they were still tied up, drove them out of Čepin ... where he shot them ... as a result of which they died;

the accused Fred Marguš and T.D. [acting] together

(d) on 25 November 1991 at about 1 p.m. in Čepin, on seeing S.P. driving his Golf vehicle ... stopped him at the request of Fred Marguš ... ... and drove him to a field ... where ... Fred Marguš ordered T.D. to shoot S.P., [an order] which T.D. obeyed, shooting S.P. once ... after which Fred Marguš shot him several times with an automatic gun ... as a result of which S.P. ... died and Fred Marguš appropriated his vehicle.

The applicant’s conviction was upheld by the Supreme Court on 19 September 2007 and his sentence was increased to fifteen years’ imprisonment. The relevant part of the judgment by the Supreme Court reads as follows:

“Under Article 36 § 1(5) of the Code of Criminal Procedure (CCP), a judge is exempted from performing judicial functions if he or she participated in the same case in the adoption of a ruling of a lower court or if he participated in adopting the impugned ruling.

It is true that Judge M.K. participated in the proceedings in which the impugned judgment was adopted. He was the President of a panel of the Osijek County Court which adopted the ruling ... of 24 June 1997 by which the proceedings against the accused Fred Marguš were terminated under section 1(1) and (3) and section 2(2) of the General Amnesty Act ...

Even though both sets of proceedings were instituted against the same accused, it was not the same case. The judge in question participated in two different cases before the Osijek County Court against the same accused. In the case in which the present appeal has been lodged, Judge M.K. did not participate in adopting any decision of a lower court or in a decision which is the subject of an appeal or an extraordinary remedy.

The accused incorrectly argued that the first-instance court had acted contrary to Article 346 § 4 and Article 347 §§ 1 and 4 of the CCP when it held the concluding hearing in his absence and in the absence of his defence lawyer because it had removed him from the courtroom when the parties were presenting their closing arguments. Thus, he claimed, he had been prevented from giving his closing arguments. Furthermore, he had not been informed about the conduct of the hearing in his absence, and the decision to remove him from the courtroom had not been adopted by the trial panel.

Contrary to the allegations of the accused, the written record of the hearing held on 19 March 2007 shows that the accused Fred Marguš interrupted the [Osijek] County Deputy State Attorney in his closing arguments and was twice warned by the President of the trial panel. Since he continued with the same behaviour, the trial panel decided to remove him from the courtroom ...

Such action by the trial court is in conformity with Article 300 § 2 of the CCP. The accused Fred Marguš started to disturb order in the courtroom during the closing arguments of the [Osijek County Deputy] State Attorney and persisted in doing so, after which he was removed from the courtroom by a decision of the trial panel. He was again present in the courtroom when judgment was pronounced on 21 March 2007.

Since the trial court complied fully with Article 300 § 2 of the CCP, the accused’s appeal is unfounded. In the case in issue there has been no violation of the defence rights, and the removal of the accused from the courtroom during the closing arguments of the parties had no effect on the judgment.

The accused Fred Marguš further argues ... that the impugned judgment violated the ne bis in idem principle ... because the proceedings had already been discontinued in respect of some of the charges giving rise to the impugned judgment ...

It is true that criminal proceedings were conducted before the Osijek County Court under the number K-4/97 against the accused Fred Marguš in respect of, inter alia, four criminal offences ... of murder ... committed against S.B., V.B., N.V. and Ne.V, as well as the criminal offence ... of creating a risk to life and assets ... These proceedings were terminated by final ruling of the Osijek County Court no. Kv-99/97 (K-4/97) of 24 June 1997 on the basis of the General Amnesty Act ...

Despite the fact that the consequences of the criminal offences which were the subject of the proceedings conducted before the Osijek County Court under the number K-4/97, namely the deaths of S.B., V.B., N.V. and Ne.V. and the grievous bodily injury of Sl.B., are also part of the factual background [to the criminal offences assessed] in the proceedings in which the impugned judgment has been adopted, the offences [tried in the two sets of criminal proceedings in issue] are not the same.

