CASE OF HASAN AND EYLEM ZENGİN v. TURKEY

Violation of P1-2;No separate issue under Art. 9;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings

PERSON , who was born in DATE , and his daughter PERSON , who was born in DATE , live in GPE .

At the time PERSON lodged the application on his own and his daughter 's behalf , she was attending the seventh grade of the state school in GPE , GPE .

PERSON stated that his family were adherents of ORG .

Alevism originated in central LOC but developed largely in GPE . CARDINAL important Sufis had a considerable impact on the emergence of this religious movement : PERSON DATE ) and PERSON ( DATE ) . This belief system , which has deep roots in NORP society and history , is generally considered as one of the branches of ORG , influenced in particular by NORP and by certain pre - NORP beliefs . Its religious practices differ from those of the NORP schools of law in certain aspects such as prayer , fasting and pilgrimage .

According to the applicant , ORG is a belief or philosophy influenced by other cultures , religions and philosophies . It represents one of the most widespread faiths in GPE after the ORG branch of ORG . It advocates close contact with nature , tolerance , modesty and love for one 's neighbour , within the NORP faith . PERSON reject the sharia ( code of laws in orthodox ORG ) and the sunna ( forms of behaviour and formal rules of orthodox ORG ) and defend freedom of religion , human rights , women 's rights , humanism , democracy , rationalism , modernism , universalism , tolerance and secularism . PERSON do not pray by the NORP rite ( in particular , they do not comply with the obligation to pray CARDINAL times DATE ) but express their devotion through religious songs and dances ( semah ) ; they do not attend FAC , but meet regularly in cemevi ( meeting and worship rooms ) for ritual ceremonies . Equally , PERSON do not consider the pilgrimage to GPE as a religious obligation . They believe that Allah is present in each person . According to ORG , Allah created PERSON in his image and all his manifestations in this world are in human form . Allah is neither in the sky nor in paradise , but in the centre of the human heart .

On DATE the applicant submitted a request to ORG ( “ the ORG ” ) at ORG , seeking to have his daughter exempted from religious culture and ethics classes . Pointing out that his family were followers of ORG , he stressed that , under international treaties such as , for example , LAW , parents had the right to choose the type of education their children were to receive . In addition , he alleged that the compulsory course in religious culture and ethics was incompatible with the principle of secularism .

On DATE the ORG replied that it was impossible to grant the exemption request . In particular , it stated :

“ ... LAW states that ' ORG and instruction in religion and ethics shall be conducted under ORG supervision and control . Instruction in religious culture and moral education shall be compulsory in the curricula of primary and secondary schools . Other religious education and instruction shall be subject to the individual 's own desire , and in the case of minors , to the request of their legal representatives . '

LAW ( Law no . DATE ) ... provides that ' secularism shall be the basis of NORP national education . Religious culture and ethics shall be among the compulsory subjects taught in primary and upper secondary schools , and in schools of these levels . ' ”

For these reasons , your request can not be granted . ”

Following the ORG 's refusal , the applicant applied to ORG for judicial review . He alleged that the compulsory classes in religious culture and ethics were essentially based on the fundamental rules of ORG and that no teaching was given on his own faith . He challenged , inter alia , the compulsory nature of this school subject .

In a decision of DATE , ORG dismissed the applicant 's request , holding , inter alia :

“ LAW has established that religious culture and ethics are among the compulsory subjects taught in primary and secondary schools , and section CARDINAL of Law no . DATE [ states ] that religious culture and ethics are among the compulsory subjects taught in primary and upper secondary schools of the equivalent level .

In this context , the dismissal of the plaintiff 's request is not contrary to the law ... ”

The applicant appealed on points of law against that judgment , relying , inter alia , on the Convention .

In a judgment of DATE , served on CARDINAL DATE , ORG dismissed his appeal and upheld the first - instance judgment , holding that the latter complied with the procedural rules and the legislation .

DATE , in so far as relevant , provides :

“ CARDINAL . Everyone has the right to freedom of conscience , religious belief and conviction .

Acts of worship , religious services , and ceremonies shall be conducted freely , provided that they do not violate the provisions of LAW .

No one shall be compelled to worship , or to participate in religious ceremonies and rites , to reveal religious beliefs and convictions , or be blamed or accused because of his religious beliefs and convictions .

Education and instruction in religion and ethics shall be conducted under ORG supervision and control . Instruction in religious culture and moral education shall be compulsory in the curricula of primary and secondary schools . Other religious education and instruction shall be subject to the individual 's own desire , and in the case of minors , to the request of their legal representatives .

No one shall be allowed to exploit or abuse religion or religious feelings , or things held sacred by religion , in any manner whatsoever , for the purpose of personal or political influence , or for even partially basing the fundamental , social , economic , political , and legal order of the ORG on religious tenets . ”

Section CARDINAL of LAW ( Law no . DATE ) provides :

“ Secularism is the basis of NORP state education . Religious culture and ethics shall be among the compulsory subjects taught in primary and upper secondary schools and in schools of an equivalent level . ”

On DATE ORG adopted a decision on religious culture and ethics classes and pupils who were entitled to exemption from them . It stated :

“ Following the proposal by ORG , pupils of NORP nationality who belong to the NORP or NORP religions and who attend primary and secondary schools , with the exception of schools for minorities , are not obliged to follow the classes in religious culture and ethics , provided they affirm their adherence to those religions . If , however , such pupils wish to attend such classes , they must submit a written request from their legal representative . ”

At the hearing the Government explained that this exemption procedure could be extended to other religious or philosophical convictions , such as atheism , without however producing specific examples .

Since DATE compulsory state education has lasted DATE ( instead of DATE ) for children aged DATE ; DATE correspond to primary school ( CARDINALst to CARDINALth grade ) and the following CARDINAL to secondary school ( CARDINALth to CARDINALth grade ) .

NORP In decision no . CARDINAL of DATE , the Minister of ORG approved the guidelines for classes in religious culture and ethics ( taught in grades CARDINAL , CARDINAL , DATE , DATE and CARDINAL) .

The principles adopted in this connection are as follows :

“ ... DATE , when intercultural influence is increasing , it has become necessary , in order to foster a culture of peace and a context of tolerance to know about other religions .

For this reason , the school syllabus ... ;

... includes teaching [ to the effect ] that the aim of all religions is to educate upright individuals . [ Religious instruction also aims to educate people ] who are informed about the historical development of ORG , NORP , NORP and ORG , their main features and the content of their doctrine , and to be able to assess , using objective criteria , the position of ORG in relation to ORG and NORP ...

NORP The principles to be observed during the teaching and learning experience ...

Always bear in mind the principle of secularism . There should be no infringement of freedom of religion , conscience , thought and expression .

Emphasise that differences in religious understanding and practice are of value .

Take advantage , in so far as possible , of pupils ' feelings and behaviour in order to socialise them and to educate them as good citizens through religious and ethical knowledge .

Seek to ensure that pupils internalise the principles of love , respect , fraternity and friendship , which strengthen national unity and union , and national concepts and values such as the homeland , the nation , the flag , the martyr ...

Emphasise that religion is one of the important principles of the national culture .

Teach the concept of worship in the wide sense ; that work , cleanliness and high moral standards are ways of worshipping ...

Make pupils aware that acts of worship , as well as being demonstrations of love , respect and gratitude towards Allah , enable the individuals in a group to bond in love and respect , to help each other , to show solidarity ...

When studying subjects related to the prophet PERSON , provide examples concerning his morality .

Base lesson material on verses [ from the Koran ] and relevant sayings and traditions [ of PERSON ] ... , the passages for reading should be illustrated by stories and images .

NORP Throughout the entire teaching process , make a careful distinction , in covering topics and the choice of examples , between those from the Koran and those developed subsequently . To this end , taking into account public and community events , emphasise those which have their source in the Koran and those which result from habit , customs , tradition , beliefs , lifestyles and cultural influence .

Using different examples , explain that , far from being a myth , ORG is a rational and universal religion .

CARDINALth grade ... Units : Unit CARDINAL – Knowledge of the Koran . Unit DATE Religion is good morals . Unit DATE and sacrifice . Unit TIME and other invisible beings . Unit CARDINAL – Belief in the other world . Unit DATE Our family . Unit DATE Knowledge of religions ... ”

The applicants submitted CARDINAL textbooks , for grades CARDINAL , CARDINAL , DATE , DATE and CARDINAL , on religious culture and ethics . They are used in schools , having been authorised by ORG .

In the CARDINALth grade textbook , instruction moved from the concept of religion to examine the relationship between morality and religion , the Creator and the creature , the family and religion , and knowledge of the life of the prophet PERSON .

The CARDINALth grade textbook begins by explaining the meaning of the expression “ I believe in God ” . It focuses particularly on teaching the fundamental concepts of ORG : the profession of faith , prayer , the mosque as the place of worship , the nature of the prayers recited during DATE , the prophet PERSON 's family life . A general overview is given of the prophets whose names appear in the Koran .

