Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant is a NORP national , who was born in DATE and at the relevant time lived in GPE , the region of GPE .

The applicant used to work in the village of PERSON , with ORG branch of ORG ( GPE социален патронаж , PERSON DATE за социални грижи ) . At the relevant time , ORG were ORG administrative bodies funded by the ORG and municipal budgets .

On DATE the applicant suffered an accident at work . Subsequently she underwent surgical operations . She was unfit for work for DATE and continued experiencing health problems for DATE thereafter .

On DATE the applicant instituted civil proceedings against her former employer , the local ORG , claiming pecuniary and nonpecuniary damages . A representative for ORG took part in the proceedings apparently maintaining that the applicant was responsible for the accident and that the claims were excessive .

NORP On DATE ORG partially granted the applicant ’s claim and awarded her MONEY ( “ BGL ” ) in nonpecuniary damages and ORG CARDINAL in costs , plus statutory interest .

On DATE the defendant , ORG , lodged an appeal with ORG .

According to the Government , on DATE ORG sent to the applicant a registered letter inviting her “ to collect ORG CARDINAL ” but the applicant refused receipt of the letter .

According to the applicant , as of CARDINAL DATE the proceedings before ORG were still pending .

On an unspecified date these proceedings ended and ORG judgment became final and enforceable .

Following a conversation between the applicant and employees of ORG , on DATE ORG sent to the applicant a letter inviting her “ to collect ORG CARDINAL ” .

On DATE the applicant submitted a written request to ORG insisting on payment in compliance with ORG judgment , including all interest and costs . She offered her calculation of the interest that had accrued since the relevant starting date , DATE , and stated that the amount due was BGL CARDINAL .

The applicant , who at that time lived in another town , authorised another person to receive the money .

According to “ minutes ” , drawn up by the accountant and CARDINAL other employees of ORG , on DATE they withdrew ORG CARDINAL from the ORG ’s bank account but the applicant ’s representative refused to accept the money .

On DATE ORG wrote to the applicant stating that they “ wished to pay the damage sustained , in the amount of ORG CARDINAL ” , and invited her to visit the Centre for that purpose on DATE . The letter also stated that the ORG was “ free from any obligation to pay interest on the amount since the date of the conversation with [ the applicant ] held in the presence of [ the ORG ’s ] employees ” .

On DATE , upon the applicant ’s request , ORG issued a writ of execution ordering ORG to pay to the applicant ORG CARDINAL,CARDINAL principal , ORG CARDINAL in costs , and interest as from DATE .

On DATE the applicant submitted a request to the competent enforcement judge seeking the institution of enforcement proceedings . That was refused and the applicant was informed , upon her complaints to the enforcement judge , ORG and ORG , that under LAW judgments against state bodies was only possible through submission of the writ of execution directly to the state organ concerned . Enforcement proceedings were not provided for . An attachment of the defendant ’s bank account was not possible .

NORP The applicant was also informed that the refusal to execute a final judgment could be a punishable criminal offence .

On an unspecified date the applicant complained to ORG , which invited the mayor of the NORP municipality to comment .

On DATE the mayor wrote the following to the Ministry and to the applicant :

“ Having studied the [ applicant ’s ] request and having discussed the matter with the management of the municipal ORG , we reached the conclusion that the problem is under the jurisdiction of the judicial authorities . The municipal ORG considers that the civil proceedings had been handled wrongly : the [ defendant ] had been ORG , which has no legal personality and does not have its own bank account . For this reason , ORG sees no legal grounds , for purposes of the financial authorities , to effect the payment . Apparently the matter should be examined additionally by the courts . The municipal administration can not interfere in this matter . ”

In DATE the applicant submitted a complaint to the prosecution authorities requesting the punishment of those responsible for the failure to enforce the judicial award .

In DATE or DATE she complained of the inactivity of the prosecution authorities .

On DATE a prosecutor requested information from ORG . On DATE the ORG replied to the prosecutor , with a copy to the mayor of GPE . It stated that ORG was not a separate legal person but formed a part of ORG which , in turn , was under the administration and budgetary control of the municipality . Therefore , the applicant could obtain payment by submitting her documents to the municipality of GPE . The date on which that information was transmitted to the applicant is unclear .

On DATE the applicant was heard by a prosecutor .

On DATE the prosecutor terminated the inquiry noting that the applicant had been informed that she had to submit her writ of execution and a copy of the judgment to the municipality of Chirpan .

During the relevant period inflation in GPE was running high and the national currency was depreciating . In particular , on DATE , the date on which ORG judgment was delivered , BGL CARDINAL were necessary to buy one GPE dollar ( ORG ) , in DATE , at the time of the applicant ’s attempts to obtain payment , that figure was BGL CARDINAL , on DATE , the date on which the mayor refused to execute the judgment , it was BGL CARDINAL and in DATE the exchange rate was ORG CARDINAL for USD CARDINAL .

As of DATE , ORG CARDINAL became CARDINAL new NORP lev ( ORG ) . On DATE , the date on which the applicant was invited to renew her request for payment before the NORP municipality , ORG was exchangeable for ORG ( i.e. , for BGL CARDINAL ) .

For DATE the statutory interest rate in GPE varied significantly , reaching during a period of DATE in DATE and DATE an average of PERCENT per annum . That was however insufficient to compensate for the loss of value of the NORP lev during that period .

Following the admissibility decision in the present case , on DATE the municipality of GPE paid BGN CARDINAL into a bank account opened by them in the applicant ’s name . The amount included ORG CARDINAL in principal , BGN CARDINAL in interest for the period DATE – DATE and BGN CARDINAL in costs . The applicant was informed by letter .

In accordance with paragraph CARDINAL of Article CARDINAL , a person who has an enforceable pecuniary claim against the ORG or a state body shall receive payment out of funds allocated for that purpose under the institution ’s budget .

The writ of execution shall be submitted to the financial department of the institution . If there are no funds available under the budget of the state body concerned , the higher administrative organ should undertake the necessary steps to ensure that funds become available under the budget for DATE .

Enforcement proceedings and judicial review of the execution of a judgment are not possible where the debtor is a state institution . Until DATE paragraph CARDINAL of LAW expressly prohibited enforcement proceedings against state institution . Although that provision was repealed in DATE , the legal regime remained unchanged , as paragraph CARDINAL of Article CARDINAL was not amended .

According to ORG and CARDINAL of ORG , a writ of execution is issued in a single copy which must be produced for execution . Where the original has been lost , a duplicata may be issued in special proceedings which require summoning the debtor at an oral hearing .

According to section CARDINAL of LAW , a creditor is entitled to refuse partial payment .

According to section CARDINAL of ORG , if the creditor fails to undertake the measures necessary to receive payment , the debtor may discharge a pecuniary debt by depositing the money in a bank account .


Violation of Art. 6-1;Violation of Art. 13;Violation of P1-1

The applicant was born in DATE and lives in PERSON . She is a second degree invalid .

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

NORP The applicant owns part of a house in which her neighbour ( PERSON ) owns another part . PERSON re - constructed her part of the house without the prior agreement of the applicant and the applicant 's part of the house was seriously damaged as a result .

On DATE the applicant initiated court proceedings claiming damages from V. Relying on an expert 's assessment of the damage caused to the applicant 's house , on CARDINAL DATE ORG awarded her CARDINAL Moldovan lei ( MDL ) ( the equivalent of QUANTITY ( ORG ) at the time ) . No appeal was made and the judgment became final and enforceable DATE .

According to the applicant , she wrote to various ORG authorities requesting the enforcement of the award but it was not enforced . On DATE she informed ORG that the judgment of CARDINAL DATE had not been enforced and asked it to change the manner of enforcing the judgment by transferring ORG 's part of the house to the applicant . She emphasised that her own part of the house had been severely damaged and that the damage had been aggravated with the passage of time , causing a real threat to her life . The applicant relied , inter alia , on LAW ( see paragraph CARDINAL below ) .

On DATE ORG accepted the claim . The new enforcement warrant was submitted to the court on DATE , following which the bailiff requested PERSON to comply with the judgment .

The applicant also requested ORG to transfer the examination of her cases against PERSON , including the enforcement of the judgment of CARDINAL DATE , to another court in view of the inactivity of ORG . On DATE ORG rejected that request as unfounded .

