ITEMID: 001-105121
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF MIROSLAW GARLICKI v. POLAND
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 5-3;Non-pecuniary damage - award
JUDGES: Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Zdravka Kalaydjieva
TEXT: 7. The applicant was born in 1960 and lives in Kraków.
8. The applicant is a doctor, specialising in cardiac surgery. He is one of the few specialists in Poland qualified to perform heart transplants. At the relevant time he was the Director of the Cardiac Surgery Clinic in the Ministry of Internal Affairs and Administration Hospital in Warsaw and an assistant professor at the Jagiellonian University Medical College in Kraków.
9. Following information submitted by doctors employed in the Ministry of Internal Affairs and Administration Hospital, on 12 December 2006 the Warsaw Regional Prosecution Office instituted an investigation into cases of alleged medical negligence and several counts of harassment of hospital staff by the applicant. It appears that the applicant was also suspected of receiving bribes from his patients.
10. On 12 February 2007 the applicant arrived at work at about 7 a.m. and started preparing for an operation which was planned for that morning.
11. At 7.40 a.m. a dozen masked and armed officers of the Central Anticorruption Bureau (CAB) stormed the Cardiac Surgery Clinic. Some of the officers burst into the applicant’s office pointing their firearms and shouting. The officers threw the applicant to the floor, pinned his head to the floor and then handcuffed his hands behind his back. They searched the applicant’s office. Subsequently, they allowed him to change his clothes and handcuffed him again, this time with his hands in front.
12. The applicant was taken, in handcuffs, out of his office to the hospital’s outdoor car park. There were a large number of masked and armed officers in the car park and some were in plain clothes. The applicant’s car was searched over a period of about one hour. A sniffer dog was also used. During this time the applicant stood nearby with his hands visibly handcuffed. The events were viewed by hundreds of hospital staff, patients and visitors. The applicant’s arrest was filmed continuously by one of the officers.
13. Subsequently the applicant was taken to his flat in Warsaw. Several dozen officers searched the flat over a period of nine hours. They seized several hundred objects, including bottles of alcohol, watches, fountain pens, cutlery, porcelain, and so on which were to be used as evidence of the applicant’s bribe-taking. The search of his flat was also filmed.
14. The applicant was then taken to a hospital for a medical check. At about midnight on 12 February 2007 the officers took the applicant to see Mr Mariusz Kamiński, the Head of the CAB, who shouted at him using offensive language. He said, among other things, that the applicant would not leave prison before turning seventy. The Government submitted that there was no information in the case file concerning the meeting between the Head of the CAB and the applicant.
15. The applicant was detained at Warsaw Police Headquarters.
16. According to the Government, the applicant did not appeal against his arrest (zażalenie na zatrzymanie) or object to the way in which the CAB’s officers executed the search of his flat.
17. On 13 February 2007 at about 3 p.m. the Warsaw Regional Prosecutor charged the applicant with twenty offences, including exposing a patient to a direct danger to his life or health (Article 160 § 1 of the Criminal Code (“CC”)), homicide of a patient (Article 148 § 1 of the CC), harassing a member of staff, forgery of medical documentation, and sixteen counts of taking bribes from patients. The prosecutor based his decision on the evidence gathered in the case, including statements of victims and secret video-recordings of some cases of receiving bribes.
18. According to the applicant, on 12 and 13 February 2007 he was not given any food.
19. On 14 February 2007 A.M., an assessor (junior judge) at the Warsaw-Mokotów District Court, remanded the applicant in custody until 11 May 2007. The order read as follows:
“The evidence gathered in the case, in particular witnesses’ depositions and the suspects’ statements (...), expert reports (...) and documentation from the secret files (...) points to a strong likelihood that the suspect [applicant] committed the offences with which he is charged, and that is a basic evidentiary condition for the imposition of a preventive measure pursuant to Article 249 § 1 of the Code of Criminal Procedure.
The investigation is in its early stage and it is necessary to undertake many further investigative measures to clarify fully the circumstances under investigation. Having regard to the nature of the charges and the surrounding circumstances, there is a reasonable risk that the suspect, if left at liberty, could engage in acts aimed at obstruction of the proceedings. Many persons who must necessarily be questioned in the course of the present proceedings are hierarchically subordinate to the suspect [applicant], and that necessitates preventing the suspect [applicant] from contacting them in any manner. Moreover, as Director of the Cardiac Surgery Clinic the suspect [applicant] has access to information which must be kept secure and is required by the authorities conducting the investigation to allow the circumstances which gave rise to the charges to be clarified in full.