The CARDINALth grade textbook begins by covering the different DATE prayers . It is explained that every NORP is obliged to pray CARDINAL times DATE . The corresponding rituals are illustrated in the book , which then deals with subjects such as charity , love for the homeland and the nation , harmful behaviour , friendship and brotherhood , and the CARDINAL holy books , namely the NORP , the PERSON ( psalms ) , the Gospels and the Koran .

The CARDINALth grade textbook emphasises knowledge of the Koran , the link between religion and high moral standards , pilgrimage and sacrifice , angels and invisible creatures , belief in the other world and the family . In addition , the main religions , namely ORG , NORP , ORG , NORP and NORP , are presented over CARDINAL pages .

The CARDINALth grade textbook discusses the prophet PERSON 's high moral standards , culture and religion , the concepts of religion , reason and science , belief in fate and the link between faith and conduct . Subjects such as “ differences in approach in religion ” , “ advice of religions and of NORP ” , “ secularism ” , “ freedom of religion and conviction ” are also covered in this book .

It appears from reading these textbooks that the pupils are also required to learn several suras from the Koran by heart .

For their part , the ORG submitted the textbook for the CARDINALth grade ( DATE of upper secondary school ) .

This textbook begins by dealing with man 's place in the universe . It subsequently covers topics such as human nature and religion , the role of religion in human life and the various forms of belief , namely monotheism , polytheism , Gnosticism , agnosticism and atheism . Explanations are also provided for various concepts , such as prayer and the link between prayer and cleanliness ; this chapter illustrates the rituals surrounding the partial and total ablutions in ORG ( gusul and abdest ) . In addition , certain essential elements , such as the life of PERSON , the Koran and fundamental concepts ( interpretation , the suras , etc . ) , are described with the aim of providing information on ORG . The rest of the textbook deals primarily with the concepts of “ values and family ” , “ the homeland , flag , freedom , independence , human rights , secularism , the secular ORG , PERSON and secularism , etc ” . Finally , it deals with the subject of “ the NORP and NORP ” in the context of NORP history ; this chapter examines the NORP ' former beliefs , such as the concept of “ God - heaven ” , Manichaeism , Buddhism , the NORP religion and NORP . Individuals who influenced the NORP ' understanding of ORG are also discussed , in particular PERSON ( born CARDINAL , died CARDINAL , founder of the ORG school ) and NORP Şafii ( born ORG , died CARDINAL , founder of ORG ) , as well as PERSON and PERSON ( see paragraph CARDINAL above ) .

The Government also explained that pupils were assessed in this subject only by written examinations .

The relevant passage of LAW provides :

“ CARDINAL . The GPE Parties to the present LAW undertake to have respect for the liberty of parents and , when applicable , legal guardians to ensure the religious and moral education of their children in conformity with their own convictions . ”

In Recommendation CARDINAL ( DATE ) on religion and democracy , adopted on DATE , the ORG recommended that ORG invite the governments of the member States , inter alia :

“ CARDINAL . ... ( ii ) to promote education about religions and , in particular , to :

( a ) NORP step up the teaching about religions as sets of values towards which young people must develop a discerning approach , within the framework of education on ethics and democratic citizenship ;

( b ) promote the teaching in schools of the comparative history of different religions , stressing their origins , the similarities in some of their values and the diversity of their customs , traditions , festivals , and so on ; ...

( e ) avoid DATE in the case of children – any conflict between the state - promoted education about religion and the religious faith of the families , in order to respect the free decision of the families in this very sensitive matter ... ”

In Recommendation DATE ) , adopted on DATE , the ORG recommended that ORG encourage the governments of member GPE to ensure that religious studies were taught at the primary and secondary levels of state education , on the basis , inter alia , of the following criteria :

“ CARDINAL . the aim of this education should be to make pupils discover the religions practised in their own and neighbouring countries , to make them perceive that everyone has the same right to believe that their religion is the “ true faith ” and that other people are not different human beings through having a different religion or not having a religion at all ;

it should include , with complete impartiality , the history of the main religions , as well as the option of having no religion ;

it should provide young people with educational tools that enable them to be quite secure in approaching supporters of a fanatical religious practice ;

it must not overstep the borderline between the realms of culture and worship , even where a country with a state religion is concerned . It is not a matter of instilling a faith but of making young people understand why religions are sources of faith for CARDINAL ;

NORP teachers on religions need to have specific training . They should be teachers of a cultural or literary discipline . However , specialists in another discipline could be made responsible for this education ;

the state authorities should look after teacher training and lay down the syllabuses which should be adapted to each country 's peculiarities and to the pupils ' ages . In devising these programmes , ORG will consult all partners concerned , including representatives of the religious faiths . ”

ORG against Racism and Intolerance has already given its view on the teaching of religion in schools in General policy recommendation no . CARDINAL on “ Combating intolerance and discrimination against NORP ” ( ORG ( DATE ) CARDINAL , CARDINAL DATE ) . After reiterating the principles of respect for equality and non - discrimination between religions and recognising the great diversity intrinsic in the practice of ORG , it recommended that the governments of member GPE “ ensure that religious instruction in schools respects cultural pluralism and make provision for teacher training to this effect ” .

In its third report on GPE ( ORG ( DATE ) , the ORG also considered , in particular , that :

“ The syllabus covers all religions and is chiefly designed to give pupils an idea of all existing religions . However , several sources have described these courses as instruction in the principles of the NORP faith rather than a course covering several religious cultures . ORG notes that only NORP pupils are required to follow these courses , while pupils belonging to minority religious groups can be exempted . ECRI considers the situation unclear : if this is indeed a course on the different religious cultures , there is no reason to make it compulsory for NORP children alone . Conversely , if the course is essentially designed to teach the NORP religion , it is a course on a specific religion and should not be compulsory , in order to preserve children 's and their parents ' religious freedom . ”

In consequence , ORG urged the NORP authorities :

“ ... to reconsider their approach to instruction in religious culture . They should take steps either to make this instruction optional for everyone or to revise its content so as to ensure that it genuinely covers all religious cultures and is no longer perceived as instruction in the NORP religion . ”

NORP In LOC , religious education is closely tied in with secular education . Of the CARDINAL ORG member ORG which were examined , CARDINAL provide religious education classes in state schools . Only GPE , GPE ( with the exception of the GPE and GPE regions ) and the former GPE are the exceptions to this rule . In GPE , non - confessional teaching is offered in DATE of state education .

In CARDINAL of the CARDINAL member GPE ( including GPE ) , religious education is a compulsory subject . However , the scope of this obligation varies depending on the ORG . In CARDINAL countries , namely GPE , GPE , GPE , GPE and GPE , the obligation to attend classes in religious education is absolute . All pupils who belong to the religious faith taught in the classes are obliged to follow them , partially or fully . However , GPE allow for exemptions under certain conditions . This is the case in GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE . In the majority of these countries , religious education is denominational .

CARDINAL other countries give pupils the opportunity to choose a substitute lesson in place of compulsory religious education . This is the case in GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE . In those countries , denominational education is included in the curriculum drawn up by the relevant ministries and pupils are obliged to attend unless they have opted for the substitute lesson proposed .

In contrast , CARDINAL member GPE do not oblige pupils to follow classes in religious education . Religious education is generally authorised in the school system but pupils only attend if they have made a request to that effect . This is what happens in the largest group of ORG : GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE . Finally , in a third group of GPE , pupils are obliged to attend a religious education or substitute class , but always have the option of attending a secular lesson .

This general overview of religious education in LOC shows that , in spite of the variety of teaching methods , almost all of the member GPE offer CARDINAL route by which pupils can opt out of religious education classes ( by providing an exemption mechanism or the option of attending a lesson in a substitute subject , or by giving pupils the choice of whether or not to sign up to a religious studies class ) .


Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in DATE and lives in ORG , GPE .

On DATE the applicant purchased a recreation centre ( “ the centre ” ) , comprising a group of cottages , from a private company . The centre was situated on a plot of land belonging to a collective farm .

The applicant asked ORG to register the transfer of the title to the centre from the company to her . However , the applicant ’s request was dismissed , because the company had not duly registered its title to the centre , and therefore was unable to transfer it to the applicant .

The applicant brought proceedings against the company seeking to obtain acknowledgement of her title to the centre .

On DATE ORG of GPE granted the applicant ’s claim .

No ordinary appeal was lodged against the judgment .

On DATE the judgment became final and enforceable .

On DATE the Registration Office registered the applicant ’s title to the centre .

On an unspecified date in DATE the collective farm lodged an application for supervisory review of the judgment of DATE . It alleged that the said judgment was unfounded since , even though the collective farm owned the plot on which the centre in question was situated , it had not been invited to take part in the proceedings and its interests had not been taken into consideration by the domestic court .

On DATE ORG remitted the supervisory - review application for examination on its merits by the ORG .

On DATE the Presidium of ORG held a supervisory - review hearing . It held that the first - instance court adopted the judgment with significant violations of substantive and procedural law . In particular , the ORG pointed out that the first - instance court did not investigate that it failed to identify all the parties to the proceedings , to invite the owner of the land to participate in the proceedings and that it had pronounced judgment by which the rights of the latter were considerably affected . On these grounds the ORG quashed the judgment of DATE and remitted the matter for a fresh examination .