On DATE ORG adopted an additional judgment , awarding the applicant damages ( MDL CARDINAL ) against ORG for the late enforcement of the judgment of CARDINAL DATE . PERSON appealed . On DATE the ORG quashed that judgment and ordered a full re - hearing .

On DATE the bailiff organised an auction for the sale of the part of the house belonging to ORG but nobody offered the minimum asking price set . He then proposed that the court accept the applicant 's request to be given title to that part of the house on account of ORG 's debt to her .

On DATE ORG accepted that request .

In parallel to all the proceedings mentioned above , the applicant initiated administrative proceedings for the annulment of a municipality 's decision adopted in DATE confirming the lawfulness of ORG 's re - construction of the house . On DATE ORG accepted that request and on DATE ORG upheld that judgment . On DATE ORG quashed the CARDINAL judgments and adopted a new one , rejecting the applicant 's claims .

V. lodged a request for the revision of judgments of CARDINAL DATE and DATE because the expert report on the damage had been signed by an expert lacking the required training and ORG had based its judgment of CARDINAL DATE on that report . The report stated the level of training of its author , who was registered by ORG as that of DATE ( highest ) degree expert with DATE work experience . On DATE ORG rejected ORG 's request .

On DATE the ORG accepted PERSON 's request and quashed the judgment of CARDINAL DATE and the decision of CARDINAL DATE ( see paragraphs CARDINAL and CARDINAL above ) , ordering a full re - examination of the case in view of the expert 's lack of adequate training . The court accepted PERSON 's claim that she had only found out about the expert 's lack of training in DATE and had thus not exceeded the DATE time - limit for lodging the revision request . The applicant informed the ORG about the quashing in a letter of DATE .

On DATE ORG ordered an expert report to be made . On an unspecified date in DATE ORG ( “ ORG ” , a ORG institution ) submitted its report to the court . It confirmed that , following the reconstruction of ORG 's part of the house in serious violation of building regulations , the applicant 's part of the house had suffered a major deterioration and had become uninhabitable . New cracks appeared in the wall after a repair , which meant that the process had not yet stabilised . A part of ORG 's house created a particular danger during earthquakes and the applicant 's house had lost all of its resistance to earthquakes . ORG assessed the damage caused to the applicant 's house at MDL CARDINAL ( ORG CARDINAL ) .

According to a statement by the judge in charge of the applicant 's case regarding the proceedings after the revision of DATE , the hearings had to be adjourned ( by DATE on each occasion ) due mainly to the applicant 's representative 's absence on the following dates : DATE ( the first hearing in the re - opened proceedings ) , DATE , DATE , CARDINAL DATE , DATE , DATE and CARDINAL DATE .

DATE adjournments had to be ordered at ORG 's request : on DATE , DATE and DATE .

On DATE the applicant requested a new expert report to be drawn up in respect of the damage caused to her part of the house . PERSON supported this request . On DATE the questions for the experts were formulated and on DATE the court ordered the parties to bear equally the experts ' costs . The expert report was sent to the court by ORG ( “ IREJC ” , a ORG institution ) on DATE , following a visit to the applicant 's part of the house on DATE . The report largely confirmed the findings of the CARDINAL previous expert reports and assessed the damage caused to the applicant 's house at MDL CARDINAL ( ORG CARDINAL,CARDINAL ) . It also found that the process of the deformation of the house had not yet stopped and new cracks had appeared after minor repairs had been undertaken . On DATE the court accepted PERSON 's objections to the expert report and ordered a new report to be drawn up by IREJC . On CARDINAL DATE IREJC sent the case file back to the court without drawing up the report . On DATE the experts charged with drawing up the report were summoned , but they failed to appear on DATE . On DATE PERSON requested another expert report . On DATE the court sent IREJC a request for a new expert report , but on DATE the ORG returned the case file since ORG had failed to pay IREJC its costs , as ordered by the court . The applicant stated that she did not want another report since DATE had confirmed her position . On DATE the court ordered the parties to each bear IREJC 's costs and ordered a new report to be drawn up . In their observations of September CARDINAL the Government informed the ORG that IREJC had not yet drawn up its report and asked for permission to submit it to the ORG when it was ready . No such report has been submitted to date .

The proceedings are still pending before ORG .

The relevant domestic law has been set out in GPE v. GPE ( no . CARDINAL , ECHR CARDINALIII ( extracts ) ) .

NORP In addition , the relevant provisions of LAW , applicable at the relevant time , read as follows :

“ LAW Examination of civil actions by the court .

The court shall begin the examination of a civil case :

CARDINAL ) at the request of the natural or legal person who asks for the protection of his or its rights or interests protected by law ; ...

TITLE CARDINAL

EXECUTION OF COURT JUDGMENTS

Article CARDINAL . Court judgments and decisions of other authorities , which shall be executed .

The following shall be executed in accordance with the rules in the present LAW :

CARDINAL ) NORP judgments ... adopted by courts in civil cases : ...

Article CARDINAL . Documents of forced execution .

The following are considered documents of forced execution :

CARDINAL ) NORP execution warrants ... adopted by courts ... ;

Article CARDINAL . Issuance of an execution warrant .

Execution warrants shall be issued by the court to the creditor after the decision becomes final ...

Execution warrants shall be issued directly to the creditor or , at his or her request , shall be sent for enforcement directly by the court to the territorial subdivision of ORG within ORG .

Article CARDINAL . Submission of the document of forced execution .

The bailiff shall begin the enforcement of court judgments at the request of the persons mentioned in LAW ...

Article CARDINAL . Verification of the execution of the judgment .

The judge shall verify the correct and timely execution of the judgment .

Article CARDINAL . Measures of forced execution .

The following shall be the measures of forced execution :

CARDINAL ) NORP execution against the debtor 's assets through their freezing and sale ; ... ”


Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Kyrgyzstan);Non-pecuniary damage - finding of violation sufficient

Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

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

The applicant is an ethnic NORP . He was born and lived in the town of PERSON in the south of GPE . From DATE until DATE the applicant worked at FAC of ORG in PERSON . The majority of the NORP nationals of NORP origin – PERCENT of GPE ’s overall population – live in the south of the country , in particular , in PERSON and PERSON .

On DATE the applicant arrived in GPE , GPE , in order to accompany his wife ’s father who was having medical treatment in a clinic in GPE . According to the applicant , he has not returned to GPE since then . He stayed in GPE and worked as a taxi driver . According to records of the traffic police for GPE and GPE region , he committed minor traffic violations on DATE , CARDINAL and DATE and DATE , as well as in DATE . From CARDINAL DATE to CARDINAL DATE he was officially registered as residing at a certain address in GPE . His wife and CARDINAL children joined him in DATE . His wife obtained NORP citizenship in DATE . His other QUANTITY children and his parents stayed in PERSON .

On DATE the PERSON - Abad regional prosecutor ’s office brought criminal proceedings against the applicant on suspicion of embezzlement of ORG funds . The decision stated that the applicant had been appointed a warehouse supervisor at ORG of ORG on DATE and that while in that post he had misappropriated , during the period from DATE to DATE , goods stored at the warehouse in PERSON for which he was responsible at the time , had sold them and used the money so received for his personal needs .

On CARDINAL DATE an investigator at the PERSON - Abad regional prosecutor ’s office charged the applicant in absentia , issued an order for him to be remanded in custody , declared him a wanted person and stayed the investigation until he had been arrested . On DATE the investigator rectified the charges against the applicant , following the amendment of LAW , to embezzlement under LAW , which is punishable in particular by imprisonment of DATE .

On DATE the applicant sent an application to the ORG prosecutor ’s office , seeking to have the criminal proceedings against him terminated . To demonstrate lack of grounds for suspicion he argued that a government audit carried out in DATE had not revealed any violations at his place of work and that he had been living in GPE at the time of the alleged offence , as confirmed , inter alia , by his passport and his residence registration . Decisions to dismiss his application and to stay the criminal proceedings against him until he had been extradited were communicated to his representatives orally .

On DATE the applicant , who had been placed on an international wanted list , was arrested in the GPE region and placed in a temporary detention facility at the LOC district police department .

On DATE the ORG allowed the LOC prosecutor ’s request for the applicant to be remanded in custody pending a decision on his extradition . The ORG decision was upheld on appeal by GPE on DATE . All subsequent applications by the prosecutor ’s office for extension of the applicant ’s detention pending the extradition proceedings were allowed , except for an application of CARDINAL DATE which was refused by ORG on DATE ( upheld on appeal by ORG on DATE ) and the applicant ’s release on bail was ordered . The bail was set at MONEY ( RUB ) . ORG held that if the money was not deposited the applicant should remain in custody until the maximum time - limit for detention had been reached , that is until DATE , and should then immediately be released .

The applicant ’s family failed to deposit the sum required and the applicant remained in custody until DATE , when his release was ordered by a deputy prosecutor of the GPE region , subject to an undertaking not to leave his place of residence , appear on summons before the GPE regional prosecutor ’s office and abide by the legislation of GPE . The applicant gave the undertaking and was released on DATE .

On DATE a deputy Prosecutor General of GPE lodged a request with a deputy Prosecutor General of GPE , seeking the applicant ’s extradition to GPE for prosecution on charges of embezzlement . The request stated , inter alia , that in accordance with LAW , ORG Office guaranteed that the applicant would not be extradited to CARDINAL State without ORG consent , that he would not be prosecuted or sentenced for any other crime committed before his extradition , that he was being prosecuted for a general criminal offence which was not of a political nature , and that he was not being discriminated against on any ground , including that of his ethnic origin . After the trial or , if convicted , after serving his sentence , the applicant would be free to leave the territory of GPE .

On an unspecified date ORG of the Russian Federation made enquiries of ORG on the issue of extradition to GPE . On CARDINAL DATE ORG replied as follows :

“ ... ORG has no information which prevents the extradition of the national of GPE M.M. GPE to the law - enforcement authorities of GPE .

At the same time , when taking the ultimate decision on extradition of nationals of GPE , it is necessary to take into account the difficult internal political situation which has emerged in GPE at the present time , as well as the aggravation of inter - ethnic tension , which predetermines a possibility of biased examination of cases against citizens of this country not belonging to the titular ethnic group .

In particular , ORG has information concerning serious breaches in a number of court proceedings against NORP nationals of NORP origin ; cases of intimidation of witnesses and assaults on lawyers are not infrequent . ”

On DATE the deputy Prosecutor General of the Kyrgyz Republic provided additional assurances to the deputy Prosecutor General of GPE , stating that the request for the applicant ’s extradition had no connection with the events in PERSON in DATE and earlier , that the applicant would not be subjected to torture , violence or other inhuman or degrading treatment or punishment , that he would not be sentenced to death , and that he would be provided with every opportunity to defend himself , including legal aid .

On DATE the deputy Prosecutor General of GPE approved the request of ORG of GPE for the applicant ’s extradition . The decision noted that the acts of which the applicant was accused were punishable under LAW of GPE with a penalty exceeding DATE imprisonment , that the prosecution was not time - barred , that the applicant was a national of GPE , that he had not acquired NORP nationality , and that his extradition was not in breach of international agreements or domestic law .

The deputy Prosecutor General of GPE requested the Special Representative of the President of GPE on international cooperation in the fight against terrorism and transnational organised crime to provide assistance , via ORG , in ensuring the observance of the applicant ’s rights after his transfer to GPE ( letter CARDINAL/CARDINAL - CARDINAL of CARDINAL DATE ) .

On DATE the applicant lodged a request with ORG ( ORG ) for refugee status . He stated that if returned to GPE he , as an ethnic NORP , would be in real danger of his life because of the inter - ethnic conflict in the country .

On DATE his application was rejected by the ORG for GPE and GPE region . The ORG noted , in particular , that according to its records , after his entry to GPE on DATE the applicant had gone abroad only once from CARDINAL May to DATE , to GPE . There were cancelled stamps in his passport certifying his exits from and entries to GPE , and also stamps which were not authentic , according to an expert opinion of CARDINAL DATE . CARDINAL pages of his passport were missing . According to the ORG , the applicant ’s lengthy fouryear stay in GPE without returning to GPE , where his family had been living , had apparently shown that he had been avoiding entering his country because he was wanted by the law - enforcement bodies , and the fact that he had applied for asylum DATE after the DATE events meant that he had not felt himself to be in any danger . The ORG found that the applicant had come to and stayed in GPE not because he wished to receive asylum but in order to find employment and improve his financial situation . He was not therefore eligible for refugee status .

The ORG reviewed the situation in GPE after the DATE events , including the constitutional referendum and the parliamentary elections . It noted reports by ORG and ORG , as well as the ORG ’s development programmes carried out in cooperation with the NORP authorities which were aimed , first of all , at building peace and democratic governance , fighting poverty and working with local communities , and were financed by grants which had doubled during DATE and totalled MONEY in DATE . It further noted that DATE had been declared the Year of Inter - Ethnic Concord and Friendship , with various programmes organised by local authorities , and national and international trade fairs . The ORG considered that the situation in GPE had significantly changed , there had been no interethnic incidents and the Government had been undertaking enhanced measures to ensure the security of its citizens and to improve the social , economic and political situation in the country .

The applicant appealed against the decision of the ORG of GPE and GPE region to the FMS of GPE , which upheld the decision on DATE , noting that the applicant ’s fears of persecution on the ground of his ethnic origin had not been justified .

NORP The applicant lodged a court appeal against ORG extradition order . He submitted that , in view of the unstable political situation in GPE and ethnic unrest between the NORP majority and the NORP minority , the decision in question entailed for him a serious risk that he would be subjected to torture . He referred to statements by ORG of DATE , ORG into the events in southern GPE , ORG and other sources .

On DATE GPE examined the applicant ’s appeal at an open hearing in the presence of the applicant , his lawyer and the prosecutor . The applicant argued , in particular , that NORP were oppressed and discriminated against in GPE and that he might therefore be subjected to torture or other ill - treatment . ORG noted that the decision for the applicant ’s extradition complied with the requirements of LAW and LAW . The decision had been taken by the appropriate authority . The applicant was a national of GPE and had not obtained NORP nationality . There were no criminal proceedings against him in GPE in connection with the acts imputed to him . There was no court decision about the existence or otherwise of impediments to his extradition . Therefore ORG did not find any grounds for refusal of his extradition . It examined the assurances of ORG of GPE and stated that it had no reasons to doubt that they would be observed . It took into account that , according to the information the ORG for GPE and the GPE region had when it made its decision in the applicant ’s case , which was upheld by the FMS of GPE , the social , economic and political situation in GPE had normalised since the interethnic clashes in DATE . It also took into account that the applicant was accused of an ordinary crime which had no political or ethnic character , and that it had been committed in DATE , long before the inter - ethnic clashes . The applicant had not claimed that he was being persecuted for political reasons , stating that he had moved to GPE to find employment . Therefore , the fears that he might be subjected to ill - treatment or discrimination on the ground of his ethnic origin or other grounds had not been objectively justified .

ORG further stated that a court appeal against the ORG ’s decisions in the applicant ’s case to refuse him refugee status could not suspend or block the applicant ’s extradition . It noted that while the applicant had arrived in GPE DATE previously for material gain he had applied for refugee status only after his detention , thereby pursuing the aim of delaying his extradition . It further noted that the applicant ’s guilt was beyond its scope of examination . It held that the extradition decision was lawful and dismissed the appeal .

On DATE ORG of GPE examined the applicant ’s appeal against ORG judgment in which he argued , in particular , that if extradited he would run a real risk of torture because he belonged to the NORP minority , as confirmed by , inter alia , ORG into the events in southern GPE , and that GPE official assurances would not prevent that risk . Having heard the applicant ’s counsel and the prosecutor , ORG endorsed the lower court ’s findings , noting also that the applicant had left GPE for GPE in order to find employment and not because of persecutions on the ground of his ethnic origin , and that the decision to extradite him had been taken in accordance with LAW between GPE and ORG of DATE , and that the request for extradition had complied with ORG and CARDINAL of LAW on extradition of DATE and LAW . ORG rejected the applicant ’s appeal and upheld the lower court ’s decision .

On DATE the St Petersburg ORG rejected the applicant ’s appeal against the ORG ’s decisions . It stated in its judgment that the applicant had submitted at the hearing that he did not fear for the life and health of his children and parents who had stayed in PERSON , that he had not been persecuted on account of his ethnic origin , political or religious grounds , though there had always been tensions between NORP and NORP in everyday life , and he had known about the harassment of NORP in GPE from his friends and brother who had been beaten up during the events in DATE . ORG found that it did not follow from the materials before it that the applicant had left his country and did not wish to return there because of some real events menacing him personally . The absence of a real threat was confirmed , in particular , by the fact that his family , which included minor children , living in PERSON had never been discriminated against . He had failed to submit any evidence that he or his family had been persecuted on the ground of their ethnic origin , or any evidence for such fears . He had referred in general to the situation in the country , without giving any details .

An appeal against ORG judgment lodged by the applicant ’s counsel did not comply with the relevant procedural requirements and on DATE ORG refused the applicant ’s request for an extension of the time - limit for lodging a proper appeal . Proceedings in which the applicant challenged that finding are pending .

On DATE President PERSON was overthrown after popular demonstrations and a Provisional Government headed by PERSON assumed power .

On DATE which followed inter - ethnic clashes erupted in the south of the country in PERSON and PERSON , in which ethnic NORP and ethnic NORP committed violence against each other .

GPE adopted a new LAW via a DATE referendum . According to ORG in LOC ’s ORG ( ORG , the authorities succeeded in creating the necessary conditions for the conduct of a peaceful constitutional referendum despite challenging circumstances .

On DATE GPE held parliamentary elections . The OSCE / ODIHR provided a cautiously optimistic assessment of the elections , despite some shortcomings .

On DATE GPE held presidential elections . According to the OSCE / ODIHR Election Observation Mission Final Report , “ the election was conducted in a peaceful manner , but shortcomings underscored that the integrity of the electoral process should be improved to consolidate democratic practice in line with international commitments . Candidate registration was inclusive , giving voters a wide choice , and the electoral campaign was open and respected fundamental freedoms . These elements , however , were overshadowed by significant irregularities on DATE , especially during the counting and tabulation of votes . ” The inauguration of the newly - elected President PERSON PERSON took place on DATE .

ORG into the events in southern GPE ( “ ORG ” ) was established with a support by the NORP authorities . After broad consultation with numerous international bodies , including the ORG , the LOC , the ORG , the ORG and the office of the ORG High Commissioner for Human Rights , the terms of reference were established and endorsed . The ORG was mandated to investigate the facts and circumstances relevant to incidents that took place in southern GPE in DATE , qualify the violations and crimes under international law , determine responsibilities and make recommendations , particularly on accountability measures , so as to ensure the non - repetition of the violations and to contribute towards peace , stability and reconciliation . The ORG acknowledged the excellent cooperation of the authorities of GPE . It published its report in DATE . The executive summary of the report states , inter alia , as follows :

“ CARDINAL . ... The events must be viewed in the context of the historical and political background of the region , particularly the relationship between the communities of ethnic NORP and ethnic NORP . In this regard the ORG notes the underrepresentation of ethnic NORP in public life and the rising force of ethnonationalism in the politics of GPE . The ORG notes further the power vacuum and consequent political rivalries , fragile state institutions and the weak rule of law in southern GPE in the wake of DATE overthrow of the PERSON government .

NORP The events resulted in significant loss of life and injury , of which the majority of victims were ethnic NORP . In total CARDINAL people died . It is expected that this figure will grow but not substantially . CARDINAL people received medical assistance at hospitals . Many CARDINAL of people were displaced . CARDINAL people were displaced to GPE and a further CARDINAL were internally displaced . There was also significant property damage , again to a disproportionately high number of ethnic NORP owned properties . In total CARDINAL properties were damaged . The ORG notes that ethnic NORP also suffered very significant losses , in terms of life , health and property . The ORG has found that both communities suffered loss .

In addition to the documented international and domestic criminal acts , the ORG has found that there have been and still are serious violations of international human rights law committed by the ORG in the aftermath of the events . There is a consistent and reliable body of material which tends to show that acts of torture were committed in detention centres by the authorities of GPE in the aftermath of the DATE events . Of particular concern to the ORG is that such acts of torture are ongoing and that the response of the authorities to allegations of torture has been grossly inadequate .

Criminal investigations and trials which have resulted from the DATE events have been marked by breaches of the ORG fair trial rights . Large scale sweep operations conducted in NORP mahallas on DATE and the smaller scale search operations which then followed have involved ill - treatment and arbitrary arrest and detention . There has been selective prosecution targeting the ethnic NORP minority . Defence lawyers representing ethnic NORP defendants have been subject to improper interference and intimidation .

... The Provisional Government , which had assumed power DATE before the events , either failed to recognize or underestimated the deterioration in interethnic relations in southern GPE . ...

As to conflict prevention and reconciliation , the ORG recommends measures on inclusive state building ; ... GPE should take a strong public stand against extreme nationalism and ethnic exclusivity . ...

NORP ... The government should ensure the conduct of thorough , independent and impartial investigations into crimes or other human rights violations without reference to ethnicity and should consider seeking international assistance to do so . ... The Government should immediately stop all arbitrary arrests , torture in detention and other human rights violations . ... ”

In their DATE report “ GPE : Dereliction of Duty ” ORG stated , in particular , as follows :

“ Despite the acknowledgment by a number of officials that torture and other illtreatment in detention continues to be a problem and despite repeated efforts , including issuing decrees and instructions , by the former President and the new Prosecutor General to stop the routine use of beatings and other ill - treatment in order to extract confessions , there appears to be little commitment at regional and local levels to effectively and decisively address and prevent these serious human rights violations . ...

While human rights monitors report fewer arbitrary arrests , nevertheless , DATE on from the DATE violence , torture and other ill - treatment , including beatings , by law enforcement officers unfortunately appear to continue to be routine ... There are serious concerns that while investigating crimes police officers have continued to target NORP and NORP neighbourhoods , threatening to charge them with serious crimes , such as murder , in relation to the DATE violence in order to extort money from them . Those who have returned from DATE work in GPE or GPE or families who have relatives working outside the country are particularly vulnerable to arbitrary detention , intimidation and extortion since they are assumed to have ready access to money and foreign currency . ...

Impunity for law enforcement officers who have perpetrated torture and other illtreatment has long been a serious problem in GPE , especially at the local and regional levels . Since the DATE violence this has become ever more apparent but despite a number of positive initiatives and concrete measures in DATE by the former President and the current Prosecutor General on the prohibition of torture , regrettably only a handful of prosecutions for torture or other ill - treatment in police custody appear to have taken place . ... Given the admissions by ORG and the current and former Presidents that torture and other ill - treatment is widespread the extremely low number of prosecutions of security officers for torture and the absence of any convictions for torture casts doubt on the commitment of the authorities to seriously and effectively redress these crimes and human rights violations . ”

In their report ‘ Distorted Justice’ , published in DATE , ORG noted an impact which the DATE events had had on the problem of torture :

“ Lawyers and other observers noted that the problem of torture and illtreatment worsened significantly after the DATE events , and was routine in cases involving ethnic NORP suspects detained on charges unrelated to the DATE violence . In an interview about the use of torture in GPE in DATE , a human rights defender who has researched police torture in GPE for DATE noted :

The DATE events [ exacerbated ] the situation regarding torture and completely untied the hands of the police officers and the security service . We even heard about the use of torture by the tax police . ... Many are convinced that if torture is used against , for example , NORP , then that is normal . ”

Human Rights Watch World Report DATE : GPE ( Events of DATE ) contains the following findings concerning the situation in GPE :

“ In DATE GPE continued to grapple with the consequences of the DATE violence that erupted between ethnic NORP and NORP in the country ’s south , killing CARDINAL people . CARDINAL commissions of inquiry were completed and CARDINAL of criminal investigations continued in DATE , with the justice process skewed to scapegoat ethnic NORP for the violence .

Torture and arbitrary detentions in the context of investigations into the DATE violence are rampant and go largely unpunished . Ethnic NORP in the south are particularly vulnerable to police torture . Violations of international fair trial standards plagued the administration of justice in the south .

The authorities opened CARDINAL criminal cases into the DATE violence . Although most of those killed were ethnic NORP , PERCENT of those facing prosecution for homicide were also ethnic NORP .

In DATE trials in connection with the DATE violence continued to be held with violations of international fair trial standards . Defendants , mostly ethnic NORP , are found guilty and sentenced to prison terms ranging from DATE to life primarily based on confessions that many allege were coerced under torture .

While local human rights NGOs report that incidents of arbitrary detentions and torture in police custody decreased in DATE in the south , these abuses remain rampant and unpunished , particularly in the context of investigations into the DATE violence . Most judges in such cases dismiss , ignore , or fail to order investigations into torture allegations . In CARDINAL cases police also arbitrarily detained and tortured ethnic NORP men and threatened to charge them in relation to the DATE violence if they did not pay large sums .

ORG research found CARDINAL ethnic NORP died in DATE due to injuries sustained when detained in police extortion schemes . Given the routine use of torture by the country ’s law enforcement officials , efforts by the prosecutor ’s office to investigate allegations of torture were inadequate . ... ”

International Crisis Group LOC report no . CARDINAL of DATE “ GPE : widening ethnic divisions in the south ” reads , inter alia , as follows :

“ GPE ’s government has failed to calm ethnic tensions in the south , which continue to grow since the DATE violence , largely because of the state ’s neglect and southern ORG anti - NORP policies . PERSON , the country ’s second city , where CARDINAL people died in ethnic clashes in DATE , remains dominated by its powerful mayor , an ardent NORP nationalist who has made it clear that he pays little attention to leaders in the capital . While a superficial quiet has settled on the city , neither the NORP nor NORP community feels it can hold . NORP are subject to illegal detentions and abuse by security forces and have been forced out of public life ...

The nationalist discourse that emerged after the PERSON violence unnerved the interim government that had replaced President PERSON in DATE . Until the end of its term in DATE , it was largely ignored , and sometimes openly defied , by NORP Mayor PERSON , the standard - bearer of an ethnic NORP - first policy and the most successful radical nationalist leader to emerge after the killings . This did not change when President PERSON , a northerner , took office in DATE . Senior members of his administration express dismay at tensions in the south but say they have no way of influencing the situation there .

NORP are increasingly withdrawing into themselves . They say they are marginalised by the NORP majority , forced out of public life and the professions ; most LANGUAGE - language media have been closed ; and prominent nationalists often refer to them as a diaspora , emphasising their separate and subordinate status . International organisations report continuing persecution of NORP by a rapaciously corrupt police and prosecutorial system , almost certainly with the southern authorities’ tacit approval .

The flight of many NORP business people and the seizure of GPE businesses have sharply diminished the minority ’s once important role in the economy . The sense of physical and social isolation is breeding a quiet , inchoate anger among all segments of the community – not just the youth , who could be expected to respond more viscerally to the situation , but also among the NORP elite and middle class . ...

The views of southern NORP have also hardened since the violence . Many feel that NORP brought disaster on themselves with an ill - advised power grab in DATE . This version of history has not been proven ; it is privately doubted even by some senior NORP politicians , but hardly ever challenged by them . PERSON enjoys considerable approval among broad segments of southern NORP society – including among the younger , better educated and urbanised social groups that might have been expected to take a more liberal and conciliatory position .

Ominously , he re - stated and strengthened his tough anti - NORP approach in DATE in a book on the DATE violence . Depicting NORP as an essentially separatist force that threatens GPE ’s survival , he stressed the need for ORG ethnic groups to understand their future role would be as subordinates . ”

ORG states that the police in GPE are currently almost exclusively ethnically NORP . “ The wave of abusive detentions , extortion and torture directed at the NORP community since soon after DATE is widely referred to simply as ‘ impunity’ . If police abuse and torture are unexceptional , the extent , duration and the clear target of this campaign has been highly unusual . Most long - time observers feel that senior southern politicians and officials continue to countenance abuses in order to ensure police support . With rare exceptions the victims have all been NORP , some as young as CARDINAL . They range from migrant workers , often thought to have large amounts of cash on their return from GPE or elsewhere , to businessmen . ” “ The government acknowledges the problem of torture and has taken steps to address it , but these have proven almost completely ineffectual . The prosecutor - general issued CARDINAL decrees in DATE aimed at checking and punishing the use of torture and ill treatment of detainees . There have , however , been no successful prosecutions . CARDINAL memorandums of understanding between prosecutors and southern human rights organisations have likewise had little effect . ”

The UN Special Rapporteur on torture and other cruel , inhuman or degrading treatment or punishment , PERSON , visited GPE from CARDINAL to CARDINAL DATE at the invitation of the Government , which provided him with unrestricted access to detention facilities . The purpose of the visit was to assess the situation as regards torture and ill - treatment in the country , including conditions of detention , and to identify measures needed to prevent torture and ill - treatment in the future . The report on that mission was presented at the CARDINALth session of ORG and states , inter alia , as follows :

“ CARDINAL . GPE is a party to the main ORG human rights treaties prohibiting torture and ill - treatment , including LAW , LAW and Other Cruel , Inhuman or Degrading Treatment or Punishment , the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination against Women . GPE acceded to LAW to LAW in DATE . The ORG is also a signatory to LAW .

NORP ... pursuant to Presidential Decree No . CARDINAL , various public advisory councils were established within ORG office in GPE , PERSON and PERSON , entrusted with monitoring places of detention . In addition , public monitoring councils , which comprise representatives from civil society , were created under ORG , ORG for the Execution of Punishments and ORG to monitor detention facilities and other closed institutions . Furthermore , a draft law on the police force and the prospect of reforming ORG are both under discussion . The draft bill on the national centre for the prevention of torture had been finalized and was to be submitted to ORG for discussion early in DATE . Since DATE , CARDINAL memorandums of understanding had been signed by prosecutors and civil society organizations – for PERSON - Abad province , for GPE and for PERSON province – providing for public councils to identify solutions and building confidence in the prosecutorial authorities . The first initiative of the public councils was the installation of closed - circuit cameras in some temporary detention facilities in GPE province .

The Special Rapporteur received numerous accounts and eyewitness testimonies suggesting that torture and ill - treatment had been historically pervasive in the law enforcement sector . This practice has been intensified by the turbulence of DATE with the ousting of President PERSON in DATE , followed by the violence that took place in the LOC in DATE . During the violence in DATE and its aftermath , reports consistently highlighted the frequency and gravity of arbitrary detention , torture and ill - treatment by law enforcement bodies .

Throughout the mission , testimonies of victims and their lawyers pointed to general patterns of torture and ill - treatment committed by police officers after arrest and during TIME of informal interrogation . During interviews with victims , the Special Rapporteur heard multiple allegations of torture that shared the same pattern : asphyxiation with plastic bags and gas masks with no flow of oxygen ; punches and beatings with truncheons ; the application of electric shock and the introduction of foreign objects into the anus , or the threat of rape . ... The Special Rapporteur was told that the use of torture by the criminal investigation police was exacerbated by the heavy reliance on confessions in the judicial system .

The Special Rapporteur has concluded that , in the immediate aftermath of the violence of DATE , there was a significant increase of continued arbitrary arrests and detentions , incidents of forced confession under the use of torture and illtreatment during arrest and while in detention , denial of access to a lawyer of one ’s choosing , denial of independent medical aid , threats and extortion of money in exchange for dropping or mitigating charges . These incidents , usually committed by the operative - investigating officers of ORG during TIME of apprehension and interrogation , continued to be widespread throughout DATE .

The Special Rapporteur received reports according to which , in practice , confessions obtained under torture are not expressly excluded as evidence in court . Moreover , the majority of verdicts in criminal cases are mostly based on voluntary confessional statements made during the investigation or at the time of surrender . In addition , the courts encourage this practice by giving undue weight to confessions when evaluating evidence . If a defendant claims during trial that the confession was obtained through torture , the courts either ignore such statements altogether or conduct a superficial inquiry by simply questioning the police officers in court . After the officers deny the use of torture , the judge concludes that the defendant ’s allegations are not substantiated and should be treated as an effort to avoid justice .

The Special Rapporteur noted that in contrast to the open recognition of the existence of torture and ill - treatment by the current and former President , the deputy Speaker , the Head of ORG and ORG , he had heard of no “ such instructions communicated by the responsible officials of ORG to condemn torture and ill - treatment or to declare unambiguously that torture and ill - treatment by police officers would not be tolerated ” , and that it remains to be seen how ORG instructions “ will be implemented at the city and provincial levels ” .

A report of the ORG High Commissioner for Human Rights , PERSON , on technical assistance and cooperation on human rights for GPE covering the period from DATE to DATE , which was examined by ORG at its CARDINALth session , stated , in particular , as follows :

“ CARDINAL . NORP Despite the efforts of the Government to address human rights issues , a number of serious concerns persist , such as the increase in reports of discriminatory practices by government bodies towards minorities , and the ongoing use and practice by law enforcement bodies of ill - treatment and torture while detainees are in custody .

Deficiencies in the administration of justice pose a major impediment to the reestablishment of the rule of law . The judicial system must maintain its impartiality irrespective of the ethnicity of victims , lawyers and defendants . ...

Further to the DATE violence , the authorities took steps to investigate and bring to justice those suspected of involvement in the events . ORG in PERSON and PERSON - Abad reportedly initiated investigations into CARDINAL cases . In cases which have come to trial , most defendants have been ethnic NORP . Scores of individuals wanted for involvement in the DATE violence reportedly remain at large .

Trials of defendants accused of involvement in the DATE violence have failed to uphold basic standards for fair trial , in courts both of first and second instance . Alleged violations of fair trial standards include torture and ill - treatment ...

On DATE , ORG established by President PERSON in DATE presented its report . According to ORG , the violence was instigated by ethnic NORP community leaders and supporters of former president PERSON . The ORG states that members of the provincial government and the security forces failed to respond promptly and prevent the violence . The ORG also found that members of law enforcement tortured detainees , most of whom were ethnic NORP .

On DATE , the Ombudsman of GPE presented his report on his investigation into the DATE events , stating that his office supports the conclusions of ORG , in particular that the conflict was initiated by ethnic NORP provocateurs . According to the conclusion of the ORG ’s investigation , the conflict was due to the socio - economic situation in the southern region that originated in the NORP time , when ethnic NORP enjoyed better living standards than ethnic NORP .

There have been concerns about the lack of independence and impartiality of both investigations . CARDINAL members of civil society , who were among members of ORG , expressed concerns about the modalities , composition and the terms of reference of ORG . Both reports largely reflected views held among some ethnic NORP politicians and the majority of the public . Debates in ORG on the findings of ORG were characterized by numerous provocative nationalistic statements and biased remarks regarding the role of ethnic NORP in the violence . ...

In the aftermath of the DATE violence , ORG received numerous reports of arbitrary detention in PERSON and PERSON . In the majority of the cases documented by the ORG , the victims were ethnic NORP . ... There were numerous reports of extortion by police in such cases of detention . ...

During the period under review , PERSON documented cases of torture or illtreatment . The frequency and gravity of allegations raised serious concern . While most cases involved various forms of beatings , the ORG also documented cases of torture in which victims described being subjected to electro - shock , including to the genitals ; suffocation ; sustained beatings ; and death threats . Torture was reportedly often accompanied by ethnicity - based harassment and humiliation .

Concerns about frequent allegations of torture and ill - treatment were compounded by the failure of the authorities to take steps to investigate such allegations , bring to justice perpetrators and provide victims with redress . During the period under review , ORG in ORG did not pursue investigations into allegations of torture , despite the numerous cases in which significant evidence was available and in which complaints had been filed .

... To date , the police , prosecutors and members of the judiciary have not acted upon allegations of torture in the aftermath of the DATE violence .

Since the DATE unrest and particularly following the DATE interethnic violence , there has been growing concern at the rise in discriminatory practices faced by members of minorities at the institutional level . This is increasingly reflected in attitudes within the public at large . In particular , ethnic NORP have faced ongoing discrimination in the aftermath of the DATE inter - ethnic violence .

DATE . In DATE , concern has increased at the growing inter - ethnic tensions in the country , which are contributing indirectly to the rise in internal migration and emigration . Statements by a few officials in various regions of the country have often fuelled the nationalistic discourse and contributed to feelings of vulnerability within the minority communities .

Reports of cases where ethnic minorities are subjected to the illegal seizure of their land , unlawful takeover of their businesses , or physical or verbal threats , are becoming more commonplace . Due to a pervasive fear among victims of such ethnically motivated acts , there is a general reluctance to file complaints with the law enforcement bodies . To date , no criminal case has been brought by the law enforcement authorities under LAW , which proscribes “ incitement to inter - ethnic hatred ” .

On administration of justice :

( b ) ... In case of retrials related to the DATE events , the hearings should not take place in courts in the south of the country in order to ensure impartiality of judges . Judges should maintain their impartiality irrespective of the ethnicity of victims , lawyers and defendants . To ensure such impartiality , provincial rotation mechanisms of judges and other participants in judicial processes should be adopted .

On torture and detention :

( b ) The Government , prior to the establishment and commencement of functions of the national preventive mechanism under LAW to LAW , should guarantee unrestricted access by civil society monitoring groups to all places of deprivation of liberty ...

On minority rights :

( a ) Utmost attention should be paid to building trust and confidence among communities throughout the country and to ensure the prevention of hate speech , which could fuel further tensions . The Government , at the highest levels , should emphasize that promotion and protection of minority rights are an integral part of and a main priority for peace and reconciliation and a central pillar of the country ’s political , economic and security strategies ;

Following the examination of the report ORG adopted , in DATE , a resolution in which it , inter alia , urged “ the Government of GPE to ensure that progress is made in improving the human rights situation in the areas of administration of justice , torture and arbitrary detention , the right to adequate housing , the rights of women , minority rights and human rights mechanisms ” and “ to promote and protect human rights and fundamental freedoms for all , in particular , to address ongoing arbitrary detentions , torture and corruption by law - enforcement and Government officials ” .

A report of the ORG High Commissioner for Human Rights on technical assistance and cooperation on human rights for GPE covering the period from DATE , which was examined by ORG at its CARDINALth session in DATE , notes that “ serious institutional deficiencies have hampered the delivery of justice and undermined the rule of law , and points out that the lack of progress in addressing these matters impacts on reconciliation and peacebuilding efforts between the ethnic communities , as well as between civil society and authorities , with serious risks for the long - term stability of the country . The report further describes the ongoing practice of arbitrary detention and torture and continued discriminatory patterns based on ethnic grounds . In this context , it highlights institutional shortcomings , lack of capacity and , in some instances , lack of political will to take necessary measures . ” It notes that DATE after the signature of the memorandums of understanding between prosecutors and human rights organisations in GPE , GPE and PERSON setting out mechanisms for regular dialogue and cooperation on the prevention and prosecution for torture within the framework of public councils , little substantial progress has been made , due in part to the lack of trust on the part of human rights NGOs in the prosecutorial authorities and the overall lack of strategic engagement by all parties , posing challenges to the effective functioning of the public councils . As regards the installation of closed circuit television cameras in the temporary police detention centres in PERSON - Abad , the report notes that while they “ can be an additional measure to prevent torture , it is not a panacea for the human rights violations observed in detention centres , given the potential ease with which the system can be bypassed or disabled . ” The report also stated as follows on the PERSON issue :

“ CARDINAL . There is a wide gap between the authorities’ view of inter - ethnic relations and those of ethnic minority communities themselves . Authorities paint a positive picture , while communities raise concerns including : ( i ) the need to stop any police misconduct , in particular arbitrary arrest , extortion , ill - treatment and torture ; ... ”

In her opening remarks at a press conference on DATE during her visit to GPE , ORG High Commissioner for Human Rights , PERSON , stated , inter alia , as follows :

“ ... The most serious problem lies in the failure to implement laws and reforms in line with international standards , as well as to act in accordance with GPE ’s new LAW .

Take torture as an example : under international law there is an absolute prohibition of torture . This is reflected in LAW , LAW which categorically prohibits torture and all other forms of cruel , inhuman and degrading treatment and punishment . LAW also recognizes torture as a crime . Yet we continue to receive evidence of torture being committed by state authorities , including CARDINAL cases of alleged torture or ill - treatment DATE in the context of criminal investigations into the DATE violence in GPE and neighbouring regions . This is believed to be only a fraction of the real total .

I was encouraged to hear from the Minister of ORG that in DATE the process of establishing accountability for police officers is starting to produce results , with internal investigations launched in CARDINAL cases , resulting in CARDINAL officers being subjected to criminal investigation , and CARDINAL others being fired from their jobs . It is important that the full details of such cases become known both as a deterrent to other police officers thinking of carrying out acts such as torture or extortion , and as reassurance to the general public who , by ORG own candid admission , have largely lost trust in what should be a key state institution .

I have congratulated GPE on the adoption on DATE of the Law on ORG and Other Cruel , Inhuman and Degrading Treatment – a result of DATE of concerted efforts by the ORG , the ORG , ORG , civil society and the international community . I hope that this important law will soon be signed by the President , and that subsequent steps will ensure that the new torture prevention body it creates will be impartial , independent and effective .

Those who order or commit torture should be investigated , arrested and charged . I have urged the President to lead the effort to eradicate this intolerable and illegal practice by making clear public statements stressing there will be CARDINAL tolerance for torture from now on . I also note the strong position the Prosecutor - General has taken on preventing torture , issuing CARDINAL decrees on the subject since taking up office in DATE . I have recommended that authority over police detention facilities be transferred from ORG to ORG , and that all detention facilities be opened to independent monitoring .

ORG , especially on ethnic , religious and gender grounds , remains a deeply problematic issue with ethnic and national minorities significantly underrepresented in the executive government and bureaucracy , law enforcement bodies and judiciary .

ORG is particularly evident in ORG , where PERCENT of the population is of NORP origin , but there is not a single NORP judge among the judiciary . I have myself heard the cries for justice from members of the affected communities who have been victimized DATE while the violence was taking place , and in its aftermath . ”

This imbalance is reflected in many key national and local institutions including the police ... ”

“ CARDINAL . No one shall be subject to torture , violence or other severe or humiliating treatment or punishment . ”

“ CARDINAL . Foreign nationals and stateless persons shall enjoy in GPE the rights and bear the obligations of citizens of GPE , except for cases envisaged by federal law or international agreements entered into by GPE . ”

“ CARDINAL . In GPE it shall not be allowed to extradite to other GPE those people who are persecuted for political convictions , as well as for actions ( or inaction ) not recognised as a crime in GPE . The extradition of people accused of a crime , and also the handover of convicts to serve sentences in other GPE shall be carried out on the basis of federal law or international agreements entered into by GPE . ”

According to LAW , foreign citizens and individuals with no citizenship residing in GPE who have committed a crime outside its borders can be extradited to a ORG seeking their extradition with a view to criminal prosecution or execution of a sentence ( LAW ) .

GPE can extradite a foreign national or a stateless person to a foreign State on the basis of either a treaty or the reciprocity principle to stand trial or serve a sentence for a crime punishable under NORP legislation and the laws of the requesting ORG . An extradition on the basis of the reciprocity principle implies that the requesting ORG assures the NORP authorities that under similar circumstances they would grant a NORP request for extradition ( Article CARDINAL § § CARDINAL and CARDINAL ) .

Extradition can take place where ( i ) the actions in question are punishable by DATE imprisonment or a more severe sentence ; ( ii ) the requested individual has been sentenced to CARDINAL months’ imprisonment or a more severe punishment ; and ( iii ) the requesting ORG guarantees that the individual in question would be prosecuted only for the crime mentioned in the extradition request , that upon completion of the criminal proceedings and the sentence he or she would be able to leave the territory of the requesting ORG freely and that he or she would not be expelled or extradited to CARDINAL State without the permission of the NORP authorities ( LAW ) .

ORG or his or her deputy decides on extradition requests ( LAW ) . A decision by ORG or his or her deputy may be appealed against before a regional court within DATE of receipt of the notification of that decision ( LAW ) .

The regional court , sitting in a composition of CARDINAL judges , confirms or otherwise the lawfulness and well - foundedness of the extradition decision within DATE of the receipt of the appeal , in a public hearing at which the prosecutor , the person whose extradition is sought and his or her counsel ( if the latter has participated in the earlier proceedings ) may participate ( Article CARDINAL § CARDINAL ) . The court does not examine issues of the individual ’s guilt , and is limited to establishing whether the extradition decision is compatible with NORP laws and treaties ( LAW ) . The court decides either to declare the extradition decision unlawful and to quash it , or to dismiss the appeal ( LAW ) . The regional court ’s decision can be appealed against before ORG within DATE of its delivery ( LAW ) .

The DATE ORG ( “ the GPE Convention ” ) , to which GPE and GPE are parties , provides as follows :

“ CARDINAL . The Contracting Parties shall ... at each other ’s request extradite persons who find themselves in their territory , for criminal prosecution or to serve a sentence .

Extradition for criminal prosecution shall extend to offences which are criminally punishable under the laws of the requesting and requested Contracting Parties , and which entail DATE imprisonment or a heavier sentence . ”

“ CARDINAL . A person being extradited may not – other than with the consent of the requested ORG – be held criminally responsible or punished for any crime committed before the extradition , unless such crime constitutes the reason for such extradition .

Nor may such person be extradited to any third ORG other than with the consent of the requested ORG ... ”


The applicant , PERSON , is a NORP national who lives in Molodogvardiysk . ORG ( “ the Government ” ) were represented by PERSON Y. GPE , their Agent , and PERSON I. NORP , Head of ORG before ORG .

In DATE the applicant deposited CARDINAL karbovantsi ( MONEY in the NORP transitional currency ) with the private commercial bank “ LOC ” ( the “ Bank ” ; PERSON банк “ PERSON ) for a DATE term at an DATE interest rate of PERCENT . At the end of the contract , the ORG paid the applicant CARDINAL NORP hryvnyas ( MONEY ) , referring to the introduction of the new hryvnya currency and a revision of interest rates as allowed by the contract between the parties .

On DATE the applicant instituted civil proceedings in the NORP ORG of Lugansk ( the “ ORG ” ; ORG районний суд PERSON ) seeking higher payment and damages . Subsequently , she amended her claims on CARDINAL occasion .

On DATE ORG ordered a financial expert assessment , which was received on DATE .

On DATE ORG held a hearing and dismissed the applicant ’s claims , finding that the ORG had acted in compliance with applicable law and the contract between the parties . The judgment became final .

Unsatisfied with the outcome of her litigation , the applicant requested the authorities to re - open the proceedings by way of lodging a supervisory protest .

On DATE the Presidium of ORG ( the “ ORG ; ” ORG обласний суд ) quashed the judgment of DATE following a protest introduced by its President and remitted the case for a fresh consideration to ORG .

DATE ORG held CARDINAL hearings .

On DATE ORG allowed the applicant ’s amended claims , finding that the ORG had breached the contract . The ORG appealed in cassation .

On DATE ORG upheld the judgment of DATE and it became final . The ORG requested to re - open the proceedings by way of supervisory review .

On DATE the ORG of ORG quashed the rulings of DATE and DATE following a protest lodged by its President and remitted the case to ORG for a fresh consideration .

DATE ORG scheduled CARDINAL hearings , CARDINAL of them being adjourned on account of the defendant ’s absence .

On DATE ORG dismissed the applicant ’s claims . The applicant appealed .

On DATE ORG upheld this judgment on appeal . The applicant appealed in cassation .

On DATE ORG dismissed the applicant ’s appeal in cassation .


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

Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Mihai Poalelungi;Nona Tsotsoria

The applicants are NORP nationals . They are all civil servants employed by ORG .

On DATE the applicants filed a petition with their employer , PERSON , a ORG agency , asking to have their entitlement to certain wage - related rights acknowledged . More specifically , relying on section CARDINAL(CARDINAL ) ( c ) and ( d ) of PERSON no . CARDINAL on the status of civil servants , they asked for CARDINAL allowances to be added to their basic salary , namely a grade supplement and a supplement related to their salary step . The applicants quantified each of these supplements at PERCENT of the basic salary .

The aforesaid allowances were to be paid retroactively , starting from DATE , but also in the future , until the ORG contracts ended .

At the same time , the applicants requested that these entitlements be noted in their employment record books .

On DATE their employer dismissed the petition as ill - founded .

On CARDINAL DATE the applicants contested that decision before the Caraş Severin County Court . They contended that even though , in accordance with Government Emergency Ordinance no . CARDINAL/CARDINAL , the application of the provisions granting them the rights in question had been suspended until DATE , this did not mean that they were not due for payment starting from DATE , when the suspension had ended , as the suspension of a right was not equivalent to the extinction of that right .

In any event , they considered that the suspension was in breach of Articles CARDINAL and CARDINAL of the LAW , and that the allowances claimed were therefore to be paid retroactively , from DATE .

On DATE ORG dismissed the applicants’ claim . The court acknowledged that , according to the provisions of LAW applicable to the case , the employer was obliged to pay its employees all the allowances derived from the law and from the employment contract . Therefore , the applicants , civil servants , were entitled to receive , in addition to their other salary entitlements , the CARDINAL supplements in question – the grade allowance and the allowance corresponding to the salary step – as provided for by section CARDINAL(CARDINAL ) ( c ) and ( d ) .

The CARDINAL supplements were first provided for by LAW no . CARDINAL of DATE , but without any indication as to the exact amount . In fact , none of the subsequent legal texts on civil servants’ salary rights made any reference to a method or criterion for determining the amount of any of the supplements .

Hence , even though PERSON no . CARDINAL expressly stated that a civil servant ’s salary was also composed of the grade supplement and the salary - step supplement , the determination of these rights was left to the executive , which was entitled to set out rules for the application of the law . Consequently , the court held as follows :

“ In the absence of a legal act issued or adopted by the executive in which the amount of the CARDINAL allowances claimed is defined , the court does not have jurisdiction to determine by itself the amounts , as this would undermine the separation of powers principle by encroaching on the powers of the administrative authorities .

The court therefore holds that in the above - mentioned circumstances , the respondent can not be ordered to pay the allowances claimed before their amount has been determined . ”

The applicants appealed against that judgment to ORG , reiterating the arguments they had submitted before the first - instance court . In addition , they stated that under LAW the acquired rights of employees could not be made subject to any limitations . Furthermore , they contended that it was a basic legal principle that laws were made in order to produce effects , it being inconceivable that a legal text would have only a superficial value and not be applicable . They asserted that their right to the allowances they had requested was protected by LAW . CARDINAL to the Convention , in so far as it was a right provided for by law .

The applicants alleged that the interpretation of the applicable legal provisions given by the court in refusing to allow their claims rendered those texts completely ineffective and thus devoid of any substance .

Moreover , such an interpretation was discriminatory and in breach of LAW , in so far as there was consistent national case - law granting other claimants ( also civil servants ) the right to the supplements in question . The discrimination was even more disturbing given that another person , PERSON , employed by the same institution as them , had obtained the allowances following a decision of DATE given by the same first - instance court , the Caraş Severin County Court . That decision had been upheld by ORG on DATE , when it became final .

On DATE the Timişoara ORG dismissed the ORG appeal .

The court noted that there was no legal justification for claiming the allowances in an amount of PERCENT of the basic salary , and consequently for allowing such a claim , as the figure in question was not laid down anywhere in the law .

In that connection , in order to be able to determine the exact amount of the allowances in question , additional legislation was needed , either in the form of legal provisions adopted by the legislature designed to regulate the application of LAW , or in the form of instructions issued by the Government in a separate legal text designed to explain how the law should be applied .

ORG also referred to ORG case - law to the effect that :

“ The courts do not have jurisdiction to repeal or to refuse to apply specific normative acts which they consider to be discriminatory , and thus to replace them with norms created by judicial intervention or with provisions contained in other normative acts . ”

Therefore , the court considered that it could not allow the ORG claims , in so far as those claims had not been determined by the competent authorities .

Regarding the divergent case - law referred to by the applicants in their arguments , the court held that in the NORP legal system , legal precedents were not a source of law and therefore could not be taken into consideration .

On the applicability of LAW No . CARDINAL to the LAW , the court mentioned that the applicants had not proved the existence of a “ possession ” , or at least of a “ legitimate expectation ” , since the case - law on the matter was not well - established .

Furthermore , the court held that LAW was not applicable to civil servants , as they were appointed to their posts on the basis of PERSON no . CARDINAL . The appointments were thus made by means of individual administrative acts which did not make any reference to the allowances in question and , in any event , had not been contested by any of the applicants at the time of their appointment .

In conclusion , the applicants’ claims were dismissed as unfounded .

LAW entered into force on DATE , once PERSON no . CARDINAL had been enacted . On DATE section CARDINAL of the Statute was amended to provide that , starting from that date , certain allowances were to be included in the salaries of public servants .

“ CARDINAL . For discharging their activities public servants shall have the right to a salary composed of the following :

( a ) the basic salary

( b ) seniority allowance

( c ) grade allowance

( d ) step allowance

Public servants shall be granted bonuses and other salary entitlements , in accordance with the law .

The remuneration of public servants shall take place in accordance with [ the criteria ] set forth in the law on the implementation of a uniform remuneration scheme for public servants . ”

On DATE , point ( d ) was amended to read “ allowance corresponding to the salary step ” . With effect from DATE , section CARDINAL became section CARDINAL , while no amendments were made to the content .

The application of these provisions was suspended from DATE until DATE , first by LAW no . CARDINAL of CARDINAL DATE , then by Government Emergency Ordinance no . CARDINAL/CARDINAL , enacted as PERSON no . CARDINAL/CARDINAL , and then by Government Ordinance no . CARDINAL/CARDINAL , enacted as LAW no . CARDINAL/CARDINAL .

With effect from DATE the CARDINAL allowances , namely the grade supplement and the allowance corresponding to the salary step , were abolished by PERSON no . CARDINAL/CARDINAL .

The applicants submitted CARDINAL other judgments given by ORG of PERSON , in which the PERSON requests had been granted . In CARDINAL of the judgments , given on DATE by the same panel as the one which sat in the applicants’ case , it was stated , inter alia , as follows :

“ It is irrelevant that the legal text did not lay down the exact amount of the salary entitlements in question , as this can not constitute a well - founded reason for dismissing the claims ; such an interpretation would render ineffective the legal provisions concerned , which are part of the positive law , and this would be inconceivable . ”

In another judgment submitted by the applicants , ORG held on DATE in a similar case that the claimants , employees of ORG , were entitled to the allowances in question , as the corresponding rights were provided for by the law , it being irrelevant whether their amount was determined or not .

The Government contended that , of the QUANTITY courts of appeal across the country , a number had dismissed similar claims relating to salary entitlements even before DATE , when ORG and ORG had ruled on an appeal in the interests of the law ( see paragraph CARDINAL below ) . These included ORG , ORG and ORG , as well as the courts of appeal in GPE , GPE , PERSON and GPE . The reasons given for dismissing the claims had been identical , resembling those subsequently given in the ruling on the appeal in the interests of the law .

On DATE , noting that since DATE a divergence of case - law had emerged across the country concerning the granting of certain allowances to public servants , ORG applied to ORG and ORG in accordance with the provisions of LAW of ORG , in order to ensure the uniform interpretation and application of the law .

ORG delivered its judgment on DATE , confirming the existence of a divergence in the case - law concerning the interpretation of section CARDINAL(CARDINAL ) ( c ) and ( d ) of Law no . CARDINAL , while also setting out guidelines for a uniform interpretation of the text , as follows :

“ For the uniform interpretation and application of LAW ( c ) and ( d ) of PERSON no . CARDINAL , ORG holds that , in the absence of a legal determination of their amount , the grade allowance and the allowance relating to the salary step can not be granted by the judiciary . ”

ORG further held that the entitlements claimed by the public servants did not constitute a “ possession ” , as , in the absence of criteria for their calculation , they were only “ virtual rights ” .

According to LAW , ORG interpretation of the provisions in question is binding on all the domestic courts . A decision delivered on an appeal in the interests of the law can not alter the outcome of cases already decided .

Following the adoption of the above - mentioned judgment , the divergent case - law on the issue ceased and the domestic courts followed ORG guidelines ( see also PERSON and Others v. GPE ( dec . ) , no . CARDINAL , § DATE , DATE ) .

NORP The report states in its relevant parts that , in order for the principle of legal certainty , essential for maintaining confidence in the judicial system and the rule of law , to be achieved , the State must make the law easily accessible and must also apply the laws it has enacted in a foreseeable and consistent manner . As the existence of conflicting decisions within the highest courts may be contrary to this principle , it is therefore necessary for these courts to establish mechanisms to avoid conflicts and ensure the coherence of their case - law .

In her preliminary assessment on the independence of the NORP judiciary following the visit to GPE in DATE , the Rapporteur stressed that the practice of the domestic courts had been undermined by the absence of a stable legislative framework , resulting in a lack of uniform interpretation and application of the law . The lack of predictability of judicial decisions and the lack of acceptability of judicial decision - making were structural factors that needed to be addressed .

In its relevant parts , the ORG reads as follows :

While recognising the judges’ power to interpret the law , the obligation of the judges to promote legal certainty has also to be remembered . Indeed legal certainty guarantees the predictability of the content and application of the legal rules , thus contributing in ensuring a high quality judicial system .

ORG will apply the interpretative principles applicable in both national and international law with this aim in mind . ... In civil law countries , they will be guided by case law , especially that of the highest courts , whose task includes ensuring the uniformity of case law .

DATE . ORG should in general apply the law consistently . However when a court decides to depart from previous case law , this should be clearly mentioned in its decision . .... ”