CASE OF ALEKSANDR VLADIMIROVICH SMIRNOV v. UKRAINE

Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-3-c - Defence through legal assistance)

The applicant was born in 1981 and lives in the Russian Federation.

On 5 December 2002 the applicant was stopped by the police at a bus station in Odessa, Ukraine, and detained in a holding facility for vagrants (приймальник-спецрозподільник) on the grounds that he had no identity documents with him.

According to the applicant, he was detained and held alternately in the aforementioned facility and the Kakhovka, Kherson and Mykolayiv police detention facilities until 23 December 2002, and was questioned off the record about his alleged involvement with a terrorist group plotting to instigate a revolt to reinstate a communist state. During those question sessions the applicant was beaten and tortured.

According to the documents on file, on 9 December 2002 the applicant was examined by B., a medical specialist of the Odessa holding facility for vagrants, who noted that he had no bodily injuries. Subsequently (on 14 December 2002) the applicant was taken to Kakhovka and placed in the police temporary detention facility, where he stayed until 18 December 2002. On the date of his arrival the applicant was examined by S., a medical expert, who recorded no bodily injuries and noted that the applicant had made no complaints of ill-treatment.

On 14 and 15 December 2002 the Kakhovka police questioned the applicant as a witness in connection with unidentified proceedings. During those interviews the applicant explained to the police that he was a member of a Russian-based non-governmental organisation, “Z.”, which advocated rights for political prisoners and propagated communist political views. He and two other members of Z. had been commissioned to come to Ukraine to distribute their newspaper, Soviet rabochikh deputatov, and other materials, participate in public activities organised by opposition political forces in Ukraine, and promote networking with local leftist groups.

On 17 December 2002 the applicant participated in a confrontation with V.S., a Kakhovka resident, who confirmed having communicated with the applicant’s associates and having received the Soviet rabochikh deputatov newspaper.

On 23 December 2002 the applicant addressed a handwritten statement to investigator V.K. of the Security Service of Ukraine (“the SSU”) in Mykolayiv, in which he confessed, in particular, that he had been distributing the Soviet rabochikh deputatov newspaper and other printed materials in Ukraine and that he, with two other members of the communist movement, of which he was a member, had blown up a rubbish bin near the SSU headquarters in Kyiv in October 2002.

On the same date the applicant was arrested in Mykolayiv on suspicion of a terrorist offence and was subsequently remanded in custody following a court order. It appears from the arrest report drafted on 23 December 2002 that the applicant, who had been notified of his right to legal assistance upon his arrest, expressed the wish to consult a lawyer before his first questioning.

At about 12.30 p.m. on 24 December 2004 the applicant signed two documents confirming that he understood his rights as a suspect, and also that he wished to consult a lawyer. Subsequently (at about 12.45 p.m.), the applicant signed a statement of consent to be questioned by an SSU officer without a lawyer. During that questioning the applicant reiterated his earlier statements and provided further details concerning his acquaintance and encounters with various activists of the communist movement in Russia and Ukraine.

On 26 December 2002 V.V., a lawyer engaged by the applicant’s mother, was admitted to the proceedings as his defence counsel.

On 29 December 2002 the applicant was indicted for membership of a terrorist group and participation in a terrorist act. Questioned in V.V.’s presence, the applicant confessed to some of the charges against him. In particular, he confirmed his affiliation with the communist movement and participation in political opposition activities, but denied taking part in the rubbish bin explosion or any terrorist activity. Citing his right to remain silent, the applicant refused to explain why his statements differed from those he had given previously.

On 30 December 2002 the applicant requested that V.V. be replaced by N.B., a new lawyer engaged by his mother. This request was granted on the same date.

In February 2003 the applicant was transferred to the Odessa no. 21 pre-trial detention facility, as the investigation of the case had been transferred to the Odessa SSU.

On various occasions in the spring of 2003 the applicant, with his consent, was questioned in Odessa in the absence of N.B., whose practice was in Mykolayiv. When questioned the applicant sometimes refused to answer questions, citing his right to remain silent, and at other times responded to the questions asked, either confirming or modifying his previous submissions.

On 27 May 2003 the investigation was completed, and the applicant, along with ten other individuals implicated in affiliation with a criminal association which had engaged in a number of robberies and other crimes committed on behalf of their organisation with a view to reinstating a communist state, was committed to stand trial before the Odessa Regional Court of Appeal (“the Regional Court”) acting as a first-instance court.

On 24 July 2003 the applicant and his lawyer N.B. signed an affidavit that they had finished studying the case file. On the same date N.B. requested that the case be remitted for a further investigation, alleging that numerous substantive and procedural-law provisions had been breached. He submitted, in particular, that the applicant had been unlawfully detained and tortured between 5 and 23 December 2002, with the aim of extracting self-incriminating statements from him, in breach of his right to mount a defence.

On the same date the investigator in charge of the case refused this request. He noted in particular that, as indicated in the materials in the file, the applicant had been arrested only on 23 December 2002, and no investigative activities had been carried out involving him before that date. Nor had he complained of any ill-treatment.

The applicant’s trial began in September 2003.

During the trial, the applicant pleaded not guilty to all the charges. He admitted that he was acquainted with his co-defendants as members of the pro-communist network and fellow distributors of the Soviet rabochikh deputatov newspaper and various communist propaganda material in Ukraine. At the same time he denied being involved in the rubbish-bin explosion imputed to him, and also denied all knowledge of any involvement by his co-defendants in any type of criminal activity. The applicant also submitted that he had been unlawfully detained between 5 and 23 December 2002, and had made false self-incriminating statements as a result of ill-treatment by the investigating authorities. The medical staff of the detention facilities in which he had been held had refused to record his bodily injuries. He had not lodged any relevant complaints at the beginning of the investigation, as he had feared reprisals.

After the death of B., one of the applicant’s co-defendants, during the trial proceedings, the applicant and his co-defendants demanded an investigation of the circumstances of his death, alleging that it had resulted from torture and that they had also been subjected to ill-treatment during the investigation. Following the investigation, the prosecutor’s office reported to the Regional Court that B. had died of cancer and that there had been no ill-treatment case to answer with respect to either the applicant or his co-defendants.

On 24 May 2004 the applicant lodged a fresh complaint with the Kakhovka Regional Prosecutor’s Office, alleging that he had been ill-treated by Kakhovka police officers in December 2002.

On 22 June 2004 the prosecutor’s office refused to institute criminal proceedings in connection with the applicant’s allegations. It was noted in the text of the relevant decision, in particular, that the officers questioned had acknowledged that the applicant had been detained in their charge from 14-18 December 2002 as an arrestee under investigation. However, those officers had stated that they had neither ill-treated him, nor received any complaints from him concerning ill-treatment by third parties. It was also noted in the decision that the officers’ explanations had been consistent with the explanations by the medical expert who had examined the applicant on 14 December 2002.

On an unspecified date, N.B.’s engagement having been terminated, O.K. was appointed as the applicant’s new lawyer. On several occasions the applicant complained in court about O.K.’s performance, offering to replace her with his mother as his lay defence representative and with some other individuals. These requests were refused by the court on the basis of various procedural provisions, the applicant having been instructed to engage a competent licensed lawyer to replace O.K. as a condition for her being dismissed.

On 19 July 2004 the Regional Court found the applicant guilty of affiliation with a criminal association plotting reinstatement of a communist state in Ukraine by violent means, distribution of the Soviet rabochikh deputatov newspaper, whose articles were found to propagate the ideas of such a violent revolt, and participation in a terrorist act (the aforementioned rubbish bin explosion). In the text of its judgment, the court referred to an extensive array of evidence, including the applicant’s statements given on 23 and 24 December 2002. The court noted that those statements were consistent with other evidence, and that there was no indication that they had been extracted by ill-treatment or otherwise in defiance of the applicant’s will or in breach of his procedural rights. They therefore had to be preferred over the applicant’s submissions at the trial. Finally, the court sentenced the applicant to eight years’ imprisonment, with effect from 5 December 2002.

On 7 September 2004 the applicant lodged a cassation appeal against his conviction, in which he reiterated the submissions he had made during the trial and complained, in particular, that his right to mount a defence had been breached and that the statements he had made at the investigation stage in the absence of a lawyer should be excluded from the evidential basis.

On 26 July 2005 the applicant, represented by O.Kh., a new lawyer engaged by his mother, reiterated his position at an oral hearing before the Supreme Court.

On the same date the Supreme Court rejected the applicant’s allegations of breaches of his procedural rights, and upheld his conviction for distribution of material promoting violent revolt and participation in a terrorist act. It also confirmed the applicant’s sentence, having, however, dropped the charges of membership of the criminal association.

On several further occasions between 2003 and 2007 the applicant and his mother complained to the Ukraine prosecutor’s office and to other authorities that the applicant had been ill-treated by SSU officers and police, as well as by Russian security service officers who had purportedly questioned him in Ukraine concerning criminal acts committed in Russia. The applicant’s and his mother’s attempts to institute formal criminal investigations in connection with these allegations were to no avail.