Furthermore, in respect of one of the offences with which the suspect is charged [homicide] he is liable to a sentence of 25 years’ imprisonment or life imprisonment, while in respect of many other offences he is liable to a maximum sentence of 8 years’ imprisonment. The real risk that a severe penalty might be imposed on him may thus induce the suspect to undertake illegal actions to obstruct the proceedings. ...”
20. On the same day, following the pronouncement of the WarsawMokotów District Court’s decision, the Minister of Justice Prosecutor General and the Head of the CAB held a press conference concerning the applicant’s case.
21. The applicant appealed against the detention order. He submitted that the evidence in the case was insufficient to charge him with homicide and that the prosecution had intentionally formulated the charge with a view to compelling the court to remand him in detention. Furthermore, the applicant contested the finding that he would obstruct the proceedings. He argued that the District Court should have considered the imposition of other, more lenient, preventive measures having regard to the applicant’s unblemished reputation and in view of the Court’s case-law. In addition, he submitted that remanding him in detention could expose his patients to death by preventing them from undergoing their planned cardiac operations. Lastly, referring to the Convention, the applicant raised the issue of the status of the assessor and averred that she did not enjoy the necessary guarantees of independence from the executive.
22. On 15 March 2007 the Warsaw Regional Court dismissed the applicant’s appeal. It found that the applicant was suspected of having committed a series of offences. The court noted:
“even leaving aside the charge of homicide, other charges (bribery) attracted a statutory maximum sentence of at least eight years’ imprisonment”.
Thus, the applicant’s detention on remand was justified by the severity of the anticipated penalty, in view of the significant number of bribery charges.
23. As to the applicant’s argument that the evidence in the case had been insufficient to charge him with homicide, the Regional Court noted that that was not the only charge against the applicant. In connection with other charges (including bribery) there was enough evidence to substantiate a reasonable suspicion that the applicant had committed the offences. The Regional Court further concurred with the District Court’s view that there was a risk that the applicant would attempt to influence witnesses, and that only custodial measures would ensure the proper conduct of the proceedings. The court did not respond to the argument concerning the status of the assessor.
24. On 7 May 2007 the Warsaw Regional Court, on an application from the prosecution, extended the applicant’s detention until 11 August 2007 but at the same time held that he would be released if he put up bail in the amount of PLN 350,000 (approximately EUR 90,000) by 31 May 2007. It reasoned as follows:
“The prosecutor justifies his application for the extension of detention on remand by the severity of the likely penalty and the risk of obstruction [of the proceedings] by the suspect.
The Code of Criminal Procedure requires the authorities conducting the proceedings to analyse, at every stage, whether the evidence gathered in the case sufficiently justifies the imposition of preventive measures. Thus, the court could not leave unaddressed the legal classification of the act allegedly committed by the suspect to the detriment of the victim J.G. under Article 148 § 1 of the Criminal Code, particularly as it appears from the grounds for the prosecutor’s application that the likelihood of a severe sentence of imprisonment (even life imprisonment) for that act is one of the grounds for extending Mirosław Garlicki’s detention. In the court’s view, the prosecution’s assessment cannot be sustained in any way. It has to be noted that the [prosecutor’s] application does not contain any reasons for giving such a legal classification to the suspect’s act. It cannot be maintained that the reports presented by experts Z.R. and A.B. point to a possibility of charging Mirosław Garlicki with homicide committed with conditional intent (“zamiar ewentualny”). Moreover, the prosecutor assumes such legal classification of the charge in isolation from the established case-law (...) Taking into account, as stated above that the charge [of homicide] is groundless, it evidently could not serve as a ground to grant the [prosecutor’s] application.
However, the evidence gathered so far in the investigation, which, apart from witness statements, also includes evidence obtained by technical means as a result of covert measures (czynności operacyjne), points to a strong likelihood that the suspect committed the corruption-related offences with which he has been charged. Those offences attract a severe sentence of imprisonment, and having regard to their significant number it is likely that the suspect will be sentenced to a lengthy term of imprisonment. The last issue to determine is whether remand in custody is the only preventive measure which could secure the proper conduct of the proceedings.
In the court’s view, contrary to the prosecutor’s position, there is no substantiated risk that the suspect would unlawfully obstruct the criminal proceedings, e.g. by inducing witnesses to give false testimonies. Such a risk is not in any way apparent from the statements or testimonies of persons indicated in the grounds for the [prosecutor’s] application. While it can be accepted that the need to remand the suspect in custody existed at the beginning of the proceedings, where there was a risk that he would influence the testimonies of his subordinates, there is clearly no , many public persons are willing to provide a guarantee that Mirosław Garlicki will not obstruct the pending proceedings. ...