Comparison between the factual background [to the criminal offences assessed] in both sets of proceedings shows that they are not identical. The factual background [to the offences referred to] in the impugned judgment contains a further criminal element, significantly wider in scope than the one forming the basis for the proceedings conducted before the Osijek County Court under the number K-4/97. [In the present case] the accused Fred Marguš is charged with violation of the rules of the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 and of the Protocol Additional to the Geneva Conventions of 12 August 1949 relative to the Protection of Victims of Non-International Armed Conflicts (Protocol II) of 8 June 1977, in that, in the period between 20 and 25 November 1991, while defending that territory from armed attacks by the local rebel Serb population and the so-called Yugoslav People’s Army in their joint attack on the constitutional legal order and territorial integrity of the Republic of Croatia, and in violation of the rules of international law, he killed and tortured civilians, treated them in an inhuman manner, unlawfully arrested them, ordered the killing of a civilian and robbed the assets of the civilian population. The above acts constitute a criminal offence against the values protected by international law, namely a war crime against the civilian population under Article 120 § 1 of the Criminal Code.

Since the factual background to the criminal offence in issue, and its legal classification, differ from those which were the subject of the earlier proceedings, such that the scope of the charges against the accused Fred Marguš is significantly wider and different from the previous case (case-file no. K-4/97), the matter is not res judicata ...”

A subsequent constitutional complaint by the applicant was dismissed by the Constitutional Court on 30 September 2009. The Constitutional Court endorsed the views of the Supreme Court.


No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Italy);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) (Conditional) (Italy)

András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens

The applicant is a Syrian national of Kurdish origin. He was born in 1988 and currently lives in Geneva. On an unknown date he entered Swizerland from Italy, where he had arrived also on an unknown date. On 18 February 2013 he sought asylum in Switzerland.

On 8 May 2013 the Federal Office of Migration (the “FOM”) rejected the applicant’s asylum request on the basis of the fact that his fingerprints had already been registered in EURODAC, in Greece, on 16 August 2012, and in Italy, on 21 January 2013. Furthermore, the Italian authorities had accepted the Swiss authorities’ request of 17 April 2013 to take the applicant back into their territory by virtue of Article 10 § 1 of Regulation no. 343/2003/EC (the “Dublin Regulation”). The FOM further ruled that the applicant’s two sisters, who were living in Switzerland respectively since 2006 and January 2012, did not fall under the category of “family members” as provided in Article 2 (i) of the Dublin Regulation. Regarding the back problems alleged by the applicant, it considered that Italy was obliged to grant him access to medical treatment and that nothing indicated that those health problems impeded the transfer of the applicant to Italy.

The applicant appealed against the FOM’s decision to the Federal Administrative Court (the “FAC”). He maintained that he had fled his home country Syria because he had been persecuted, detained and tortured there. As established by medical certificates, he had been diagnosed with severe post-traumatic stress disorder, for which he was receiving medical treatment. He was also receiving medical treatment for his back problems. He claimed that the FOM’s decision was in breach of Article 10 § 1 of the Dublin Regulation because Greece was the first member State he had entered less than twelve months before. Thus it was the Greek authorities which were theoretically responsible for examining his asylum request. It could not, however, be derived from the fact that he could not be returned to Greece as established in M.S.S. v. Belgium and Greece ([GC] no. 30696/09, ECHR 2011) that Switzerland could return him to Italy. Therefore, the Swiss authorities’ request for his return to Italy was in breach of the law because they had known that the Italian authorities were not competent in that matter, and Italy had erroneously accepted the request. According to the applicant, the FOM’s decision also violated Article 15 § 2 of the Dublin Regulation which provided that persons who were dependent on relatives who were residing in a member State should be kept together with them. In this regard he established that two of his older sisters were legally residing in Switzerland with their families. He claimed that owing to the presence of his sisters he had regained a certain emotional stability in his life. His expulsion to Italy, where he had no family member to care for him, would therefore aggravate his mental health problems in such a way that he would be at risk of irreparable harm contrary to Articles 3 and 8 of the Convention.