In November 2005 the applicant was transferred to the Slavyanoserbsk no. 60 Correctional Colony (“the Slavyanoserbsk Colony”), where he served his sentence until he was transferred to another detention facility in September 2007.

On arrival the applicant was assigned to cell no. 201 in the maximum security unit.

According to the applicant, the conditions of his detention therein were incompatible with human dignity. In particular, the cell, which measured some thirty square metres, accommodated from ten to sixteen inmates, confined to it all day except for an hour’s daily exercise in the outside courtyard. Notwithstanding the general prohibition, many inmates smoked in the cell, which was not equipped with artificial ventilation. As a result, the applicant suffered severely from the effects of passive smoking, while the administration refused his requests for transfer to another cell or for installation of an electric fan his mother had offered to provide. Opening a window to let in some fresh air was problematic, particularly in winter, as with the poor heating the temperature in the cell went down to about eight degrees Celsius. In addition, the windows, which had non-transparent panes of glass, barely let in daylight. With only two small electric bulbs, artificial light was also very poor. As a result, it was very difficult to read or write in the cell. The food was also inadequate. To support the applicant’s nutritional needs his mother had to send in regular food parcels, containing such basic products as tea, pasta, cereals and canned meat and vegetables. In support of his allegations, the applicant presented copies of lists of food items sent in by his mother. He also presented copies of his and his mother’s appeals to the prosecutor’s office and other authorities, in which they requested that the applicant be moved to a non-smoking cell or at least that the use of an electric fan be permitted. They also requested that other matters, in particular, the catering, lighting and heating arrangements be inspected and improved.

According to the Government, the conditions of the applicant’s detention were fair. In particular, the applicant’s cell, which measured thirty-two square metres, was equipped to accommodate eight inmates only, which ensured sufficient personal space per detainee. It had windows allowing access to daylight and fresh air. It was also equipped with electric light of sufficient brightness, and had artificial ventilation in the sanitary facility. The heating functioned adequately and the temperature in the cell was always between nineteen and twenty-two degrees Celsius. Smoking was allowed only in the courtyards, and meals provided to detainees were sufficient and properly balanced to meet their nutritional needs. Following the applicant’s and his mother’s complaints, the prosecutor’s office had inspected the conditions of the applicant’s detention and found them to be in accordance with applicable domestic regulations.

According to the applicant, he was deprived of any medical care during his detention in the Slavyanoserbsk Colony. In particular, in January 2006 he requested a full medical examination, as he was suffering from constant fatigue, periodic pain in the kidney area, oedema, headaches and chest pain. This request received no response. In March 2007 he was also refused treatment for chronic dental decay, as the medical unit lacked funding to obtain the necessary supplies. It was only in May 2007, after his mother had procured the necessary supplies at her own expense, that the applicant received the treatment. In addition, on many occasions the applicant’s mother sent in parcels containing other basic medicines and supplies, such as antiseptics, activated carbon, adhesive plasters and vitamins, purchased at her own expense.

According to the Government, the medical assistance available to the applicant in the Slavyanoserbsk Colony was adequate. The applicant underwent a medical check-up upon his arrival and subsequently benefitted from semi-annual (spring and autumn) checkups. Specifically, he received check-ups on 12 November 2005 and 15 March, 14 April and 30 September 2006. During these check-ups the applicant was also X-rayed for tuberculosis screening. In March 2007 the applicant also had blood and urine samples taken for laboratory testing. The results of all these screenings indicated that the applicant’s health was in general satisfactory.

The Government also provided records, according to which in March 2007 the applicant had been examined by a dental specialist, who recommended non-urgent treatment for his chronic dental decay, and notified that the appropriate supplies were not available at the Colony’s medical unit at that time. In May 2007, the necessary supplies having been procured by the applicant’s mother, he received the treatment.


Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova

The applicant was born in 1979 and lives in Ivanovo.

At the relevant time the applicant was a member of the Ivanovo Region electoral commission.

On 23 October 2003 a deputy head of the Ivanovo Region Department of Internal Affairs ordered audio-visual “surveillance” (“наблюдение”) of the applicant’s office. The parties did not submit a copy of that decision.

The surveillance was carried out from 27 October to 5 November 2003 by means of a hidden camera.

The applicant was subsequently charged with abuse of power, an offence under Article 285 of the Criminal Code. While studying the criminal case file he discovered that it contained video recordings of him talking on the telephone in his office.

At the trial the applicant pleaded not guilty. He claimed, in particular, that the video recordings were inadmissible as evidence as they had been obtained unlawfully without prior judicial authorisation. He also challenged the authenticity of the recordings.

On 27 September 2004 the Leninskiy District Court of Ivanovo convicted the applicant of abuse of power and sentenced him to two years’ imprisonment, suspended for two years. The court relied on statements by several witnesses, physical evidence, expert reports and the video recordings of the applicant’s telephone conversations. It found that the video recordings were authentic and that they had been obtained in accordance with the procedure prescribed by law.

The applicant appealed. He reiterated, in particular, his argument that the video recordings were inadmissible as evidence.

On 12 November 2004 the Ivanovo Regional Court upheld the conviction on appeal. The court held that the District Court had correctly declared the video recordings admissible as evidence because they had been obtained in accordance with the procedure prescribed by law.


CASE OF M.R.A. AND OTHERS v. THE NETHERLANDS

No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Afghanistan);No violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Expulsion)

Branko Lubarda;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The first and second applicants are a married couple who were born in 1959 and 1966. The third, fourth and fifth applicants are their children, a daughter and two sons who were born in 1991, 1996 and 2007.

The first four applicants entered the Netherlands on 7 April 1999 and applied for asylum. In the course of the proceedings on this asylum application, the first and second applicants were both interviewed by the Netherlands immigration authorities on, inter alia, their reasons for seeking asylum.

The first applicant gave the following account to the immigration authorities. He had become a member of the communist People’s Democratic Party of Afghanistan (“the PDPA”) in 1978. During his studies he had volunteered for guard duties at the PDPA headquarters in Kabul’s fifth district. He had been charged with guarding homes against possible mujahideen attacks and checking traffic at intersections for illegal weapons.

In order to avoid being sent to the front during his compulsory military service the first applicant had, upon graduating as a construction engineer from the University of Kabul, voluntarily reported for duty in 1982 to the security battalion of the Council of Ministers in Shar-e-Now, a neighbourhood in Kabul. After working there for three days, the first applicant had requested a transfer to Kabul’s Pol-e-Charki prison, where working conditions were better as they were indoors. The first applicant had been stationed in block 3, where political prisoners were detained. With fifteen other colleagues he had been responsible for guarding the block. He had had no contact with the 150 to 200 prisoners for whom he had been responsible. His tasks had comprised cell patrol and occasional transport to hospital of prisoners who had fallen ill. He had never witnessed any illtreatment or torture by the Afghan authorities of prisoners in that period. He had only once witnessed the ill-treatment of a prisoner, by a “bashi” (leader).

After six months the first applicant had applied for a transfer, which had been granted by the deputy head of the Afghan security service Khadimat-e Atal’at-e Dowlati/Wezarat-e Amniyat-e Dowlati (“KhAD/WAD”). At the end of July 1982 the first applicant had started as a construction engineer within the ranks of KhAD, which position he had held until April 1992, when the mujahideen ended the PDPA’s communist regime in Afghanistan. The first applicant had been employed in the buildings department of the Logistics Directorate of KHAD, which had been renamed Buildings Directorate in 1986. For this department/Directorate the first applicant and his team of 100-200 construction workers had constructed five buildings for KhAD, including an office building for KhAD’s Directorate 1. He had also been responsible for the construction of twenty ammunition depots.

The first applicant had initially declared to the Netherlands authorities that the highest military rank he had attained was that of lieutenant-colonel, which he later changed to major. He further stated that he had been decorated three times for his achievements.

The first applicant had also been involved in the distribution of party propaganda, delivered to him by the Political Affairs Department of his Directorate, with which he also had meetings twice a week. In addition, he had organised courses for illiterate labourers.

After the fall of the PDPA regime in April 1992 the applicants had fled to Mazar-e-Sharif, where the first applicant had continued to work as a construction engineer for the municipality until 1998. On 10 August 1998 – one day after the Taliban had taken control of Mazar-e-Sharif – the applicants’ home had been raided and searched by eight armed Taliban fighters, who had found, inter alia, the first applicant’s PDPA identity card, some of his medals, and a bayonet. On the suspicion that the applicants had been keeping weapons in their home, the Taliban had arrested the first applicant and his brother.

The first applicant had been incarcerated for about seven months and had been questioned several times, during which he had disclosed in detail his past career in the KhAD/WAD. A nephew or cousin of the first applicant had bribed the Taliban commander concerned in order to obtain the applicant’s release, which had been successful but on condition that the first applicant left Afghanistan immediately. On the evening of his release, he was supposed to be executed. A number of his fellow detainees had indeed been executed, and according to the records, so was he – it was only because of the deal that had been struck with the commander that he had been secretly led away.