In those circumstances, in the court’s view, if bail in the amount of PLN 350,000 were paid within the fixed time-limit, that would be a sufficient preventive measure ensuring the proper conduct of the proceedings and the suspect’s appearance in response to every summons of the authorities conducting the proceedings.”
25. The prosecution appealed against the Regional Court’s decision. On 18 May 2007 the Warsaw Court of Appeal partly amended the impugned decision by imposing further preventive measures in the event of the applicant’s release. It ruled that guarantees given by A.W., deputy president of the Supreme Medical Chamber, and L.A., a member of the board of the Polish Transplantation Society, be produced. It also imposed a ban on the applicant’s leaving the country and ordered the seizure of his passport. For the rest, the Court of Appeal upheld the Regional Court’s decision.
26. On 18 May 2007 all the conditions specified by the Court of Appeal were met and the applicant was released.
27. It appears, as revealed by the Gazeta Wyborcza daily, that the investigation in the applicant’s case was code-named “Mengele” by the CAB. The Court of Appeal considered the code name to be inappropriate and informed the Prosecutor General accordingly.
28. On 12 May 2007 the applicant’s employment contract with the Ministry of Internal Affairs and Administration Hospital came to an end.
29. On 24 September 2007 the public prosecutor additionally charged the applicant with nine counts of violation of employees’ rights, harassment of his wife, subjecting a person to sexual intercourse several times while abusing a relationship of dependence, attempt to subject a person to sexual intercourse, and several counts of bribery. In total, the applicant was charged with forty-nine counts of bribery.
30. On 7 May 2008 the Warsaw Regional Prosecutor discontinued the investigation against the applicant in respect of the charges of exposing a patient to a direct danger to his life or health (Article 160 § 2 of the CC), homicide of a patient (Article 148 § 1 of the CC) and forgery of medical documentation on the grounds that there was no evidence that the applicant had committed those offences. In respect of the first two offences, the prosecutor based his decision on the expert evidence, in particular the report prepared by a German cardiology expert.
31. The bill of indictment against the applicant was filed with the Warsaw-Mokotów District Court on an unspecified date.
32. It appears that the applicant’s trial is pending.
33. On 13 February 2007 the Minister of Justice – Prosecutor General and the Head of the CAB convened a press conference on the applicant’s case for the following day. The press conference took place on 14 February 2007 at 2 p.m. shortly after the Warsaw-Mokotów District Court had pronounced its decision ordering the applicant’s detention on remand.
34. During the press conference the Minister of Justice – Prosecutor General and the Head of the CAB referred to the applicant as “Doctor G.”. However, at the outset they specified that the applicant was the Director of the Cardiac Surgery Clinic in the Ministry of Internal Affairs and Administration Hospital at Wołoska Street in Warsaw, which enabled the media to quickly establish the applicant’s identity.
35. According to the transcript of the press conference, the Head of the CAB stated in respect of the charges concerning bribe-taking:
“The information gathered and the evidence obtained mean that today we can tell you clearly: Doctor G., acting the part of a virtuoso of Polish cardiac surgery, is a ruthless and cynical bribe-taker. We have knowledge of several dozen bribes accepted by this doctor.”
36. The Minister of Justice – Prosecutor General, Mr Z. Ziobro, stated in respect of the charge of homicide:
“Life often writes the most brutal scenarios. The facts which the service headed by Minister Kamiński [the CAB] succeeded in unveiling are truly shocking. What we are seeing here was not limited to cynical abuse of human feelings, emotions and the affection of close relatives for their loved ones who were ill, and the exploitation of those feelings. Extorting money, robbing people not only of money but also of hopeoften, even when the hope was not really there, the money was still extorted. And not only that, the evidence shows that what could happen here is more than just massive corruption and gross negligence and medical malpractice. One of the charges made by the prosecution is that of homicide in one of the cases which the Minister Kamiński referred to me. ...
Initially (...) I did not believe it. I could not get it into my mind that in the health service, in a very well known clinic, a very well known and, at least until recently, universally respected cardiac surgeon and professor could perpetrate shameful acts of this sort. But when I began to find out what evidence had been gathered by the CAB, and later also by the prosecutors, I changed my mind. I have changed my mind and, unfortunately, I am more and more overcome with sadness, but we can see this unfortunately sad discovery of the truth as an important event in the true sense of that expression, in that no-one else will ever again be deprived of life by this man (już nikt nigdy przez tego pana życia pozbawiony nie będzie). Ladies and Gentlemen, at the present moment I have one substantiated case indicating with high probability a possible homicide, and in this connection a charge based on Article 148 [intentional homicide] of the Criminal Code was made. Other cases where the circumstances of patients’ deaths are unclear are obviously also being examined. We don’t prejudge the character of those events. Ultimately, the court will decide the case; nonetheless, what we have already established and gathered as evidence at the present moment is truly shocking ...
