In the case of Hendrin Ali Said and Aras Ali Said v. Hungary,
The European Court of Human Rights (Second Section), sitting as
a Chamber composed of:
Ineta Ziemele,
President,
Danutė Jočienė,
Isabelle Berro-Lefèvre,
András Sajó,
Işıl Karakaş,
Paulo Pinto de Albuquerque,
Helen Keller, judges,
and Françoise Elens-Passos, Deputy Section
Registrar,
Having deliberated in private on 2 October 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
13457/11) against the Republic of Hungary lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two Iraqi nationals, Mr Hendrin Ali Said and Mr Aras
Ali Said (“the applicants”), on 23 February 2011.
The applicants were represented by Ms B.
Pohárnok, a lawyer practising in Budapest. The Hungarian Government (“the
Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Public
Administration and Justice.
The applicants alleged, in particular, that their
detention had not been lawful or justified, in breach of Article 5 § 1 of the
Convention.
On 14 November 2011 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
On 14 February 2012 the AIRE Centre and UNHCR
were granted leave to intervene in the proceedings as third parties (Rule 44 §
3 of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants, brothers, were born in 1992 and
1989 respectively. When introducing the application, they were staying at the
Debrecen Reception Centre for Refugees, located in Hungary.
On 1 September 2010 the applicants were
transferred from the Netherlands to Hungary under the Dublin II procedure. They
were handed over to the Budapest Regional Directorate of the Office of
Immigration and Nationality (“OIN”), the competent alien policing authority,
and interviewed with the assistance of a Kurdish-Hungarian interpreter on the
same day.
The applicants related that they had left Iraq illegally in early August 2009, travelled through Syria and Turkey and intended to reach
the Netherlands. They had arrived in Hungary, also illegally, later in August 2009
and had immediately been intercepted by the police. They had applied for asylum
on 1 September 2009. On 7 September 2009 the asylum procedure had however been terminated
because they had absconded. They had travelled illegally, apparently assisted
by traffickers, to the Netherlands, where they had joined their father and
applied for asylum. The Netherlands had started the Dublin II procedure and Hungary had agreed to their readmission. On 1 September 2010 they had been transferred to Hungary under this scheme.
They alleged that they had been persecuted in Iraq because of their father’s former service in Saddam Hussein’s army and their Kurdish
ethnicity. They also claimed that they had no family members living in Iraq.
After the interview, the alien policing
authority ordered the applicants’ expulsion to Iraq, also imposing a five-year
entry ban. According to the decision, the expulsion was necessary because they
did not fulfil the requirements of legal residence in Hungary. The authority then requested OIN’s asylum directorate to assess whether the
principle of “non-refoulement” was applicable. It replied in the
negative.
In the expulsion decision it was mentioned that
the applicants’ illegal entry and lack of residence permits constituted a
threat to public order. Considering their age and family status, their
expulsion would have no negative effect, since they had no connection to Hungary, did not speak Hungarian and had no skills and therefore their livelihood was not
secured and the chances of finding employment were low. It was also established
that they did not have Hungarian or EU national family members living in Hungary, and although their relatives lived in the Netherlands, they also had some in Iraq, so their social reintegration on return was possible. The applicants were entered
into OIN’s asylum registry, but the ongoing asylum procedure was not referred
to when the reasons for expulsion were addressed. OIN concluded that the
enforcement of immigration rules had priority over the personal and family
interests of the applicants, and that expulsion was a necessary and
proportionate measure.
Simultaneously, the execution of the expulsion
was suspended by the OIN’s alien policing authority because the means and
conditions necessary for its enforcement were not secured, namely the
applicants did not have any travel documents or tickets.
The alien policing authority ordered at the same
time the applicants’ alien policing detention for 72 hours, purportedly in
order to secure their expulsion. The detention was based on section 54(1)(b) of
the Third Country Nationals Act (see below), according to which the immigration
authority shall have the power to detain the person in question in order to
secure the expulsion if “he/she has refused to leave the country, or, based on
other substantiated reasons, is allegedly delaying or preventing the
enforcement of expulsion”. However, no facts or personal circumstances were
presented justifying such a conclusion. The applicants were committed to the
Nyírbátor alien policing facility.