The first applicant further told the immigration authorities that he had heard from one of his relatives in Canada that another nephew or cousin, who had also been a member of the PDPA, had been killed in Kabul in 2005 by soldiers of the Ministry of the Interior who were mujahideen or Taliban.

In support of her request for asylum, the second applicant submitted the following account. She had studied educational theory in Kabul, after which she had been employed as a teacher at a high school in Kabul from 1989 to 1991. She had joined the women’s organisation of the PDPA at the same time as taking up her duties as a teacher. She had stopped working when her first child was born. Out of fear of the mujahideen she had refrained from seeking employment during the time the family lived in Mazar-e-Sharif. She had once been beaten on the street for wearing a burka that was judged too short. This had occurred at the time her husband was incarcerated by the Taliban. According to the second applicant, her husband had been ill-treated and subjected to forced labour during his incarceration.

After the first applicant had been interviewed on his asylum application, on 12 April and 25 November 1999 and 26 September 2000, the Deputy Minister of Justice (Staatssecretaris van Justitie) issued on 9 October 2001 a notice of her intention (voornemen) to reject the first applicant’s asylum application and to hold Article 1F of the 1951 Refugee Convention against him. The applicant’s asylum claim had been considered in the light of, inter alia, an official report (ambtsbericht), drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs on “Security Services in Communist Afghanistan (1978-1992), AGSA, KAM, KhAD and WAD” (“Veiligheidsdiensten in communistisch Afghanistan (1978-1992), AGSA, KAM, KhAD en WAD”; DPC/AM 663896) and concerning in particular the question whether, and if so which, former employees of those services should be regarded as implicated in human rights violations. On the basis of this report, the Netherlands immigration authorities had adopted the position that Article 1F of the 1951 Refugee Convention could be held against virtually every Afghan asylum seeker who, with the rank of third lieutenant or higher, had worked during the communist regime for the KhAD or its successor the WAD. In the notice of intent, the Deputy Minister analysed, on the basis of elaborate argumentation based on various international materials, the nature of the acts imputed to the first applicant in the framework of Article 1F of the 1951 Refugee Convention as well as his individual responsibility under that Convention.

Having regard to the official country report of 29 February 2000 as well as documentation from public international sources such as the United Nations, Amnesty International and Human Rights Watch, the Deputy Minister emphasised the widely known cruel character of the KhAD/WAD, its lawless methods, the grave crimes it had committed such as torture and other human rights violations, and the “climate of terror” which it had spread throughout the whole of Afghan society. The Deputy Minister considered that this “climate of terror” was also felt within the KhAD/WAD itself. Staff members needed to prove their loyalty to the organisation on an almost daily basis, and a failure to do so put them at risk of being removed from the KhAD/WAD; often this entailed death for the person concerned.

The Deputy Minister was of the opinion that the first applicant must have known of the criminal nature of the methods employed by the organisation where he had made a career. Furthermore, relying on the official report of 29 February 2000, the Deputy Minister excluded the possibility that the first applicant had remained ignorant of the cruel working methods of the KhAD/WAD. She also did not attach credence to the first applicant’s statement that he had not known of any atrocities committed in Pol-e-Charki Prison, where he had performed guard duty for six months. On this point, the Deputy Minister referred to a 1979 report from Amnesty International as well as to reports drawn up by the United States Department of State on this prison, from which it was obvious that Pol-e-Charki was widely associated with heinous crimes.

The Deputy Minister noted in this respect that the first applicant had initially declared that he had witnessed the ill-treatment of a prisoner by an assistant interrogator. No value was attached to the fact that the first applicant had subsequently corrected this initial statement and had submitted that this had concerned an incident amongst detainees. The Deputy Minister considered that the first applicant had had every reason to change his statements into more favourable ones once he learned of the investigation against him to assess whether Article 1F of the Refugee Convention applied to him. The Deputy Minister also noted that the first applicant’s initial statements had been very detailed.

The Deputy Minister further noted that the first applicant had been granted permission, after six months of working as a guard in Pol-e-Charki Prison, to be transferred to a department more suited to his professional profile. According to the Deputy Minister, this meant that the first applicant’s loyalty must have been found proven beyond any doubt, considering that he had been given his position with the KhAD after only a relatively short time in Pol-e-Charki, that the new position opened up opportunities to be promoted to (senior) officer, and that it enabled the first applicant to enter and study several if not many of the KhAD’s buildings. The Deputy Minister concluded that there were serious reasons for considering that the first applicant had committed human rights violations, at least during his time in Pol-e-Charki Prison.

Taking into account, inter alia, an anonymised official report drawn up by the Ministry of Foreign Affairs on 15 September 1999 (DPC/AM 648554), the Deputy Minister further found it highly implausible that during his ten years of experience as a construction engineer for the KhAD/WAD the first applicant would not have become aware of certain uses for which KhAD/WAD’s buildings had been designed, or at least of to what use they had de facto been put. As torture was systemic in KhAD/WAD interrogation centres, it should be considered impossible that persons belonging to the higher management of the KhAD/WAD had not been involved in this or would have been unaware of it. By reaching the rank of lieutenant-colonel the first applicant had entered the higher echelons of the KhAD/WAD. Further taking into account that the first applicant had been decorated for his achievements and that he had continued performing his duties until the fall of the communist regime, the Deputy Minister reached the conclusion that the first applicant’s competence and loyalty must have been beyond doubt. Furthermore, due to the applicant’s involvement with the Political Affairs Department, the Deputy Minister concluded that the first applicant must have been aware of human rights violations being committed. With reference to anonymised official reports of 15 December 2000 (DPC/AM 635082) and 20 February 2001 (DPC/AM 699244) drawn up by the Ministry of Foreign Affairs, the Deputy Minister considered as regards the political affairs departments that, in the relevant part, their main task had been to guarantee continued loyalty to the Afghan communist regime by means of the reporting of dubious behaviour of individuals to the KhAD/WAD. Political affairs departments cooperated closely with the KhAD/WAD in providing them with information.

These considerations led the Deputy Minister to conclude that the first applicant’s personal participation in the human rights violations attributed to KhAD was an established fact. Considering the reputation of Pol-e-Charki Prison and the first applicant’s denial of any human rights violations, the Deputy Minister could not attach any credence to the first applicant’s statements. She found that the first applicant had failed in making plausible (aannemelijk maken) – on the basis of objective sources or any other means – his stated ignorance of human rights violations by the KhAD/WAD. In terms of the first applicant’s activities for the KhAD/WAD, the Deputy Minister considered that the first applicant had, for a long time, been of service, albeit in an accessory capacity, to the KhAD/WAD, and that it would thus not have been able to perform its tasks without the first applicant’s efforts. The Deputy Minister also found that the first applicant had supported the activities of the Political Affairs Department; although this department had not committed any atrocities itself, it had been an important element in the State apparatus.

The first applicant submitted written comments (zienswijze) on the notice of intent on 7 and 20 November 2001.

On 20 February 2002, the Deputy Minister rejected the first applicant’s asylum application, confirming the reasoning as set out in her notice of intention of 9 October 2001 and rebutting the first applicant’s written comments. Disagreeing with the first applicant, she considered that the official report of 29 February 2000 (see paragraph 17 above) which to a great extent lay at the basis of her decision, could not be seen as an isolated document, but rather as the product of thorough research based on objective sources. The Deputy Minister attached more credence to the report than the first applicant’s unfounded rebuttals.

The Deputy Minister further dismissed the first applicant’s argument that he had been too remotely connected to the human rights violations attributed to specific departments of the KhAD/WAD during his time as an engineer in that organisation. Relying on UNHCR’s “The Exclusion Clauses: Guidelines on their Application” of December 1996 (see paragraph 71 below) and the official report of 29 February 2000, it was held in this respect that merely supporting an organisation like the KhAD/WAD may in itself suffice to render applicable Article 1F of the Refugee Convention.

The first applicant’s appeal to the Regional Court (rechtbank) of The Hague sitting in Alkmaar was rejected on 26 February 2004. The Regional Court analysed the first applicant’s accountability for the impugned human rights violations on the basis of the prescribed and so-called “personal and knowing participation” test.

As regards the “knowing” element, the Regional Court held that the Deputy Minister had not erred in imputing knowledge of the human rights violations committed by KhAD/WAD to the first applicant in the way she had. In this context the Regional Court found that the official reports issued by the Ministry of Foreign Affairs, which lay to a great extent at the basis of the Minister’s decision, had been drafted in an unbiased manner, were accurate and objective, and provided the required insight in the relevant information, and therefore that the Minister had been entitled to rely on them. It further found that the first applicant had failed to furnish adequate evidence in support of his allegation that the official report of 29 February 2000 was inaccurate and that it could not be assumed that he had knowledge of the human rights violations committed in Pol-e-Charki Prison.