On DATE ORG of GPE dismissed the applicant ’s claim , declared the purchase agreement void , annulled the registration of the applicant ’s title to the centre and restored the parties to their original position .

On DATE the Rostov ORG upheld the above judgment on appeal .

The Code of Civil Procedure of GPE ( “ the new Code ” ) was enacted on DATE and replaced LAW ( “ the old LAW ” ) from DATE . It provides as follows :

“ CARDINAL . Judicial decisions that have become legally binding , with the exception for judicial decisions by the ORG of ORG of GPE , may be appealed against ... to a court exercising supervisory review , by parties to the case and by other persons whose rights or legal interests have been adversely affected by these judicial decisions .

Judicial decisions may be appealed against to a court exercising supervisory review within DATE after they became legally binding ... ”

“ Judicial decisions of lower courts may be quashed or altered by way of supervisory review on the grounds of substantial violations of substantive or procedural legal provisions . ”

“ CARDINAL . Having examined the case by way of supervisory review , the court may ...

( CARDINAL ) quash the judicial decision issued by a court of first , second or supervisory - review instance in whole or in part and remit the matter for a fresh examination ; ...

( CARDINAL ) quash or alter the judicial decision issued by a court of first , second or supervisory - review instance and issue a new judicial decision , without remitting the matter for a fresh examination , if substantive legal provisions have been erroneously applied or interpreted . ”


NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . She was represented before the ORG by Mr PERSON , PERSON and PERSON , lawyers practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , ORG , ORG .

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

On DATE the GPE police were informed that a man had been stabbed with a knife . At the scene , the applicant told the police officers that the victim was her partner and that she herself had inflicted the wounds . The officers found a trail of blood leading to her home , where they discovered other traces of blood and a blood - stained kitchen knife .

The applicant was arrested DATE at TIME She was interviewed by investigators TIME and TIME as a “ suspect ” . She was not assisted by a lawyer and – she alleged DATE was not informed beforehand of her right to remain silent , but her rights as provided in the “ FAC ” of CARDINAL DATE were read to her prior to the interview . She was thus informed that her statements could be used in evidence , that she was entitled to ask for a verbatim record to be made of any questions put to her , together with her answers , and to request any supplementary investigative act or interview , that she could use any documents in her possession , provided the questioning was not delayed , and that , during or after her interview , she could have documents included in the case file or deposited in the registry . The applicant confessed to being the perpetrator of the stabbing and , in response to the ORG questions , gave a detailed account of the incident , explaining in particular that it had followed an argument , of which she described the context and circumstances .

DATE , from TIME to TIME , the applicant was questioned by an investigating judge . She was not assisted by a lawyer and – she alleged – was not informed of her right to remain silent . She confirmed the statements she had made to the police . The investigating judge then informed her that she was being charged with attempted murder , with intent , and that she had the “ right to choose a lawyer ” . He issued a detention order with the following reasoning :

“ ... the offence is punishable by a DATE prison sentence , in respect of a lesser indictable offence , or by an even harsher sentence ; ... the maximum duration of the sentence exceeding a CARDINAL-year term of imprisonment ; ... the documentary evidence in the file , the findings of the reporting officers , the witness statements , and the statement and confessions of the person charged , constitute serious indications of guilt ; ... the extreme seriousness of the facts , representing a danger for public safety and entailing bodily harm , requires that a detention order be issued against the person charged ; ... ”

The applicant appeared , assisted by her lawyer , on DATE , before ORG ( chambre du conseil ) of ORG , which found the detention order to be lawful and properly served , and remanded her in custody for DATE .

On DATE , after a further appearance by the applicant , ORG ordered the extension of that measure . It did so once again on DATE .

The applicant appealed to ORG of ORG against the order of CARDINAL DATE . Referring to the PERSON v. GPE judgment ( [ ORG ] ( no . DATE ) , the GPE v. GPE judgment ( no . CARDINAL/CARDINAL , ECHR DATE ) and the PERSON v. GPE decision ( no . CARDINAL/CARDINAL , DATE ) , her counsel argued that the fact that the applicant had not been assisted by a lawyer during her police interview or her examination by a judge constituted a breach of the right to a fair trial as enshrined in LAW ( c ) of the LAW , and also of LAW , under which any deprivation of liberty had to be “ in accordance with a procedure prescribed by law ” . Counsel thus submitted that the records of the interview and examination should be removed from the case - file and that the applicant should be released .

In his submissions of DATE , ORG at ORG called on ORG to dismiss those arguments . He observed , in particular , as follows :

“ ... in a judgment of CARDINAL DATE ( P.CARDINAL.CARDINAL.F/CARDINAL ) ... , ORG noted that , having regard to all the statutory safeguards generally afforded to the person charged so as to ensure respect for the defence rights , from the time of the decision to prosecute , it could not be concluded automatically that it was definitely impossible for a person to have a fair trial when the assistance of a lawyer was lacking during the first TIME of deprivation of liberty .

... on a number of occasions ORG has observed that neither LAW nor LAW and CARDINAL of the Convention ... , as interpreted by the ORG ... , obliges investigating divisions to discharge a detention order with immediate effect on that ground alone ( GPE . DATE , P.CARDINAL.CARDINAL.F/CARDINAL , GPE . DATE , GPE and PERSON . CARDINAL DATE , P.CARDINAL.CARDINAL.F/CARDINAL ) .

... in a judgment of DATE , confirming its case - law ... ORG further indicated that LAW quinquies and CARDINAL , paragraph CARDINAL , of LAW , concerning the secrecy of the preliminary and judicial investigations , precluded the presence of a lawyer at that stage ( P.CARDINAL.CARDINAL.F/CARDINAL ) .

... at no stage of the proceedings did the defendant ask to be assisted by a lawyer ...

... furthermore , the decision [ ORG v. GPE ] ... sums up the lessons of the PERSON judgment but finds that the application is inadmissible , as the proceedings have to be considered as a whole ... ” .

In a judgment of DATE ORG agreed with ORG on that point , finding that “ [ his ] submissions ... fully address[ed ] the arguments for the defence as to the absence of a lawyer during the defendant ’s questioning ” . It nevertheless ordered the applicant ’s release on the ground that public safety no longer required that she be detained .

According to the information provided by the parties , the judicial investigation is still pending and the case is not yet ready for trial .

In the above - cited PERSON case , where the applicant had complained of being prevented from having contact with his lawyer before his examination by the investigating judge , the ORG found that the refusal to allow contact had been “ explained by the applicable law as it [ stood ] , namely section CARDINAL(CARDINAL ) of the PERSON of DATE [ on pre - trial detention ] , which [ did ] not provide for assistance by counsel during questioning by the investigating judge or prior thereto ” .

Sections DATE and CARDINAL of the Law of DATE on pre - trial detention read as follows :

“ § CARDINAL . NORP In cases of absolute necessity for public safety alone , and if the act is punishable by a DATE prison sentence , in respect of a lesser indictable offence , or by an even harsher sentence , the investigating judge may make a detention order ...

§ CARDINAL . Unless the person charged is a fugitive or is evading arrest , the investigating judge shall , before making a detention order , question the person [ on the acts constituting the charges and potentially justifying a detention order ] and hear his or her observations . Failure to question the person charged shall entail his or her release .

The investigating judge shall also inform the person charged of the possibility of an order being made for his or her detention and shall hear his or her observations on that matter . Failure to satisfy these conditions shall entail the person ’s release . ... ”

“ § CARDINAL . NORP Immediately after the first examination , the person charged may communicate freely with counsel . ... ” .

ORG has , on a number of occasions , been called upon to examine – both in disputes concerning pre - trial detention and in appeals on points of law against appellate judgments on the merits – legal argument alleging a violation of LAW ( c ) of the LAW on the ground that the suspect had not received assistance from a lawyer during his or her police custody or while being questioned by the police or investigating judge .

For a long time that court took the view that , although NORP law did not provide for the presence of a lawyer to assist a suspect when he or she was deprived of liberty , this did not automatically entail a violation of the right to a fair trial . In the court ’s opinion , the restriction had to be assessed in the light of all the statutory safeguards generally afforded to the accused so as to ensure respect for his or her defence rights from the time of the decision to prosecute : formalities for the suspect ’s examination under LAW ; the brevity of the statutory police custody period ( TIME ) ; the immediate remittance to the person charged , when served with a detention order , of all the documents referred to in sections ORG ) and CARDINAL ) of the PERSON of DATE ; the right of the person charged to communicate immediately with counsel in accordance with section CARDINAL(CARDINAL ) and ( CARDINAL ) of that law ; access to the case file prior to his or her appearance before the investigating judge , as provided for by section ORG ) of that law ; the presence of counsel for the charged person during the recapitulation interview provided for in section GPE ) of that law ; and the rights granted , in particular , by ORG CARDINAL ter , CARDINAL , CARDINAL quinquies , CARDINAL and CARDINAL bis of LAW . The court found that this series of safeguards prevented the absence of counsel during the first TIME of deprivation of liberty from irretrievably compromising the fair handling of the case ( see , for example , the judgments of CARDINAL May and DATE , P.CARDINAL.CARDINAL.F/CARDINAL and P.CARDINAL.CARDINAL.N/CARDINAL ) .