The asylum authority formally registered the
applicants’ asylum claim only on 2 September 2010, despite the fact that
they had been asylum seekers from their very arrival in Hungary, in that they
had been transferred under the Dublin procedure from the Netherlands; they had
explicitly mentioned at the interview with the alien policing authorities on 1 September
2010 that they had left Iraq because they had been persecuted and that they had
already applied for asylum when they had first entered Hungary in September
2009.
A preliminary interview was conducted, and on 14
September 2010 the asylum applications were admitted to the in-merit procedure.
Despite this fact, the applicants remained in alien policing detention although
asylum seekers were entitled to accommodation in an open refugee reception
centre. According to section 55(3) of the Asylum Act (see below), once the
asylum application is admitted to the in-merit procedure, the alien policing
authority shall, at the initiative of OIN’s asylum authority, terminate the
asylum seeker’s detention. However, such an initiative was not taken.
On 3 September 2010 the Nyírbátor District Court
prolonged the detention until the execution of expulsion was secured or 30 September 2010.
Although the initial detention had been based (see above) on section 54(1)
of the Third Country Nationals Act, the court found that it had been lawfully
ordered under section 55 of the Act (see below) and that its prolongation was
necessary. It held that sections 55, 54(1)(b) and 54(3) of that Act were applicable
in the case. In the reasoning, reference was made to the fact that the
applicants had arrived in Hungary illegally and applied for asylum in 2009 then
again in September 2010, as well as to the contents of the expulsion order. No
particulars relating to the ongoing asylum procedure were mentioned.
The detention was prolonged on 24 September, 26
October, 26 November and finally on 17 December 2010, until 28 January
2011. On each occasion, the District Court limited the reasoning to stating
that the initial reasons for the detention given in the first court decision
were still in place.
On an unspecified date, the applicants were
transferred to the Debrecen Reception Centre for Refugees, an open facility.
II. RELEVANT DOMESTIC LAW
A. Act no. II of 2007 on the
Admission and Right of Residence of Third Country Nationals (Third Country
Nationals Act)
Section 51
“(2) Any third country national whose application for refugee
status is pending may be turned back or expelled only if his or her application
has been refused by a final and enforceable decision of the refugee authority.”
Section 54
“(1) In order to secure the expulsion of a third-country
national, the immigration authority is entitled to detain a person if: ...
b) he/she has refused to leave the country, or, based on other
substantiated reasons, is allegedly delaying or preventing the enforcement of
expulsion; ...
(3) Detention under the immigration laws may be ordered for a
maximum duration of 72 hours and extended by the court of jurisdiction by
reference to the place of detention until the third-country national’s
departure, or for a maximum of 30 days.
(4) Detention ordered under the immigration laws shall be
terminated immediately:
a) if the conditions for carrying out expulsion are secured;
b) if it becomes evident that expulsion cannot be executed; or
c) after six months from the date when the detention was
ordered.”
Section 55
“(1) The immigration authority may order the detention of a
third-country national prior to expulsion in order to secure the conclusion of
the immigration proceedings pending, if his/her identity or the legal grounds
of his/her residence has not been conclusively established.”
B. Act no. LXXX of 2007 on Asylum (Asylum Act)
Section 51
“(1) Where the Dublin Regulations cannot be applied, the
decision to determine as to whether an application is considered inadmissible
lies with the refugee authority.
(2) An application shall be considered inadmissible if:
a) the applicant is a national of any Member State of the European Union;
b) the applicant was granted refugee status in another Member State;
c) the applicant was granted refugee status in a third country,
where this protection also applies at the time of examination of the
application, and the country in question is liable to re-admit the applicant;
d) the applicant has lodged an identical application after a
final refusal.”