As regards the first applicant’s personal participation in human rights violations attributed to the KhAD/WAD, the Regional Court reiterated that according to codified policy – the Aliens Act Implementation Guidelines (Vreemdelingencirculaire 2000) – this notion included, besides personal commission of the impugned human rights violations by the person concerned, the facilitation of the said crimes. Facilitation was defined as a substantial positive effect by means of the person’s conduct on how these crimes had been committed, or a lack of such conduct in preventing these crimes from being committed. The Regional Court found that the first applicant had facilitated the human rights violations committed by the KhAD/WAD by having voluntarily chosen to work as a guard in PoleCharki Prison and his subsequent request – also made voluntarily – to start working for the KhAD/WAD. In these circumstances the Regional Court concluded that the first applicant had facilitated – and thus personally participated in – the human rights violations attributed to the KhAD/WAD, despite his having been stationed in Pol-e-Charki Prison as a conscript rather than as a professional soldier.

Considering that Article 3 of the Convention did not guarantee a right of residence, the Regional Court also dismissed the first applicant’s argument that the Deputy Minister had erred by not examining his asylum account under that provision.

The first applicant lodged a further appeal with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State), which quashed the Regional Court’s judgment on 26 July 2004. As regards the Regional Court’s finding in relation to Article 3 of the Convention, the Administrative Jurisdiction Division held that the Deputy Minister should, wherever possible, avoid creating a situation in which an asylum seeker is refused a residence permit but cannot be expelled to his/her country of origin for reasons based on Article 3. For that reason, the decision should demonstrate that the Deputy Minister had examined whether Article 3 would lastingly (duurzaam) stand in the way of expulsion to the country of origin and of the possible consequences for the residence situation of the person concerned. This, the Division found, the Deputy Minister had failed to do in the present case, for which reason it quashed the Regional Court’s judgment and remitted the case to the Deputy Minister’s successor, the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie) for a fresh decision.

The first applicant was once more interviewed by the immigration authorities on 10 March 2005, after which, on 3 August 2005, the Minister issued the first applicant with a notice of her intention to reject his asylum application. The Minister reached the same conclusions, based in the relevant part on the same grounds, as the Deputy Minister had reached in her notice of intent of 9 October 2001 and subsequent decision of 20 February 2002 in relation to the first applicant’s knowing and personal participation in human rights violations attributed to his former employer – the KhAD/WAD – and consequent application of Article 1F of the Refugee Convention against him. The Minister to a large extent used as a basis for her notice a book by a Professor Dr. M. Osman Rostar entitled “The Pulicharki Prison. A Communist Inferno in Afghanistan”. Prof. Rostar had been detained in Pol-e-Charki Prison for a considerable time during the period between 1981 and 1986-87.

As to Article 3 of the Convention, the Minister considered, in so far as relevant, that the first applicant had not furnished the required substantial grounds in support of a stated real risk of treatment contrary to Article 3 in case of his expulsion to Afghanistan. The first applicant’s fear of the mujahideen, the Taliban and/or other armed groups not belonging to the Government persecuting the intellectual classes in Afghanistan, based on the first applicant’s background as a former PDPA member and former employee of the KhAD/WAD, was dismissed by the Minister as based on mere suspicions. The Minister noted in this regard that the first applicant had declared, during the interview held with him on 10 March 2005, that he did not know of anyone specifically looking for him. It was further held that the killing of the first applicant’s nephew or cousin by Afghan State agents because of his past support of the communist regime did not constitute an individual fact or circumstance relevant to the first applicant’s claim under Article 3 and that, furthermore, the source of the said information – a relative of the first applicant residing in Canada – was unreliable.

The Minister made reference to an official report drawn up by the Ministry of Foreign Affairs in January 2005, according to which former Afghan communists and those associated with the communist regime, including former KhAD/WAD personnel, possibly ran a risk of human rights violations in Afghanistan. She stressed, however, that this did not mean that every person meeting these criteria would run a risk of treatment contrary to Article 3 of the Convention upon his/her return to Afghanistan. The Minister underlined in this regard the fact that until 1998 the first applicant had not experienced any problems caused by his membership of the PDPA, his past activities for the KhAD/WAD, or his political convictions after the fall of the communist regime in 1992. The first applicant’s argument that he would run a greater risk of kidnappings and robberies due to his fellow countrymen’s perception of him as a rich person upon his return to Afghanistan was dismissed as unfounded.

The first applicant submitted written comments on the notice of intent on 26 August 2005. By a decision of 2 December 2005, the Minister once more rejected his asylum application. The Minister fully endorsed the reasons for the rejection as set out in the notice of intent and, in addition thereto dismissing the first applicant’s written comments held, in the relevant part, the following.

The first applicant had, inter alia, argued that block 3 of PoleCharki Prison, where he had worked, had not fallen under the responsibility of the KhAD/WAD and had been located in a separate building, hence away from the human rights violations allegedly committed in blocks 1 and 2. The first applicant had relied on an Amnesty International report in this regard. The Minister held that no support for such a distinction between blocks 1 and 2 on the one hand and block 3 on the other in terms of the commission of human rights violations could be found in the literature and reports written about Pol-e-Charki Prison. The first applicant also, unsuccessfully, advanced a number of inconsistencies in the book by Prof. Rostar.

With reference to the Ministry of Foreign Affairs official report of 29 February 2000, the Minister dismissed the first applicant’s claim that he had not been involved in human rights violations committed by the KhAD/WAD, having regard to his position as a construction engineer in the said organisation. It was found that all officers of the KhAD/WAD had been involved in its more sinister departments and hence were responsible for the interrogation, torture and execution of suspects. The Minister further considered that, pursuant to the case-law of the Administrative Jurisdiction Division, she was entitled to rely on the official report as accurate and complete, and that this was not altered by the fact that other reports did not confirm certain findings reached in the official report.

As regards Article 3 of the Convention, the first applicant had argued that when the Minister had held that the applicants had not experienced any problems in Afghanistan between 1992 and 1998, she had failed to acknowledge that the applicants had been living in Mazar-e-Sharif, which had been a safe haven for former communists during that particular period of time. According to the first applicant, the Minister had also failed to acknowledge that he had experienced problems in 1998. He had further submitted that his brother had held a high position during the communist regime. The Minister, however, considered that none of these arguments constituted concrete and individual circumstances justifying the acceptance of the existence of a real risk of treatment contrary to Article 3 upon the first applicant’s return to Afghanistan.

The first applicant’s appeal was rejected by the Regional Court of The Hague sitting in ‘s-Hertogenbosch by judgment of 19 October 2006. Limiting itself to an analysis of the matter under Article 3 of the Convention, the Regional Court held that the first applicant had not sufficiently established that as a result of his membership of the PDPA and past activities for KhAD/WAD he would run a real and serious risk of treatment contrary to the said provision upon his return to Afghanistan. The court underlined that the first applicant had declared, in an interview held with the immigration authorities on 10 March 2005, that nobody in Afghanistan was specifically looking for him. Although the first applicant claimed that he had been detained by the Taliban in the past, it had not been established that the Taliban would still be looking for him or that he had remained an object of the Taliban’s negative attention. The Regional Court emphasised in this regard that the first applicant’s detention had taken place during a different political situation.

While the Regional Court accepted that, as set out in an official report of the Ministry of Foreign Affairs of January 2005, individuals associated with the former Afghan communist regime, including the KhAD/WAD, ran a possible risk of being subjected to treatment contrary to Article 3 of the Convention upon their return to that country, it held that this did not mean that everyone associated with the former regime ran a real and serious risk of that nature. The Regional Court noted that the first applicant’s former position in KhAD/WAD could not be regarded as one of the high posts mentioned in this official report. The killing of the first applicant’s nephew or cousin and that the second applicant would have had a western lifestyle did not alter the Regional Court’s finding either.

The applicant’s further appeal was rejected on 27 April 2007 by the Administrative Jurisdiction Division on summary reasoning. It found that the further appeal did not provide grounds for quashing the impugned ruling and that having regard to section 91 § 2 of the Aliens Act 2000 (Vreemdelingenwet 2000), no further reasoning was called for, as the arguments submitted did not raise any questions requiring determination in the interest of legal unity, legal development or legal protection in the general sense. No further appeal lay against this ruling.

On 27 August 2007 the Deputy Minister of Justice issued a notice of intention to declare the first applicant an undesirable alien entailing the imposition of an exclusion order (ongewenstverklaring) in accordance with article 67 § 1 (e) of the Aliens Act 2000, following the decision to hold Article 1F of the 1951 Convention against him in the asylum procedure. This intention was not followed by an actual decision to impose an exclusion order.

The second applicant was interviewed by the immigration authorities on 12 April and 25 November 1999. On 10 October 2001 the Deputy Minister issued a notice of her intention to reject the second, third and fourth applicant’s asylum application. The latter two applicants, being minors, were included in the second applicant’s application for asylum throughout the proceedings. In so far as relevant, it was held that the second applicant’s motives for asylum were to a large extent dependent on the first applicant’s motives. The first applicant’s application having been rejected, the Deputy Minister considered that the second applicant’s asylum claims were to be assessed on their own merits.