On 13 June 2013 the FAC dismissed the applicant’s appeal. It ruled that according to the Dublin Regulation the applicant had to return to Italy, whose authorities had, prior to accepting the Swiss request for return, been informed by Switzerland that the applicant had first entered the “Dublin area” in Greece. Furthermore, the FAC considered that in view of the dates of arrival in the respective countries it could not be excluded that on leaving Greece the applicant had left the “Dublin area” before entering Italy. Furthermore, it established that the applicant was not so severely ill that he was dependent on the assistance of his sisters. Therefore, Article 15 § 2 of the Dublin Regulation was not applicable in his case and neither was Article 8 of the Convention. Moreover, the FAC held that with regard to the asylum procedure and the availability of medical treatment for asylum seekers it had not been established that there were structural deficiencies in the Italian reception system and that Italy failed to respect its international obligations in respect of asylum seekers and refugees. Therefore, nothing indicated that the applicant would suffer treatment contrary to Article 3 of the Convention in the event of expulsion to Italy. Finally, the FAC stated that it was up to the Swiss authorities to inform their Italian counterparts about the applicant’s health problems when they were executing the expulsion.

Before this Court the applicant produced in particular a medical report dated 6 June 2013 establishing that, as a result of trauma allegedly suffered in detention in Syria, he had back problems and showed severe symptoms of post-traumatic stress disorder. As a result, the applicant was put on a course of twice monthly psychotherapy sessions with a general practitioner and was prescribeda daily dose of Sertraline, an anti-depressant, as well as sleeping pills (Zolpidem) and pain-killers for his back (Tilur).

The report also stated that in the absence of medical treatment the applicant’s health status would deteriorate quickly and put him at a high risk of alcohol or drug abuse as well as suicide. The risk of suicide would be greater should the applicant be returned to his country of origin.

Moreover, according to the report, the involvment of the applicant’s sisters was “an absolute necessity” (absolument nécessaire) for him to gain some emotional stability in order to overcome the multiple traumas suffered.

Upon the recommendation of his doctor, the applicant was allocated an individual apartment unit for asylum seekers. The applicant also submitted his sisters’ declarations, according to which he was virtually spending the whole time with their families, he was in great emotional need, could not be left alone and spent only the nights alone in his apartment. They added that they were willing and able to provide him with emotional support so that he could recover from his trauma.


Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

The applicant, Mr Y.A., is an Afghan national, who was born in 1953 and lives in the Netherlands in Dordrecht. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 3). He was represented before the Court by Mr J.M. Walls, a lawyer practising in Prinsenbeek.

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

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

On 28 December 1997, the applicant applied for asylum in the Netherlands. He stated inter alia that he had been a professional military officer and that he had worked for the KhAD/WAD (Khadimat-e Atal-at-e Dowlati/Wezarat-e Amniyat-e Dowlati). He further stated that he had been a member of the communist party (People’s Democratic Party of Afghanistan; PDPA). He had fled Afghanistan on 10 December 1997 as the Taliban had been searching for him. He was granted asylum on 27 July 1999. On an unspecified date in 2001, his spouse was given permission to join him in the Netherlands. This permission was equally given to their four children who were born in 1989, 1990, 1994 and 1996, respectively. His wife and the two youngest children have since obtained Dutch nationality; the two oldest children hold residence permits for asylum purposes.

On 24 February 2006, the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie) decided to withdraw the applicant’s asylum based residence permit with retroactive effect, Article 1F of the 1951 Geneva Convention relating to the Status of Refugees being held against the applicant. The Minister based this decision on the applicant’s statements about his career from 1983 to 1992 as an officer in the KhAD/WAD in which he had last held the rank of lieutenant colonel, and on a general official report (algemeen ambtsbericht), drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs (Ministerie van Buitenlandse Zaken) on “Security Services in Communist Afghanistan (1978-1992). AGSA, KAM, KhAD and WAD” (“Veiligheidsdiensten in communistisch Afghanistan (1978-1992), AGSA, KAM, KhAD en WAD”) On the basis of this report, the Netherlands immigration authorities adopted the position that Article 1F of the 1951 Refugee Convention could be held against virtually every Afghan asylum seeker who, holding the rank of third lieutenant or higher, had worked during the communist regime for the KhAD/WAD.

In a separate decision taken on 3 April 2006, the Minister further imposed an exclusion order (ongewenstverklaring) on the applicant. The applicant’s objection (bezwaar) against this decision was rejected by the Minister on 27 August 2007.