Section 55
“(1) If the refugee authority finds an application admissible,
it shall proceed to the substantive examination of the application ...
(3) If the refugee authority proceeds to the substantive
examination of the application and the applicant is detained by order of the
immigration authority, the immigration authority shall release the applicant at
the initiative of the refugee authority.”
Section 56 (The in-merit procedure)
“(1) In the order
admitting the request to the in-merit phase, the refugee authority shall assign
the asylum seeker - upon the latter’s request - to a private accommodation or,
in the absence of such, to a dedicated facility or another accommodation,
unless the asylum seeker is subjected to a ... measure restraining personal
liberty. ...
(2) During the in-merit examination and the eventual judicial
review of the decision adopted therein, the asylum seeker is obliged to stay at
the designated accommodation.
(3) The in-merit procedure shall be completed within two months
from the adoption of the decision ordering it.”
C. Government Decree no. 301/2007 (XI.9.) on the Implementation
of the Asylum Act
Section 64(2)
“If the foreign national expresses his/her intention to file an
application for recognition as a refugee during the alien policing procedure ...
his/her statement shall be recorded by the proceeding authority, which shall then
inform without delay the refugee authority and the reception centre responsible
for accommodating those being in the preliminary asylum procedure, forwarding
the minutes and the fingerprint recording sheet at the same time.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The applicants complained that they had been
unlawfully detained and denied an effective judicial review of that detention.
They relied on Article 5 §§ 1 and 4 of the Convention. The Government contested
that argument.
The Court considers that the application falls to be examined
under Article 5 § 1 of the Convention alone (see Lokpo and Touré v.
Hungary, no. 10816/10,
§ 10, 20 September 2011), which reads as relevant:
“1. Everyone has the right to liberty and security
of person. No one shall be deprived of his liberty save in the following cases
and in accordance with a procedure prescribed by law:
...
(f) the lawful arrest or detention of a person to
prevent his effecting an unauthorised entry into the country or of a person
against whom action is being taken with a view to deportation or extradition.”
A. Admissibility
The Government argued that the application
should be declared inadmissible because the applicants had failed to bring
their claim concerning the alleged unlawfulness of their detention before any
of the Hungarian authorities either prior to or after the termination of their
detention. In particular, they had not challenged their expulsion in court or
requested judicial review of the lawfulness of their detention. Furthermore,
they had failed to avail themselves of a remedy under section 20 of the
Administrative Procedure Act, by virtue of which it could have been clarified
whether the asylum authority’s failure to initiate their release had indeed
been contrary to the law. Lastly, the applicants could have sought the
determination of the unlawfulness of their detention and the payment of
compensation for it in an official liability action under section 349 of the
Civil Code, but they had not done so.
The applicants submitted that since the
competent court had performed ex officio monthly judicial reviews of their
detention on five occasions, and had had the obligation to examine all aspects
of the lawfulness of the detention, it would have been superfluous for them to
request judicial review on their own motion.
Moreover, in the applicants’ position, a motion
under section 20 of the Administrative Procedures Act would not have been an
effective remedy, as this procedure - lengthy in any case - was only applicable
to an alleged failure of an administrative authority to proceed (that is, to an
alleged administrative omission), which was not the case. Moreover, neither the
supervisory administrative body nor the court acting in its stead had the
competence to determine the unlawfulness of the detention or order their
release.
The applicants further asserted that they had
not been obliged to embark on a cumbersome official liability case, since -
according to the civil courts’ jurisprudence - tort liability could have only
been established if the unlawfulness of the impugned administrative action or
omission had already been determined.
Lastly, as regards the possibility to challenge the expulsion
itself in court, the applicants submitted that they had not been aware of this
option, since they had been detained immediately after their arrival in the
country, not having access to legal assistance at that time; in any case, such
a motion would not have automatically ended their detention.
The Court observes that the applicants’
situation was subjected to periodic judicial reviews at the statutory
intervals. It notes that there is no dispute between the parties as to whether
these reviews constituted the relevant legal avenue in the circumstances. It
therefore shares the applicants’ view that it was not indispensable for them to
pursue - of their own motion and in addition to these ex officio reviews
- further remedies aiming at the same. Likewise, it cannot be held against the
applicants in the context of exhausting domestic remedies that they did not
formally challenge their expulsion, since the present application concerns the
lawfulness of their detention, rather than the justification for their
envisaged deportation.
As regards the Government’s reference to section
20 of the Administrative Procedure Act, the Court recalls that it has already
found that the non-pursuit of the remedy available under this provision did not
amount to a failure to exhaust domestic remedies in this context (see Lokpo
and Touré, cited above, §
13). Lastly, the Court would emphasise that an a posteriori
official liability action cannot be considered an effective remedy to be
exhausted in respect of the right to secure release from detention.
26. It follows that the application
cannot be rejected for non-exhaustion of domestic remedies. Moreover, it
is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. The Court further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. Arguments of the parties
(a) The applicants
The applicants argued that their detention under
section 54(1)b of the Third Country Nationals Act had been unlawful in that it
could not serve the purpose of securing their expulsion, since they had arrived
in Hungary under the Dublin II procedure - rather than illegally - as asylum seekers,
which had constituted a legal obstacle to their expulsion. The non-viability of
their expulsion was also reflected by the fact that it was eventually suspended
on account of technical difficulties. In any event, their detention could not
possibly be longer than six months (cf. section 54(4) of the Third Country
Nationals Act) whereas the pending asylum proceedings had been very unlikely to
finish in this time frame, given the statistics.
Moreover, they added that had section 55(3) of
the Asylum Act been applied properly, their release should have been initiated
by the refugee authority once their asylum applications had been referred to
in-merit proceedings. Its failure to do so had rendered the detention unlawful
in any case. However, even if one accepted that under section 55(3) there
was no formal obligation for the refugee authority to initiate the termination
of detention, the fact remained that the law was ambiguous and resulted in
legal uncertainty.
Lastly, the applicants maintained that they had
no effective right to have the lawfulness of their detention reviewed, in
breach of Article 5 § 4, because the court had ignored the fact that they were
asylum seekers, and had not embarked on the examination of the necessity of
their detention - that is, they had not performed an effective review and
repeatedly given only stereotypical reasoning.
(b) The Government
The Government submitted at the outset that no
asylum seekers were systematically or indiscriminately subjected to alien policing
detention without genuine grounds for their expulsion.
They argued that the applicants’ detention had
had a clear legal basis under Hungarian law and been justified for the purposes
of Article 5 § 1 (f). Section 54(1)b of the Third Country Nationals Act did not
include a “necessity test”, but only a “purpose test”, which was however in accordance
with the requirements of Article 5 § 1 (f). Under Hungarian law, an alien could
be detained “in order to” secure his expulsion. The purpose of the applicants’
detention had been to secure the enforcement of their expulsion, ordered on
account of their illegal entry into Hungary, and to prevent their illegal stay
in, or unauthorised entry into, other countries of the Schengen Area. This
purpose had remained valid notwithstanding their maintaining the requests for
asylum filed in the Netherlands, and even after the asylum proceedings had
reached the in-merit stage in Hungary.
The Government emphasised that Hungarian law did
not prohibit the expulsion or the ensuing alien policing detention of
applicants for asylum per se. It only provided, in accordance with EU
law, that no one could be detained on the sole ground of being an asylum seeker.
However, the applicants were not detained because they were asylum seekers.
Their illegal first entry to Hungary and continued journey to the Netherlands
with the assistance of traffickers had posed a threat to the public order
warranting their expulsion and detention - even if the deportation could not be
enforced until the completion of the asylum proceedings.
As to the legal basis for the applicants’
continued detention during the in-merit proceedings, the Government argued that
it was clearly not the intention of the legislature to impose an unconditional
obligation on the asylum authority to initiate the release of all applicants
for asylum upon the admission of their application to the in-merit procedure.
Should that be the case, it would have opened a wide avenue for abuse of the
asylum proceedings, as practically every illegal immigrant could have put an end
to his or her detention (and thus to the enforcement of expulsion) simply by
filing a manifestly ill-founded request for asylum.
Furthermore, the Government observed that the
execution of the applicants’ expulsion had been suspended inter alia for
technical, practical reasons but had not been abandoned; this suspension did not
mean that no further action was being taken with a view to their deportation.
(c) The third parties
(i) The AIRE Centre
The AIRE Centre observed that the detention of
asylum seekers in Europe had become routine, although asylum seekers in the European
Union had a right under the EU law to remain on the territory pending the
determination of their claims. It pointed out that, in relation to EU Member
States, the procedure for detaining an individual must be in accordance with EU
law. However, as a part of the EU Asylum Acquis, Article 18 of Directive
2005/85/EC (“the Procedures Directive”) stipulates that no individual should be
held in detention on the sole basis that he is seeking asylum and that all
asylum seekers have the right to judicial review of their detention. In
addition, Article 7 § of Directive 2003/9/EC (“the Reception Conditions
Directive”) recognises the right of asylum seekers to move freely within the
territory of the host Member State; they may be confined only when it proves
necessary. In the AIRE Centre’s view, these provisions taken together indicate
that the detention of asylum seekers is to be avoided and that any detention is
subject to an examination of its necessity to achieve its given purpose.
Moreover, the AIRE Centre emphasised the relevance of Article 15 § 4 of
Directive 2008/115/EC (“the Returns Directive”), as it states that a detention
will no longer be permitted when there is no “reasonable prospect of removal”
or the legal or other considerations justifying the detention no longer exist.
(ii) UNHCR
. UNHCR
expressed its concern that Hungary imposed prolonged periods of administrative
detention upon asylum seekers without providing avenues to effectively
challenge the detention once ordered or considering alternatives to detention.
A further concern of theirs was that most asylum seekers who had been
transferred to Hungary under the Dublin II Regulation were wrongly considered
by the Hungarian asylum authority to have illegally entered, which was
automatically followed by their placement in detention. UNHCR stressed that
under international human rights and refugee law (in particular Articles 31 to
33 of the 1951 Convention Relating to the Status of Refugees) as well as
Hungarian national law, asylum seekers could not be deported or expelled until
a final decision was rendered on their claims, determining that they were not
in need of international protection. Moreover, Hungarian law only permitted
detention with a view to deportation where that deportation could be executed,
which was not the case during the asylum proceedings. Therefore, UNHCR shared
the applicants’ view that the Hungarian practice of detaining asylum seekers
for the purposes of expulsion was not in line with the relevant national and
international law.
2. The Court’s assessment
The Court observes that the subject matter of
the present application is very similar to that of the above-mentioned Lokpo
and Touré case. In that judgment, the Court held as follows:
“19. In the present case, the Court notes that there
is dispute between the parties as to the exact meaning and correct
interpretation of section 55(3) of the Asylum Act, which was the legal basis of
the applicants’ continued detention, and reiterates that it is primarily for
the national authorities to interpret and apply national law.
20. Should the applicants’ interpretation of that
provision be right, the Court would observe that the applicants’ detention was
in all likelihood devoid of a legal basis and thus in breach of Article 5 § 1
of the Convention. However, even assuming that it is the Government’s
interpretation of that provision that is correct - i.e. that there is no
obligation on the refugee authority to initiate the release of those asylum seekers
whose cases have reached the in-merit phase - the Court considers that the
applicants’ detention was not compatible with the requirement of “lawfulness”
inherent in Article 5 of the Convention.
21. The Court reiterates that the formal
“lawfulness” of detention under domestic law is the primary but not always the
decisive element in assessing the justification of deprivation of liberty. It
must in addition be satisfied that detention during the period under
consideration was compatible with the purpose of Article 5 § 1, which is - as
mentioned before - to prevent persons from being deprived of their liberty in
an arbitrary fashion (see Khudoyorov, cited above, § 137).
22. In regard to the notion of arbitrariness in this
field, the Court refers to the principles enounced in its case-law (see in
particular Saadi v. the United Kingdom [GC], no. 13229/03, §§ 67 to 73,
ECHR 2008-...) and emphasises that “to avoid being branded as arbitrary, ...
detention [under Article 5 § 1 (f)] must be carried out in good faith; it must
be closely connected to the purpose of preventing unauthorised entry of the
person to the country; the place and conditions of detention should be
appropriate, bearing in mind that « the measure is applicable not to those who
have committed criminal offences but to aliens who, often fearing for their lives,
have fled from their own country » (see Amuur, § 43); and the length of the
detention should not exceed that reasonably required for the purpose pursued”. The
Court would indicate in this context that it is not persuaded that the
applicants’ detention - which lasted five months purportedly with a view to
their expulsion which never materialised - was a measure proportionate to the
aim pursued by the alien administration policy.
23. In the present application the Court notes that
the applicants’ detention was prolonged because the refugee authority had not
initiated their release. That authority’s non-action in this respect was
however not incarnated by a decision, accompanied by a reasoning or susceptible
to a remedy.
24. The reasons underlying the applicants’ detention
may well be those referred to by the Government, that is to comply with
European Union standards and at the same time to counter abuses of the asylum
procedure; however, for the Court the fact remains that the applicants were
deprived of their liberty by virtue of the mere silence of an authority - a
procedure which in the Court’s view verges on arbitrariness. In this connection
the Court would reiterate that the absence of elaborate reasoning for an
applicant’s deprivation of liberty renders that measure incompatible with the
requirement of lawfulness inherent in Article 5 of the Convention (see mutatis
mutandis Darvas v. Hungary, no. 19547/07, § 28, 11 January 2011; and, in the context of
Article 5 § 3, Mansur v. Turkey, 8 June
1995, § 55, Series A no. 319-B). It follows that the applicants’
detention cannot be considered “lawful” for the purposes of Article 5 § 1 (f)
of the Convention.”
Noting that in the instant case the applicants were
deprived of their liberty for a substantial period of time essentially for the
same reason as above, that is, because the refugee authority had not initiated their
release, the Court cannot but conclude that the procedure followed by the
Hungarian authorities displayed the same flaws as in the case of Lokpo and
Touré.
This consideration alone enables the Court to find that there
has been a violation of Article 5 § 1 (f) of the Convention, without it being
necessary to embark on an additional scrutiny of the impugned procedure or the
applicants’ arguments adduced, in the context of Article 5 § 4, about the
alleged deficiencies of the judicial reviews as such.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
Each applicant claimed 10,000 euros (EUR) in
respect of non-pecuniary damage.
The Government contested this claim.
The Court considers that the applicants must
have suffered some non-pecuniary damage and awards them each the full sum
claimed.
B. Costs and expenses
The applicants also claimed EUR 2,515 for the
costs and expenses incurred before the Court. This sum corresponds to 23.5
hours of legal work billable by their lawyer at an hourly rate of EUR 107
including VAT.
The Government contested this claim.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to the
documents in its possession and the above criteria, the Court considers it
reasonable to award the full sum claimed.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT
1. Declares unanimously the application
admissible;
2. Holds by six votes to one that there has
been a violation of Article 5 § 1 of the Convention;
3. Holds by six votes to one
(a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at
the rate applicable at the date of settlement:
(i) EUR 10,000 (ten thousand euros) to each
applicant, plus any tax that may be chargeable, in respect of non-pecuniary
damage;
(ii) EUR 2,515 (two thousand five hundred and
fifteen euros) to the applicants jointly, plus any tax that may be chargeable
to the applicants, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points.
Done in English, and notified in writing on 23 October 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise
Elens-Passos Ineta Ziemele
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Jočienė
is annexed to this judgment.
I.Z.
F.E.P.