Referring to a Ministry of Foreign Affairs official report of 16 September 1999, the Deputy Minister held that there was no general rule for assessing the risk which family members of individuals sought by the Taliban might run in Afghanistan. As a rule of thumb, it could be assumed that such family members would only risk being detained by the Taliban as a means of forcing the person concerned to report to the authorities if that person was present in Afghanistan, or was at least suspected to be. Even if it was to be assumed that the first applicant was being sought by the Taliban, he had not been in Afghanistan since March 1999 and, by his own admission, was even believed by the Taliban to have been executed. It was unlikely, therefore, that the second applicant would attract the Taliban’s attention on account of her husband’s activities.

As regards the second applicant’s claim that she had been threatened by the Taliban during the search of the family house in Mazar-e-Sharif, the Deputy Minister considered that any threats uttered had rather been directed at the two men – the first applicant and his brother – than at the women present. While it was regrettable that the second applicant had been subjected to ill-treatment after her burka had been judged to be of insufficient length, the Deputy Minister noted that this had been a single occurrence and that there were no indications that the Taliban continued to have an interest in her.

As regards Article 3 of the Convention the Deputy Minister considered that the second applicant had not advanced the required substantial grounds for believing that she would run a foreseeable, real and personal risk of treatment contrary to said provision. The single incident about the burka was insufficient for the second applicant to be able to rely on Article 3 successfully. In this respect the Deputy Minister also had regard to the fact that the second applicant had lived under Taliban rule for a relatively long period of time, but other than the aforementioned incident she had not reported any further occurrences relevant in terms of Article 3 of the Convention.

The Deputy Minister, furthermore, considered that the second applicant was to be excluded from the so-called “policy of protection for certain categories” (categoriaal beschermingsbeleid), in force for Afghan nationals at that time. The Deputy Minister considered in this regard that the rejection of the asylum application of the second applicant’s husband on the basis of Article 1F of the Refugee Convention gave rise to a contraindication against the issuing of residence permits to his relatives, since the admittance of the second applicant and the applicants’ children would in all likelihood bring about a protracted de facto stay in the Netherlands of the second applicant’s husband.

The second applicant submitted written comments on the Deputy Minister’s notice of intent on 7 November 2001. She was once more interviewed by the immigration authorities on 13 December 2002.

On 28 February 2003 the Minister for Immigration and Integration, the successor to the Deputy Minister, issued a fresh notice of his intention to reject the second applicant’s asylum application, due to a relevant change of circumstances in Afghanistan.

While endorsing the Deputy Minister’s finding as to the existence of a contraindication against the second applicant, the Minister went on to consider that, pursuant to a Ministry of Foreign Affairs official report of 19 August 2002, the general situation in Afghanistan no longer required the keeping in place of a categorial protection policy. Moreover, after the fall of the Taliban regime, the second applicant no longer had a reason to fear persecution at their hands, and – as also appeared from the official report of 19 August 2002 – the position of women in Afghan society had greatly improved. In this latter context, the Minister considered that gender in itself was not a conclusive factor in an assessment of the risk of persecution in Afghanistan. It was for the second applicant to make a plausible case for believing that she had a well-founded fear of persecution on the basis of her personal circumstances, seen against the background of the general situation in Afghanistan. It was found that she had failed to do so. In this context, the Minister held that the second applicant had always lived in major cities in Afghanistan, where the situation for women had improved, as opposed to the situation in the countryside. The Minister saw no reason to assume that the second applicant, if expelled to Afghanistan, would not again settle in a major city.

The Minister further considered that the second applicant’s membership of the women’s organisation of the PDPA, her husband’s membership of the PDPA, or his past activities for KhAD/WAD were not reason enough in themselves to grant the second applicant asylum, since according to the aforementioned official report there were no indications that people had to fear persecution in Afghanistan for the sole reason that they had previously had ties to the communist regime.

After receiving the second applicant’s comments on this notice of intent, the Minister rejected the asylum application on 3 March 2004, adding that as the second applicant had not demonstrated that she was or had ever been the object of negative attention from the side of either the mujahideen or the Taliban, she had failed to establish that she would run a real risk of being subjected to treatment contrary to Article 3 of the Convention in Afghanistan.

The second applicant’s appeal was rejected on 17 October 2006 by the Regional Court of the Hague sitting in ‘s-Hertogenbosch. It agreed with the Minister that the second applicant had failed to establish a real risk of being subjected to treatment contrary to Article 3 of the Convention if she was returned to Afghanistan. Her further appeal to the Administrative Jurisdiction Division was rejected on 27 April 2007 on summary reasoning. No further appeal lay against this ruling.

On 26 July 2007 the fifth applicant was born in the Netherlands to the first and second applicant.

On 24 April 2009, the first applicant submitted a fresh application for asylum and was interviewed on this new request on the same day. Following a notice of intention notified on 28 October 2009, this application was rejected by the Deputy Minister of Justice, again holding Article 1F of the 1951 Refugee Convention against the first applicant. This decision became final after the Regional Court of The Hague had rejected the first applicant’s appeal on 4 March 2011, entailing that the first applicant was under an obligation to leave the Netherlands.

On 26 November 2012, the Deputy Minister for Security and Justice, noting that the first applicant had not left the Netherlands and cancelling the intention of 27 August 2007 (see paragraph 41 above), issued a notice of intention to impose an entry ban (inreisverbod) for ten years on the first applicant. No information has been submitted whether this intention has been followed by an actual decision to impose an entry ban.

On 3 July 2009, also the second applicant had made a fresh asylum application, also on behalf of her minor children, namely the fourth and fifth applicants. Following a successful appeal to the Regional Court of The Hague against the initial refusal of this request and on the basis of a new policy having entered into force on 3 May 2011 (WBV 2011/5; see paragraph 64 below), the Minister for Immigration, Integration and Asylum Policy (Minister voor Immigratie en Asiel) granted on 30 September 2011 the second, fourth and fifth applicant temporary residence permit for asylum purposes (verblijfsvergunning asiel voor bepaalde tijd), valid from 3 May 2011 until 3 May 2016. In the letter of 30 September 2011 notifying this decision, the Minister stated in respect of the adult son (the third applicant) that, in so far as he wished to apply for asylum in reliance on the new policy (WBV 2011/5) that there existed a contraindication, namely his criminal record in the Netherlands, which would be taken into account in the examination of a possible future application.

Also on 3 July 2009, the third applicant, who had come of age, had made an asylum application on his own behalf which was rejected on 16 December 2009 by the Minister, who found that, given that he had been convicted twice in the Netherlands of acts of public violence, the third applicant presented a danger to public order. The Minister rejected the third applicant’s argument that, being a westernised young man and given the deteriorated general security situation in Afghanistan, he would be exposed to a risk of being subjected to treatment contrary to Article 3 of the Convention if removed to Afghanistan. In so far as the third applicant relied on Article 8 of the Convention, the Minister considered that it was open for the third applicant to apply for a residence permit on that basis. The third applicant’s appeal against this decision was rejected on 4 March 2011 by the Regional Court of The Hague sitting in ‘s-Hertogenbosch. No information has been submitted as to whether he has sought to challenge the judgment of 4 March 2011 by lodging a further appeal with the Administrative Jurisdiction Division.

On 5 December 2011, the third applicant made another asylum application, which was rejected by the Minister on 19 December 2011. The third applicant’s appeal and accompanying request for a provisional measure were rejected on 9 January 2012 by the provisional-measures judge (voorzieningenrechter) of the Regional Court of The Hague sitting in Zutphen. To the extent that it was accepted that the fresh application was based on relevant newly emerged facts and circumstances (“nova”) warranting reconsideration of the initial rejection as required by section 4:6 of the General Administrative Law Act (Algemene Wet Bestuursrecht), the provisional-measures judge did not find that the third applicant qualified for asylum on the basis of the alleged deterioration in the general security situation in Afghanistan or that, for this reason, he would be exposed to a real risk of treatment prohibited by Article 3 if he were removed to Afghanistan. The provisional-measures judge also accepted the Minister’s decision, given the third applicant’s criminal record, not to grant him a temporary residence permit for asylum purposes on the basis of the Minister’s decision of 30 September 2011 to grant such a permit to the second, fourth and fifth applicant under the new policy which had entered into force on 3 May 2011. In so far as the applicant relied on Article 8 of the Convention the judge considered that given the strict separation in the system under the Aliens Act 2000 between an asylum-based application for a residence permit and a regular application (reguliere aanvraag) for a residence permit, it was considered that, if the applicant wished to reside in the Netherlands on the basis of his family life within the meaning of Article 8 of the Convention, he should make a regular application for a residence permit based on his rights under Article 8. The provisionalmeasures judge lastly noted that, in the event that the Netherlands authorities proceeded with the third applicant’s removal from the Netherlands, he could avail himself of legal remedies to challenge this. There is no indication in the case file that the third applicant availed himself of the opportunity to lodge a further appeal against this judgment with the Administrative Jurisdiction Division.

On 15 February 2012, the third applicant made a regular application for a residence permit on the basis of his family life with his parents and siblings in the Netherlands. This application was rejected by the Minister on 28 September 2012. The Minister noted at the outset that the applicant did not hold the required provisional residence visa (machtiging tot voorlopig verblijf). Such a visa entitles the holder to enter the Netherlands in order to apply for a residence permit for a stay exceeding three months. The Minister further noted that the third applicant did not fall within one of the defined categories of persons who are exempted from the obligation to hold a provisional residence visa. As to the third applicant’s reliance on Article 8 of the Convention, the Minister noted that his mother and two younger siblings held a temporary residence permit for asylum purposes and that his father held no residence permit. Although the Minister accepted that there was family life between the third applicant and each of his parents and his siblings, and that there were objective obstacles to the exercise of family life between the third applicant and his mother and siblings outside the Netherlands, the Minister did not find that there was a positive obligation under Article 8 to grant the third applicant a residence permit on that basis. In reaching this finding, the Minister considered that a balance had to be struck between, on the one hand, the applicant’s personal interests and, on the other, public interest considerations. The presence of an objective obstacle was a weighty but not necessarily a decisive factor in this balancing exercise, which also includes other factors such as the way in which family life was conducted in the country of origin, whether the minimum income requirements under the applicable immigration rules were met, public order considerations, and the situation in the country of origin. Noting that his father had been refused asylum because Article 1F of the 1951 Refugee Convention had been held against him, and that no obstacle based on Article 3 for his removal to Afghanistan had been found in the asylum proceedings, that the third applicant had been denied asylum on account of his criminal convictions in the Netherlands, that the third applicant was an adult, and that his submissions did not disclose that there would be “more than normal emotional ties” between his and his mother and siblings, that his mother and siblings lived separately from his father, and that the third applicant himself lived a wandering existence, staying occasionally with his mother and often with friends, and that also his ties with his father did not go beyond the normal ties between a parent and an adult son, the Minister concluded, in particular having regard to the third applicant’s criminal record in the Netherlands, that public interest considerations outweighed the third applicant’s personal interests. This decision also constituted a return decision (terugkeerbesluit). The third applicant was informed that he was now under the obligation to leave the Netherlands within twenty-four hours, failing which he would be eligible for removal, and that the submission of an objection (bezwaar) to the decision would not have any suspensive effect.

The third applicant submitted an objection to this decision to the Minister and requested the Regional Court of The Hague to issue a provisional measure allowing him to await the outcome of the objection proceedings in the Netherlands.

On 4 February 2012, the provisional-measures judge of the Regional Court of The Hague sitting in Utrecht granted the third applicant’s request for a provisional measure, finding that it did not appear that, in his assessment, the Minister had taken into account - given the “guiding principles” formulated in the judgments of the European Court of Human Rights of 2 August 2001 in the case of Boultif and 18 October 2006 in the case of Üner - the duration of the third applicant’s stay in the Netherlands, the nature and seriousness of the criminal offences of which the third applicant had been convicted, the time that had elapsed since these offences were committed and the third applicant’s behaviour in that period, the social ties established by the third applicant in the Netherlands, and the possibility of return to Afghanistan. Considering that the Minister had attached decisive weight to the third applicant’s criminal record without looking into the nature and seriousness of the offences concerned and without indicating what weight had been given to the other relevant circumstances on the basis of the ‘guiding principles”, the provisional-measures judge concluded that it could not be said that the objection would not have a reasonable chance of success. Consequently, the provisional-measures judge granted the provisional measure and suspended the Minister’s decision of 28 September 2012 pending the outcome of the objection proceedings.

No further information about these proceedings has been submitted.


Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani

The applicant, Ms Concetta Schembri, is a Maltese national who was born in 1944 and lives in Rabat. She was represented before the Court by Dr M. Camilleri, a lawyer practising in Valletta. The Maltese Government were represented by their Agent, Dr Peter Grech, Attorney General.

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

In 2004 S., a Pakistani citizen of Afghan origin, arrived irregularly in Malta by boat and was detained under the applicable immigration laws. While in detention, S. met C., the applicant’s brother, who worked with the detention services.

Following his release from detention in 2005, S. maintained contact with C. and started carrying out some maintenance work in the latter’s house. S. eventually started living in that house in October 2005 and met the applicant, with whom he started a relationship. It appears that for some time the applicant also lived there while renovation work was being carried out in her own place. Three months later S. wanted to marry the applicant, but she did not agree. According to the Government, the applicant and S. had only gone out together once and S. spoke little English; however, during the domestic proceedings (see paragraphs 5, 12 and 15 below), the applicant stated that she had originally got to know S. online and that after they had met they had sometimes gone out together – when asked whether their outings had been romantic she replied that they had been normal outings.

After some time, in 2006, once his asylum application (at first instance) had been rejected, S. entered Italy unlawfully and went to Naples. According to the applicant’s testimony S. contacted the applicant around a month later by phone and the two remained in contact via telephone calls around twice a week. An appeal against the asylum decision was never examined since S. could not be traced.

In November 2007 the applicant went to Milan on holiday and met S. again; she then prolonged her stay. In December 2007 her brother and the latter’s daughter joined them and on that occasion the applicant and S. decided to get married. According to the applicant she lived with S. for some time and then returned to Malta for a few months before returning to Italy in March 2008. The Government submitted that there was no evidence of their cohabitation.

On 19 March 2008 the applicant married S., who was thirty years her junior, under the regime of separation of estates. The rest of the applicant’s family (save for C.) was not informed. They married in Milan, Italy and their marriage was registered in the Public Registry of Malta in the same year, given that one of the spouses was a Maltese national.

According to a declaration by two Italian lawyers (who had assisted the applicant) dated 2011, to their knowledge the applicant and S. lived together before and after their marriage until they went abroad.

In April 2008 the applicant and S. went to the Maltese embassy in Rome in order to apply for a visa for S. He was interviewed in that connection. According to the applicant, following the interview S. was informed verbally that he would not be granted a visa to enter Malta. No written decision was issued nor was he informed about any possibility of appeal. The applicant alleged that it had been suggested to S. that he go back to Pakistan wherefrom he could apply for an entry visa. The embassy denied this (during the domestic proceedings), their position being that his visa had been refused because during the interview it transpired that S. had been lying, in particular concerning the status of his stay in Italy and the means by which he had entered Italy, and his means of subsistence. In her testimony the Consul stated that she had consulted the Central Visa Unit in Malta (“the Visa Unit”) and submitted a report to this effect, and subsequently, on an unspecified date, a letter had been sent to S. rejecting his application.

In May 2008 the applicant went back to Malta to ask for a review of the decision taken by the embassy and to try to obtain a visa for her husband through the Visa Unit in Malta. She was informed that she had to write a letter to the Visa Unit outlining her request. She followed this instruction on 5 August 2008 and then returned to Italy on 8 August 2008. She continued communicating with the Visa Unit, but no decision was communicated to her.

In October 2008 S. returned to Pakistan to try and obtain an entry visa from there. However, the Italian embassy in Islamabad could not provide assistance.

In the meantime the applicant had returned to Malta and continued pursuing the application for an entry visa from there. She was sent from one office to another to no avail. On an unspecified date, at a meeting with M.C. and J.M. (two employees of the Visa Unit), the applicant, who referred to having met S. online, was told that if the visa were to be issued she would have to give personal guarantees with regard to the financial support of her husband. She accepted that responsibility. No attempts were made to contact S. and no decision ensued.

It appeared that an internal board had started to investigate the applicant’s complaint. It also transpired that the authorities suspected that the applicant’s marriage to S. had been one of convenience, which was why a visa would not be issued. Moreover, it appeared that S.’s intention was to stay in Rome. The Visa Unit submitted their conclusions to the department of Citizenship but no decision had been formally issued by the time the proceedings hereinafter mentioned were instituted. In any event, according to the applicant, the law did not appear to provide for a possibility to appeal against any such decision (unless it had been taken by the Principal Immigration Officer, which did not appear to be so in the present case).

On 23 July 2009 the applicant instituted constitutional redress proceedings complaining that the refusal to issue her husband a visa had been unlawful and had constituted a violation of Article 8 of the Convention.

The court heard evidence from a number of witnesses including the applicant (who reiterated the facts as mentioned above), but not S., who did not testify.

