The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE , GPE . The respondent Government were represented by their Agent , Mr P. Vršanský , succeeded by Mr P. ORG in that function .

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

On DATE the applicant was granted a trade licence ( živnostenský list ) entitling him , inter alia , to run a business in musical instruments . He thus became a selfemployed person . On CARDINAL DATE the applicant registered himself with the health insurance fund ( nemocenské poistenie ) and with the pension fund ( dôchodkové zabezpečenie ) .

In DATE , for income tax purposes , the applicant declared to have earned an DATE income of CARDINAL NORP korunas ( SKK ) from his selfemployment activity . In DATE he declared an DATE income of SKK CARDINAL,CARDINAL , in DATE SKK CARDINAL,CARDINAL , in DATE SKK CARDINAL,CARDINAL and in DATE SKK CARDINAL,CARDINAL .

On DATE ORG no . CARDINAL Coll . ( PERSON o NORP poisťovni - “ the LAW ” ) entered into force . This Act regulates inter alia the obligation to contribute to the health insurance fund and the pension fund , the calculation of these contributions and the modalities of their payment . Self - employed persons , like the applicant , are required to pay contributions to both funds , the amount of which is calculated on the basis of their average DATE taxable income gained during DATE . The LAW also defines the minimum and the maximum amount of such contributions ( see under “ Relevant domestic law ” below ) .

On DATE the PERSON branch office ( pobočka ) of ORG ( Sociálna poisťovňa ) ordered the applicant to pay within DATE a contribution of SKK CARDINAL,CARDINAL to the health insurance fund and the pension fund for the period between on DATE and DATE . This amount was composed of SKK CARDINAL,CARDINAL for DATE ( i.e. SKK CARDINAL per month ) , SKK CARDINAL,CARDINAL for DATE ( i.e. SKK CARDINAL per month until DATE and SKK CARDINAL per month as from DATE ) , and SKK DATE ( i.e. SKK CARDINAL per month ) . The applicant was informed that failure to pay or a late payment entailed the imposition of a fine .

The applicant filed an appeal with ORG ( ústredie ) of ORG arguing that , given his low income , he could not afford to pay these contributions . On DATE ORG upheld the decision of its PERSON branch .

The applicant filed an administrative law appeal with ORG ( PERSON súd ) against the decisions taken by ORG . The applicant submitted that his income was below the statutorily defined minimal living standard ( životné minimum ) and argued that , in these circumstances , he should be exempted from his payment obligations under LAW . In his opinion , the application of this LAW in his personal situation was unethical and unconstitutional .

In its judgment of CARDINAL DATE ORG upheld the challenged decisions . No appeal was available against this judgment . It became final and binding on DATE when it was served on the applicant .

In DATE and in DATE the applicant declared to the income tax authorities that he had earned an DATE income of SKK CARDINAL,CARDINAL and SKK CARDINAL from his selfemployment activity .

On DATE the PERSON branch office of ORG ordered the applicant to pay within DATE a contribution in the amount of SKK CARDINAL,CARDINAL to the health insurance fund and the pension fund for the period DATE and DATE . This amount was composed of SKK CARDINAL,CARDINAL payable for DATE ( i.e. SKK CARDINAL per month as from DATE until DATE ) , SKK CARDINAL,CARDINAL for DATE ( i.e. SKK CARDINAL per month ) and SKK CARDINAL,CARDINAL for DATE ( i.e. SKK CARDINAL per month until DATE ) .

On DATE the PERSON branch office of ORG ordered the applicant to pay a fine of SKK CARDINAL for late payment of his contributions to the health insurance fund and the pension fund for DATE .

On the applicant 's request , his trade licence was cancelled on DATE . The applicant has been unemployed since .

On DATE the applicant was informed by a judicial enforcement officer that enforcement proceedings had been brought against him in order to obtain payment of the contributions due as well as the fines for late payment . According to the applicant , he was thus forced to contract debts in order to pay the amounts due .

On DATE , after having conducted an audit of the applicant 's situation , the PERSON branch office of ORG found that the applicant still owed a total amount of SKK CARDINAL in fines for late payments of his contributions to the social funds for DATE .

Under LAW CARDINAL ( b ) persons who hold a trade licence for carrying out a small trade ( živnosť ) are considered selfemployed persons .

Section CARDINAL § CARDINAL ( c ) provided that selfemployed persons took part in and were entitled to benefit from the pension schemes . These pension schemes comprise , inter alia , the oldage pension , the ( partial ) invalidity pension , and the widow pension ( Section CARDINAL ) .

Sections ORG and the following govern the participation of selfemployed persons in the health insurance and the pension insurance schemes . Under Section CARDINALb § CARDINAL selfemployed persons are entitled to health insurance benefits such as sickness benefits ( nemocenské ) , maternity benefits ( peňažná pomoc v materstve ) , and spa treatment benefits ( kúpeľná starostlivosť ) .

According to Section CARDINALba § CARDINAL , the sickness benefits for selfemployed persons are paid on a daily basis . Under Section CARDINALba § § CARDINAL and CARDINAL the amount of such benefits is calculated as a DATE average of the “ assessment basis ” ( see below ) .

Under Section CARDINAL § § CARDINAL ( b ) and CARDINAL selfemployed persons are liable to pay contributions to the health insurance fund and the pension fund .

According to Section CARDINAL § CARDINAL the level of these contributions are a “ percentage ” of the “ assessment basis ” ( vymeriavací základ ) , which is PERCENT of the average DATE taxable income earned by a self - employed person during DATE ( Section CARDINAL § CARDINAL in conjunction with Section CARDINAL § CARDINAL of the Act ) .

The “ percentages ” applicable to selfemployed persons varied in the course of the material period . Until DATE it was PERCENT for the health insurance fund and PERCENT for the pension fund . Since DATE until DATE the applicable “ percentages ” were respectively PERCENT and PERCENT . Since DATE these “ percentage ” changed again to PERCENT , respectively .

However , regardless of income actually earned by a selfemployed person during DATE , Section CARDINAL § CARDINAL provides that his or her personal “ assessment basis ” can not be lower than the statutorily defined “ minimal assessment basis ” and can not be higher than the statutorily defined “ maximal assessment basis ” . The minimal basis is equal to the statutorily defined “ minimum wage ” ( see below ) and the maximal basis is this “ minimum wage ” multiplied by CARDINAL .

Until DATE , the “ minimum wage ” was defined by the governmental Decree no . PERSON . on PERSON ( ORG vlády o minimálnej mzde ) , as amended . DATE until DATE the “ minimum wage ” was fixed at SKK DATE .

As from DATE the “ minimum wage ” was regulated by the Act no . CARDINAL/CARDINAL Coll . on the Minimum Wage ( PERSON o minimálnej mzde ) , as amended . It was increased to LAW CARDINAL,CARDINAL DATE .


Violation of P1-1;Violation of P4-2;No violation of P1-1;No violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

Mr PERSON , a building entrepreneur , lived in PERSON ( PERSON ) until his death on DATE .

Criminal proceedings were brought against him as he was suspected of belonging to a mafia - type organisation operating in the ORG region . At the same time various preventive measures were taken concerning him .

On DATE ORG issued a warrant for the arrest of CARDINAL persons including the applicant . After initially evading arrest under this warrant , the applicant gave himself up to the authorities on DATE and was immediately remanded in custody .

The investigation was closed on DATE and PERSON was committed for trial in ORG with CARDINAL co - defendants . His detention on remand was replaced by house arrest ( arresti domiciliari ) .

On DATE , at the first hearing , ORG ordered the joinder of the case with CARDINAL others and directed that certain documents be included in the file . It then adjourned the proceedings to DATE .

On DATE ORG acquitted PERSON on the ground of insufficient evidence ( assoluzione per insufficienza di prove ) and revoked the order placing him under house arrest .

Giving judgment on DATE on the appeals of the public prosecutor and PERSON , ORG acquitted the latter on the ground that the material facts of the offence had not been established ( perchè il fatto non sussiste ) . No appeal was filed in ORG .

On DATE ORG applied to ORG for an order placing Mr PERSON under special police supervision and for the preventive seizure of a number of assets with a view to their possible confiscation ( Act no . CARDINAL of DATE and Act no . CARDINAL of CARDINAL DATE , as amended by Act no . CARDINAL of CARDINAL DATE - see paragraphs QUANTITY below ) . He based his application on a report by the ORG carabinieri dated DATE .

On CARDINAL DATE ORG ordered the seizure of CARDINAL items of real property ( CARDINAL plots of land and CARDINAL buildings ) and of CARDINAL vehicles , all of which appeared to be at the applicant ’s disposal . The measure was entered in the relevant public registers on CARDINAL DATE .

On DATE the ORG revoked the seizure of certain property belonging to third parties ; on the other hand , it ordered the confiscation of some of the buildings seized of which the applicant and his wife were the owners and CARDINAL vehicles , on the ground that it had not been proved that the assets in question had been " lawfully acquired " . The confiscation was recorded in the register on CARDINAL DATE .

By the same decision Mr PERSON was placed under special police supervision , which however did not become effective until DATE , the day on which he was acquitted by ORG ( see paragraph CARDINAL above ) ; he was also required to lodge a security of MONEY as a guarantee to ensure that he complied with the constraints attaching to this measure , namely a prohibition on leaving his home without informing the police ; an obligation to report to the police on DATE indicated to that effect ; an obligation to return to his house by TIME and not to leave it before TIME unless he had valid reasons for doing so and had first informed the relevant authorities of his intention .

On an appeal by the applicant , ORG of Appeal gave judgment at a private hearing on DATE . It annulled the special supervision measure and ordered the restitution of the security and the property seized and confiscated . Its decision ( decreto ) referred to the " disconcertingly casual way in which the contested preventive measures concerning the person and property of PERSON had been adopted thereby effectively decreeing his civil and economic death " .

The decision was filed with the registry on DATE and signed by the relevant official of the prosecuting authority on DATE . Again on DATE ORG registry notified it to the competent police authorities ( questura ) who , on DATE , advised the local carabinieri of the decision . The latter informed the applicant on DATE .

The decision became final on DATE .

The revocation of the seizure of the real property and of the confiscation of the vehicles was entered in the relevant registers on DATE ( real property ) , DATE ( CARDINAL cars and a van ) and DATE ( a lorry ) .

The security was returned to the applicant on DATE .

As regards the real property that had been confiscated , the applications for the entry in the register of the revocation of the measure are dated DATE .

Act no . CARDINAL of DATE ( " LAW " ) provides for various preventive measures in respect of " persons presenting a danger for security and public morality " . The relevant provisions are summarised in the PERSON v. GPE judgment of DATE ( Series A no . CARDINAL , pp . CARDINAL , § § DATE ) :

" CARDINAL . Under section CARDINAL , the Act applies to , amongst others , ... individuals who , by reason of their behaviour and style of life ( tenore di vita ) , must be considered as habitually living , even in part , on the proceeds of crime or on the rewards of complicity therein ( con il favoreggiamento ) , or whose outward conduct gives good reason to believe that they have criminal tendencies ( che , per le manifestazioni cui abbiano dato luogo , diano fondato motivo di ritenere che siano proclivi a delinquere ) .

The Chief of Police [ ( questore ) ] may send such persons a warning ( diffida ) ...

... [ such a person ] may , under LAW , be placed under special police supervision ( sorveglianza speciale della pubblica sicurezza ) ; if need be , this may be combined either with a prohibition on residence in CARDINAL or more given districts or provinces or , in the case of a particularly dangerous person ( particolare pericolosità ) , with an order for compulsory residence in a specified district ( obbligo del soggiorno in un determinato comune ) .

Only ORG of the chief town of the province has power to order these measures ; it will do so on the basis of a reasoned application by the [ questore ] to its president ( section CARDINAL , first paragraph ) . ORG must give a reasoned decision ( provvedimento ) in chambers within DATE . It will first hear ORG department and the person concerned , the latter being entitled to submit written pleadings and to be assisted by a lawyer ( section CARDINAL , second paragraph ) .

The prosecuting authorities and the person concerned may , within DATE , lodge an appeal which does not have suspensive effect ; ORG has to give a reasoned decision ( decreto ) in chambers within DATE ( section CARDINAL , fifth and sixth paragraphs ) . That decision may in turn and on the same conditions be the subject of a further appeal to ORG , which must give its ruling in chambers within DATE ( section CARDINAL , seventh paragraph ) .

DATE . When adopting one of the measures listed in section CARDINAL , ORG will specify for how long it is to remain in force - not less than one and not DATE ( section CARDINAL , fourth paragraph ) - and will give directives with which the person in question must comply ( section CARDINAL , first paragraph ) .

Act no . CARDINAL of CARDINAL DATE ( " LAW " ) supplements LAW by adding clauses directed against the ORG ( disposizioni contro la mafia ) . Section CARDINAL states that it is applicable to persons - such as Mr PERSON - against whom there is evidence showing that they belong to " mafia - type " groups ( indiziati di appartenere ad associazioni mafiose ) .

The above legislation was strengthened by Act no . CARDINAL of CARDINAL DATE ( " LAW " ) which inserted , inter alia , a section QUANTITY . It makes provision for various measures to be used in the course of proceedings relating to the application of the preventive measures available under LAW in respect of a person suspected of belonging to such an organisation :

" ... ORG may issue a reasoned decision , even of its own motion , ordering the seizure of property at the direct or indirect disposal of the person against whom the proceedings have been instituted , when there is sufficientcircumstantial evidence , such as a considerable discrepancy between his lifestyle and his apparent or declared income , to show that the property concerned forms the proceeds from unlawful activities or their reinvestment .

Together with the implementation of the preventive measure the ORG shall order the confiscation of any of the goods seized in respect of which it has not been shown that they were lawfully acquired . Where the inquiries are complex , this measure may also be taken at DATE , but not DATE after the date of the seizure .

The ORG shall revoke the seizure order when the application for preventive measures is dismissed or when it has been shown that the property in question was lawfully acquired . "

In its report ( paragraph CARDINAL ) , the ORG sets out a summary of the case - law in this area :

" ... The existence of preventive measures is not in itself contrary to LAW . ORG has ruled that the basis for these measures is the need to guarantee the orderly and peaceful course of social relations , not only through a body of legislation penalising unlawful acts , but also through provisions intended to prevent the commission of such acts ( ORG , judgment no . CARDINAL of DATE and judgment no . CARDINAL of DATE ) .

Because of their particular object , preventive measures do not relate to the commission of a specific unlawful act but to a pattern of behaviour defined by law as conduct indicating the existence of danger to society ( ORG , judgment no . CARDINAL of DATE ) .

Consequently , in the NORP legal system , there is a fundamental difference between criminal penalties and preventive measures . The former constitute the response to an unlawful act and the consequences of that act ; the latter are a means of preventing the commission of such an act .

In other words , a criminal penalty relates to an offence already committed , whereas a preventive measure is intended to reduce the risk of future offences ( see , mutatis mutandis , ORG , judgment no . CARDINAL of DATE , concerning security measures ) .

Because criminal penalties and preventive measures are essentially different , not all the constitutional principles which should underpin the former necessarily apply to the latter . For example , the presumption of innocence enunciated in LAW does not concern preventive measures , which are not based on the criminal liability or guilt of the person concerned ( ORG , judgment no . CARDINAL of DATE ) .

Similarly , such measures do not fall within the scope of LAW para . CARDINAL of the LAW , which prohibits the retroactive application of criminal provisions . The violation of this principle has been alleged on a number of occasions in ORG with regard to confiscation orders under LAW . ORG has ruled , firstly , that the above principle is not applicable to preventive measures ( see , for example , ORG , GPE judgment of DATE ) . Secondly , ORG has pointed out that the impugned provision is not in fact retroactive , as it relates to the property in the possession of the person concerned at the time when confiscation is ordered ORG , PERSON judgment of CARDINAL DATE ) and to the unlawful use of that property after its entry into force ( Court of Cassation , ORG judgment of CARDINAL DATE ) .

In spite of these limitations , preventive measures remain open to thorough scrutiny of their compatibility with LAW .

As far back as DATE ORG ruled that in no case could the right to liberty be restricted except where such restriction was prescribed by law , where lawful proceedings had been instituted to that end and where the reasons therefor had been set out in a judicial decision ( ORG , judgment no . CARDINAL of DATE ) .

It subsequently ruled that preventive measures could not be adopted on the basis of mere suspicion and are justified only when based on the objective establishment and assessment of facts which reveal the behaviour and lifestyle of the person concerned ( ORG , judgment no . CARDINAL of DATE ) .

More recently it confirmed that the constitutionality of preventive measures still depends on respect of the rule of law and the possibility of applying to the courts for a remedy . Furthermore , the above CARDINAL conditions are closely linked . Thus it is not enough for the law to indicate vague criteria for the assessment of danger ; it must set them forth with sufficient precision to make the right of access to a court and adversarial proceedings a meaningful one ( Constitutional Court , judgment no . CARDINAL of DATE ) .

The case - law of ORG is in this respect entirely consistent with that of ORG ; it affirms quite clearly that proceedings for the application of preventive measures must be adversarial and conducted with respect for the rights of the defence , any violation of those rights entailing their nullity ( see , for example , ORG , judgment no . CARDINAL of DATE in the PERSON case ) .

ORG has dismissed a number of complaints alleging the unconstitutionality of the seizure and confiscation measures provided for in section CARDINAL ter of the CARDINAL Act . In particular , it has ruled that the presumption concerning the unlawful origin of the property of persons suspected of belonging to organisations of the mafia type is not incompatible with LAW , which guarantees the rights of the defence , since confiscation can only take place when there is sufficient circumstantial evidence concerning the unlawful origin of the property in question and in the absence of a rebuttal ( Court of Cassation , previously cited ORG judgment ) .

With regard to the compatibility of seizure and confiscation measures with the right to free exercise of private economic activities and the right to peaceful enjoyment of private property ( ORG CARDINAL and CARDINAL of the LAW ) , ORG has ruled that these rights are not absolute and may be limited in accordance with the general interest . This applies in connection with possessions of unlawful origin or their use ( Court of Cassation , previously cited PERSON and ORG judgments ) .

In its opinion no . CARDINAL/CARDINAL of CARDINAL DATE the PERSON stated that " although confiscation by definition enables the ORG to acquire the item of property in question ... , it does not in itself have the effect of transferring ownership to the public authorities ... " . It will only have such effect if in addition the decision ordering it is irrevocable ( GPE ORG , order of DATE ) .


Violation of P1-1;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in GPE .

Since DATE the applicant has owned a plot of land located in the municipality of PERSON , near GPE . It is listed in the local land register under entry no . DATE .

NORP Under the local land development plan adopted in DATE , which was in force in DATE when the applicant acquired the land concerned , it was situated in an area described as “ the agricultural area without the right to construction , reserved for a future zone designated for recreational purposes ” . The DATE plan remained in force until DATE .

On DATE ORG of Milanówek , in a public procedure provided for by relevant planning legislation , adopted a resolution by which the local land development plan was accepted . The applicant 's land was included in an area in which a ring - road and a hospital were to be constructed in the future .

The applicant and his neighbours lodged a complaint against the ORG 's resolution with the GPE Governor , arguing inter alia , that the plan breached their right to the peaceful enjoyment of their possessions . They submitted that the local land development plan had been prepared in a manner which failed to take into consideration and to reconcile various interests of the municipality and the local owners . As a result , the plan which had been adopted was unreasonable and did not comply with standards of good land administration .

They were informed that ORG was competent to examine their complaint .

By a judgment of CARDINAL DATE ORG dismissed the complaint , finding that there were no indications that the municipal authorities had failed to take into consideration and properly weigh the various competing interests involved in the preparation of the local land development plan . It noted that restrictions on ownership imposed by the land development measures were not per se incompatible with the nature of ownership as guaranteed by LAW .

On DATE the applicant requested that an initial approval for a development project on his land be issued .

On DATE the applicant submitted to the Mayor of PERSON a request that his land either be acquired by the municipality or that he be given another plot of land .

In a letter of DATE ORG informed the applicant that his request of DATE had not been examined as he had failed to submit an appropriate plan with it . He was further informed that the validity of the DATE plan had been prolonged by ORG for DATE , until DATE .

On DATE the Marshal of the Mazowsze Region informed the applicant that the construction of the roadway was undoubtedly in the interests of the inhabitants of PERSON , but that no funding would be provided for it in the financing scheme for the regional land development plan until DATE .

On DATE the applicant renewed his request for an initial approval for a development project on his land . He wished to have a house built on it .

On DATE the Mayor of PERSON refused his request , finding that the project as submitted by the applicant was incompatible with the local land development plan .

The applicant appealed , submitting that there were no immediate plans to build the road , there was no financing earmarked for it in the relevant public budgets , and that his right to the peaceful enjoyment of his property had been breached by the continuing restrictions on the use of his land in view of its future expropriation at some undetermined point of time .

On DATE ORG dismissed the applicant 's appeal on the ground that his construction project was incompatible with the land development plan for the municipality of PERSON .

The applicant appealed to ORG , arguing that since the adoption of the DATE plan he had been restricted in the use of his property ; that the municipality had refused to acquire his land or to provide him with another plot ; and that this amounted to a breach of his right to the peaceful enjoyment of his possessions as well as of various provisions of LAW . He stressed that under the applicable laws he did not have any right to compensation for the protracted restrictions on the exercise of his ownership .

In DATE the applicant requested the municipality CARDINAL times to either acquire his land or to grant him another plot . His requests were unsuccessful .

On DATE ORG dismissed his appeal against the decision of DATE . The court observed that its jurisdiction was limited to the examination of the lawfulness of the impugned decision . It found that the decision was lawful as it was common ground between the parties that the applicant 's construction project was incompatible with the local land development plan .

It further noted that the applicant had complained that his situation could not be seen as being compatible with the LAW , given that owners affected by plans adopted prior to the LAW 's entry into force could not benefit from compensation claims provided for by section CARDINAL of the DATE LAW . The court referred to the judgment of ORG given in DATE ( see paragraph DATE below ) . ORG had examined the compatibility with LAW of section CARDINAL § CARDINAL of LAW DATE insofar as it excluded the application of the owners ' right to compensation provided for in section CARDINAL of that Act to land development plans adopted before DATE . It found that this provision was compatible with the LAW .

ORG observed that it was not its task to amend or to criticise existing laws and that it was bound by this provision . Otherwise there were no grounds on which to consider that the decision challenged by the applicant was unlawful .

On DATE the validity of the DATE land development plan expired .

On DATE the applicant was granted an initial planning permission ( decyzja o warunkach zabudowy ) and on DATE a final building permission ( zezwolenie na budowę ) .

DATE to DATE questions of land development were governed by LAW of DATE .

On DATE a new LAW was enacted . It entered into force on DATE .

On DATE ORG passed a law amending LAW DATE .

On DATE a new LAW was enacted which repealed LAW .

Under LAW of DATE owners of properties to be expropriated in the future were not entitled to any form of compensation for damage resulting from restrictions on the use of their property or the reduction in its value originating in expropriations to be carried out at an undetermined future date .

Section CARDINAL of LAW enacted in DATE created for local authorities a number of obligations towards owners whose properties were designated for expropriation at an undetermined future date under land development plans adopted by the competent municipal authorities . The municipalities were obliged to buy such property , replace it with other land within DATE of an owner 's request , or provide compensation for the damage caused by the designation .

NORP However , pursuant to LAW , these obligations and the corresponding claims of the owners applied only to plans adopted after LAW had entered into force , i.e. to plans adopted by local municipalities after DATE .

Pursuant to the DATE Act , plans adopted before its entry into force were to expire on DATE .

In DATE an amendment to LAW was adopted under which the validity of such plans was extended for DATE until DATE . Again , on DATE , ORG passed a law amending LAW DATE which extended until DATE the validity of the land development plans adopted before DATE .

ORG Under LAW of LAW ( see paragraph CARDINAL above ) , all local plans adopted before DATE remained valid , but not beyond DATE .

Compensation entitlements for owners , provided for by LAW ( see paragraph CARDINAL above ) , were in essence maintained by the CARDINAL Act . Pursuant to LAW , when , following the adoption of a new local land development plan , the use of property in the manner provided for by a previous plan has become impossible or has been restricted , it is open to the owner to claim compensation from the municipality , or to request the municipality to buy the plot . Any litigation which may arise in this respect between municipalities and owners can be pursued before the civil courts . It would appear that the operation of LAW is not retroactive , thus limiting the scope of any such claims to the period after the adoption of LAW .

Other relevant legislative provisions are extensively set out in the ORG 's judgment of DATE in the case of GPE v. GPE ( no . CARDINAL , § § CARDINAL - CARDINAL ) .

In its judgment of CARDINAL DATE ( K CARDINAL/CARDINAL ) , ORG examined the request submitted to it by the ORG to determine the compatibility with LAW of section CARDINAL § CARDINAL of LAW DATE insofar as it excluded the application of section CARDINAL of that Act to land development plans adopted before DATE . The court referred to its established case - law to the effect that ownership could not be regarded as ius infinitivum . Consequently , its exercise was normally restrained by many legal and practical considerations , including the necessity of balancing the owners ' interests against those of other persons . Local land development plans were to be regarded only as a practical expression of restraints originating in numerous statutes regulating the lawful exercise of ownership . In particular , owners of properties “ frozen ” for the purpose of future expropriations as a result of the adoption of such plans could normally continue to use their properties as they had been using them prior to the adoption of such plans . This did not amount to such an interference with ownership that it could be regarded as being incompatible with the constitutional protection of ownership .


Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - State to secure enforcement of judgment debt;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in Kursk .

The applicant worked as a forwarding agent for a catering enterprise . In DATE the enterprise ’s director instructed him to sell QUANTITY of flour . The applicant sold the flour , purchased certain foodstuffs with the money thus raised and paid the transportation expenses . The director refused to accept the foodstuffs and asked the applicant to remit the value of the flour . The applicant sold the foodstuffs but the amount raised was insufficient to cover that value . The applicant offered various other goods in payment of the outstanding amount . The director refused to accept them . It appears that the applicant was subsequently dismissed . In DATE criminal proceedings for embezzlement were brought against the applicant . From DATE to CARDINAL DATE he was held in pre - trial detention .

On an unspecified date the applicant fully reimbursed the value of the flour .

On DATE ORG of Kursk convicted the applicant of embezzlement . He was given a DATE suspended prison sentence and fined MONEY ( RUR ) , which he paid .

ORG upheld the judgment on DATE .

On DATE , following an application for supervisory review lodged by the Deputy President of ORG , the ORG of the Kursk ORG quashed the sentence and terminated the criminal proceedings against the applicant on the basis that there was no indication that an offence had been committed .

On DATE the applicant brought proceedings against ORG seeking compensation for pecuniary and non - pecuniary damage caused by the criminal proceedings against him , in particular as a result of his detention DATE and DATE and his conviction of CARDINAL DATE .

ORG of Kursk partially granted the claim for damages on DATE .

On DATE the ORG quashed the judgment and remitted the case for a fresh examination .

On DATE the ORG once more quashed the judgment and remitted the case for a fresh examination .

On DATE ORG of Kursk partially granted the claim for damages . The court awarded the applicant ORG CARDINAL in damages and RUR CARDINAL,CARDINAL for costs . The judgment stated :

“ Under LAW , damage caused to a citizen as a result of unlawful conviction , unlawful criminal prosecution , unlawful application of detention as a preventive measure ... shall be compensated at the expense of the ORG of GPE . ...

Under LAW compensation for non - pecuniary damage shall be effectuated irrespective of the fault of the causer of the damage where the damage is caused as a result of unlawful conviction , unlawful criminal prosecution . ...

On the foregoing grounds ... the court has decided to award [ damages ] against ORG in favour of [ Mr ] GPE ... ”

By a final decision of CARDINAL DATE the ORG varied the judgment and awarded the applicant RUR CARDINAL,CARDINAL in damages and ORG for costs .

On DATE the applicant brought proceedings seeking compensation for the fine he had been ordered to pay in the judgment of CARDINAL DATE .

By a final decision of CARDINAL DATE ORG of Kursk granted the claim and ordered ORG to pay the applicant RUR CARDINAL,CARDINAL .

On DATE ORG of Kursk issued a writ of execution for recovery of RUR CARDINAL from ORG , pursuant to the judgment of DATE , which had been varied on appeal on DATE .

On an unspecified date the same court issued a writ of execution for recovery of ORG CARDINAL,CARDINAL from ORG , pursuant to the ruling of DATE .

It appears that the applicant initially sent the writs to ORG for LOC of GPE . In a letter of DATE ORG informed the applicant that a writ of execution had been transferred to ORG for LOC of GPE . It is not clear which of the CARDINAL writs was referred to in the letter . Nevertheless , it appears that both writs either remained in , or were subsequently returned to , ORG .

ORG transferred both writs to ORG on DATE .

On DATE ORG returned the writ for recovery of RUR CARDINAL,CARDINAL to the applicant because it did not meet the statutory requirements . In particular , the date of issue of the writ and the time - limit for its submission for execution had not been indicated . The applicant was also advised that , pursuant to a Government Decree of DATE , writs against the ORG of GPE were to be sent for execution to ORG . It appears that the applicant applied to ORG of Kursk to have the writ amended .

On DATE ORG transferred the writ for recovery of RUR CARDINAL,CARDINAL to ORG of Kursk , apparently because it too failed to meet the statutory requirements .

On an unspecified date ORG returned the writ for recovery of ORG to the applicant and advised him that it should be sent to ORG .

ORG of Kursk sent the writ for recovery of RUR CARDINAL,CARDINAL to the applicant on DATE .

In DATE and DATE the applicant sent both writs to ORG .

According to the Government , on DATE ORG had received the writ of execution for recovery of RUR CARDINAL,CARDINAL . On DATE ORG had returned the writ of execution to the applicant , stating that it did not meet the statutory requirements in that the time - limit for its submission for execution had not been indicated and the operative part of the judgment had been cited incorrectly .

According to the Government , on DATE ORG had received the writ of execution for recovery of RUR CARDINAL . On DATE the writ had been returned to the applicant because it did not meet the statutory requirements . In particular , the time - limit for its submission for execution had not been indicated . Furthermore , the decision of the Kursk Regional Court of DATE had not specified that the amount was to be recovered from the ORG of GPE .

On DATE the applicant applied to ORG of Kursk to have the writ for recovery of RUR CARDINAL amended . On DATE the writ was again received by ORG . NORP According to the Government , the payment pursuant to the writ had been made by ORG on DATE . According to the applicant , the writ had never been executed .

According to the Government , on DATE the writ of execution for recovery of RUR CARDINAL,CARDINAL had again been received by ORG . However , its defects had not been rectified . For these reasons it had again been returned to the applicant .

According to the applicant , neither writ has been executed .

Section CARDINAL of LAW of DATE provides that a bailiff ’s order on the institution of enforcement proceedings must fix a time - limit for the defendant ’s voluntary compliance with a writ of execution . The time - limit may not exceed DATE . The bailiff must also warn the defendant that coercive action will follow should the defendant fail to comply with the time - limit .

Under LAW of the LAW , enforcement proceedings must be completed within DATE of the receipt of the writ of execution by the bailiff .

The Rules on execution by ORG of GPE of judicial acts concerning claims against the ORG of GPE in respect of damage caused by the unlawful acts ( omissions ) of agencies of ORG authority or officials of the agencies of ORG authority , approved by Government Decree No . CARDINAL of DATE , provide that a writ of execution should be sent to ORG together with a copy of the judicial act and the claimant ’s bank - account details ( Rule CARDINAL ) . Within DATE from the receipt of the above documents ORG sends them to the debtor ORG agency in order to find out whether the underlying judicial decision is being appealed against . The time - limit for execution of the writ by ORG is DATE ( Rule CARDINAL ) . The writ of execution may be returned without execution in the following situations : if the time - limit for its submission has expired , if the documents submitted do not meet the statutory requirements or some of the documents are missing , or if the execution of the underlying judicial decision has been stayed or discontinued ( Rule CARDINAL ) .

On DATE ORG of GPE in its decision no . ORG CARDINAL held that the Rules adopted by Decree No . CARDINAL concerned the voluntary execution of court decisions against ORG and did not prevent the creditor from seeking enforcement through the court bailiffs .

On DATE ORG of GPE in its decision no . CARDINAL held , inter alia , that LAW , DATE and CARDINAL of the Rules adopted under Decree No . CARDINAL were unconstitutional and were to become invalid from DATE .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant was born in DATE and lives in GPE .

In DATE the applicant sued his former employer , the public company “ ORG ” , for unpaid compensation for a work - related injury , caused by a lorry owned by another company , “ KTS ” .

On DATE ORG found for the applicant and awarded him a lump sum and life - long DATE payments . The lump sum was made up of the principal amount , interest thereon and a penalty for belated payments .

On DATE ORG of GPE set aside the judgment in the part concerning the claim for penalty and remitted that claim for a new examination . It upheld the remainder of the judgment . The claim for penalty was subsequently examined by courts of various levels . As of DATE the claim was pending before ORG .

On DATE the acting President of ORG lodged an application ( представление ) with ORG of GPE to quash the judgment of DATE and all other judgments in the case , because the defendant in the applicant ’s action should have been KTS that had owned the lorry rather than ORG that had been the applicant ’s employer .

According to the Government , on DATE ORG informed the applicant that the above application would be examined at a hearing on DATE .

On DATE the ORG of ORG of GPE granted the application and quashed the previous judgments , including those of DATE and DATE . It found that those judgments had been unlawful because the lower courts had failed to determine the proper defendant . The applicant ’s claims were remitted for a new examination .

In the resumed proceedings , on CARDINAL DATE the ORG established that the applicant had been informed of the possibility to substitute the legal successor of the KTS company as the proper defendant and to join the regional branch of ORG as CARDINAL party , but he had not agreed to the substitution . His claim was therefore dismissed as being directed against an improper defendant .

In his observations on the admissibility and merits of the case of CARDINAL DATE , the applicant made certain abrasive remarks which prompted the respondent ’s Government request to declare the application inadmissible as an abuse of the right of petition .

In its admissibility decision of DATE , the ORG rejected the ORG ’s request for the reason that they had not identified the allegedly abusive expressions or passages in the applicant ’s submissions and as the application had not been knowingly based on untrue facts . The ORG noted , nevertheless , that some of the applicant ’s statements had been irrelevant and excessively emotional .

In DATE the applicant and the Government filed their observations on the merits of the application . The Section President set CARDINAL DATE as the time - limit by which the parties could submit written comments in reply to each other ’s observations .

In a letter of DATE , the applicant commented on the ORG ’s observations in the same abrasive manner .

In their observations on the merits of the case and letters of DATE and DATE , the Government invited the ORG to declare the application inadmissible as an abuse of the right of petition . Drawing a parallel between the conduct of PERSON ( see PERSON GPE , no . CARDINAL , Commission decision of CARDINAL DATE ) and that of the applicant , they claimed that the expressions used by the applicant were even more insulting than those used by PERSON against the representatives of ORG . The Government reproached ORG for not having invited the applicant to withdraw or amend the objectionable statements . They submitted that the applicant ’s letter of DATE was a further evidence of his abusive attitude to the proceedings before the ORG .

On DATE the ORG considered the Government ’s request to declare the application inadmissible in connection with the applicant ’s persistent use of offensive language and invited the applicant to withdraw his inappropriate remarks and to offer a formal apology .

By letter of CARDINAL DATE , the applicant informed the ORG as follows ( translated from NORP ) :

“ I formally withdraw my rough remarks about the ORG and about the Government ’s representative Mr GPE which were considered offensive . I also offer my sincere apology to the ORG , to the ORG and to PERSON . It was not my intention to offend anyone ... ”

In their comments on the applicant ’s letter , the ORG asked the applicant to identify the expressions he apologised for .


Violation of Art. 3 (in case of expulsion to Afghanistan)

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall

The applicant was born in DATE and lives in PERSON .

On DATE the applicant and her husband , X , arrived in GPE and on DATE they applied to ORG ( Migrationsverket ) for asylum and residence permits . The applicant was interviewed on DATE and DATE . She had no identity papers and could not prove her identity . She stated that she was born and grew up in GPE , where her parents , CARDINAL of her CARDINAL brothers , an aunt and an uncle resided . Her other brother had left GPE a long time ago . She also had an uncle in GPE . The applicant had attended school for DATE in GPE and had studied at the university .

The applicant and her spouse also submitted that they had been persecuted since DATE because ORG had been a politically active member of ORG , leading to his arrest on QUANTITY occasions . Following his second release they had moved to GPE , but they alleged that some fundamentalists had come looking for X there as well with the intention of killing him . The applicant submitted that she also had shown her political stance by acting as a teacher for women , which was not accepted by parts of the leading elite in GPE . Therefore , they had fled the country . When they had left their home , they had stayed with her uncle in GPE and the latter had helped them finance their journey to GPE by paying a smuggler MONEY . Lastly , X invoked his poor mental health , stating that he was suffering from anxiety , sleeplessness and aggressive behaviour .

On DATE ORG rejected the couple 's application . It first noted that the security situation in GPE varied between different parts of the country but that it was better in GPE than in other parts of the country . ORG then considered that X had given vague information about his activities and had failed to demonstrate that he had held a prominent or leading position within ORG . Hence , it questioned the claim that his life would be endangered because of his membership of that party . ORG therefore found that neither X nor the applicant had shown that they had been persecuted in GPE or that they would risk persecution upon return . Thus , even having regard to X 's poor mental health , the ORG found that there were no grounds on which to grant them leave to remain in GPE .

The applicant and her husband appealed against the decision to the then ORG , which subsequently transmitted the case to ORG ( Migrationsdomstolen ) . The applicant maintained her claims and added that the threats against her and X stemmed from PERSON 's previous political activities and from her activities in educating women and that the authorities had not been able to protect them , not even in GPE . The applicant further submitted that she had separated from X in DATE , lived alone and intended to obtain a divorce although X opposed it . Due to this , she had been criticised by some of X 's friends , been called a “ bad woman ” and some other NORP had spread untrue rumours about her . By separating from X , she had broken with NORP traditions which meant that she risked serious persecution if forced to return to her home country . In this respect , she pointed out that she would not be able to obtain a divorce in GPE and that by trying to obtain a divorce in GPE she had dishonoured both her own and PERSON 's family . Consequently , her own family had disowned her and she would risk reprisals from QUANTITY 's family . It would also be impossible for her to find work and , since she and X had no children , she would be a social outcast . She further mentioned that the punishment for adultery in GPE was stoning . Lastly , she stated that she suffered from psychological problems and was in need of treatment in GPE .

ORG contested the appeal and submitted , inter alia , that X had stated that his father had held a higher position than him in the party but that he had not been threatened . It further claimed that , having regard to X 's poor mental health , it should be possible for the applicant to obtain a divorce . Moreover , it appeared that X would agree to a divorce . Lastly , it did not question that the applicant 's family was dissatisfied with her decision to separate from her husband but it had not been shown that they had disowned her .

On DATE , after holding an oral hearing , ORG rejected the appeal . It first considered that it had not been shown that X , on account of his previous political activities , would be of interest to any resistance groups in GPE . It then observed that quite some time had passed since the applicant had taught women in her home country . Moreover , the court noted that the previous ORG ban on education for women had been replaced by affirmative action for women and that the constitution stated that the ORG should actively support women 's education . Therefore , the court found that the applicant had not demonstrated that she had a well - founded fear of persecution because of her previous work as a women 's teacher . As concerned the applicant 's personal life , the court observed that she had not formally divorced PERSON although they had separated . In its view , nothing had appeared in the case which showed that the applicant faced a concrete and individual risk of persecution for having broken with NORP traditions . It further noted that the applicant had stated that she had not had an extramarital affair , for which reason there was no risk that she would be convicted of adultery and sentenced to death . In this respect , the court considered that the applicant had not shown that the alleged rumours about her had come to the knowledge of the NORP authorities . Turning to her claim that she would lack a social network in GPE , the court found that the applicant had not demonstrated that her family in GPE had rejected her and , hence , she had a social network there . It further took into account that she was well - educated and thus concluded that she had failed to show that she would face a real risk of being persecuted or subjected to inhuman or degrading treatment or punishment . Therefore , and since the court did not find that any of the other reasons submitted by the applicant were sufficient to grant her exceptional leave to remain , the appeal was rejected .

NORP The minority of the court wanted to grant the applicant leave to remain in GPE on the ground that , since she did not have any children and had separated from her husband , she had shown that she would risk degrading treatment upon return to her home country .

The applicant appealed against the judgment to ORG ( Migrationsöverdomstolen ) which , on DATE , refused leave to appeal . This decision was final and the applicant 's deportation order thus became enforceable .

On DATE invoking new circumstances , the applicant lodged an application for a residence permit under LAW , LAW , of LAW , which was refused by ORG .

On DATE the applicant lodged a new application for a residence permit under LAW , LAW , of LAW , which was refused by ORG .

In DATE the applicant petitioned ORG ( tingsrätten ) of GPE for a divorce from X. The latter informed ORG on DATE that he opposed a divorce . The applicant submitted that she had separated from her husband in DATE and only seen him once since then . Moreover , she intended to invoke the divorce as CARDINAL of the grounds to stop her deportation .

In a decision of DATE , the court dismissed her petition on the ground that it was not competent to dissolve her marriage since she did not have a legal right to reside in GPE .

In the meantime , on DATE , the applicant requested ORG to re - evaluate her case and stop her deportation . As grounds for her request , she claimed that the situation in GPE had worsened considerably since ORG previous decision . She further alleged that she now had a well - founded fear of persecution upon return to GPE since she had started a relationship with a NORP man . Thus , she had committed adultery and risked the death penalty in GPE . She had not been in touch with her family since DATE .

She also submitted a letter from ORG for ORG , dated DATE , which stated , inter alia , the following :

“ ORG 's views on the protection needs of NORP female asylum - seekers are fully set forth in the ORG 's ORG needs of NORP Asylumseekers . ... In the context of GPE , ORG would like to draw to your attention to the fact that an assessment of a refugee claim of an NORP female asylum - seeker , should take into account the specifically vulnerable situation in which NORP women are found , including pressure from within families , communities , and by the public to conform [ to ] behaviour in accordance with particular codes of behaviour . In this regard , a separation and/or divorce effected in the country of asylum , may indicate adoption of a Westernised way of life and be perceived as , or actually transgressing , prevailing social mores and thereby indicates a heightened risk of sur place persecution linked to the grounds of religion and/or political opinion under the scope of LAW ) of the CARDINAL Refugee Convention . ... ORG notes that NORP female asylum - seekers ' reliance for relative social , cultural and economic freedom is exclusively dependent on the existence of male protection ( husband , father , brother or extended family member ) and that lack of such networks may seriously undermine a returnee 's personal physical , economic and emotional security . ”

On DATE ORG refused to reconsider the applicant 's case as she had failed to invoke any new circumstances of importance . It considered that the applicant had only developed and clarified those grounds which had already been examined by it and the migration courts . ORG also found that there were no impediments to the enforcement of the deportation order .

The applicant appealed against the decision to ORG , maintaining the grounds invoked before ORG and insisting that these were new circumstances of importance . On DATE the court rejected the appeal , upholding the ORG 's decision and reasoning in full .

On DATE ORG refused leave to Appeal and , on DATE , the case was transferred to ORG to enforce the deportation order .

Finally , on DATE the applicant lodged a third application for a residence permit under LAW , LAW , of LAW , which was refused by ORG .

On DATE the applicant lodged the case with the ORG and on CARDINAL DATE the President of the ORG decided to apply Rule CARDINAL of ORG , indicating to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings not to deport the applicant until further notice

In her observations of CARDINAL DATE the applicant submitted that already before leaving GPE , she had told her mother about her problems with her husband . In DATE the applicant had called home and told her mother that she and her husband had separated . The mother had become very upset and said that it was totally wrong and that the applicant should go back to her husband . She had then talked to her father who became furious and shouted that she brought dishonour to the family . The conversation had ended because the applicant ran out of money on her telephone card . The father had called her back the following day to try to persuade her to change her mind and talked about honour , shame and her disgracing the family . In the end he had shouted that she was go back to her husband or the family would not have anything more to do with her . She was no longer his daughter . After the conversation , the applicant had called her uncles in GPE and GPE to have their support but they had both repeated the words of her father . That had been the last conversation between the applicant and her relatives .

With the applicant 's observations of CARDINAL DATE she also enclosed a letter of DATE “ to whom it may concern ” by a named NORP man who confirmed having a relationship with the applicant . He stated , inter alia , that they had met for the first time in DATE , that their relationship had started in DATE and that they had been living together in his apartment since DATE .

NORP In reply the Government observed on DATE that the facts now presented by the applicant in her observations were never submitted to the NORP authorities in spite of the fact that these could be considered relevant to her claim for asylum . Notably , regarding the claim that the applicant and the said NORP man have been living together since DATE , the ORG noted that the applicant has still not changed her registered mail address in PERSON although her new residence is apparently far away .

The basic provisions mainly applicable in the present case , concerning the right of aliens to enter and to remain in GPE , are laid down in the DATE LAW ( Utlänningslagen , DATE hereafter referred to as “ the DATE LAW ) which replaced , on DATE , the old LAW ( Utlänningslagen , DATE ) . Both the old Aliens Act and the DATE Act define the conditions under which an alien can be deported or expelled from the country , as well as the procedures relating to the enforcement of such decisions .

Chapter DATE , LAW , of the DATE Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is , with certain exceptions , entitled to a residence permit in GPE . According to LAW , LAW , of LAW , the term “ refugee ” refers to an alien who is outside the country of his or her nationality owing to a well - founded fear of being persecuted on grounds of race , nationality , religious or political beliefs , or on grounds of gender , sexual orientation or other membership of a particular social group and who is unable or , owing to such fear , is unwilling to avail himself or herself of the protection of that country . This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities can not be expected to offer protection against persecution by private individuals . By “ an alien otherwise in need of protection ” is meant , inter alia , a person who has left the country of his or her nationality because of a well - founded fear of being sentenced to death or receiving corporal punishment , or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW , of the DATE Act ) .

As regards the enforcement of a deportation or expulsion order , account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment . According to a special provision on impediments to enforcement , an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW , of the DATE Act ) . In addition , an alien must not , in principle , be sent to a country where he or she risks persecution ( LAW , LAW , of the DATE Act ) .

Under certain conditions , an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force . This applies , under LAW , LAW , of LAW , where new circumstances have emerged that mean there are reasonable grounds for believing , inter alia , that an enforcement would put the alien in danger of being subjected to capital or corporal punishment , torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced . If a residence permit can not be granted under this provision , ORG may instead decide to re - examine the matter . Such a re - examination shall be carried out where it may be assumed , on the basis of new circumstances invoked by the alien , that there are lasting impediments to enforcement of the nature referred to in LAW , Sections CARDINAL and CARDINAL , of LAW , and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so . Should the applicable conditions not have been met , ORG shall decide not to grant a re - examination ( LAW , LAW , of LAW ) .

Under LAW , matters concerning the right of aliens to enter and remain in GPE are dealt with by CARDINAL instances ; ORG , ORG and ORG ( LAW , LAW , and LAW , LAW , of LAW ) . Hence , upon entry into force on DATE of the DATE Act , ORG ceased to exist .

In so far as relevant , ORG of NORP Asylum - Seekers of DATE , which replaced the previous Guidelines from DATE , set out the following :

In view of the serious and widespread human rights violations and ongoing armed conflict in many parts of the country , ORG considers that a significant number of NORP asylum seekers are in need of international protection . Applications by NORP asylum - seekers should be determined on an individual basis , according to fair and efficient refugee status determination procedures , including the right of appeal . Favourable consideration should be given to the specific groups identified in these LAW , including , but not limited to ( i ) persons perceived as contravening LAW law and members of minority religious groups ; ( ii ) ethnic minority groups ; ( iii ) persons associated with or perceived as supporting the Government , including civil society members ; ( iv ) actual or perceived supporters of armed anti - Government groups ; ( v ) journalists ; ( vi ) persons associated with ORG of GPE or other left - aligned political parties ; ( vii ) women ; ( viii ) children ; and ( ix ) persons at risk of becoming victims of blood feuds .

ORG further considers that an internal flight or relocation alternative ( ORG ) is not available within certain parts of GPE due to a number of factors . If , however , the availability of an ORG must be assessed as a requirement in a national eligibility procedure , it should be examined carefully and on a case - by - case basis , in light of the requisite relevance and reasonableness analyses , taking into account the individual circumstance of the case , and bearing in mind the cautions in these Guidelines . Even in those exceptional cases where relocation to an accessible area might be considered as viable to eliminate the existing threat , such area can only be a reasonable alternative in cases where the claimant has strong family , social or tribal links in the area of displacement , permitting relocation without undue economic and social hardship . ...

( g ) Women

Women are at particular risk of ill - treatment if perceived as not conforming to the gender roles ascribed to them by society , tradition and even the legal system . Ill - treatment occurs in a variety of forms and may be inflicted by several actors , including family members . Such treatment includes domestic violence , excessive custodial sentences and degrading and inhuman treatment . While there is a limited number of women holding public office , women 's rights continue to be curtailed , restricted and systematically violated . In DATE , for instance , a NORP Personal Status Law was passed by ORG and signed by President PERSON . The law requires , inter alia , women to comply with their husbands ' sexual requests , and to obtain permission to leave the home , except in emergencies . The code has yet to be implemented and is currently under review as a result of international pressure .

Cases of physical violence perpetrated against women and girls in GPE have increased by PERCENT in DATE . Existing figures indicate that currently PERCENT of NORP women are affected by domestic violence . Human rights organizations report an overall increase of cases of self - immolation and other forms of suicide . The phenomenon of female self - immolation is commonly linked to the pervasive societal discrimination against women . Survivors of sexual violence generally lack basic support mechanisms such as trauma counselling and medical treatment , as well as judicial capacity for forensics analysis . The social stigma attached to the reporting of gender - based violence in GPE often prevents victims from seeking physical or psychological treatment .

NORP women , who have adopted a less culturally conservative lifestyle , such as those returning from exile in GPE or LOC , continue to be perceived as transgressing entrenched social and religious norms and may , as a result , be subjected to domestic violence and other forms of punishment ranging from isolation and stigmatization to honour crimes for those accused of bringing shame to their families , communities or tribes . Actual or perceived transgressions of the social behavioural code include not only social behaviour in the context of a family or a community , but also sexual orientation , the pursuit of a professional career , and mere disagreements as to the way family life is conducted .

Unaccompanied women or women lacking a male “ tutor ” ( mahram ) continued to face limitations on conducting a normal social life . They include divorced women , unmarried women who are not virgins , and women whose engagements to be married have been broken . Unless they marry , which is very difficult given the social stigma associated with these women , social rejection and discrimination continue to be the norm . Many NORP women are prevented from leaving the family compound without a burqa and a male companion , who has to be a husband or a close relative . Women without male support and protection generally lack the means of survival , given the social restrictions on women living alone , including the limitations on their freedom of movement . This is reflected in the absence of solutions available to the few women able to access domestic violence shelters . Unable to live independently , they face years of quasi - detention , prompting many to return to abusive family situations . The results of such “ reconciliation ” are generally not monitored and abuse or honour crimes committed upon return are often done with impunity .

Forced and child marriages continue to be widely practiced in GPE , and can occur in a variety of forms . Statistics show that PERCENT of girls in GPE are married before they reach DATE . Most marriages continued to be arranged by families . However , more coerced forms include ' sale ' marriage , that is , girls sold for a fixed quantity of goods , cash or simply to settle a family debt ; bad dadan , a tribal form of dispute - settling in which the offending family offers one girl for marriage into the wronged family , for instance to settle a blood debt ; and badal , when CARDINAL families exchange their daughters in an attempt to minimize marriage costs .

Furthermore , women 's rights activists face threats and intimidation , particularly if outspoken about women 's rights , the role of ORG or the behaviour of commanders . In areas under the control of armed anti - Government groups , there are growing indications that women face systematic societal discrimination . For example , a significant number of female medical graduates is systematically refusing to work in rural areas , due to the fear of being targeted by insurgents . These developments affect women 's access to health in a disproportionate way .

Access to education for girls is also severely curtailed . According to ORG and aid agencies CARDINAL school - age children ( CARDINAL of them girls ) have been deprived of education as a consequence of conservative customs , poverty , lack of education facilities and a culture of gender discrimination .

The deterioration of the security situation has also had a detrimental effect on education . Armed anti - Government groups have continued their systematic attacks on schools , teachers , pupils ( particularly schoolgirls ) and parents . According to ORG ( PERSON ) , CARDINAL primary , secondary and high schools closed due to such attacks . PERCENT of schools are closed in the CARDINAL southern provinces of GPE , GPE , GPE and GPE , with GPE having CARDINAL schools , primarily for boys , functioning , compared to CARDINAL schools open in DATE . Consequently , CARDINAL students have been deprived of an education in CARDINAL provinces , according to ORG officials . Girls ' schools are increasingly a target of attacks . PERCENT of security incidents at schools across the country were specifically directed against girls ' schools despite the fact that they represent PERCENT of the total number of primary , secondary and high schools in the country . Furthermore , female teachers are specifically targeted and higher bounties are offered for killing them . In DATE , in a widely reported attack in GPE , CARDINAL students and CARDINAL teachers , all female , were sprayed with acid and suffered severe injuries .

Given the pervasive societal discrimination and the widespread sexual and gender based violence , NORP women and girls , particularly those living in areas affected by the armed conflict or under the de facto control of armed anti - Government groups , may be at risk of persecution depending on their individual profile and circumstances . Failure to conform to conventional roles or transgression of social and religious norms may expose women and girls to violence , harassment or discrimination in GPE . As such , women with particular profiles , including , but not limited to victims of domestic violence or other serious forms of violence , unaccompanied women or single heads of household , women with visible social or professional roles , such as journalists , human rights activists and community workers , may be at risk of persecution on the ground of membership of a particular social group . Where non - conformity with traditional roles is perceived as opposing traditional power structures , the risk of persecution may be linked to the ground of religion and/or political opinion . Furthermore , measures which restrict one 's ability to earn a living so that survival is threatened , or severe limitations to accessing education or health services , may also amount to persecution .

The US State Department Human Rights Report on GPE for DATE , published on DATE stated , inter alia :

Women

The law criminalizes rape , which is punishable by death , but under Shari'a , which the country 's laws draw from and can not conflict , the criminalization did not extend to spousal rape . Under Shari'a , a rape case requires a woman to produce multiple witnesses to the incident , while the man need simply claim it was consensual sex , often leading to an adultery conviction of the victim . Adultery is defined in LAW and designated a crime ; premarital sex is not designated a crime , but local officials often considered it a " moral " offense . While the ORG reported CARDINAL cases of rape during DATE ; however , the actual number of cases generally was believed to be much higher . Of the reported cases , CARDINAL were charges of rape against females and CARDINAL were of rape against males . The ORG reported CARDINAL arrests in connection with rape cases . Statistics on convictions were unavailable . Rapes were difficult to document due to social stigma . Female victims faced stringent societal reprisal from being deemed unfit for marriage to being imprisoned . According to NGOs jail authorities frequently raped women imprisoned TIME in jail .

The NORP penal code criminalizes assault , and courts entered judgments against domestic abusers under this provision . According to NGO reports , CARDINAL of women continued to suffer abuse at the hands of their husbands , fathers , brothers , armed individuals , parallel legal systems , and institutions of state such as the police and justice system . Many elements of society tolerated and practiced violence against women . A GPE women 's shelter reported receiving CARDINAL new cases of domestic violence victims DATE from ORG referrals . According to the shelter 's report the weak economy and poor security contributed to the incidence of domestic violence . Authorities rarely prosecuted abusers and only occasionally investigated complaints of violent attacks , rape , or killings , or suicides of women . If cases came to court , the accused were often exonerated or punished lightly . The director of a women 's shelter in GPE noted domestic violence occurred in most homes but went largely unreported due to societal acceptance of the practice . Domestic violence usually consisted of beating women and children and , less often , burning women . During DATE , the GPE initiated additional efforts to collect statistics on violence against women .

There were CARDINAL women 's shelters across the country . The CARDINAL shelters in GPE were home to CARDINAL women and girls . ORG ( ORG ) and other agencies referred women to the centers , which were designed to give protection , accommodation , food , training , and healthcare to women escaping violence in the home or seeking legal support due to family feuds . According to the LOC , CARDINAL women and girls were referred to the ORG 's legal department DATE ; however , space at the specialized shelters was limited . Women in need of shelter who could not find a place in the GPE shelters often ended up in prison .

The concept of women 's shelters was not widely accepted in society , as many persons treated them with distrust and did not understand their utility . The director of CARDINAL shelter stated she always referred to the location as a mediation centre , as " shelter " was considered a negative word . Policewomen trained to help victims of domestic violence complained they were instructed not to do outreach to victims but simply to wait for victims to show up at police stations . This significantly hindered their work , as reporting domestic violence was not socially accepted . ORG reported police leadership often did not provide female officers with equipment or vehicles necessary to do outside investigations . A NORP - based NGO , however , reported recently graduated women police officers there were active in crime investigation including investigating cases of domestic violence . During DATE , a local NGO conducted CARDINAL domestic violence trainings for CARDINAL ORG officers in GPE , including those working in ORG . ORG are staffed primarily by female police officers and address violence and crimes against women , children , and families . They offer mediation and resources to prevent future instances of domestic violence .

Women continued to face pervasive human rights violations and remained largely uninformed about their rights under the law . ORG was more acute in rural areas and small villages . Women in urban areas continued to make strides toward greater access to public life , education , health care , and employment ; however , the denial of educational opportunities during the continuing insurgency , as well as limited employment possibilities and the threat of violence , continued to impede the ability of many women to improve their situation .

Societal discrimination against women persisted , including domestic abuse , rape , forced marriages , exchange of girls to settle disputes , kidnappings , and honour killings . In some rural areas , particularly in the south , women were forbidden to leave the home except in the company of a male relative ...

According to a report released during DATE by PERSON , PERCENT of women complained they were victims of violence , CARDINAL of it sexual . According to the report , PERCENT of marriages were forced and , despite laws banning the practice , PERCENT of brides were under the legal marriage age of DATE . The report stated many of these girls were offered as restitution for a crime or as debt settlement .

Local officials occasionally imprisoned women at the request of family members for opposing the family 's choice of a marriage partner or being charged with adultery or bigamy . Women also faced bigamy charges from husbands who had deserted them and then reappeared after the woman had remarried . Local officials imprisoned women in place of a family member who had committed a crime but could not be located . Some women resided in detention facilities because they had run away from home due to domestic violence or the prospect of forced marriage . Several girls between the ages of DATE and CARDINAL remained detained in PERSON prison having been captured after fleeing abusive forced marriages .

The PERSON documented a total of CARDINAL honour killings throughout DATE ; however , the unreported number was believed to be much higher . In DATE , according to a local NGO , an DATE woman in GPE was killed by her brother because she had run away from a forced marriage . Reportedly , after the woman ran away to a GPE women 's shelter the Governor of GPE intervened in the case , sheltered her , and forced the woman 's mother to return her to GPE , resulting in her death .

Women occasionally resorted to self - immolation when they felt there was no escape from their situations . During DATE the GPE documented CARDINAL cases of self - immolation , in contrast to CARDINAL cases in DATE . Other organizations reported an overall increase during DATE . According to the GPE , almost all the women had doused themselves with gasoline and set themselves alight . In GPE , during DATE , the GPE city hospital alone recorded CARDINAL cases of self - immolation , of whom CARDINAL died . There have also been reports of relatives setting women on fire to create the appearance of self - immolation ...

There is no law specifically prohibiting sexual harassment .

Women who reported cases of abuse or who sought legal redress for other matters reported pervasive discrimination within the judicial system . Local family and property law were not explicitly discriminatory toward women , but in parts of the country where courts were not functional or knowledge of the law was minimal , elders relied on Shari'a and tribal custom , which generally were discriminatory toward women . Most women reported limited access to justice in tribal shuras , where all presiding elders were men ; women in some villages were not allowed any access for dispute resolution . Women 's advocacy groups reported informal intervention from the government through letters to local courts encouraging interpretations of the law more favourable to women ...

ORG on GPE of DATE , states in paragraphs PERSON about divorce :

NORP Sharia and LAW of the country have provided suitable rights for women and men , but practically and in some rules and practices of equality between men and women these rights are not ensured . Current legislation leaves women largely unprotected . A man can divorce his wife without due process . In the absence of officially enforced marriage and divorce registration women remain particularly open to abusive practices . A woman can remarry DATE after divorce period ( PERSON ) . However , if challenged , she will have to provide witnesses to prove her divorce in court . The woman can initiate the divorce process if she has enough reasons to do so ; accepted reasons among others include : her husband must be sick and it endangers her ; her husband must fail to provide for the family ; her husband must be absent for DATE in the house or be sentenced for imprisonment of DATE or more . In this case , the court will assign her mahr – divorce maintenance – and custody of girls until they reach their ninth birthday and boys until their seventh birthday . ” ( ORG report , DATE ) .

The Womankind report of DATE noted “ NORP civil law contains numerous provisions that protect women 's human rights in the family , such as their right to divorce if they are being maltreated . While seldom enforced , existing law provides a basis from which to advocate for enforcement and education about women 's human rights . ” Further , “ Women 's choices regarding marriage and divorce remain circumscribed by custom and discriminatory laws ... ” ( ORG , DATE ) ORG 's DATE paper concurred “ Women remain deprived of basic civil rights , including in cases of divorce , custody and with regard to inheritance rights . ”

Womankind also recorded that “ Stigma and shame surround divorced women ... rendering them unmarriageable and subsequently , financially destitute . Polygamy is CARDINAL of the few options available to divorced women , who have low social status but require a husband for financial dependence . ” Also , “ Women 's economic dependence on male family members prevents them from seeking divorce or leaving abusive marriages . ”

An ORG article dated DATE reported that “ In GPE sexual relations between a man and a woman outside marriage are considered a serious crime and offenders can face death penalty and/or a lengthy prison sentence , depending on their marital status and other circumstances ... Every year CARDINAL of female sex workers are sent to prison for allegedly having ' unlawful sexual relationships ' , according to women 's rights activists ... ” However , high food prices , drought , unemployment and lack of socio - economic opportunities are pushing some women and young girls in northern GPE into commercial sex work , women 's rights activists and several affected women told ORG ...

ORG , in its report “ We Have the Promises of the World ” of DATE , on women 's rights in GPE , details emblematic cases of ongoing rights violations in CARDINAL areas : attacks on women in public life ; violence against women ; child and forced marriage ; access to justice ; and girls ' access to secondary education . The summary set out , inter alia :

DATE after DATE of the ORG , and the establishment of the PERSON government , NORP women continue to be among the worst off in the world . Their situation is dismal in every area , including in health , education , employment , freedom from violence , equality before the law , and political participation ... The diminishing status of women 's rights in GPE came back into focus in DATE when ORG law , which was riddled with ORG style misogyny , was passed by parliament and signed by President PERSON . The law regulates the personal affairs of NORP , including divorce , inheritance , and minimum age of marriage , but , as detailed below , severely restricts women 's basic freedoms . ... the final outcome fell far short of expectations , apparently because President PERSON was intent on maintaining the electoral support of NORP fundamentalists . DATE before the presidential election he issued by decree an amended version of the law which still includes articles that impose drastic restrictions upon NORP women , including the requirement that wives seek their husbands ' permission before leaving home except for unspecified “ reasonable legal reasons . ” The law also gives child custody rights to fathers and grandfathers , not mothers or grandmothers , and allows a husband to cease maintenance to his wife if she does not meet her marital duties , including sexual duties . The furor over the NORP law highlighted the fragility of the gains made by NORP women , human rights activists , and reform - minded politicians . The dominant political factions of GPE remain ideologically hostile to many of the rights that many women have started to enjoy since the fall of the ORG , such as freedom of movement , freedom to work , and the right to education . Many of the women interviewed for this report observed that the space for them to work as activists for change has diminished over DATE , as the government has come to increasingly rely on conservative factions to maintain political control .

Violence against Women : Violence against women in GPE is endemic . A nationwide survey of CARDINAL women , published in DATE , found that PERCENT had experienced CARDINAL form of physical , sexual , or psychological violence or forced marriage in their lifetimes . The forms of violence include rape , physical violence , forced marriage , and “ honour killings . ” Too often the attitudes of those in government and the police reflect the misogynous views , rooted in cultural traditions - but increasingly rejected by younger generations of NORP – that underlie some of the violence against women . As Dr. PERSON , ORG Commissioner of ORG ( GPE ) , told us , “ Police and judges see violence against women as legitimate , so they do not prosecute cases . ” In the vast majority of cases women will not seek help because of their fears of police abuse or corruption , or their fears of retaliation by perpetrators of violence . Low social status and social stigmas deter women from going against their families to pursue justice , particularly in cases of domestic abuse . For a woman even to approach the police or courts requires her to overcome the public opprobrium that often still attaches to women who leave their houses without a male guardian , let alone women who seek protection from public authorities . In DATE study by ORG ( ORG ) , PERCENT thought that a woman disabled by violence should seek police help . For those who do seek help , many encounter lack of concern , if not outright hostility or abuse . Rape is not a crime in LAW . Under the code , rapists can only be charged with “ forced ” zina , or adultery , which sometimes results in women also being prosecuted for zina . In a major achievement for civil society groups and women 's rights activists , the president issued LAW law , which makes rape a crime . At the time of writing the law is being considered by parliament ...

Access to ORG : An underlying problem is women 's access to justice . Police training involves little or no training in gender based violence or women 's rights , particularly as training has been increasingly focused on counter - insurgency and security skills rather than crime prevention , crime solving and community policing . Deeply entrenched cultural prejudices prevent many women accessing the police or the courts because of the fear of being stigmatized a “ bad woman . ” Women face discrimination and prejudice in police stations and the courts from officials who often do not know the law but penalize women according to customary law , which places great emphasis on notions of female “ honour ” and chastity . The majority of women in jail are charged with extramarital sex ( zina ) or with “ running away”- something that is not a crime in NORP law or LAW but often reflects a conservative cultural view that sees women as property of fathers or husbands . CARDINAL widely welcomed policy response to this was the creation of female - staffed “ Family Response Units ” ( FRUs ) in police stations . But , as detailed in this report , there are serious problems with the implementation of FRUs , including insufficient numbers of women police officers and inadequate training , mentoring , and facilities ...