However , in a judgment of DATE ( ORG ) , ORG quashed , for a violation of LAW , a trial court decision that relied on self - incriminating statements given to the police during police custody without any possibility of assistance by a lawyer . It found , in particular , as follows :

“ ... The right to a fair trial , as enshrined in LAW ... , implies that the person arrested or held at the disposal of the courts should have the effective assistance of a lawyer

In so far as it allows such access to a lawyer only after the first examination by the investigating judge , section CARDINAL , first paragraph , of the PERSON of DATE on pre - trial detention must be regarded as incompatible with LAW .

The fairness of a criminal trial should be assessed in the light of the proceedings as a whole , ascertaining whether the defence rights have been upheld , examining whether the person charged has had the possibility of challenging the authenticity of the evidence and of opposing its use , verifying whether the circumstances in which evidence for the prosecution has been obtained cast doubt on its credibility or accuracy , and assessing the influence of any unlawfully obtained evidence on the outcome of the criminal proceedings . ... ”

ORG has further found that Articles CARDINAL § CARDINAL , CARDINAL § CARDINAL and CARDINAL § CARDINAL ( c ) of the Convention do not oblige investigating divisions to discharge a detention order with immediate effect on the sole ground that prior to his or her examination by the investigating judge the person charged had been interviewed by the police and had given a confession to them without being allowed access to counsel from the very first questioning ( see , for example , the judgments of DATE , CARDINAL DATE and DATE , P.CARDINAL.CARDINAL.F/CARDINAL , GPE and GPE ) .

The relevant domestic law was changed by LAW DATE amending LAW and GPE DATE on pre - trial detention , in order to grant rights , including the right to consult and be assisted by a lawyer , to any person who is questioned or deprived of liberty .

Section CARDINAL of that law provides that before the first interview of a person concerning offences with which he or she might be charged , the person has “ the right ... to a confidential consultation with a lawyer of his or her choosing or a lawyer appointed to assist him or her , provided that the potential charges concern an offence that could justify a detention order , with the exception of the offences referred to in section CARDINAL , CARDINAL , CARDINAL bis and QUANTITY .

Section CARDINAL adds a section CARDINAL bis to the PERSON of DATE on pre - trial detention , reading as follows :

“ § CARDINAL . Anyone who is deprived of liberty pursuant to sections CARDINAL or CARDINAL hereof , or in accordance with a warrant under section CARDINAL , shall be entitled , from that time onwards and prior to the first subsequent interview by the police or , failing that , by ORG or investigating judge , to have a confidential consultation with a lawyer of his choosing . If he has not chosen a lawyer or if that lawyer is unavailable , contact shall be made with the duty service organised by ORG of LANGUAGE - speaking and LANGUAGE - speaking Lawyers , and ORG or , failing that , by the chairman of the Bar or his representative . ...

§ CARDINAL . The person concerned shall be entitled to receive assistance from a lawyer during the interviews that take place within the time - limit provided for in the preliminary section and sections CARDINAL , CARDINAL , DATE or CARDINAL bis . ... ”


Remainder inadmissible;No violation of Art. 3 (in case of expulsion to Sri Lanka)

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born on DATE in GPE . He is of NORP ethnicity .

Having been granted family reunification on DATE , by virtue of the former section CARDINAL , subsection CARDINAL(CARDINAL ) , of LAW ( PERSON ) , on DATE , with a valid passport and visa , the applicant joined his GPE wife in GPE . It appears that she had left GPE in DATE and stayed in GPE before , at some unknown time , she was granted asylum in GPE , apparently due to her connections with the ORG .

CARDINAL children were born to DATE .

By a judgment of DATE by ORG in Tønder ( ORG ) , upheld on appeal on DATE by ORG ) , the applicant was convicted of the sexual abuse of a girl who was DATE . He was sentenced to DATE imprisonment and expelled with a prohibition on returning .

The applicant did not request leave to appeal against the judgment to ORG ( Højesteret ) .

The applicant finished serving his prison sentence on DATE .

In the meantime , on DATE the applicant requested asylum under section CARDINAL of LAW and maintained in support thereof , inter alia , that his CARDINAL siblings , CARDINAL of whom were dead , had been members of ORG ( NORP ) . He had not been a member of any organisation in GPE .

According to an interview report of CARDINAL DATE prepared by ORG , the applicant added that until he turned DATE , he had been a fisherman . Then he had married and been reunited with his family in GPE in DATE . When the applicant went to school , persons from the ORG had come up and asked him if he could dig holes , move things and carry out various jobs . The applicant took no part in action , exercises or military training . He assisted the NORP on a full - time basis for DATE . During this period he stayed with the ORG all the time . Thereafter he moved back to his family without telling the NORP . Confronted with the fact that he had previously stated that he had no involvement with the NORP , he maintained that his statement had been translated incorrectly . He had assisted the ORG from DATE but had not been a member . He did not recall whether he had been wanted by GPE authorities but he had been arrested by them CARDINAL times . When asked why he had not previously mentioned the arrests , he stated that most of the arrests had been of TIME duration but that the last one had lasted DATE . It was in DATE when he was arrested in connection with the mass arrest . He remembered being released after DATE as a result of a peace agreement but his memory was not very good . Whenever he had been arrested the authorities asked him whether he was working for the NORP . He had denied this , although this was the period during which he had worked for the organisation . Confronted with the fact that he had previously stated that he would not risk any harm upon return to GPE as he was neither wanted nor persecuted , the applicant submitted that this must have been a misunderstanding .

On DATE the applicant 's application for asylum was refused by ORG ) , finding that he lacked credibility and that there was no substantiated risk that he would be subjected to treatment contrary to LAW upon return .

The applicant appealed to ORG ( PERSON ) before which , during an oral hearing held on DATE , he explained for example that the ORG had approached him numerous times DATE to ask him to work for them , which he did , but he had not been a member of the LTTE . The last time he assisted them was in DATE . The applicant left in DATE .

By decision of DATE ORG refused to grant the applicant asylum . It noted that the applicant had expanded his motive for requesting asylum and had submitted various divergent explanations . Moreover , even disregarding the fact that the applicant had made various unclear statements about the dates , number and duration of his detention by the authorities , it could be considered a fact that he was last detained in DATE , which was DATE before his departure , in connection with a mass arrest ; that he was released in connection with a peace agreement ; that he was never charged or sentenced ; and that he had been able to leave GPE in DATE on a valid passport without any problems . ORG did not find that the applicant had substantiated being at risk of persecution by the Sri NORP authorities or the NORP upon return . Finally , it observed that the general situation in GPE for NORP coming from the north and east of the country could not alone justify the granting of asylum , and that the applicant 's case had been assessed on its concrete and particular circumstances .

On DATE , upon the applicant 's request , ORG decided to apply Rule CARDINAL of ORG , indicating to the Government that it was in the interests of the parties and the proper conduct of the proceedings that the applicant should not be expelled to GPE pending the ORG 's decision .

On DATE ORG refused the applicant 's request to reopen the case .

On DATE ORG decided to suspend the examination of asylum cases concerning NORP from northern GPE , including the applicant 's case .

On DATE , on the basis of the most recent background information concerning GPE including , inter alia , a Memorandum of CARDINAL DATE prepared by ORG , ORG decided to review the suspended cases , including the applicant 's case .

On DATE ORG refused to reopen the applicant 's case as it found that the most recent general background information would not lead to a revised assessment of the case . More specifically in its letter to the applicant 's representative it stated as follows :

... In its decision of DATE , ORG found ... ORG still finds that your client 's fear of being forcibly recruited by the ORG or of being subjected to outrages by the ORG as a result of having fled from the ORG does not warrant a residence permit under section CARDINAL of LAW . In this connection , ORG emphasises that your client 's statements about his alleged connection with the ORG were extended during the asylum proceedings and were diverging in essential areas . In this connection , ORG also refers to the fact that the Sri NORP military forces defeated the NORP in DATE . Moreover , ORG refers to the background information available to ORG from which it appears that it is hardly likely that former low - ranking members of the ORG or persons who have previously supported the ORG will risk reprisals from the NORP , see GPE ORG , Operational Guidance Note , GPE , DATE . Regardless of whether your client 's information about his previous activities for the ORG is considered a fact , ORG stills find that your client would not risk persecution or being subjected to outrages as covered by section CARDINAL of LAW by the Sri NORP authorities if returned to GPE , including in connection with his arrival at GPE airport . ORG emphasizes that from his detention in DATE , where his photo was taken , and until his departure in DATE your client has not been detained or had his picture or fingerprint taken or in any other way been the object of interest from LOC authorities . The authorities have thus not carried out any acts aimed at your client that indicated that he was suspected of being a member of the NORP . In this connection , ORG also refers to the fact that your client departed lawfully from GPE with his own GPE national passport for the purpose of family reunification with his spouse . Similarly , ORG refers to the background material available to ORG , according to which persons who have previously supported the ORG on a lower level are generally not of interest to the authorities , see GPE ORG , Operational Guidance Note , GPE , DATE , and see GPE ORG to GPE , GPE DATE . Against that background ORG also finds that the fact that one or more of your client 's siblings have been members of or active for the ORG can not warrant a residence permit under section CARDINAL of LAW , according to the background information now available . The fact that as an ethnic GPE from northern GPE your client may risk being questioned and investigated by the authorities on entry into the country can not lead to a revised assessment of the case under asylum law . In this assessment , consideration has been given to the background information available to ORG , according to which the individuals at particular risk of being detained and investigated upon entry in GPE are young NORP , men in particular , from northern and eastern GPE , those without identification or residence in GPE , and those recently returned from the LOC , see GPE ORG to GPE , GPE CARDINAL DATE . In this connection the ORG refers to its finding that it has not been rendered probable that your client would be an object of particular interest to the GPE authorities . As in its decision of DATE , ORG still finds that the general situation in GPE is not of such nature as to warrant in itself the grant of a residence permit under section CARDINAL of LAW . The ORG observes in that connection that it is a condition for a residence permit under section CARDINAL of LAW that , upon a specific , individual assessment , an alien is deemed at risk of persecution or outrages . The authority of ORG is restricted to deciding asylum - relevant issues , and it is thus outside the ORG 's authority to determine whether an alien who does not meet the conditions of section CARDINAL of LAW may be issued with a residence permit for other reasons of a more humanitarian nature . Against that background and in accordance with the ORG 's decision of DATE , ORG still finds that it has not been rendered probable that , in case of return to GPE , your client would be at concrete and individual risk of persecution as covered by section CARDINAL(CARDINAL ) of LAW , or that your client would be at a real risk of outrages as covered by section CARDINAL(CARDINAL ) of LAW . It should be noted that your client 's time - limit for departure is still suspended until further notice on the basis of the request of DATE from ORG . If the basis for your client 's lawful stay in GPE lapses , your client must leave the country immediately , see section CARDINAL of LAW . As appears from the decision of ORG of DATE , your client may be forcibly returned to GPE if he does not leave voluntarily , see section GPE , cf . section CARDINAL , of LAW .

On DATE , the applicant 's representative brought proceedings against ORG before ORG ) claiming that the ORG 's decision of CARDINAL DATE should be annulled . It appears that the proceedings are still pending .

By virtue of section CARDINAL of LAW ( GPE ) , asylum is granted to aliens who satisfy the conditions of LAW . Applications for asylum are determined in the first instance by the former ORG ( now called ORG ) and in the second instance by ORG .

Pursuant to section DATE , subsection CARDINAL , of LAW , decisions by ORG are final , which means that there is no avenue for appeal against the ORG 's decisions . Aliens may , however , by virtue of LAW ( PERSON ) bring an appeal before the ordinary courts , which have authority to adjudge on any matter concerning the limits to the competence of a public authority .

DATE 's country of origin or first country of asylum . For this purpose , ORG has a comprehensive collection of general background material on the situation in the countries from which GPE receives asylumseekers . The material is updated and supplemented on a continuous basis . The background material of ORG is obtained from various authorities , in particular ORG and ORG . In addition , background material is procured from various organisations , including ORG , ORG and other international human rights organisations and the ORG . Also included are the annual reports of ORG ) on the human rights situation in a large number of countries , reports from ORG , reports from the documentation centre of ORG , reports from ORG , reports from ORG ( ORG for Asylum Practitioners ) , reports from the authorities of other countries and to some extent articles from identifiable ( international ) journals . Moreover , the ORG may request ORG to issue an opinion on whether it can confirm information from a background memorandum drafted in general terms . ORG also retrieves some of its background material from the Internet . Internet access also enables the ORG to obtain more specific information in relation to special problems in individual cases .

Usually , ORG assigns counsel to the applicant . Board hearings are oral and the applicant is allowed to make a statement and answer questions . The ORG decision will normally be served on the applicant immediately after the ORG hearing , and at the same time the Chairman will briefly explain the reason for the decision made .

Extensive information about GPE can be found in ORG . v. the GPE , no . CARDINAL , § § DATE . The information set out below concerns events occurring after the delivery of the said judgment on CARDINAL DATE and , in particular , after the cessation of hostilities in DATE .

Fighting between the Sri NORP army and the NORP intensified in DATE , with the army taking a number of rebel strongholds in the north and east of the country . On DATE , in an address to the country 's parliament , the President of GPE announced the end of hostilities and the death of the leader of the LTTE , PERSON . It was also reported that most , if not all , of the NORP 's leadership had been killed .

DATE , ORG for ORG had estimated that CARDINAL people had already reached internally displaced persons ' camps , including CARDINAL in DATE . In addition , it was believed that another CARDINAL people were on their way to the camps through the crossing point at GPE , in the northern district of PERSON .

In DATE , ORG reported that the number of killings in GPE in DATE ( including deaths of civilians , security forces and members of the ORG ) was : CARDINAL in DATE ; CARDINAL in DATE ; CARDINAL in DATE and CARDINAL DATE and DATE . CARDINAL people were reported to have been killed in total over the course of DATE conflict .

“ Notwithstanding the cessation of the hostilities , the current protection and humanitarian environment in GPE remains extremely challenging . In the GPE , nearly the entire population from the territory formerly held by the NORP in the LOC ( CARDINAL NORP ) has been confined to heavily militarized camps in the LOC region . Although the government has gradually reduced the military presence in the camps and has pledged to start the progressive return to their villages of origin of the majority of those in the camps , it is clear that this may take a considerable amount of time . The lack of freedom of movement remains the overriding concern for this population restricting its ability to reunite with family members outside the camps , access employment , attend regular schools , and ultimately choose their place of residence . ”

A Human Rights Watch [ HRW ] press release , dated DATE , reported that :

“ The government has effectively sealed off the detention camps from outside scrutiny . Human rights organizations , journalists , and other independent observers are not allowed inside , and humanitarian organizations with access have been forced to sign a statement that they will not disclose information about the conditions in the camps without government permission . On several occasions , the government expelled foreign journalists and aid workers who had collected and publicized information about camp conditions , or did not renew their visas . ”

A further ORG press release dated DATE set out concerns that CARDINAL NORP civilians remained in detention camps without the freedom to leave .

In DATE , the first post - war local elections were held in LOC . ORG reported that voter turn - out was low due to the number of people who were still displaced . The governing party , ORG , took the majority of seats in the biggest city in the region , GPE . However , ORG , a party sympathetic to the defeated ORG , took the majority of seats in PERSON , the other town where polling took place .

On DATE , PERSON , the official spokesman for ORG in GPE was ordered to leave GPE because of adverse remarks that he had made to the media about the plight of NORP in the government - run camps .

On DATE the Sri Lankan Official Government News Portal announced that the motion to extend ORG ( under which the authorities have extensive anti - terrorism powers and heightened levels of security including checkpoints and road blocks ) by DATE had been passed by ORG with a majority of CARDINAL votes .

In a report dated DATE , GPE ORG published a report entitled “ Report to ORG on Incidents During the Recent Conflict in GPE ” , which compiled incidents from DATE , when the fighting intensified , until DATE . Without reaching any conclusions as to whether they had occurred or would constitute violations of international law , it set out extensive reports of enforced child soldiers , the killing of captives or combatants trying to surrender , enforced disappearances and severe humanitarian conditions during the hostilities .

On DATE , ORG announced its decision that all internally displaced persons would be given freedom of movement and allowed to leave the detention camps from DATE .

In its Global Appeal DATE , the ORG reported that :

“ The Government - led military operations in northern GPE which ended in DATE displaced CARDINAL people , most of whom fled their homes in DATE of the fighting . The majority of these internally displaced persons ( IDPs ) now live in closed camps in Vavuniya district , as well as in camps in GPE , GPE and PERSON . CARDINAL IDPs , some of whom have been displaced since DATE , are also in need of durable solutions .

The IDPs originate mainly from the NORP , PERSON , PERSON , GPE and GPE districts in northern GPE , as well as from some areas in the east of the country . Though the end of hostilities has paved the way for the voluntary return of displaced people , some key obstacles to return remain . For instance , many of the areas of return are riddled with mines and unexploded ordnance . Not all are considered to be of high risk , particularly those away from former frontlines , but mine - risk surveys and the demarcation of no - go areas are urgently needed .

Other key obstacles to return include the need to re - establish administrative structures in areas formerly held by ORG ; the destruction or damaged condition of public infrastructure and private homes ; and the breakdown of the economy - including agriculture and fisheries .

The Government of GPE is planning the return framework , and it has called on ORG for support with return transport , non - food items , return shelter , livelihoods support and assistance in building the capacity of local authorities .