J.M., the director of the Department of Citizenship, stated that S. was an exempt person but that his status had not yet been confirmed. He explained that exempt status was an inherent right of a spouse of a Maltese citizen, unless the spouses did not live together or if there had been an order by the Minister responsible. He explained that he had been in contact with the Visa Unit and the embassy in Italy and that his role was to ensure that the legislation was not abused, particularly in the light of marriages of convenience, which were not rare and which could be detected through an EU Council Resolution which gave pointers on identifying such situations. He further testified that even with exempt-person status an individual could not automatically enter the country and a visa was still required. J.M. noted that the exempt-person status of S. had never been confirmed. At the same time he also stated that there was no application to be lodged, since an individual should not have to apply for something which belonged to him or her by right. He explained that there was an enquiry form requiring details of the exempt person and when this was filled in, a letter confirming the status would be sent out. However, J.M. stated that this was simply a formality because the exempt-person status was acquired as soon as the marriage was contracted. S. had never filled in this form, as he had never entered Malta following his marriage. Nevertheless, J.M. testified that an informal request had been made by the applicant, who had been accompanied by a lawyer.

M.S., another employee of the Visa Unit, stated that S.’s visa application had been refused but that there was a right of appeal – he later stated that it was not an appeal but a review or reconsideration. He declared that the Visa Unit had reviewed the case and decided that the application should be refused because there had been a suspicion that it had been a marriage of convenience. M.S. explained that the file had been sent to the Department of Citizenship and that the case had not yet been concluded, and no decision letter had been sent out.

By a judgment of 29 November 2011 the Civil Court (First Hall) in its constitutional jurisdiction dismissed the applicant’s claim.

The court rejected the Government’s objection as to non-exhaustion of ordinary remedies. It considered that the reconsideration procedure as undertaken by the Visa Unit in the present case could not be considered an effective remedy – it had taken too long, despite the Visa Unit having had all the relevant information from the Maltese embassy in Rome. Indeed the Visa Unit had had no reason to prolong issuing a decision, to the extent that it was never rendered. Furthermore, the procedure eventually came to a halt with the institution of the constitutional redress proceedings. Moreover, such a remedy was not independent of the Visa Unit since it was decided upon by the same unit. It followed that, having regard to the totality of the procedure and its ineffectiveness, the court had to exercise its constitutional competence to assess the merits of the complaint.

It also held that the applicant had had a juridical interest in lodging the complaint in her name, since her complaint was that as a result of the impugned actions or omissions, her own family life was being violated.

In connection with the merits, the court referred to the testimonies of the applicant, M.C. and J.M. and that the latter officials considered that S. needed a visa in order to enter Malta. This would have enabled him to apply for a residence permit and to travel in the Schengen area.

The court noted that the couple had never cohabited in Malta, and that the applicant had never had the intention to marry S. when he had been in Malta. Referring to general principles of the Court’s case-law, it considered that the couple had never envisaged having a family life together, and why the applicant had changed her mind and decided to marry S. in Italy was a mystery. The court was not convinced that the applicant’s decision to marry had been genuine – not once in her testimony had she declared her love for her husband, nor had she in the slightest touched on the level of intimacy she had with her husband, who was thirty years her junior; neither had she given an explanation about her change of mind, nor why she had not wanted to follow her husband to Pakistan. She had also admitted that she had not been living with her husband as he had been in Pakistan, thus implicitly admitting that she had been de facto separated. Thus, S. could not have expected to obtain exempt status, nor could it be said that there had been family life in the present case, and the authorities had simply applied the law. Furthermore, S. had shown a total disregard for the proceedings, having chosen not to submit any written testimony corroborating the applicant’s statements or challenging those of the authorities. The court considered that it was not for it to decide whether there had been a marriage of convenience; it sufficed to find that the authorities refusal to issue S. with a visa had not breached Article 8 of the Convention.

The applicant appealed. By a judgment of 26 April 2013 the Constitutional Court rejected the applicant’s appeal.

It considered that when they had been in Malta the applicant and S. had not formed a family, and their encounters had been rather ambiguous, tenuous and lacking any commitment towards each other. The same appeared to be the case of their life in Italy. While it was true that they had married there, the only commitment undertaken appeared to have been for S. to acquire a visa. The Constitutional Court pointed out that according to the Court’s case-law it was only genuine marriages undertaken according to law which were protected by Article 8 of the Convention. While the Constitutional Court was ready to accept that the marriage had been contracted according to law, it had to address the State’s argument as to whether the marriage had been a genuine one.

The Constitutional Court noted that the applicant had been aware of the precarious situation S. had been in (since he had been a third country national, thus requiring a visa to enter Malta) despite her claim that he had not required a visa. Nevertheless, S. had never instituted an ordinary remedy to challenge the refusal. It could not be ignored that the applicant had refused to marry S. when they had been in Malta, and had only changed her mind in Italy after a few months and despite the age difference between them. Their cohabitation in Italy had been temporary and they could not have aspired to making it permanent owing to a variety of reasons, specifically S.’s irregular status in Italy, the applicant’s refusal to follow him to Pakistan (which she had not proved would have been problematic), and the visa refusals by the Maltese authorities. Furthermore, the court was struck by the lack of commitment towards, and interest in the proceedings by S., who had not even bothered to submit written testimony, or at least to attempt to send a letter or make use of letters of request or other means which were available to persons not on the territory of the State.

All the above led the Constitutional Court to conclude that there had been no family life, within the meaning of Article 8 of the Convention, in the present case and that therefore there had been no breach of the applicant’s rights.

Part IV of the Immigration Act deals with “Prohibited Immigrants” and requires all, except those with a right of entry and residence according to the provisions of the Act, to obtain permission to enter Malta from the Principal Immigration Officer.

Part II of the Act concerning “Exempt Persons” provides that Part IV of the Act does not apply to exempt persons. The relevant provision, namely Article 4 (1) reads as follows:

“The provisions of Part IV of this Act shall not apply to any person -

(a) who is a citizen of Malta; or

(g) who is the spouse of any person referred to in any of the foregoing paragraphs and is still married to and living with that person; ...”

The Act as applicable at the time of the present case provided, in its Article 25 A (5), for a review of a decision only in limited circumstances. It read as follows:

“Any person aggrieved by any decision of the competent authority under any regulations made under Part III, or in virtue of article 7, article 14 or article 15 may enter an appeal against such decision and the Board shall have jurisdiction to hear and determine such appeals.”

For the purposes of comprehending the above, Part III of the Act concerns special provisions connected to the European Union, Article 7 concerns residence permits, Article 14 concerns removal orders and Article 15 concerns carriers. It follows that visas, which are dealt with in Article 8 (Part IV) of the Act are in theory excluded from any available review according to this provision.

Nevertheless, Regulation 19 of Subsidiary Legislation 271.04 provided, amongst its miscellaneous provisions, that “Any person aggrieved by any decision of the Principal Immigration Officer may appeal to the [Immigration Appeals] Board as provided for in article 25A(5) of the Act.”

In 2012, the situation regarding visa appeals was clarified by means of Regulation 2 of Legal Notice 2 of 2012 which reads as follows:

“The Immigration Appeals Board has the competence to hear appeals related to the refusal, annulment or revocation of the visa with reference to the provisions of paragraph 3 of Article 32 and paragraph 7 of Article 34 of the Regulation (EC) No. 810/2009 of the European Parliament and of the [EU] Council of 13 July 2009 establishing a Community Code on Visas (Visa Code).”

The time limit of such an appeal was three days, eventually extended to fifteen days by Legal Notice 20 of 2013.

Article 38 of the Marriage Act reads as follows:

“(1) Any person who contracts a marriage with the sole purpose of obtaining -

(a) Maltese citizenship; or

(b) freedom of movement in Malta; or

(c) a work or residence permit in Malta; or

(d) the right to enter Malta; or

(e) the right to obtain medical care in Malta, shall be guilty of an offence and shall on conviction be liable to imprisonment for a term not exceeding two years.

(2) Any right or benefit obtained by a person convicted of an offence under subarticle (1) on the basis of the marriage referred to in that subarticle (1) may be rescinded or annulled by the public authority from which it was obtained.

(3) Any person who contracts a marriage with another person knowing that the sole purpose of such other person in contacting the marriage is one or more of the purposes referred to in subarticle (1) shall be guilty of an offence and shall on conviction be liable for the same punishment laid down in subarticle (1).”

Articles 1 to 5 of the (EU) Council Resolution of 4 December 1997 read as follows:

“1. For the purposes of this resolution, a ‘marriage of convenience` means a marriage concluded between a national of a Member State or a third-country national legally resident in a Member State and a third-country national, with the sole aim of circumventing the rules on entry and residence of third-country nationals and obtaining for the third-country national a residence permit or authority to reside in a Member State.

Factors which may provide grounds for believing that a marriage is one of convenience are in particular:

- the fact that matrimonial cohabitation is not maintained,

- the lack of an appropriate contribution to the responsibilities arising from the marriage,

- the spouses have never met before their marriage,

- the spouses are inconsistent about their respective personal details (name, address, nationality and job), about the circumstances of their first meeting, or about other important personal information concerning them,

- the spouses do not speak a language understood by both,

- a sum of money has been handed over in order for the marriage to be contracted (with the exception of money given in the form of a dowry in the case of nationals of countries where the provision of a dowry is common practice),

- the past history of one or both of the spouses contains evidence of previous marriages of convenience or residence anomalies.

In this context, such information may result from:

- statements by those concerned or by third parties,

- information from written documentation, or

- information obtained from inquiries carried out.

Where there are factors which support suspicions for believing that a marriage is one of convenience, Member States shall issue a residence permit or an authority to reside to the third-country national on the basis of the marriage only after the authorities competent under national law have checked that the marriage is not one of convenience, and that the other conditions relating to entry and residence have been fulfilled. Such checking may involve a separate interview with each of the two spouses.

Should the authorities competent under national law find the marriage to be one of convenience, the residence permit or authority to reside granted on the basis of the third-country national’s marriage shall as a general rule be withdrawn, revoked or not renewed.

The third-country national shall have an opportunity to contest or to have reviewed, as provided for by national law, either before a court or before a competent administrative authority, a decision to refuse, withdraw, revoke or not renew a residence permit or authority to reside.”


Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The applicant was born in 1945 and lives in Riga.

In the summer of 2007 a book called “Kitchen of Litigation” (Tiesāšanās kā ķēķis) was published, which contained transcripts of allegedly authentic telephone conversations between the lawyers of a wellknown law office in Latvia and judges working in various courts, including the Senate of the Supreme Court. The judiciary’s allegedly unlawful and unethical behaviour provoked considerable public debate and attracted wide media coverage. The Supreme Court and the Prosecutor General’s Office launched an inquiry (pārbaude).

On 17 September 2007 the Supreme Court established a working group consisting of five judges. The working group was tasked with carrying out an assessment of whether “the judges of the Supreme Court who were purportedly involved in the telephone tapping scandal, which raises doubts about the independence of the judiciary and the honesty of judges” had violated the Code of Ethics of Judges. On 8 October 2007 the working group received transcripts of the alleged telephone conversations from the Prosecutor General’s Office.

On 7 November 2007, during the annual conference of judges, the chairman of the Supreme Court made a speech about the effects of the book and the public debate which followed. He stated:

“More than two months have passed since information emerged about alleged telephone conversations between judges and a particular lawyer. That event further confirmed the conviction of at least some people in society that doubts about the impartiality and the independence of courts, and therefore the lawfulness of their judgments, are justified.

Society sees the information that was published as credible, irrespective of whether it was obtained lawfully or unlawfully and no matter what the result of the investigation carried out by the Prosecutor’s Office will be, and it undermines trust in the judiciary. ...

... I think that the information about the alleged conversations between judges and the lawyer [...] should be treated as a signal or a call to look at the problems in the judiciary in a wider context ...

... In relation to this particular situation, I think it was caused by the attitude to the rule of law and the code of ethics which regulate judges’ behaviour. The superficial, irresponsible and perhaps even the unlawful behaviour of certain judges has fundamentally affected trust in the judiciary ...

Therefore [we] should also talk about the responsibility of judges, [we] should be conscious of the fact that a lack of self-criticism and an inability to apply ethical standards properly pose a threat to the independence of the judiciary ....”

On an unknown date the inquiry carried out by the Prosecutor General’s Office concluded that the alleged telephone conversations had taken place between November 1998 and April 2000. As there were no audio records of the conversations, the authenticity of the content of the transcripts could not be established. In the course of the inquiry the Prosecutor General’s Office questioned several judges mentioned in the book.

With regard to Judge O.D.J., a judge of the Senate of the Supreme Court, the Prosecutor General’s Office observed that the book had referred to a brief telephone conversation of 24 November 1999 in which the lawyer A.G. had arranged a meeting in the Judge O.D.J.’s office. The impugned conversation had not referred to any specific civil case so the Prosecutor General’s Office concluded that there were insufficient grounds to investigate Judge O.D.J.’s activities.

On 30 November 2007 the working group established by the Supreme Court published a report on their inquiry into alleged ethical wrongdoing by judges. The working group identified that two of the fifteen judges, whose conduct had been assessed, had violated the Code of Ethics of Judges, but that Judge O.D.J., whose conversation with the lawyer had been published in the book, had not. It stated:

“... [12.5] In his submissions [5.5] O.D.J. did not deny that he might have had conversations [with the lawyer] but that they had only concerned German compensation claims, however in those cases [the lawyer] had not been representing any of the parties, and therefore the working group concluded that O.D.J. had not violated the Code of Ethics.”

In 2004 the applicant and another person brought a civil claim against a third party. On 25 January 2005 the Riga Regional court, as a firstinstance court, dismissed the claim and on 21 November 2006 the Supreme Court, acting as an appellate court, dismissed an appeal by the applicant.

In June 2007 the Senate of the Supreme Court granted leave to the applicant to appeal on points of law. The hearing before the cassation court was held on 29 August 2007. The Senate sat as a panel of three judges, including O.D.J. The applicant’s representative raised objections to O.D.J., arguing that the applicant had reasonable doubts as to his impartiality on the grounds that the judge was under several inquiries at the time for allegedly unethical or unlawful behavior. The applicant also alleged that the defendant’s representative was a former employee of the Supreme Court.

On 29 August 2007 the other two judges, referring to Article 19(1)(4) of the Civil Procedure Law (see paragraph 16 below), dismissed the objections. They noted that the applicant’s doubts were based only on an assumption and that the objection did not contain evidence allowing to conclude that the applicant’s doubts about the impartiality of Judge O.D.J. in the particular case were reasonable in the terms of the above provision. On the same day the Senate of the Supreme Court upheld the appellate court’s judgment on the merits by which the applicant’s claim was dismissed and it became final in that part, but referred the case back for reconsideration in part on the implementation of the judgment.


Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall

The applicant, Mr Remus Tudor, is a Romanian national who was born in 1966 and lives in Bucharest. He was represented before the Court by Ms I. M. Ciontu, a lawyer practising in Bucharest.

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

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

In 1990 the applicant was convicted of manslaughter and sentenced to life imprisonment, serving his sentence in various Romanian prisons. He was detained in Rahova Prison for almost ten years, from June 1999 to February 2009. On 1 October 2012 the applicant was released on probation from Giurgiu Prison.

On 18 March 2003 an antenna of the type C-GUARD 19 was installed in Rahova Prison for the protection of telephone communications.

On 7 September 2008, while the applicant was serving his sentence in Rahova Prison, he lodged a complaint with the judge responsible for the execution of sentences (the “post-sentencing judge”) attached to Rahova Prison alleging that the radio frequency electromagnetic radiation (RFR) emitted from an antenna in the prison had negatively affected his health. In his complaint the applicant stated that since 2003 the entire prison staff had received an extra salary allowance for working in dangerous conditions, namely exposure to electromagnetic fields in their working environment.

By a decision of 4 November 2008 the post-sentencing judge dismissed the complaint on all grounds. It was observed that the applicant had never complained of specific effects resulting from electromagnetic radiation, nor had he sought medical treatment. The judge also based his ruling on an expert study commissioned from the National Institute of Forensic Science (INEC) in order to analyse the electromagnetic field allegedly surrounding the prison’s wireless communication base station. The report published on 3 October 2008 revealed that, although the levels of radiation were higher than those prescribed in the relevant safety guidelines in several areas of the prison, exposure was lower in areas to which the prisoners had access.

The applicant appealed against that decision. He submitted as evidence a 2007 report by Radiocom which revealed that, while radiation levels from the wireless communication device had varied between prison areas, they were nevertheless higher than the regulatory standards in place at that time.

His request to have evidence from the prison’s doctor and a radiologist heard was refused on the ground that there was no link between his diseases (hepatitis, and after-effects of healed tuberculosis) as described in the medical file and the alleged harmful exposure to radiation. On 16 February 2009 the Bucharest District Court dismissed his appeal, upholding the decision of the post-sentencing judge for the same reasons.

The applicant also lodged a tort action against Rahova Prison on 12 October 2008. He claimed the sum of 200,000 EUR for the harmful effects allegedly caused by the electromagnetic radiation, arguing that the prison staff had been awarded a special allowance for the health risks associated with exposure to electromagnetic radiation during their working hours. The Bucharest District Court relinquished jurisdiction to the Bucharest County Court, which dismissed the applicant’s claim on 7 January 2012.

The applicant appealed and the appeal proceedings are pending before the Bucharest Court of Appeal.

Pursuant to two orders issued by the Minister of Justice, no. 945/C of 2 April 2003 and no. 399/C of 6 February 2007, staff in Rahova Prison were awarded a special allowance for health risks associated with exposure to electromagnetic radiation during their working hours.

The relevant safety guidelines are laid down in order no. 1193/2006 issued by the Ministry of Public Health on the general norms concerning limits on individuals’ exposure to electromagnetic fields. The reference levels specified in the order range from 0 hertz (Hz) to 300 gigahertz (GHz). The order is based on European Union legislation, namely Council Recommendation no. 1999/519/EC of 12 July 1999 on the limitation of exposure of the general public to electronic fields (0Hz to 300 GHz).


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

Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

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.