As under Dutch law it is not possible to have lawful residence in the Netherlands as long as an exclusion order is in place, the applicant’s appeal against the withdrawal of his asylum based residence permit was declared inadmissible on 25 November 2008 by the Regional Court of The Hague sitting in Zutphen.

In a separate decision taken on the same day, the Regional Court of The Hague sitting in Zutphen rejected the applicant’s appeal against the decision to impose an exclusion order. On 21 December 2008, the applicant filed a further appeal with the Administrative Jurisdiction Division Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State).

On 25 March 2009, at the request of the applicant, the President of the Chamber decided to indicate to the Government of the Netherlands that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to remove the applicant to Afghanistan (Rule 39 of the Rules of Court) until further notice.

On 20 May 2008 the Chamber prolonged the measure under Rule 39 of the Rules of Court until further notice.

On 26 March 2009, the applicant requested the Deputy Minister of Justice (Staatssecretaris van Justitie; “the Deputy Minister”; the successor to the Minister for Immigration and Integration) to lift (temporarily) the exclusion order imposed on him (“verzoek om het (tijdelijk) opheffen van de ongewenstverklaring”).

On 16 September 2009, the Administrative Jurisdiction Division rejected the applicant’s further appeal concerning the decision to impose an exclusion order on him.

On 24 December 2009, the Deputy Minister withdrew the decision of 27 August 2007, in which the applicant’s objection to the decision to impose an exclusion order on him had been rejected.

On 27 April 2010, the Government informed the Court that, in the context of the proceedings concerning the applicant’s exclusion order and his request have this order lifted, the Deputy Minister had concluded on 7 April 2010 that the applicant would, if returned to Afghanistan in the current circumstances, run a risk of treatment as referred to in Article 3 of the Convention. The Government stated that, therefore, the applicant would not be expelled to Afghanistan as long as Article 3 would constitute grounds for not doing so. The Government requested the Court to consider striking the application out of the list of pending cases.

On 14 May 2010, the applicant informed the Court that he did not wish to withdraw the application as he had not only alleged a violation of his rights under Article 3 but also under Article 8 of the Convention.

On 14 September 2010, the Court decided against striking the case out. It decided to adjourn its proceedings pending the outcome of the still pending domestic proceedings on the imposition of an exclusion order on the applicant. It further decided to prolong the Rule 39 indication for the duration of the proceedings before the Court.

On 11 August 2011, the Regional Court of The Hague sitting in Rotterdam determined the applicant’s appeal against the Minister’s decision of 7 April 2010 concerning the imposition of the exclusion order. It remitted the case to the Minister. In a separate judgment given on the same day, the Regional Court rejected the applicant’s appeal against the Minister’s refusal to lift the exclusion order.

In a fresh decision taken on 30 November 2011 concerning the imposition of the exclusion order, the Minister for Immigration, Integration and Asylum Policy (Minister voor Immigratie, Integratie en Asiel; the successor to the Deputy Minister of Justice) again accepted that the applicant, if returned to Afghanistan, would run a risk of treatment proscribed by Article 3 of the Convention but rejected the applicant’s other arguments based on Articles 3 and 8 of the Convention. The applicant filed an appeal with the Regional Court of The Hague, which is presumably still pending.

On 4 March 2012, the applicant informed the Court of the state of proceedings at the domestic level, namely that the proceedings concerning the imposition of the exclusion order were pending before the Regional Court of The Hague sitting in Dordrecht and that the proceedings on his request to lift the exclusion order were pending before the Administrative Jurisdiction Division. He further informed the Court of the consequences of the implementation as from 1 January 2012 of Directive 2008/115/EC of 16 December 2008 (on common standards and procedures in Member States for returning illegally staying third-country nationals) for persons who – like the applicant – are not a national of one of the European Union Member States and on whom an exclusion order has been imposed. According the applicant, the Government intended to lift exclusion orders imposed in the past under their simultaneously replacement by an entry ban within the meaning of Article 11 of the Directive.

The Court requested the Government on 12 March 2012 to comment on the information supplied by the applicant, which they did on 7 May 2012. The Government informed the Court, inter alia, that the Minister was seeing no reason to lift the applicant’s exclusion order and impose an entry ban on him

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


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

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention.