Violation of Art. 3 (if expelled);No separate issue under Art. 8;Non-pecuniary damage - finding of violation sufficient

Elisabet Fura;Lech Garlicki;Nicolas Bratza

NORP The applicant , born in DATE , originates from the former GPE ( currently the ORG ) . He arrived in GPE on DATE and immediately applied for asylum .

On his arrival in GPE the applicant filed an asylum request written in LANGUAGE , stating that he had left the ORG DATE ; that he had been trained to join the presidential guards and had been working as an informant in Office D of the special force responsible for protecting the then President PERSON ( Division PERSON ; “ the ORG ” ) ; that he had belonged to the President ’s and the ORG Commander - in - Chief ’s inner circle ; that he had been arrested in GPE while in the possession of a ORG badge and a photograph of ORG ; that his life was in danger on account of his position and his GPE origin ; and that FAC regime ( who had seized the power in the ORG in DATE ) had put out a warrant of arrest on former ORG agents . The applicant named CARDINAL high - ranking officers within the ORG whose grades he also indicated .

According to the record of the asylum interview with the applicant on DATE , it was conducted with the assistance of a NORP interpreter . The applicant stated that he had been born on DATE in NORP in former GPE ; that he was a NORP of the NORP tribe ; that he had been a ORG agent by profession ; that he had resided at GPE no . CARDINAL at the presidential compound GPE in GPE ; that he was single ; that his mother tongue was PERSON and that he also knew NORP , PERSON and LANGUAGE . He indicated the names of his parents and sister . He had gone to elementary and high school for a total of DATE and had undergone a DATE training programme to become a garde civile . He had performed his military service in DATE , receiving the grade GT CARDINAL ( regional guard , class II ) . He also indicated his salary while working in the ORG .

The applicant further stated that he had been an asylum seeker in the GPE from DATE to CARDINAL DATE , when he had been deported . On his return he had been living at FAC together with the President ’s nephew , a named general . He had had at his disposal CARDINAL rooms , a living room , a shower and parking spaces for his CARDINAL cars . He had also had a considerable amount of money at his disposal .

Asked why he did not carry a passport on arriving in GPE , he had stated that it had remained with a ( named ) Commander in the President ’s administration when the applicant had left the ORG .

Asked to describe his departure from the ORG , the applicant stated that he had left GPE by boat to go to the airport in GPE ( GPE ) on DATE . At DATE he had continued by train to Point Noir and from there by boat to FAC in GPE . There he had been staying for DATE in order to acquire an NORP identity card ; he had been living in a house owned by a local . He had then travelled to GPE by plane ; he had run into some difficulties as he had not been speaking NORP ; he had been arrested but had been allowed to continue his journey after he had paid some money . He had stayed in GPE in the GPE neighbourhood for DATE , following which he had been detained in the PERSON prison for DATE ( in DATE ) , the authorities having taken him for a soldier in GPE ’s forces as he had been unable to speak LANGUAGE . During his detention a rifle had been used to hit him in the shoulder and he had been forced to dig graves . In DATE he had been transferred to an army prison in Bengela , where he had spent a further DATE . Prisoners had been forced to take part in armed fighting but the applicant had managed to avoid this due to his injured and infected shoulder . The fighting had occurred at the diamond mines where NORP rebels ( the ORG guerrilla ) had been fighting President PERSON do PERSON ’s troops .

After a fellow detainee , GPE , had promised to help him out of prison the applicant had arrived in the NORP border town GPE on DATE . With the assistance of a “ merchant ” he had left for GPE through GPE on DATE , travelling under a cover on a truck . From GPE he had departed for GPE on a ORG flight on DATE . The airport staff had helped him embark on the plane even though he had possessed no documents . From GPE he had continued on a ORG flight to GPE on DATE . GPE had arranged for someone to explain to the applicant how to get to GPE . In GPE the applicant had been able to transfer to the plane for GPE simply by showing his boarding pass .

As for his reasons for leaving the ORG in DATE , the applicant stated that when President PERSON had fled and had been replaced by LAW , the latter ’s regime had started killing all who had been working under PERSON . Were the applicant to return to the ORG he too would be killed as a former ORG agent . In addition , he was of the GPE tribe to which ORG also belonged .

Asked how he had organised his trip the applicant stated that GPE had paid ORG CARDINAL,CARDINAL for the whole “ package ” . The applicant had possessed some money of his own as well as diamonds . Before leaving the ORG he had stolen diamonds from “ the office of the NORP ” ; actually , it had not been a theft but “ a question of saving a life ” . The diamonds had belonged to PERSON ’s son ; the applicant had sold them in GPE for CARDINAL , aided by a friend named PERSON . The applicant had not seen which country ’s passport GPE had organised for him to use .

Asked about his political activities the applicant stated having worked as a secret agent for PERSON ’s army from DATE ( in the office of the ORG and ORG of the Bureau d’Intelligence ) . Under the cover of a civilian in the street he had been listening in on the opposition ’s criticism of PERSON and had denounced various individuals critical of the regime . In DATE the ( named ) Commander of Office D had sent him to the GPE to denounce individuals criticising PERSON . After he had reported their names to the Commander their families in GPE had been apprehended . The applicant had travelled to the GPE on an NORP passport under the name of PERSON .

Asked whether he had ever been convicted and sentenced , formally wanted by the authorities or tortured or threatened , the applicant answered in the negative .

Responding to a request for assistance from the NORP authorities , ORG , in DATE confirmed – after having matched the applicant ’s fingerprints – that he had applied for asylum in the GPE in DATE , that his request had been refused in DATE and that his objection to the refusal had been declared unfounded in DATE .

It emerges from the material forwarded by the NORP authorities that when seeking asylum in DATE the applicant had referred to his father as a military official ; that from DATE the CARDINAL had been leaking information about the ORG to the opposition group ORG and had eventually been arrested ; that the applicant had been playing on the same football team as President PERSON ’s son ; that on DATE he had been granted leave to play a match after which he had managed to escape during a meal with the team ; and that afterwards he had travelled to the GPE via ORG , GPE , GPE and GPE .

The NORP authorities had concluded that the applicant ’s account in DATE had not been credible .

On DATE ORG ( ulkomaalais - virasto , utlänningsverket ) ordered the applicant ’s expulsion to the ORG and prohibited him from re - entering GPE , or from entering GPE , GPE , GPE or GPE for DATE . The ORG found the applicant ’s account of his having belonged to President PERSON ’s and the ORG Commander ’s inner circle not credible . The applicant had also failed to prove his identity . If returned , the applicant would not face any real risk of treatment contrary to LAW merely on account of belonging to the same tribe as the former President or having worked as a lower - ranking official in his administration . As far as the ORG was aware , only higher - ranking officials who had been abusing their office risked prosecution by the PERSON regime . That regime had actually been quite accepting of officials having worked for PERSON and many such officials of senior rank had already returned to the country . The regime in the ORG had changed again in DATE , following which the general situation in the country had improved .

ORG further noted that the applicant had been found guilty on CARDINAL counts of shoplifting in DATE .

The applicant appealed to ORG on DATE .

At the hearing before ORG on DATE the applicant – assisted by counsel and an interpreter DATE stated that he was the son of an officer in the ORG and had been sent to military service at DATE . He had passed his school examination in DATE . His first missions for the ORG had involved infiltrating dissident student associations at universities . CARDINAL secret agents had been operating at different faculties . During a mission to GPE he had been investigating cobalt smuggling to GPE . He had travelled to GPE as a “ student ” and had denounced someone who had eventually been arrested . He had sworn CARDINAL oaths of loyalty , CARDINAL for the ORG ( Forces Armées Zairoises ) and a further one for President PERSON and the ORG . The latter had been responsible for the President ’s security and had been led by a general and his deputy , both of whom the applicant named . The President ’s son PERSON , a captain by rank had been ORG ’s friend ; they had slept in the same pavillon ( no . CARDINAL in the first zone of FAC ) , with the President ’s uncle PERSON and his children . The first zone of the compound had comprised altogether CARDINAL pavillons , intended only for the President ’s family . The compound had also comprised a second , less protected outer zone . ORG drew a map of the compound to show where pavillon no . CARDINAL had been located in relation to DATE . He also drew a map of the presidential offices as well as of those of the ORG and ORG . He indicated on the map the location of the President ’s special entrance and exit as well as the football field on the compound .

After the applicant had returned from GPE the ORG commander had assigned him for a mission to the GPE . After he had disposed of his NORP passport in GPE “ people smugglers ” had handed him a different one . The aim of this mission had been to denounce people who were falsifying ORG signature to collect money . Moreover , as President ’s PERSON ’s son had not been allowed to enter GPE to trade in cobalt and diamonds the applicant and other ORG agents were assigned to organise his illegal entry into GPE on a regular basis so he could do his business . A further aim of this mission had been to denounce dissidents in the GPE so that reprisals could be taken on their families in GPE .

The applicant had been escorted out of the GPE by police towards DATE . During a further ORG mission to the region of GPE , where troubles had begun with NORP refugees entering GPE , he had found out that LAW rebel troops had been infiltrating and poisoning GPE soldiers .

Around DATE it had been discovered that information on President PERSON ’s health was being leaked to PERSON ’s troops , involving a suspected traitor within ORG . The main suspect – the head of the postal and telecommunications services who had masterminded the tapping of mobile phones – had eventually fled to GPE but had returned when PERSON had taken over power .

As for the events surrounding the overthrow of President PERSON , the applicant had been woken up by ORG agents during TIME DATE as the ORG could no longer protect the President against PERSON ’s troops . The President had told his security staff he would leave for Gbadolite TIME and that a general within ORG / ORG “ had to die ” as he had asked the soldiers to lay down their guns and surrender to PERSON ’s troops . A general had been appointed Prime Minister during the emergency state . President PERSON had told his son PERSON that he should leave the country as the last member of their family . The applicant had been with ORG in the presidential ORG when word came that the general in question had been killed . In TIME of CARDINAL May the rebels had entered GPE . The ORG commander had already left for GPE after dispatching the President by plane to Gbadolite . The applicant and others ( CARDINAL persons in total ) had crossed the river to escape from GPE to GPE in canoës rapides . From GPE they had planned to fly to Gbadolite . From the GPE airport ( “ LOC ” ) PERSON had telephoned to ask for a plane to pick them up . The pilot had refused to fly the plane out of GPE as it had been the property of GPE . The group had then decided to split up and to take different routes . The applicant and CARDINAL or CARDINAL others had gone by train to GPE and from there by boat to FAC in GPE . As he had spoken no local language , he had found a Lingala - speaker and had been able to procure an NORP identity document paper . The group had nonetheless been arrested at the FAC airport as they spoke no NORP . Immigration officials had detained them in a room but after the group had bribed a commander they had been able to leave by plane to GPE . It had been quite common for NORP to enter GPE by bribing border officials .

In Luanda N. had failed to obey a police officer in the street since he had not understood NORP . He had been detained at the Viam police station , where he had been assaulted . PERSON of this were still visible on his body . He had been transferred to FAC where he been forced to dig graves . Some prisoners had been “ recruited ” to fight in the army of the NORP leader PERSON against the rebel leader ORG . ORG had avoided this , as he had been injured in the shoulder and could not carry a fire arm .

The applicant had eventually been able to bribe a Lingala - speaking captain to let him “ escape ” . His friends had brought the necessary money and the captain had accompanied him to GPE at the NORP - Namibian border . In GPE , NORP shop owners had organised “ people smuggling ” to GPE via GPE .

The ORG agents had not intended to leave GPE for good . When President PERSON had been forced to escape to GPE to avoid being taken hostage by pro - PERSON agents , ORG had decided to go to GPE to join the ORG commander and another ORG general , following which they had repeatedly re - entered GPE to lead troops in the fighting against PERSON ’s army . The CARDINAL generals had eventually been arrested on the orders of President PERSON following a request by PERSON .

Replying to questions from his counsel , the applicant further explained that President PERSON had left for GPE in a NORP cargo plane used for smuggling weapons to the rebel leader ORG in GPE . A ORG car had been driven onto the plane so the President could sit properly . While in GPE the applicant and others in his group had watched on ORG how civilians in GPE had been showing the houses of GPE ’s supporters to the rebels . The applicant would have been killed instantly had he returned then . PERSON supporters who had been denounced had either been shot , burned alive by being placed in a car tyre set on fire or burned inside cars , as ORG had shown . If the applicant were to be returned to the ORG , those in power and even civilians would recognise him and he would be “ attacked ” since he had been close to GPE . If returned to ORG , a soldier such as himself could even be killed by ORG soldiers currently protecting President PERSON .

Replying to questions from the lawyer for ORG , the applicant reiterated the name of President PERSON ’s son : PERSON ( a.k.a . “ PERSON ” ) . The applicant further contended that he had sought asylum in the GPE for infiltration purposes .

When asked by a judge whether he had had “ his ” passport on him when leaving GPE for GPE , the applicant answered in the negative . He had paid CARDINAL of the “ people smugglers ” who had been working with airport staff to let him go through to the gate only with a boarding pass .

N. had originally wished to go to GPE but this had not been possible to organise due to the number of transits and the need to show a passport . He had not wished to go to GPE , where many NORP were living and he could have been recognised as someone who had been close to GPE . The “ agent ” organising his trip had suggested GPE and the applicant had accepted . As the itinerary had been GPE - GPE - GPE he had received CARDINAL boarding passes already in GPE . The name on his boarding pass had been PERSON or something to that effect . There had been no need for him to show a passport . He had financed the ticket by having sold diamonds in GPE . The President ’s son had given him diamonds before they had parted . In GPE a person had showed the applicant to the gate for the plane for GPE .

The applicant had not been in touch with his mother , father or sibling as the phone numbers had changed with the new Government .

Questioned further by another judge the applicant stated that the President ’s son had authorised ORG agents to take diamonds from the mines . He had been able to cross the border to GPE without any verification taking place . When he had been detained , the diamonds had been in his briefcase which had been locked with a code . He had carried it personally to GPE and had left it in a house there . When he had been arrested the other members of his party had taken care of his belongings , including the briefcase . The diamonds had been unpolished . As he had had to bribe persons and help various friends out he had sold the last ones in GPE . Their total value had been CARDINAL . He had had “ a little bit ” of money left when he arrived in GPE .

Questioned further by the third judge the applicant explained that his military service had lasted DATE in total ; he had been trained as a commando in ORG . After this he had returned to school . His training to become a garde civile had occurred at the age of CARDINAL . After DATE of training he had returned to ORG and had been expecting to be promoted to lieutenant . He had grown up with the President ’s son PERSON from DATE , when he had arrived in GPE . PERSON , DATE , had died in DATE . The applicant had not sought to contact PERSON ’s family and did not know their whereabouts . PERSON had had CARDINAL brothers , CARDINAL of whom had died in AIDS . The applicant had been sent to undergo military service as a punishment for being stubborn .

Questioned about his work and life in GPE the applicant stated that while he was volunteering in the GPE refugee reception centre , he was afraid of making friends with other NORP as they might find out that he had been in ORG and take revenge on him . CARDINAL other nationals of the ORG had received residence permits in GPE .

In its final pleadings to ORG considered the applicant ’s account not credible . There were significant contradictions in his account of his military service as well as discrepancies between the asylum record and his oral statements . While he had recounted many facts , he was not generally credible .

Counsel for the applicant underscored that the asylum record from the interview on DATE had been very meagre . In his oral statement the applicant had given a detailed and coherent account and his credibility was beyond doubt . ORG was claiming on very weak grounds that he was not credible . If there was any hesitation as to his credibility , the scales should tip in his favour . He risked persecution in ORG due to his nationality , ethnicity and political opinion . He not only feared ill - treatment emanating from the current regime but also from individual civilians seeking revenge . As he had no home to return to in the ORG he would be easily recognisable as a stranger and risk being questioned . The general human rights situation in the ORG was poor : security forces were carrying out killings and torture was wide - spread .

Counsel noted that CARDINAL interpreters had experienced difficulties following ORG vivid account . The asylum record indicated wrongly that the applicant had been living in the presidential palace whereas he had been living within the presidential compound .

On DATE ORG refused the applicant ’s appeal by CARDINAL votes to CARDINAL . The majority noted that he had been appearing under different names . As an asylum seeker in the GPE he had stated that he had been a player on the ORG national football team led by President PERSON ’s son . The applicant ’s father was said to have been working in the ORG . When seeking asylum in GPE the applicant had stated that he had worked in the ORG ; that he had formed part of ORG ’s inner circle ; that he had been the childhood friend of PERSON ’s son ; that he had been sent to the GPE to denounce asylum seekers from the ORG ; and that he had assisted PERSON ’s son in entering GPE from GPE . At the oral hearing the applicant had provided a fairly extensive and detailed account of his activities in the ORG following his removal from the GPE as well as of his escape via GPE to GPE during PERSON ’s coming to power . The account of his escape via GPE and GPE in DATE had resembled significantly the account he had provided to the NORP authorities when entering that country in DATE . ORG did not find credible the account of his itinerary in DATE , including his having been able to embark on the plane from GPE without a valid ticket and passport . In those circumstances and considering that it had not been possible to verify his true identity ORG was not convinced of his general credibility . Moreover , the information he had presented regarding the ORG , PERSON ’s son ’s family life and the presidential compound did not in itself show that the applicant had been in the ORG in such a position as to be of particular interest to the current regime . Hence he was not likely to have any justified fear of being persecuted or subjected to inhuman or degrading treatment or to any other serious violation of his rights , if returned to his country .

The dissenting judge found the applicant ’s account inconsistent despite its richness in detail . It did not therefore permit the drawing of any reliable conclusion as to his relationship with President PERSON ’s administration or as to whether he had worked in the ORG and , if so , in what position . Considering his detailed account the applicant could , on the one hand , have belonged to ORG and his relatives’ inner circle without having had any direct contact with the President himself . On the other hand , the applicant could also have received the information regarding ORG administration from other sources . As his identity and background had not been convincingly established it could not be assessed whether the reason for his departure from the ORG had been persecution within the meaning of LAW ( CARDINAL ) of LAW . He could therefore not be granted asylum . Despite the lack of clarity of his account it could not be excluded however that he had been one of GPE ’s personal guards . This lack of clarity should be interpreted to the applicant ’s benefit . According to ORG of DATE , soldiers of the ORG were assessed as being at a particularly significant risk of being subjected to inhuman or degrading treatment or other serious violations of their rights . The applicant therefore remained in need of protection within the meaning of LAW and should have been granted a residence permit to that effect .

The dissenting référendaire , relying on essentially the same reasons as the dissenting judge , concluded that the applicant should have been granted asylum as being in need of protection from persecution within the meaning of LAW CARDINAL ( CARDINAL ) of LAW .

The applicant applied to ORG for leave to appeal asked for stay of enforcement .

On DATE the applicant was detained by the police and informed that he would be deported on DATE . His counsel was informed that ORG would not grant or rule on his request for a suspension of the deportation order . He was later informed that the applicant would be removed from the country on DATE .

On DATE the Government of GPE decided not to deport the applicant to the ORG until the ORG had examined the applicant ’s application , following the ORG ’s interim measure under Rule CARDINAL of ORG ( see § CARDINAL above ) .

The applicant and his common - law wife PERSON met each other in DATE in GPE while they were both asylum seekers . They lived together in a reception centre for DATE until her deportation on DATE , her first asylum request having been refused .

NORP In DATE E. visited the applicant for DATE after her prohibition on re - entry had expired . As a result of this visit PERSON became pregnant . After this they kept up the contact by phone and mail .

On DATE E. arrived in GPE and filed a fresh request for asylum DATE . She moved in with the applicant in the reception centre in GPE . On DATE ORG refused the request as being manifestly ill - founded .

In DATE a child was born to the applicant and PERSON The applicant ’s acknowledgement of paternity was confirmed by ORG in DATE .

On DATE ORG granted the applicant leave to appeal but went on to refuse his appeal without an oral hearing . It found it established that on DATE ORG had applied for asylum in the GPE , claiming to be a football player and alleging that his brother and father had been working in the ORG . On his arrival in GPE on DATE he had filed a hand - written statement in NORP to the effect that he had left the ORG DATE ( i.e. in DATE ) as President PERSON and his close entourage had been chased out of the country . In GPE he had been detained because he had been in possession of a badge issued by the ORG and a photograph of President PERSON . In his asylum interview on DATE the applicant had claimed to have been a secret agent in the ORG and an infiltrator , whose actions in the GPE had led to the arrest of asylum PERSON family members in the ORG . Following his deportation from the GPE he had allegedly been living with the nephew of the former President .

The applicant had claimed to have been detained for DATE in GPE , whereas in GPE he had not been arrested , tortured , threatened . Neither had any warrant of arrest been put out in respect of him .

When arriving in the GPE the applicant had presented a identity document issued in former GPE on DATE , indicating as his date and place of birth DATE in GPE . He had claimed to have gone to school in GPE in DATE . In GPE he had presented no identity document but had claimed to have been born in Gbadolite . He had allegedly gone to school for DATE and had performed his military service in GPE in DATE .

According to the records , the applicant had appeared under CARDINAL different names . In his appeal to ORG he had explained the reasons for using those different names . ORG nevertheless considered that his identity and ethnic origin had remained unclear , which weakened the credibility of his account .

ORG further noted that his statements about the reasons for his arrests in GPE had differed . In particular , his allegation that he had , on that occasion , been carrying a ORG membership card and a picture of President PERSON was not credible . Neither did ORG find credible all aspects of his account of his journey to GPE .

In sum , the applicant had not shown in a credible manner that he had remained in the ORG until DATE . Neither had it been established where he had been residing between his expulsion from the GPE in DATE and his arrival in GPE in DATE . Even assuming that he had been sent to the GPE to infiltrate other asylum - seekers from his country , ORG did not find it credible that he would have gone there as an infiltrator in the manner recounted by him had he really belonged to PERSON ’s close entourage . Taking all the elements into account , it was justified to suspect that his various accounts were not based on facts which had actually occurred . This also weakened his overall credibility . His account as presented to the NORP authorities could not therefore be used as the sole basis for the court ’s decision .

The CARDINAL judges on ORG unanimously concluded as follows :

“ Taking into account the recent developments in the ORG which have taken place since the applicant has allegedly left the country , the period of time which has passed since his departure , the significant lack of credibility in respect of his allegations concerning the risks he will be facing on his return to the ORG , the fact that he has not even claimed that he has had any contact with the local authorities who have been in office since the change of the regime on CARDINAL DATE or that he would have come to their knowledge , ORG can not consider that the applicant is facing a real risk of becoming a subject of interest to the present rulers . Therefore , [ the applicant ] does not have a well - founded fear of persecution for reasons of his ethnic origin , membership of a particular social group or political opinion within the meaning of LAW , subsection CARDINAL , of LAW . Thus , he can not be granted asylum . Even though the general security situation in GPE , the capital of the ORG , is still very delicate , there is no well - founded reason to assume that [ the applicant ] would face a risk of being subjected to serious human rights’ violations or to inhuman or degrading treatment in his country of origin . Thus , he can not be issued a residence permit on the basis of his need of protection either . ”

ORG furthermore found that the applicant ’s family life as established in GPE was not such as to attract protection under LAW , given that neither parent had a valid residence permit or any other connection with GPE .

K.K. arrived in GPE on DATE and filed for asylum or a residence permit on humanitarian grounds on account of her background in the ORG . She claimed to have been a soldier in the ORG . She had been arrested following the murder of President PERSON in DATE . She had been detained for DATE during which she had allegedly been raped repeatedly by guards . Her request was refused by ORG on DATE . She then appealed to ORG which held an oral hearing on DATE .

On DATE ORG , by CARDINAL votes to one ( with the référendaire also dissenting ) , upheld the refusal of asylum but referred the question of a residence permit back to the ORG , instructing it to issue PERSON with such a permit . ORG reasoned as follows :

“ The appellant is no longer likely to be arrested in her country of origin on account of the investigations into the murder of ( President ) PERSON . The appellant ’s personal prison experiences do not result from ( her ) belonging to a ( specific ) group in society or from her political views . Hence she can not be granted asylum .

Following the change of President in ( the ORG ) in DATE the general security and human rights situation in the country has improved . The appellant has stated having resided in GPE prior to leaving the country . The GPE area is relatively calm . The fact that armed confrontations are still occurring , particularly in the NORP parts , and that the country ’s human rights situation is not yet stable , is not as such a sufficient ground for granting ( the appellant ) international protection . When , however , account is taken of the entirety of the circumstances as recounted by the appellant as well as of the information available from international news sources regarding the treatment of soldiers serving the PERSON regime , it is justified to find that the applicant might , on account of her military background and her past experiences , risk being subjected to inhuman or degrading treatment in her country of origin . ( She ) is therefore in need of protection within the meaning of section CARDINAL of LAW and shall , for this reason , be issued with a residence permit . ”

DATE . The dissenters found , even assuming PERSON ’s account to be truthful , that there was no reason for supposing that she would still risk ill - treatment or other serious violations of her rights if returned to the ORG . The dissenters relied on the progress which had taken place in the country as well as on the fact that she had been of no particular interest to the authorities following the coup GPE in DATE . She was therefore not in need of protection .

In a letter of DATE submitted to the ORG in support of the applicant ’s case Ms. PERSON stated that she had formed part of the ORG as first sergeant - major based at FAC in GPE . She had been working in the reconnaissance unit of the FAC Commander ( au service des renseignements pour la sécurité des militaires ) . She had been arrested on DATE , DATE after the then President PERSON had died together with all soldiers of the ( former ) ORG who had been on duty during the coup d’état on DATE ( when President PERSON had been assassinated ) . After several former military officials had been killed in prison the applicant and her family had decided to seek asylum abroad .

K.K. confirmed having worked with the applicant , whom she had recognised as having been a military official dealing with security matters in the General Staff of the ORG ( militaire évoluant à la sécurité d’état major de la ORG ) .

At the hearing before ORG in GPE ( see below ) PERSON handed in a copy of her military passport ( carte d’identité de service pour les forces armées zairoises ) indicating her grade as first sergeant - major . She also handed in some photographs depicting herself and other soldiers in a uniform specific to the ORG .

On DATE ORG refused PERSON ’s appeal against the refusal of asylum or a residence permit on humanitarian grounds . It quashed the decision of to expel PERSON and returned the matter to ORG as the child born to PERSON in GPE had not been covered by the initial decision .

In a further decision of DATE ORG refused PERSON and her new - born child a residence permit and ordered their expulsion to GPE .

Following E. ’s appeal ORG , on DATE , stayed enforcement of the expulsion order .

On DATE ORG refused PERSON ’s appeal . It found , inter alia , that in the circumstances at hand PERSON and her family could , in the first place , be expected to settle and lead their family life in GPE , that being the country of origin of PERSON , her child with the applicant and her CARDINAL other children in GPE .

DATE . E. ’s further appeal remains pending with ORG .

The applicant

Before ORG the applicant maintained that he had been working for the ORG which had sent him to be trained in the garde civile . He stated the names and ranks of the commander of the garde civile and the ORG of the ORG , of which the ORG had formed part . Officials in the ORG had been better paid than ordinary soldiers in the ORG . The applicant ’s father had been one of PERSON ’s body guards .

The applicant had been gathering information used for protecting President PERSON . He had formed part of the bataillon de sécurité which had been responsible for that protection . Some ORG members had been responsible for guarding the President physically , whereas others had been assigned to information - gathering . The applicant had been working in the ORG headquarters . He had been infiltrating students at different universities and gatherings of ORG opponents . On each occasion there had been either CARDINAL or CARDINAL ORG members attending , in civilian clothes but armed . They had interfered with the gatherings and had identified the leaders who needed to be killed . After the applicant had denounced the persons in question other agents , specialised in torture , had taken over . His reports to his superiors , which had always been oral , had been forwarded to the President .

The first ( inner ) zone at FAC had accommodated the presidential office as well as the headquarters of ORG and the ORG . The applicant had been living with the children of the President ’s older brother . The residential LOC within the first zone had served as hotels previously . The applicant had had CARDINAL service vehicles at his disposal .

The applicant had met PERSON for the first time around DATE . He had taken the initiative to address her as she had been obliged to respect him as the son of an officer . He had not been working closely with PERSON as she had formed part of the garde républicaine d’honneur which had been in charge of the security of FAC , its soldiers and families and had been led by a different commander . As he had been working in the ORG headquarters he had effectively occupied a higher position than GPE Unlike the applicant , she had been living in the second zone of the compound . He had not had any social contact with K.K. Even though she had been of higher rank , she and other officers had been required to show respect for the applicant and others forming part of the PERSON family .

The applicant confirmed having filed for asylum in the GPE in DATE in order to carry out his mission for the ORG which had been to infiltrate ORG asylum - seekers critical of PERSON in order to denounce them to ORG . He had denounced CARDINAL persons in this way . He had not been the only agent involved in such activities in the GPE .

At the time of seeking asylum in the GPE the applicant had stated being a member of the Basaït tribe “ for camouflage purposes ” . For the same purposes his whole account to the NORP authorities had been untruthful .

The applicant confirmed being able to speak LANGUAGE , LANGUAGE , LANGUAGE and some PERSON .

The applicant had been issued with an identity card by the ORG , indicating that he had been working in the ORG . Given his urgent departure from GPE in DATE he had not taken along that card or any other personal documents . He had only taken the diamonds . At any rate , as at the time passports were being handed out only for travel to specific locations he had not had a passport at hand .

In GPE he had “ purchased ” an GPE identity card . Later , in connection with “ paying ” for being released from prison he had been able to “ purchase ” an NORP passport . The NORP were suspecting all individuals originating from former GPE of supporting the rebel leader PERSON in the fight against the NORP President PERSON . Even with his NORP identity papers he could not avoid being arrested as he had addressed the police officers in PERSON and they immediately suspected his papers had been falsified .

As to the certificate of his degree ( brevet ) which he had brought with him to GPE by hiding it in his shoe , the applicant claimed it had been seized by the NORP border police never to be seen again .

As far as the applicant was aware , no warrant of arrest had been issued in his regard in the ORG .

The applicant ’s uncle , a general , had been the commander of the ORG . They had been in contact both professionally and within the family circle . The applicant ’s father had been commander of the information service .

As ORG refusal of his appeal had been reported in newspapers and on the Internet the whole NORP community in GPE had learnt of the reasons underlying the applicant ’s asylum claim .

The applicant had not had any contact with his family ( parents , sister or other relatives ) since DATE when he had left GPE for GPE in DATE . The new regime had changed all telephone numbers and the applicant had not been able to make contact .

When the applicant and PERSON had met in DATE , PERSON had asked about his background in the ORG . He had told her he had been a friend of the President ’s son but had declined to elaborate , telling her such information was secret . If they were to go to LOC one day , he would tell her more .

NORP The applicant stated that the interpreter assigned to him had found it difficult to translate the applicant ’s account during his asylum interview on DATE . This had become obvious to the interviewing police officer but the applicant had not raised the point at the time .

When the applicant and PERSON had met again in GPE he had asked PERSON to send a letter to the ORG after their respective asylum claims had been refused . He had not assisted her ; someone else had helped her write the letter in LANGUAGE .

E. confirmed being a NORP citizen . She had known the applicant for DATE . She had CARDINAL child by the applicant and CARDINAL by her ex - husband . After having been removed from GPE she had remained in contact with the applicant by telephone and correspondence . The applicant had never disclosed anything to her about his life or family in the ORG . When she had asked him about his work there , he had declined to reveal anything , saying the information was secret . For the same reason , he had also declined to enter into any details regarding his mission to the GPE . Some time before her removal from GPE in DATE he had told her he could not return to the ORG as the threatening situation there could lead to both of them being killed . They had never discussed his work or his country further .

E. further stated that while living in GPE her CARDINAL older children had been subjected to constant verbal abuse due to the colour of their skin . They had been unable to attend school for this reason . The family had also experienced harassment by the authorities ( arbitrary fines , etc . ) . Her CARDINAL older children were being cared for by her mother in GPE . PERSON had divorced in DATE and her older children had no contact with their father .

E. considered that if she , the applicant and their mutual child had to settle in GPE they would have no means of survival as the applicant would never be able to find employment .

E. had never considered joining the applicant were he to return to the ORG as their predicament would be similar to the one they would be facing in GPE ; the applicant had no relatives , residence or means in the ORG . Should the applicant be threatened on their return on account of his secret work before leaving his country , she too would fear for her life .

Mr PERSON

Mr GPE has been the head of the LOC section in ORG since DATE . DATE he was working as an adviser in charge of preparing decisions on asylum claims by NORP and others persons of NORP origin . He was responsible for refusing the applicant ’s claim for asylum .

Mr GPE found it striking that the asylum interview with the applicant had been extremely short . Even though the processing of his claim had lasted DATE in view of the application of “ FAC ” , the applicant had never wished to elaborate on the brief information he had given at the outset and had never referred to any sort of persecution . During this period of time the applicant could , for example , have submitted photographs showing him with PERSON family members . On the evidence before it , ORG had had to assume that he had not been part of ORG close family or of the ORG . Even assuming he had formed part of the ORG , it had to be assumed that he had been a low - ranking informant .

PERSON also found it remarkable that the applicant had not been able to provide any identity card , travel document , certificate of education or the like . Neither did the asylum file contain any indication of such a document having been presented at the applicant ’s arrival in GPE . Apart from his oral statements the only information relating to his background which ORG had at its disposal was the material forwarded by the NORP authorities .

Mr Heinonen did not share counsel ’s assessment that the applicant ’s account had been consistent and precise . It had contained many controversial points : for example , while he had claimed to originate from the GPE tribe in ORG , he did not speak PERSON but Lingala , GPE and NORP . PERSON is being spoken in the Bas - Zaire where he had claimed to originate from when seeking asylum in the GPE . Other elements had also suggested that he originated from GPE . Moreover , while claiming that he had been arrested in GPE as he had not mastered LANGUAGE , the most common language spoken there is actually PERSON . By way of further example , although he had claimed to have “ purchased ” an NORP passport he had stated , on arriving in GPE , that he knew neither the country nor the name of the passport he had been travelling on . Moreover , if as he claimed , he had brought diamonds along to GPE , why would he have ventured into GPE , at the time a very dangerous country ?

Mr GPE confirmed that on arriving in GPE the applicant had volunteered the information that he had been an asylum seeker in the GPE under a different name . It should be borne in mind , however , that the applicant was not a first - time asylum seeker and had provided many details to the NORP authorities in support of his first asylum claim .

Even assuming that the applicant had been a member of the ORG , he would not face any danger if returned to that country at present . As had emerged in the case of PERSON , she had been able , as a lower - ranking ORG member , to continue as a soldier in the army of ORG successor PERSON . A former ORG member maintaining connections with rebel or foreign forces in the pursuit of seeking to overthrow the current ORG government would certainly be of interest to that government and could be given international protection in GPE . ORG , however , had not put forward any such elements .

ORG . Mr Heinonen had taken part in a fact - finding mission to GPE in DATE . Since DATE the situation in the ORG had improved drastically . Already DATE , however , the applicant could have been returned to the ORG without facing any problems other than economic ones .

ORG was dealing with CARDINAL of cases a year involving ORG citizens . In a few of those cases asylum or a residence permit had been granted , either in view of the person ’s need for protection or on humanitarian grounds .

In DATE the NORP ORG had concluded that PERCENT of CARDINAL documents relied on by asylum seekers from former GPE had been falsified . Some of the asylum - seekers had also been in the possession of blank documents ( such as birth certificates ) as well as official stamps .

As for the conclusion reached by ORG in the case of PERSON , PERSON suggested it might have been motivated by her gender and the allegations of sexual abuse she had made .

PERSON was not aware of any ORG member having suffered ill - treatment on his or her return to the ORG from a NORP country . Some countries had been sending back CARDINAL persons a year . In a few cases the NORP authorities had monitored the person ’s return closely to ensure that it had been safe .

As for the applicant ’s prospects of settling with PERSON and their child in GPE , PERSON indicated that in accordance with current practice even a common - law spouse of foreign origin could be granted a DATE visa before being able to seek a DATE residence permit and eventually NORP citizenship .

PERSON

K.K. had completed her military training in DATE , following which she had been sent to work in the ORG , being part of the female platoon . She had first seen the applicant around DATE but had never been close to him . She knew he had been working in the “ bataillon special ” but his rank had been unknown to her . They had been greeting one another in passing at FAC . She had also seen the applicant during parades on the compound . She had understood that he had been part of PERSON ’s entourage as he had been speaking the President ’s language PERSON and had occupied a good position at FAC . GPE - speakers had been in a privileged position during PERSON .

After President PERSON had been removed from power in DATE the ORG had been discontinued and former members had been tortured , subjected to forced labour and malnourished . Those who had remained in the country had eventually been offered re - training in President PERSON ’s army . Eventually PERSON and other colleagues had been offered to assume essentially the same duties as before , namely to guard the entrance to LOC and to verify the identity of anyone accessing or leaving the compound . She had not seen the applicant after the soldiers on the compound had been told to vacate it in the aftermath of the coup in DATE .

K.K. confirmed having been questioned following the coup ORG on DATE , together with other members of the former ORG and ORG who had been on duty on DATE . She had been detained from DATE until DATE , when she had been released after her family had bribed a person in charge . She had been told by that person to leave the country immediately , which she had done .

K.K. was not aware of any case involving ill - treatment of a former ORG member having been returned to the ORG .

All members of the ORG were also soldiers of the ORG . Those detached to the ORG received an emolument in addition to their salary from ORG . PERSON stated the same salary as that indicated by the applicant in his testimony .

When they had been in charge of protecting PERSON the ORG members’ uniform had been distinct from the one worn by ordinary soldiers of the ORG . When they had been protecting PERSON they had been wearing civilian clothes .

NORP After both PERSON ’s and the applicant ’s asylum claims had initially been refused PERSON had sent a facsimile to ORG at the applicant ’s urging . He had not written it for her ; someone else had helped her write it in NORP .

In guidelines issued by the ORG High Commissioner for Refugees ( “ ORG ” ) in DATE regarding refugees and asylum seekers from the ORG , soldiers of the ORG were generally assessed as a category risking persecution on account of association with the former ( PERSON ) regime . ORG noted that these soldiers were mainly from ORG ’s tribe ( GPE ) or region ( ORG ) . Members of the PERSON tribe were not however assessed to be at risk purely on account of their ethnic origin .

Among the other categories assessed to be at risk were high - ranking officers of the ORG ; members of the garde civile ( with the exception of its commander - in - chief to whom an exclusion clause in LAW might be applicable ) ; leading and active members of pro - GPE parties and other political allies , except for current sympathisers or members of the opposition who were not playing a substantial role within those parties ; and PERSON family members and close collaborators , especially those from the GPE tribe or the ORG region .

A ORG position paper of DATE urged GPE to exercise very serious caution in cases of involuntary return of individuals with a military profile or background . Security agencies and immigration authorities systematically arrested former militaries , in some cases even those returning voluntarily , where previous negotiations with ORG had not taken place .

A country report prepared for the Eighth ORG in DATE stated the following of particular relevance to the present case ( pp . CARDINAL ) :

” Former members of ORG )

Not all , but many of the former PERSON soldiers have been persecuted since President PERSON came to power in DATE . Some were taken to GPE military base , ostensibly for ideological and military training . Many of them were caught up in that base at the time of the resumption of the war in DATE . Many are feared to have lost their lives there or have been accused of being in alliance with GPE or with the armed opposition , and indeed many of them have been targeted . There are some who have joined the new army , so it can not be said that all of them are targeted by the government , but indeed some have been . Another element that creates a potential problem for members of ORG and former PERSON soldiers is the aforementioned perception that some former members of ORG are plotting to launch an attack on GPE from GPE . Some of the ORG soldiers , particularly the members of the NORP spéciale présidentielle ( ORG ) , which was the bodyguard corps of President PERSON , also fought in the wars in GPE and joined the GPE - GPE army . Many of them still remain there . Since DATE there have been reports and fears on the part of the ORG government that some of these people are organising and regrouping with an intention of returning by force to GPE and recapturing state power . So these people will still remain at risk , whether or not they may be directly or not at all involved in plots against the ORG government . Indeed some of them are currently in custody . There have been attempts by the CARDINAL governments to create an understanding by actual agreements not to attack each other , but there still seems to remain a kind of mistrust between them . As a result , at least the GPE regime fears that there could be an attack from GPE . Another significant factor is that many of these ex - FAZ joined the ORG armed political group and as a result were also evidently fighting against the GPE government . Now that some form of power - sharing agreement has been signed , if it is implemented , one would assume that these former soldiers will end up in the national army . This may happen , but again this agreement has yet to be actually implemented . By and large the risk of persecution will depend on the specific circumstances of the particular individual . As regards the question of how important the military rank of a former ORG soldier is in this context , it has to be borne in mind that in some of these armies a rank may not always mean what it does in better established armies . Particularly in the ORG , a low - ranking soldier may politically have more power than a top general . There have been cases where a sergeant would beat up a major . Yet , the major , coming from an ethnic group that is not closely allied to the president , would not hit back or get the sergeant , corporal or even private who attacked him punished . He would not dare to touch him , although he is e.g. only a private , because he comes from GPE . Without connections to influential persons at the top , being a general does not really mean much under such circumstances . In the case e.g. of GPE a NORP private may be able to challenge the power of a NORP senior officer , not because he has been ordered to do so by the president or by someone else , but because he feels that he can do anything with impunity , that nobody will touch him because he happens to come from the ethnic group that is supposedly or really in power .

Family members of ORG officials

It would be possible that the children of such a soldier , be it a high - ranking officer or a private , would be targeted by the new authorities due to the fact that their father held the respective position during the PERSON regime . Sometimes people are abused without any justification at all . On the other hand , even a civilian , linked to someone who was in a powerful position , may have been responsible for abuses for which he may be held liable or be subjected to reprisals . To cite an example , when a general ’s or minister ’s son drives an expensive foreign car or a military ORG , misuses power - or others only think he misuses power - or makes a lot of money , people would assume that he would not have that power and/or money if he was not related to the minister . Hence , when that minister leaves power , that individual , too , could be at risk . While this does not happen on a regular basis , it is however a real possibility . ... ”

According to a further ORG assessment of DATE , certain individuals who had either been deported or had returned voluntarily to the ORG could face serious problems if interrogated by security forces upon arrival in GPE . Should the authorities discover that a deportee had a political or military profile , or had sought asylum abroad owing to such a background , he or she could be at risk of arbitrary detention and ill - treatment ( “ ORG from GPE ” , p. CARDINAL , § CARDINAL ) .

Country - of - origin assessments by ORG

The Immigration and Nationality Directorate of ORG has been issuing DATE and even more frequent assessments of the situation in the ORG . The country report of DATE which also relies on sources going back to DATE made the following assessment of the current situation inter alia with regard to the groups mentioned below :

“ Persons Associated with ORG

CARDINAL An information response by ORG ( IRB ) dated DATE about the treatment of former diplomats and other individuals perceived as sympathisers with the former President stated that :

‘ According to ORG , many exiled high officials have returned to the country ( DATE ) . The same NORP newspaper added that ‘ ORG are now present everywhere , including in government positions ( ORG DATE ) . Referring to ‘ people who were linked to former President PERSON and the ORG [ ORG - Mobutist political party],’ a DATE report stated that ‘ persecution may result from either having held a very senior visible position in the party , the government or the security forces , or from overt opposition to the current government.’ ( ACCORD / UNHCR DATE

CARDINAL further ORG reports dated DATE and CARDINAL March CARDINAL indicated that there was no particular adverse treatment of members of the GPE tribe , or the PERSON ethnic group , or persons from the ORG province [ associated with the former President PERSON ] , based on interviews with the president of the NORP human rights group ASADHO , and a journalist specialising in LOC . The sources explained that the transition institutions ( government , parliament , senate , army and others ) comprise individuals from various ethnic groups including the PERSON and PERSON , like those of other tribes in ORG .

CARDINAL Another ORG response dated DATE reported that the NORP human rights group Journaliste en Danger was not aware of any ordinary NORP citizen who had been prevented by the NORP authorities from renewing a passport issued during the PERSON regime . On the contrary the authorities had encouraged people to replace their old NORP passports for the new NORP ones .

CARDINAL A country fact finding report of DATE by ORG ( CEDOCA ) reported that after PERSON ousted PERSON in DATE many high - ranking officials of the former PERSON regime were arrested and imprisoned in LOC in GPE . Others managed to avoid being arrested by leaving the country . The report stated that the security situation improved for persons closely associated with the PERSON regime when PERSON came to power in DATE , and even more so , after FAC was signed in DATE . A large number of persons closely associated with the PERSON regime had now returned to the ORG .

CARDINAL ORG also stated that distant relatives of GPE living in GPE had not encountered any problems through being associated with PERSON , and also that negotiations took place in DATE between GPE and GPE to repatriate the remains of PERSON . According to the report , persons who were closely associated with the ORG during the PERSON regime were not at risk of persecution by the security forces and could therefore return to the country if they were abroad . The report concluded that ‘ If PERSON ’s followers are not suspected of collaboration with the rebels , they are no longer persecuted . Affiliation to ORG former ORG [ political party ] does not involve the risk of political persecution.’

CARDINAL According to a ORG Online news report dated DATE , close relatives of PERSON returned to the ORG from exile in DATE . PERSON , the son of the former president , returned to the ORG in DATE from exile in GPE , with his sister , ORG , to prepare his political party for the elections due to take place in DATE . PERSON ’s CARDINAL - brother , PERSON , returned to the ORG from exile in DATE . According to a news report by ‘ The Independent’ ( GPE newspaper ) dated DATE , the ORG sons returned to the ORG with President PERSON ’s blessing , and PERSON GPE , a former prime minister under the PERSON regime and other persons associated with the PERSON regime had also returned to the ORG .

Former Soldiers of Mobutu Regime including ORG

CARDINAL An information response dated DATE by the ORG about the treatment of a person whose family members had served in the army under former President PERSON stated that :

‘ The President of ORG africaine de défense des droits de l’homme , ORG ) said during a DATE telephone interview that his organization is not aware of any particular treatment that would be imposed on a person merely because members of his or her family had served in the former army , under the ORG regime . He added that most members of ORG , formerly ORG ) are currently serving in ORG congolaises , FAC ) ( ASADHO CARDINAL Mar. CARDINAL).’

CARDINAL According to a country fact finding report of DATE by ORG ( CEDOCA ) the security situation in the ORG for former soldiers of the ORG has improved since PERSON became president in DATE . According to the CEDOCA report , in DATE , many former ORG soldiers were serving in the current NORP army . In DATE , all the key positions in ORG ) high command were occupied by former ORG soldiers and CARDINAL former ORG soldiers were living in GPE . The same report concluded ‘ When ex - ORG members are not suspected of collaboration with the rebels , they are no longer persecuted.’

CARDINAL During the course of a country of origin information seminar in DATE , sponsored by ORG and ORG ( ORG ) , which was addressed by representatives from ORG and ORG , it was stated that the rank of a soldier might not always mean what it did in better established armies . It was stated that a low- ranking soldier may politically have more power than a top general , by virtue of his ethnic group and connections to influential persons .

CARDINAL According to a report dated DATE from ORG ( ORG ) ORG ( ORG ) an agreement had just been reached between the ORG and the neighbouring ORG to repatriate former combatants in both countries . ORG stated that :

‘ Similarly , the RoC [ Republic of Congo ] has , since DATE , been home to CARDINAL soldiers of the defunct ORG of the late ORG president , PERSON , and of his ORG , or ORG . The presence of these former soldiers has caused both ORG to trade mutual accusations of supporting coup makers , despite the existence of a non - aggression pact . In DATE , authorities in GPE accused GPE , and the ex - FAZ , of taking part in DATE ] attack on military targets in the ORG capital , GPE . . . . In DATE , both ORG signed an agreement with ORG for the repatriation of the ex - ORG and former soldiers seeking refuge in ORG but nothing concrete has been achieved.’ ”

Section CARDINAL b of LAW DATE ( ulkomaalaislaki , utlänningslagen ; CARDINAL ) , as amended by LAW , provided DATE before the whole LAW was replaced by the new Aliens Act DATE ( CARDINAL ) – that the spouse of a person residing in GPE and any unmarried child under CARDINAL whose guardian was a person residing in GPE , had to be regarded as family members of that person .

If the person residing in GPE was a minor child , his guardian was to be deemed a family member . People who were continuously sharing a household and cohabiting in a relationship resembling marriage had to be deemed to be in a situation comparable to that of spouses proper . A requirement for this comparison was that they had been cohabiting for a minimum of DATE , except if a child had been born to them in which case this time - limit did not apply .

Amongst others , the family member of a foreigner residing in GPE on the strength of a permit issued on the basis that he or she was a refugee or otherwise in need of protection , equally had to be issued a residence permit unless reasons relating to public order or safety or other weighty reasons militated against issuing such a permit . The overall consideration also had to take into account the possibility for a lawfully resident foreigner in GPE to move back to his or her home country or to a third state , if the family ties as a whole could be deemed to be strongest to such a country , in order to lead a family life there .

According to section CARDINAL , subsection CARDINAL ( CARDINAL ) an alien who entered GPE without a residence permit could be issued with a fixed - term residence permit :

CARDINAL ) if he or she had held NORP citizenship or had CARDINAL parent who was or had been a NORP citizen ,

CARDINAL ) if prior to entering GPE he or she had lived with a spouse resident in GPE or continuously had shared a household and cohabited without being married with a person resident in GPE ; or

CARDINAL ) if refusing a residence permit would be clearly unreasonable .

According to section CARDINAL ( CARDINAL ) , as in force from DATE to DATE , an alien was to be granted asylum and issued a residence permit if , owing to well - founded fear of persecution for reasons of race , religion , nationality , membership of a particular social group or political opinion , he or she was living outside his country of origin or habitual residence and if , owing to such fear , he or she was unwilling to avail himself of the protection of the said country . The following constituted special grounds for not granting asylum :

CARDINAL ) particular reasons relating to GPE ’s national security ;

CARDINAL ) he or she had committed a crime against peace , a war crime or a crime against humanity according to the terms of international agreements or had committed another serious crime other than a political offence ;

CARDINAL ) he or she had previously stayed in a country which had acceded to LAW had stayed in another safe country and applied for asylum there or had had the opportunity to do so ;

CARDINAL ) according to the LAW between GPE , GPE , GPE , GPE and GPE concerning FAC at ORG ( Finnish Treaty Series CARDINAL/CARDINAL ) , another signatory to the LAW was obliged to readmit the alien in question ;

CARDINAL ) in compliance with LAW Lodged in one of LAW that was concluded in GPE on DATE ( later LAW ) , another contracting ORG was obliged to take responsibility for an asylum seeker ( DATE ) .

According to section CARDINAL , an alien residing in GPE could be issued with a residence permit as being in need of protection if he or she , in the country of origin or habitual residence , was threatened by capital punishment , torture or other inhuman or degrading treatment or could not return there because of an armed conflict or environmental catastrophe .

According to section CARDINAL ( CARDINAL ) ( FAC ) , an alien whose continued residence in GPE required a residence permit , but to whom it had not been issued , could also be refused entry .

According to section CARDINAL ( CARDINAL ) , an alien was to be refused entry as soon as it had been possible to ascertain that his entry into or residence in GPE could not be permitted . All the relevant matters and circumstances had to be taken into account when considering a refusal of entry . These included at least the duration of his or her stay in GPE , the relationship between a child and a parent , family ties and other ties to GPE . No one could be returned to an area where he or she could be subjected to treatment within the meaning of section CARDINAL or DATE or to an area from which he or she could be sent TIME to such an area .

According to section CARDINAL ( CARDINAL ) , an alien could be prohibited from entry to GPE for a maximum of DATE or until further notice in a decision concerning deportation or in a decision concerning refusal of entry made by ORG . The entry prohibition order could be revoked by ORG , either entirely or for a limited period , owing to changed circumstances or for an important personal reason .

According to section CARDINAL(CARDINAL ) ( CARDINAL ) , a decision of an administrative court in response to an appeal against a decision of ORG could be appealed against only if ORG had granted leave to appeal . Leave could be granted only if it was important to have the issue decided by ORG for the application of the law in other similar cases or for reasons of uniform judicial practice or if other weighty grounds militated in favour of granting such leave .

According to the Government PERSON for LAW ( Government Bill CARDINAL ) , in cases of doubt , the case should be decided in the asylum seeker ’s favour , provided that all the information available had been verified and the authorities were generally convinced of the reliability of the information provided by the asylum seeker .

NORP The current conditions and procedure for granting asylum or a residence permit on grounds of protection are stipulated in chapter CARDINAL of LAW .


Violation of Article 6 - Right to a fair trial

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant is a university professor of ancient history and archeology who was appointed at ORG in DATE . Under the terms of appointment he was entitled to reimbursement of the removal costs and to a household allowance . In DATE the sum of MONEY ( ORG ) was paid to the applicant .

On DATE the applicant claimed reimbursement of the remaining removal costs in the sum of EUR CARDINAL,CARDINAL.CARDINAL and payment of the household allowance in the sum of ORG CARDINAL,CARDINAL.CARDINAL , plus PERCENT interest since DATE .

NORP The Dean of ORG dismissed the applicant ’s claim on DATE .

The applicant appealed on DATE to ORG , Science and Culture ( “ the Ministry ” ) .

The Ministry did not decide within the statutory DATE time - limit laid down in section QUANTITY of LAW . In DATE the applicant brought court proceedings relating to the claims at issue . A conditional settlement was reached but was revoked by the applicant in DATE . The applicant ’s action was dismissed in DATE .

Meanwhile , on DATE , the applicant complained to ORG under LAW about the administration ’s failure to determine his claim . On DATE ORG ordered ORG to issue a decision within DATE .

On DATE the ORG dismissed the applicant ’s appeal .

NORP The applicant lodged a complaint with ORG on DATE . ORG filed observations in reply on DATE .

On DATE ORG quashed the ORG ’s decision as being unlawful .

By decision of DATE the Ministry referred the case back to the ORG for a new decision . Meanwhile on CARDINAL DATE the applicant supplemented his claims , apparently requesting reimbursement of costs incurred for travelling between GPE and his former place of residence .

On DATE the applicant was summoned to a hearing and DATE the sum of ORG CARDINAL,CARDINAL was paid to the applicant with a view to reaching a settlement .

The hearing took place on DATE . According to the minutes the hearing served the purpose of establishing the plausibility of the applicant ’s claims as submitted on DATE and supplemented on CARDINAL DATE and to determine their amount with the participation of the applicant . It is then noted that , in the light of the explanations given , the costs and interest claimed seemed plausible . At the close of the hearing the parties concluded a friendly settlement with the following terms :

“ ( a ) ORG thus declares its willingness to transfer , in addition to the payment already made of CARDINAL and the regulated transport costs in the amount of LAW , the lump - sum of LAW within DATE to the account of Professor PERSON .

( b ) Professor PERSON , for his part , withdraws all requests in connection with the proceedings at issue . As a result , the demands and claims asserted in the present proceedings are completely settled and complied with . ”


Violation of Article 8 - Right to respect for private and family life

Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE .

By a decision of ORG of DATE the applicant was arrested and remanded in custody on suspicion of illegal production and sale of alcohol , selling cigarettes without payment of excise duty and membership of an organised criminal group . According to the applicant 's submissions , police officers used force against him during his arrest and insulted him . When ordering his detention , the court found that the evidence obtained in the case , in particular the testimonies of the other suspects and of a witness , bills , TIME of searches and telephone conversations , indicated a high probability that the applicant had committed the offences . The applicant 's detention was therefore necessary in order to prevent collusion and to avert the risk that he would exert pressure on witnesses or that the suspects would coordinate their testimonies .

During the investigation the applicant 's detention was successively prolonged by detention orders issued by ORG or ORG and dated DATE , CARDINAL DATE and CARDINAL DATE .

The applicant submits that the decision of DATE was served on him on DATE and that for DATE he had been kept in custody without having been provided with a relevant detention order .

In his letter of DATE ORG admitted that the service of the applicant 's motion for release had been delayed for DATE before reaching ORG .

In further letters , ORG stated among other things that the applicant 's correspondence with the prosecutor had not been delayed by ORG . On DATE , following the applicant 's complaint to the ORG about delays in the service of official letters , the President of ORG clarified that the applicant 's letter to ORG of DATE had been forwarded to the prosecutor on DATE and that a letter dated CARDINAL DATE had been served on the applicant on DATE .

NORP The applicant submitted an envelope containing a letter from the ORG , bearing several stamps of ORG dated DATE including a stamp “ censored ” ( “ ocenzurowano ” ) with an illegible date .

By a decision of CARDINAL DATE ORG granted the applicant permission to receive a visit from members of his family in the presence of an officer of ORG . The prosecutor stated that the applicant had previously been granted CARDINAL visits , on DATE and DATE , and that neither the family nor the applicant had requested more frequent meetings . On DATE ORG replied to the applicant that further visits had not been granted since no requests for such had been made .

On DATE the applicant was released from detention . The proceedings are pending .

NORP The legal provisions governing monitoring of detainees ' correspondence applicable at the material time are set out in a judgment delivered by ORG on DATE ( PERSON v. GPE , no . CARDINAL , § § CARDINAL )


Remainder inadmissible;Violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria

The applicants were born in DATE , DATE , DATE and DATE respectively .

On DATE the applicants were arrested by police officers from the Anti - Terrorist Branch of ORG . On DATE the applicants ' representatives applied to the principal public prosecutor 's office at ORG seeking information about the applicants ' arrest and the duration of their custody , as well as authorisation to provide them with legal assistance during their questioning by the police . The principal public prosecutor informed them that , under LAW of PERSON no . CARDINAL and sections CARDINAL and CARDINAL of PERSON no . PERSON , the applicants were not entitled to receive legal assistance during their police custody .

On DATE the applicants were brought before a public prosecutor at ORG and questioned about their alleged affiliation with ORG / ORG and ORG of GPE ( “ the ORG / ML - TIKKO - TMLGB ” ) , an armed , illegal organisation . Before the public prosecutor , PERSON stated that he was not a member of the organisation in question . He maintained that the periodicals found in his apartment were legal publications and that the poster allegedly found there did not belong to him . He had therefore refused to sign the arrest and search report . The applicant further stated that he was one of the founders and directors of the Tüm Maliye - Sen ( PERSON – ORG ) and that , consequently , as a member of this trade union , he had participated in several demonstrations , such as the CARDINAL on DATE and demonstrations to commemorate the DATE Sivas Massacre . PERSON lastly contended that he had never shouted slogans in support of the TKP / ML - TIKKO - TMLGB .

Mr PERSON stated before the public prosecutor that he was not a member of the organisation in question . He maintained that the periodicals found in his apartment were legal publications and not propaganda tools for the TKP / ML - TIKKO - TMLGB . He further contended that he was a member of ORG ( “ KESK ” ) and that he had participated in several demonstrations . When the applicant was shown a photograph , allegedly of him at a demonstration behind a banner bearing the name Partizan , a periodical , he maintained that the person in the photograph could not have been him . Lastly , he stated that he did not remember whether on DATE he had participated in the demonstration to commemorate the DATE Sivas Massacre .

Mr Deniz Kahraman maintained that he had no affiliation with the TKP / ML . He said that he had taken part in DATE Workers demonstration in DATE and in the demonstration of DATE . When the applicant was shown a photograph allegedly of him at a demonstration behind a NORP banner , he maintained that the person in the photograph was not him .

Finally , PERSON stated that she was not a member of the ORG / ORG . She denied the allegation that she had written slogans in favour of the ORG / ML - TIKKO on the walls of schools in GPE . When she was shown a photograph in which she was allegedly carrying a picture of the general secretary of the TKP / ML - TIKKO , Ms PERSON contended that she had participated in the demonstration of DATE and that she did not know the person in the picture .

On DATE the applicants were brought before a single judge at ORG , where they repeated their statements made to the public prosecutor . The judge ordered PERSON detention and the other applicants ' release .

On DATE the public prosecutor at ORG filed a bill of indictment against QUANTITY persons , including the applicants . The public prosecutor charged PERSON with membership of an illegal organisation and the other applicants with aiding and abetting members of an illegal organisation , under LAW and CARDINAL of the former Criminal Code respectively . The public prosecutor alleged that PERSON had shouted slogans in support of the TKP / ML - TIKKO during DATE demonstrations in DATE and DATE as well as the demonstration of DATE , where she had been behind the ORG banner and carried a poster of the general secretary of the ORG / ML - TIKKO . It was alleged that during the said demonstrations PERSON had shouted :

“ Biz işçinin , köylünün yiğit sesiyiz , namluya sürülmüş halk mermisiyiz ( We are the brave voice of the workers and peasants ; we are the public 's bullet lodged in the barrel of a gun ) ” ; “ PERSON , PERSON , PERSON , PERSON , PERSON ( PERSON , PERSON , PERSON , our leader is PERSON ; ORG is fighting ) ” .