With some progress having been recently achieved , it is hoped that a substantial number of IDPs will be able to return to their places of origin in DATE , but a large portion of new IDPs are also likely to remain in the camps and with host families until well into DATE . ”

In a Human Rights Report DATE , dated DATE , GPE State Department stated that ORG accepted assistance from NGOs and international actors for the ORG camps but management of the camps and control of assistance were under the military rather than civilian authorities . Food , water , and medical care were all insufficient in DATE after DATE war , but by DATE the situation had stabilised and observers reported that basic needs were being met . In DATE the military withdrew from inside the camps but continued to provide security around the barbed wire - enclosed perimeter . The IDPs in the largest camp , ORG , were not given freedom of movement until DATE , when a system of temporary exit passes was implemented for those who had not yet been returned to their districts of origin . Some observers said that this exit system still did not qualify as freedom of movement .

Human Rights Watch , in their report , ORG DATE , estimated that DATE after the main fighting ended , the ORG continued to hold CARDINAL people ( CARDINAL of them women and girls ) in the camps . CARDINAL of these were children . The camps were severely overcrowded , many of them holding twice the number recommended by the ORG . As a result , access to basic requirements such as food , water , shelter , toilets and bathing , had been inadequate . These conditions imposed particular hardships on the elderly , children and pregnant women . The camps were under military administration , and effective monitoring by humanitarian agencies was lacking . The authorities failed to provide camp residents with sufficient information about the reason for their continued detention , the whereabouts of relatives , or the criteria and procedure for their return home .

GPE on GPE of DATE ( “ the DATE ORG ” ) stated as follows :

CARDINAL ORG ( ORG ) report GPE : A Bitter Peace , CARDINAL DATE , also referred to “ extra - legal detention centres ” maintained by the military and observed : “ These detained have had no access to lawyers , their families , ORG or any other protection agency , and it is unclear what is happening inside the centres . In addition , ' the grounds on which the ex - combatants have been identified and the legal basis on which they are detained are totally unclear and arbitrary ' . Given the well - established practice of torture , enforced disappearance and extra - judicial killing of ORG suspects under the current and previous NORP governments , there are grounds for grave concerns about the fate of the detained . The government has announced that of those alleged ex - combatants currently detained , CARDINAL will be put on the trial ; most will detained for a further period of ' rehabilitation ' and then released . ”

CARDINAL Referring to the “ CARDINAL people ” detained “ in so - called ' rehabilitation centers ” because of their alleged association with the ORG , the ORG [ document Legal Limbo , The Uncertain Fate of ORG in GPE , released on DATE , observed : “ The government has routinely violated the detainees ' fundamental human rights , including the right to be informed of specific reasons for arrest , the right to challenge the lawfulness of the detention before an independent judicial authority , and the right of access to legal counsel and family members . The authorities ' consistent failure to inform families of the basis for the detainees ' arrest and their whereabouts raises serious concerns that some detainees may have been victims of torture and ill - treatment , which are more likely to take place where due process of law is lacking and which have long been serious problems in GPE . Given the lack of information about some detainees , there is also a risk that some may have been ' disappeared ' . ”

CARDINAL The ORG ' Eligibility Guidelines for Assessing the International Protection Needs of Asylum - Seekers from GPE , DATE reported that “ In the wake of the conflict , CARDINAL persons suspected of NORP links were arrested and detained in high - security camps ” adding that “ According to a ORG survey , as of DATE , CARDINAL ORG cadres were being held at CARDINAL centres . Among the detainees were CARDINAL males and CARDINAL females . ” and noted that “ Some of the adult detainees have ... been released after completing rehabilitation programmes or because they were no longer deemed to present a risk , including some persons with physical disabilities . ”

The DATE ORG also set out :

CARDINAL The ORG [ ORG ] , ORG , GPE , DATE reported : “ The ORG has warned that GPE faces losing trade advantages under LAW ( GSP - Plus ) scheme from DATE , unless the ORG commits itself in writing to improving its human rights record . The ORG has put forward CARDINAL conditions that it says the Government needs to promise to meet within DATE . These include : ensuring that the CARDINALth amendment to the constitution , which requires that appointments to public positions be impartial and reflect the country 's ethnic and religious mix , is enforced ; repealing parts of LAW that are incompatible with GPE covenants on political and human rights ; reforming the criminal code to allow suspects immediate access to a lawyer on arrest ; and allowing journalists to carry out their professional duties without harassment . However , the ORG has rebuffed the ORG , stressing that the issues that it has raised are internal political matters that should not be linked to trade . “ The ORG is not the only international body currently putting pressure on the government . GPE has also rejected the ORG 's appointment of a CARDINAL - member panel to examine possible human rights violations during the island 's civil war . The Sri Lankan authorities have warned that they will not provide visas for panel members to enter the country . ”

CARDINAL The ORG , ORG , GPE , DATE noted that : “ The decision by the ORG secretary - general , Ban PERSON [ on DATE ] , to appoint a panel to examine accountability issues stemming from the final stages of the island 's civil war , which ended in DATE , has prompted a strong reaction in GPE ...

CARDINAL On DATE ORG reported that “ Secretary - General Ban Kimoon has held his first meeting with the panel of experts set up to advise him on accountability issues relating to alleged violations of international humanitarian and human rights law during the final stages DATE of the conflict in GPE . ” The source also noted that the role of the experts was to examine “ the modalities , applicable international standards and comparative experience with regard to accountability processes , taking into account the nature and scope of any alleged violations in GPE . ”

GPE on GPE of DATE ( “ the DATE ORG ” ) sets out a series of letters from ORG – hereafter “ LOC ” , GPE , on arrival procedures at GPE airport . In its letter of DATE , the ORG observed :

“ [ T]he correct procedure for [ ORG and Emigration [ DIE ] ] officers is to record the arrival of these persons manually in a logbook held in the adjacent Chief Immigration Officer 's office . The name , date and time of arrival and arriving flight details are written into the log . It records why the person has come to their attention and how the case was disposed of . I have had the opportunity to look at the log , and it appears that the CARDINAL ways of disposal are to be passed to ORG [ ORG ] , or allowed to proceed .

The office of ORG [ SIS ] is in the immigration arrivals hall and an officer from ORG usually patrols the arrivals area during each incoming flight . Invariably , if they notice a person being apprehended they approach IED [ ORG ] and take details in order to ascertain in [ sic ] the person may be of interest to them . Their office contains CARDINAL computer terminals , CARDINAL belonging to the airport containing flight information and CARDINAL stand - alone terminals . If an apprehended person is considered suitable to be passed to ORG , they are physically walked across the terminal building to the ORG offices . A ORG officer should then manually record the arrival of the person in a logbook held in their office ... often persons shown in the ORG logbook to have been handed to ORG are never actually recorded as being received in the ORG logbook . It is believed that ORG has allowed these persons to proceed and no action has been taken against them . ”

The same letter also noted that ORG offices at the airport contained CARDINAL computers , which were not linked to any national database . Any checks on persons detained or apprehended were conducted over the phone with colleagues in central GPE . There were no fingerprint records at the airport . CARDINAL computer contained records of suspects who had been arrested and charged with offences , and court reference numbers . It continued as follows :

“ Were a Sri NORP national to arrive at FAC having been removed or deported from GPE , they would be in possession of either a valid national NORP passport , or an emergency travel document / temporary passport , issued by ORG in GPE . The holder of a valid passport would have the document endorsed by the immigration officer on arrival and handed back to him / her . A national passport contains the national ORG card number on the laminated details page . I have made enquiries with the DIE at FAC , and with ORG who meet certain returnees at the airport , and both have confirmed that a person travelling on an emergency travel document is dealt with similarly . They too have the document endorsed by the immigration officer on arrival and returned to them . Before issuing an emergency travel document , ORG in GPE will have details of an applicant confirmed against records held in GPE and will thus satisfactorily confirm the holder 's nationality and identity . If a returnee subsequently wishes to obtain a national identity card , they have to follow the normal procedures . ”

In a letter dated DATE , the ORG reported that an official had spent TIME observing the return of failed asylum seekers from GPE , including those who were in possession of emergency travel documents , issued by ORG in GPE . In the official 's opinion , the fact that certain returnees had been issued with emergency travel documents by ORG in GPE did not seem to make any difference to their treatment upon arrival .

The Report of Information Gathering Visit to GPE on DATE , conducted jointly by ORG and ORG ( “ the Report of Information Gathering Visit , DATE ” ) , concluded that all enforced returns ( of whatever ethnicity ) were referred to the ORG at the airport for nationality and criminal record checks , which could take TIME . All enforced returns were wet - fingerprinted . Depending on the case , the individual could also be referred to the ORG and/or ORG for questioning . Anyone who was wanted for an offence would be arrested .

The report set out that those with a criminal record or ORG connections would face additional questioning and might be detained . In general , non - government and international sources agreed that NORP from the north and east of the country were likely to receive greater scrutiny than others , and that the presence of the factors below would increase the risk that an individual could encounter difficulties with the authorities , including possible detention :

- Outstanding arrest warrant

- Criminal record

- Connection with the LTTE

- Bail jumping / escape from custody

- Illegal departure from GPE

- Scarring

- Involvement with media or NGOs

- Lack of an ORG card or other documentation

GPE on GPE of DATE set out the following :

CARDINAL The ORG letter of CARDINAL DATE went on to observe that : “ At DATE , partly due to the large numbers of NORP being returned from around the world and causing logistical problems , ORG procedures were relaxed in that they no longer had to detain returnees until written confirmation was received from the local police . All returnees are still interviewed , photographed and wet fingerprinted . The main objective of these interviews is to establish if the returnee has a criminal record , or if they are wanted or suspected of committing any criminal offences by the police . The photographs are stored on a standalone computer in the ORG office at the airport . The fingerprints remain amongst paper records also in the ORG office at the airport . Checks are initiated with local police , but returnees are released to a friend or relative , whom ORG refers to as a surety . This surety must provide evidence of who they are , and must sign for the returnee . They are not required to lodge any money with ORG . “ The main ORG offices at FAC , which are housed on the ground floor adjacent to the ORG embarkation control , are currently undergoing a complete refurbishment funded by the NORP government . The CARDINAL completed office suite has CARDINAL purpose built interview rooms , and facilities where returnees can relax and eat meals . ”

CARDINAL A ORG letter of DATE reported : “ There is strong anecdotal evidence that scarring has been used in the past to identify suspects . Previous conversations with the police and in the media , the authorities have openly referred to physical examinations being used to identify whether suspects have undergone military style training . More recent claims from contacts in government ministries suggest that this practice has either ceased or is used less frequently . At the very least it appears that the security forces only conduct these when there is another reason to suspect an individual , and are not looking for particular scars as such , but anything that may indicate the suspect has been involved in fighting and/or military training . There is no recent evidence to suggest that these examinations are routinely carried out on immigration returnees . ”

DATE . On DATE , Tamilnet reported that CARDINAL NORP youths were taken into custody by ORG of the Sri Lanka Police at FAC in CARDINAL separate incidents whilst trying to leave GPE . It was also reported that since DATE , special teams of ORG and police had been deployed in the airport to monitor the movement of NORP who try to go abroad .

ORG , DATE , stated that the frequency of cordon and search operations had not reduced significantly in DATE , though there were fewer large - scale operations than in DATE . In general , young male NORP originating from the north and east of the country were most at risk of being detained following cordon and search operations , with the presence of the risk factors set out above increasing that risk . Those without employment or legitimate purpose for being in GPE were also likely to be seen as suspect . The same report also noted that most sources agreed that there had been few , if any , abductions or disappearances since DATE . There was not a great deal of available information about the profile of NORP targeted for abduction , although it appeared that people linked to the media might be more vulnerable . Police did not generally carry out effective investigations . It went on to note that most sources agreed that there had not been any significant reduction in the number of checkpoints in GPE , whose stated purpose remained to detect and prevent terrorist activity . In general those most likely to be questioned were young NORP from the north and east ; those without ID ; those not resident or employed in GPE ; and those recently returned from the West . However , most sources said that arrests at checkpoints were rare and none had been reported since DATE . It was reportedly fairly likely that someone would be stopped at a checkpoint en route from the airport to GPE . Finally , it clarified that people who wished to live in GPE but did not originate from there must register with the local police station with a national ID card or full passport , and details of planned length and purpose of stay . In theory , whilst anyone was entitled to register to stay in GPE , some sources suggested that young NORP men originally from the north or east of the country could encounter difficulties and face closer scrutiny . The presence of any of the risk factors set out above would also attract greater attention from the police .

“ The significant majority of reported cases of human rights violations in GPE involve persons of NORP ethnicity who originate from the LOC and LOC ... In Government - controlled areas , NORP who originate from the LOC and the LOC , which are , or have been under ORG control , are frequently suspected as being associated with the NORP . For this reason , NORP from the LOC and the LOC are at heightened risk of human rights violations related to the implementation of anti - terrorism and anti - insurgency measures . While this risk exists in all parts of GPE , it is greatest in areas in which the ORG remains active , and where security measures are heaviest , in particular the LOC and parts of the LOC , and in and around GPE . ”

“ The country of origin information that ORG has considered indicates that NORP from LOC continue to face a significant risk of suffering serious human rights violations in the region ( and elsewhere in the country ) because of their race ( ethnicity ) or ( imputed ) political opinion . NORP in the LOC are still heavily targeted in the security and anti - terrorism measures described in LAW . Wide scale detention and confinement of NORP from the LOC remains a serious concern . ORG paramilitary elements also continue to operate with impunity against NORP in the LOC . ”

ORG from GPE of DATE , which superseded the DATE Guidelines contained information on the particular profiles for which international protection needs may arise in the current context . It was stated that :

“ given the cessation of hostilities , NORP originating from the north of the country are no longer in need of international protection under broader refugee criteria or complementary forms of protection solely on the basis of risk of indiscriminate harm . In light of the improved human rights and security situation in GPE , there is no longer a need for group - based protection mechanisms or for a presumption of eligibility for NORP of NORP ethnicity originating from the north of the country . It is important to bear in mind that the situation is still evolving , which has made the drafting of these LAW particularly complex . ”

NORP In summary , the following were ORG 's recommendations : All claims by asylum seekers from GPE

( i ) persons suspected of having links with ORG ( NORP ) ;

( ii ) journalists and other media professionals ;

( iii ) civil society and human rights activists ;

( iv ) women and children with certain profiles ; and

( v ) lesbian , gay , bisexual and transgender ( ORG ) individuals .

It was also stated that in the light of GPE DATE internal armed conflict , and a record of serious human rights violations and transgressions of international humanitarian law , exclusion considerations under LAW may arise in relation to individual asylum seeker claims by GPE asylum seekers .

The ORG reported in DATE that the Colombo Police force had opened CARDINAL special units in GPE suburbs able to take statements in GPE , with plans for more . Previously , GPE - speaking NORP had to rely on a friend to translate their complaints into NORP .


Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)

André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska

The applicant was born in DATE and lives in the town of GPE , GPE .

On DATE , at TIME , the applicant , who was drunk , together with P. and NORP , had a quarrel with CARDINAL other persons ( QUANTITY , PERSON , Ps . , ORG . and NORP ) . According to the applicant ’s own account , NORP hit him in the left eye and the applicant hit NORP in the jaw . Afterwards they were separated by others . However , according to the court ’s findings in the criminal case against the applicant ( see paragraph CARDINAL ) , after an attempt to have a fight with Pv . , the applicant stabbed NORP with a knife . NORP brought this to the attention of the traffic police officers PERSON . and PERSON , who happened to be passing .

At TIME on DATE , the applicant , together with P. and NORP , was arrested by the traffic police officers , handcuffed and taken to the traffic police station . According to the entries in the traffic police station register , the applicant remained in the traffic police station from TIME until TIME DATE .

According to the applicant , in the traffic police station he was beaten by CARDINAL officers . CARDINAL of them hit the applicant CARDINAL times on the head . Another one hit him in the face , twice or CARDINAL times hit him in the chest , and with a truncheon on the left ear , the kidneys and on the legs .

The applicant was subsequently taken to an ambulance station to check whether he was drunk . According to a medical report , the applicant was examined by a doctor at a municipal ambulance station at TIME on DATE . The applicant was drunk but had no visible injuries . After that the applicant was handed over to the ordinary police .

The applicant was taken to the police station at TIME on DATE . There he was examined by a police officer , PERSON . , in the presence of CARDINAL witnesses . It was noted that the applicant had no bodily injuries and had no complaints about the police officers . A report drafted by a police officer was signed by CARDINAL witnesses and by the applicant . The applicant also signed a statement that he had no complaints about his arrest and that no physical force or special restraining equipment had been used on him .

Later , according to the applicant , he was tortured and ill - treated and was forced to make self - incriminating statements . In particular , according to the accounts given by the applicant on an unidentified date , in the police station he had his head banged against the wall and table , and was hit in the kidneys .

According to the police officers , the applicant was released at TIME on DATE . The applicant , however , states that he was released at TIME

At TIME the applicant caught a bus . According to the bus driver , PERSON . , the applicant had bruises on his left ear and left eye and said that he had been beaten by the police .

According to the testimony of the applicant ’s sister and mother , given by them later during the investigation into the applicant ’s complaints of ill - treatment , on DATE the applicant was at home . An ambulance was allegedly called for him which did not come . The applicant ’s mother had arrived at home TIME on DATE and , as the applicant was feeling bad and had fallen to the floor after getting up from the bed , she called him an ambulance . The ambulance arrived at TIME on DATE . The applicant was diagnosed with concussion and head injury , and taken to hospital .

On DATE the applicant ’s mother complained to the prosecutor ’s office that the applicant had been ill - treated .

The applicant stayed in LOC from DATE to DATE . He was diagnosed with concussion , bruises to the neck and left ear and acute bronchitis . The applicant told doctors that he had fallen .

According to the conclusions of the Konotop traffic police internal investigation of DATE , CARDINAL traffic police officers , PERSON . and PERSON , were approached by NORP , who said that he had been stabbed in a bar . PERSON . and PERSON arrested the applicant , handcuffed him and took him to the traffic police station . Later they took the applicant to the ambulance station , where he was tested for alcohol . The test was positive and the applicant was then taken back to the traffic police station and handed over to the police . The applicant ’s injuries had been inflicted during the fight in which NORP was stabbed .

During a forensic medical examination carried out DATE and DATE the applicant stated that he had been beaten by the traffic police officers after fighting with NORP According to the applicant , he was punched CARDINAL times on the head and chest and hit in the ear . He also had a helmet put on his head and was hit twice with a truncheon on the head . It was revealed that the applicant had bruises on his left ear and scratches on his left arm . The scratches had been caused by handcuffs . These injuries could have occurred on DATE in the circumstances described by the applicant . The expert concluded that there were MONEY indicating truncheon blows .

According to the conclusion of a report dated DATE , signed by the head of the Konotop traffic police unit , the use of handcuffs on the applicant had been justified . When PERSON . and PERSON had arrived at the bar , there had been CARDINAL persons there . People started to run away and a window was broken . The applicant , PERSON , and NORP were recognised by PERSON ; however , as they were drunk , they refused to enter the police car , and they swore and resisted .

On DATE , following complaints by the applicant ’s mother , ORG refused to institute criminal proceedings . CARDINAL traffic police officers , Ts . and T. , testified that they had seen the applicant upon his arrival at the traffic police station and he had had no bodily injuries . Nobody had ill - treated the applicant . This was further confirmed by CARDINAL other traffic police officers , NORP , and the doctor who had examined the applicant . Further , the prosecutor referred to the report of the police officer PERSON . It was concluded that the police officers had not ill - treated the applicant .

On DATE ORG quashed the decision of DATE and remitted the case for additional investigation . It was noted that when PERSON . had been driving the applicant home at TIME on DATE , the latter had said that he had been beaten by police officers . The police officers testified that the applicant had been released at TIME The prosecutor noted that these , as well as other relevant circumstances , had not been verified and the quashed decision had been based on the testimony of the persons involved . Moreover , the cause of the applicant ’s injuries had not been established .

On DATE ORG again refused to institute criminal proceedings . It was found that , on DATE of the incident , CARDINAL young people , CARDINAL having a stab wound , had asked the traffic police officers for help . The applicant , together with CARDINAL other persons , had been taken to the traffic police station . Because they resisted arrest , they had been handcuffed . The applicant did not have any bodily injuries and that had been confirmed by a medical examination . A doctor , PERSON , had been questioned and confirmed that , during the examination in the ambulance station on TIME CARDINAL DATE , the applicant had had no bodily injuries . Police officers had stated that the applicant had been questioned and released at QUANTITY on DATE . He had not had any injuries and they had not ill - treated him . Although NORP , who had been arrested together with the applicant , had testified that he had seen the applicant being beaten by the traffic police officers , it was concluded that his testimony , as well as the applicant ’s statements , were not confirmed by the medical conclusions , and , in particular , that there had been MONEY from truncheon blows on the applicant ’s body ( see paragraph CARDINAL ) .

On DATE ORG quashed the decision of DATE and remitted the case for further investigation . The court held that the cause of the applicant ’s injuries had not been established and the testimony of PERSON . had not been verified .

On DATE ORG again rejected the applicant ’s request to institute criminal proceedings . It was concluded that the applicant ’s version of events was not confirmed by “ the medical conclusion of DATE ” . Furthermore it had been impossible to establish where the applicant had been CARDINAL on DATE .

On DATE ORG quashed the decision of DATE because the prosecutor had made a reference to the wrong provision of LAW when rejecting the applicant ’s complaints .

On DATE ORG rejected a request by the applicant for the institution of criminal proceedings . The prosecutor found that the applicant ’s description of events was not confirmed by the findings of the forensic medical examination which had been completed on DATE .

On DATE ORG quashed the decision of DATE and remitted the case for further investigation . It was noted that the hospital doctors who had examined the applicant on DATE had not been questioned . An additional medical examination of the applicant needed to be carried out , taking into consideration material from the hospital medical file . Moreover , it was unclear when exactly the applicant had been released .

During additional investigations in DATE the majority of the witnesses ( ambulance doctors , police officers , relatives of the applicant ) stated that as the events of DATE had happened DATE , they did not clearly remember them . Witness PERSON . was not questioned since he had moved abroad . The records of the ambulance visit to the applicant of DATE and the police station register had already been destroyed as their keeping period ( DATE for the police station register ) had expired .

On DATE the forensic medical examination concluded that the applicant had a scar on his right wrist . According to medical documents , on CARDINAL DATE the applicant had sustained light bodily injuries . Such injuries could have been inflicted in the circumstances described by the applicant . It was unlikely that they had been inflicted by the applicant ’s falling down .

On DATE ORG again refused to institute criminal proceedings into the applicant ’s complaint of ill - treatment . It was found that the applicant had been hospitalised on DATE complaining of headache , nausea and a left ear injury . The applicant had not told the doctors that he had been beaten by the police . The applicant ’s sister had testified that the applicant had come home during TIME of DATE feeling ill and had told her that he had been beaten by the police . The prosecutor , however , referred to the findings of the courts in the criminal case against the applicant and decided that there were no grounds to institute criminal proceedings against the police officers . This decision was not appealed against .

On DATE criminal proceedings were instituted against the applicant for hooliganism .

On DATE the applicant was charged with hooliganism and the use of an offensive weapon . He signed an undertaking not to abscond .

On DATE the applicant ’s representative , PERSON , was refused permission to represent the applicant in the criminal proceedings because PERSON did not hold an advocate ’s certificate . PERSON ’s appeals against that decision were unsuccessful . The applicant was represented in the criminal proceedings by his mother and by the advocates T. and S.

DATE and DATE the criminal proceedings were stayed because the applicant was ill .

On DATE the criminal proceedings were resumed and the applicant was arrested .

On DATE the ORG authorised the applicant ’s pre - trial detention . In doing so the court stated that “ the materials of the case presented before the court confirmed the investigating officer ’s conviction that the applicant might abscond or interfere with the course of justice ” .

On DATE ORG of Appeal quashed the decision of DATE because , by a Decree of the President of GPE which had entered into force on DATE , ORG had been dissolved . Therefore , the decision appealed against had been adopted by a court which no longer existed in law . The case was transferred to the newly created ORG for fresh consideration .

On DATE ORG authorised the applicant to be placed in pre - trial detention . In particular , the court held that the applicant had been accused of committing a serious crime to which he had not confessed . The court further noted that it was “ the investigating officer ’s right to decide on the tactics for the investigation and it was his right to decide to change the preventive measure [ from an obligation not to abscond to pre - trial detention ] ” .

The applicant appealed against that decision . According to the Government , this appeal was received by the court on DATE .

On DATE ORG found the applicant guilty of hooliganism and sentenced him to CARDINAL years’ imprisonment . In particular , the court found that the applicant , PERSON , and NORP , had followed PERSON , Ps . , ORG . and NORP onto the street . The applicant had asked PERSON why he had not stayed in the bar . The applicant then started to swear and tried to have a fight with Pv . When PERSON , NORP and PERSON had tried to calm the applicant down he had struck NORP with a knife .

In the court hearing the applicant stated that he had had a quarrel with NORP but had not struck him with a knife . The court listened to the testimony of NORP . , PERSON . and PERSON CARDINAL latter witnesses withdrew the testimony they had given at the pre - trial stage and stated that the applicant had not in any way committed an offence against them . None of the other persons present during the incident attended the hearing because they were out of town . The court took into consideration the testimony they had given during the pre - trial investigation . The court also relied on various pieces of evidence and the conclusions of the forensic examinations .

On DATE ORG rejected an appeal by the applicant against the decision of DATE , because the applicant had already been sentenced to imprisonment .

On DATE ORG upheld the judgment of CARDINAL DATE . It also rejected as unsubstantiated the applicant ’s complaints that he had been ill - treated . No particular reasoning was given for this conclusion as the court referred to certain undated decisions not to institute criminal proceedings following the applicant ’s complaints .

By a decision of DATE ORG rejected a request by the applicant to have his sentence commuted .

On DATE ORG of GPE rejected an appeal in cassation by the applicant against his conviction .

On DATE ORG of Appeal quashed the decision of DATE and remitted the case for fresh consideration .

On DATE , by a decision of ORG , the applicant was granted an amnesty .

The applicant ’s representative , PERSON , asked the courts and the prosecutor ’s office to provide him with copies of documents necessary for lodging a complaint before this ORG . All his requests were rejected , mainly on the ground that he had not presented a valid power of authority and because he had requested documents other than those required in connection with the lodging of his complaints before the ORG .

Articles CARDINAL and CARDINAL ( as worded before the amendments of DATE ) can be found in the following judgments respectively : NORP v. GPE , no . CARDINAL/CARDINAL , § DATE , DATE , and ORG v. GPE , no . CARDINAL , § DATE , DATE ) .

Following the amendments to LAW of DATE , the range of cases where the right to compensation would arise was expanded to include those in the following category :

“ ( DATE ) where ... unlawfulness of remand and holding in custody ... has been established by a conviction or other judgment of a court ( save for rulings on the remittal of cases for additional investigation ) ” .