It was also alleged that she had written ORG slogans on school walls in GPE , such as “ TKP - ML TIKKO ” , “ ORG yaşıyor , TIKKO savaşıyor ( ORG is alive , TIKKO is fighting ) ” ; “ PERSON TIKKO ( Long live our party TKP - ML , TIKKO ) ” ; “ PERSON ölmez , yaşasın halk savaşı ( Guerrillas do n't die ; long live the people 's war ) ” ; “ ORG ve devrim şehitleri ölümsüzdür ( the martyrs of the party and revolution are immortal ) ” ; “ ORG TIKKO işçi köylü elele demokratik devrime ( TKP - ML , ORG , workers and peasants hand in hand , towards democratic revolution ) ” . The applicant was also alleged to have participated in seminars held in cultural centres and in the headquarters of a left - wing political party and a trade union . Furthermore , the applicant was suspected of having sold the periodical PERSON .

As regards Mr PERSON , the public prosecutor noted that he had participated in the DATE demonstration of DATE , where slogans in support of the TKP / ML - TIKKO had been shouted , such as “ ORG PERSON ( Our leader is PERSON ) ” ; “ PERSON ( Long live the people 's justice ) ” ; “ PERSON ( Long live our party TKP - ML ) ” ; “ PERSON namlunun ucundadır ( Political power grows out of the barrel of the gun ) ” ; “ PERSON önderimiz Ibo , PERSON ( PERSON , PERSON , PERSON , Our leader is ORG ; TIKKO is fighting ) ” ; “ Biz işçinin , köylünün yiğit sesiyiz , namluya sürülmüş halk mermisiyiz ( We are the brave voice of the workers and peasants ; we are the public 's bullet lodged in the barrel of a gun ) ” ; “ PERSON , işçi , köylü , gençlik halk savaşında birleştik ( Our leader is PERSON ; workers , peasants and youth , we are all united in the people 's war ) ” . The public prosecutor alleged that Mr NORP had also shouted illegal slogans in the demonstration of DATE . Furthermore , it was noted that some periodicals , a picture of a member of the TKP / ML - TIKKO and a book had been found in his apartment .

NORP The public prosecutor alleged that Mr PERSON had participated in the DATE demonstrations of DATE , the LOC celebrations in DATE and the demonstrations of DATE and CARDINAL to commemorate the Sivas Massacre , where he had shouted slogans in favour of the TKP / MLTIKKO , such as “ NORP partimiz LAW ( Long live our party TKP - ML ) ” ; “ Faşizme isyan , halka önder partisan ( PERSON against fascism ; the leader is ORG ) ” ; “ PERSON namlunun ucundadır ( Political power grows out of the barrel of the gun ) ” ; “ PERSON adı ORG ( TKP - ML is our hope ) ” ; “ Biz işçinin , köylünün yiğit sesiyiz , namluya sürülmüş halk mermisiyiz ( We are the brave voice of the workers and peasants ; we are the public 's bullet lodged in the barrel of a gun ) ” ; “ GPE , TIKKO TMLGB ( ORG , TIKKO , TMLGB ) ” ; “ PERSON , yıkacağız elbet ( ORG will surely be demolished ) ” ; “ PERSON hesapları namlular sorar ( It is the barrel of the gun that will call to account ) ” . He further noted that periodicals and books in support of that organisation had been found in the applicant 's apartment .

Finally , the public prosecutor stated that PERSON had taken part in DATE demonstrations of DATE and the demonstration of DATE , where he had shouted ORG / ORG slogans including “ PERSON isyan , halka önder PERSON ( PERSON against fascism ; the leader is ORG ) ” ; “ NORP parimiz TKP - ML ( Long live our party TKP - ML ) ” ; “ Biz işçinin , köylünün yiğit sesiyiz , namluya sürülmüş halk mermisiyiz ( We are the brave voice of the workers and peasants ; we are the public 's bullet lodged in the barrel of a gun ) ” ; “ işçi , köylü , gençlik halk savaşında birleştik ( workers , peasants and youth , we are all united in the people 's war ) ” ; “ PERSON hesapları namlular sorar ( It is the barrel of the gun that will call to account ) ” . The public prosecutor also noted that certain periodicals had been found in the applicant 's apartment .

On DATE ORG held the first hearing on the merits of the case and heard the accused . The applicants reiterated their statements made before the public prosecutor and the single judge on DATE and retracted their statements taken by the police . On DATE , the first - instance court ordered PERSON GPE 's release from prison .

ORG held QUANTITY hearings and on DATE gave its judgment . The court convicted the applicants under LAW , which read as follows at the material time :

“ Any person who , knowing that such an armed gang or organisation is illegal , assists it , harbours its members , provides it with food , weapons and ammunition or clothes or facilitates its operations in any manner whatsoever shall be sentenced to not CARDINAL and not DATE imprisonment ... ”

The first - instance court sentenced the applicants to DATE and DATE imprisonment . It found it established that the applicants had participated in the demonstrations behind ORG / ORG banners and shouted slogans in support of that illegal organisation . The court based its judgment on the transcriptions of video recordings of demonstrations made by ORG of ORG , photographs taken by the security forces and the applicants ' “ evasive ” statements made to the police , the public prosecutor and the single judge at ORG , as well as the arrest and search reports , according to which periodicals used as propaganda tools for the TKP / ML - TIKKO had been found in the applicants ' apartments . The court also noted that some of the periodicals were illegal as the distribution of certain issues had been suspended by court decisions .

On DATE ORG upheld the judgment of DATE .

Following the enactment of PERSON no . DATE , which came into force on DATE , the phrase “ or facilitates its operations in any manner whatsoever ” was removed from the text of LAW of the former LAW .

Subsequently , the case against the applicants was reopened at the request of both the applicants ' representative and the public prosecutor at ORG .

On an unspecified date PERSON filed a request with ORG to benefit from the Reintegration of Offenders into Society Act ( Law no . DATE ) , which came into force on CARDINAL DATE .

In the meantime , on DATE PERSON started serving her prison sentence .

By PERSON no . CARDINAL of DATE , published in ORG on DATE , ORG were abolished . The case against the applicants was transferred to ORG .

On DATE ORG delivered its judgment . It allowed PERSON request and decided not to convict her , in conformity with section CARDINAL of PERSON no . DATE . As a result , she was released from prison . As regards the other applicants , ORG held that , following the amendment to LAW , the acts committed by them could not be considered to constitute the offence defined in that provision . The court nevertheless found Mr PERSON , Mr PERSON and PERSON guilty of disseminating propaganda related to an illegal armed organisation through incitement to use violent methods , an offence proscribed by section CARDINAL § CARDINAL of the Prevention of Terrorism Act . It sentenced them to DATE imprisonment .

Mr PERSON and Mr PERSON appealed .

On DATE the principal public prosecutor at ORG sent the case file back to ORG for the reconsideration of its judgment of DATE since , in the meantime , a new Criminal Code had entered into force ( Law no . DATE ) .

On DATE ORG once again convicted PERSON and PERSON under section CARDINAL § CARDINAL of the Prevention of Terrorism Act of disseminating the propaganda of an illegal armed organisation through incitement to use violent methods , and sentenced them to DATE imprisonment .

Mr PERSON and Mr PERSON appealed . According to the latest information in the case file , the proceedings are still pending before ORG .

The relevant provision of the former Criminal Code reads as follows :

Article CARDINAL

“ Any person who , knowing that such an armed gang or organisation is illegal , assists it , harbours its members , provides it with food , weapons and ammunition or clothes or facilitates its operations in any manner whatsoever , shall be sentenced to not CARDINAL and not DATE imprisonment ... ”

Under LAW of LAW ( Law no . CARDINAL of DATE ) , any person who disseminates propaganda in favour of a terrorist organisation shall be liable to a term of imprisonment of DATE .

Finally , Law no . DATE on the Reintegration of Offenders into LAW applies to members of terrorist organisations who surrender to the authorities without armed resistance , either directly , on their own initiative , or through intermediaries , those who can be considered to have left a terrorist organisation , and those who have been arrested . The law also applies to those who , despite being aware of the aims pursued by the terrorist organisation , provided shelter , food , weapons , ammunition or any other kind of assistance . An important feature of the rehabilitation law is that it provides the possibility of reducing the sentences of those who wish to take advantage of the law by providing relevant information and documents on the structure and activities of the terrorist organisation .