I would like to emphasise once again, that as the Prosecutor General, the person who directly supervised this case from a certain moment, I regard very highly the professionalism of the CAB’s officers, the professionalism of the prosecutors, thanks to which we succeeded in gathering strong evidence, which is rare and which definitely shows that we were dealing with a long-lasting criminal activity. ...
If you will permit me, in respect of the charge of homicide, the [applicant’s] cynicism is demonstrated by the fact that where we can see from the evidence in our possession that a man [patient] was de facto sentenced to death, that did not prevent this gentleman [the applicant] from demanding a bribe from his close family, and as the family were poor, they had no possessions, they were farmers, he suggested that they sell their cow so as to have money purportedly to save their dear father. And how he went about saving [that patient] finds its expression in Article 148 of the Criminal Code, so I think that this example very [well] illustrates the attitude, the lofty morals of this virtuoso, as some media have called him. ...
I wanted to stress that the Director of the Clinic [the applicant] in the Ministry of Internal Affairs and Administration Hospital has been charged with homicide; according to the prosecutors, acting with the conditional intent (“zamiar ewentualny”) of depriving a patient of life, and anticipating and accepting the result of his death, he undertook a series of acts which, in short, led to that [death]. That is what is meant by depriving of life with conditional intent, conduct which emerges from well documented evidence, hence the charge. It is a very striking and cynical desire for profit and arrogance, incredible and striking arrogance in the conduct of the person charged with committing those offences, those crimes ....”
37. During the press conference the CAB’s recording of the applicant’s arrest and the search of his apartment was shown. The recording emphasised the significant number of objects and money seized from the applicant’s flat which were to be used as evidence of his corruption.
38. The main news programme broadcast on the public television station on 14 February 2007 at 7.30 p.m. started with a news story about the applicant which was entitled “Doctor Death”. The news reader stated that “He [the applicant] had murdered a patient because he did not get a bribe from him” and informed viewers that the applicant had committed homicide and accepted bribes. News of the applicant’s arrest and the press conference was widely reported in all the media.
39. The Minister of Justice – Prosecutor General’s comments about the applicant prompted strong criticism from the former Ombudsman, the National Bar Council, the Polish Helsinki Committee and others. On 23 February 2007 the President of the Constitutional Court stated that the Minister of Justice – Prosecutor General had breached the Constitution by making statements about doctor G.’s [the applicant’s] guilt and that he should be held to account before the State Tribunal (Trybunał Stanu).
40. In response to that suggestion the Minister stated, as reported in the Rzeczpospolita daily of 24-25 February 2007:
“A person who has just begun holding such office [as President of the Constitutional Court] sometimes says a few words too many. I don’t take back anything and I am ready to repeat it all. The judge [the President of the Constitutional Court] should go further and demand that I be charged before the Rwanda Crimes Tribunal [International Criminal Tribunal for Rwanda].”
41. On 12 September 2007 the applicant brought a civil action against Mr Z. Ziobro for infringement of his personal rights under Articles 24 and 448 of the Civil Code. He sought an order requiring the defendant to personally express the following apology on the main national radio and television stations and in four major newspapers:
“I, Zbigniew Ziobro, apologise to Dr Mirosław Garlicki for what I said about him, namely that ‘no-one else will be deprived of life by this man’, which tarnished the good name and reputation of Dr Mirosław Garlicki. I express my regret and admit that these words were deceitful and insulting and should have never been spoken by me.”
The plaintiff further sought an award of PLN 70,000 in compensation for non-pecuniary damage and an order enjoining the defendant to refrain from making any future statements which would suggest that the applicant had committed homicide.
42. On 25 August 2008 the Kraków Regional Court gave judgment. It ordered the defendant to publish an apology directly after the main evening news programmes on the three national television stations (TVP, Polsat and TVN). The apology read:
“I, Zbigniew Ziobro apologise to Dr Mirosław Garlicki for having said about him that ‘no-one else will ever again be deprived of life by this man’, which tarnished the reputation of Dr Mirosław Garlicki.”
„(Ja Zbigniew Ziobro przepraszam Pana dr Mirosława Garlickiego za wypowiedzenie pod jego adresem słów – już nikt nigdy przez tego Pana życia pozbawiony nie będzie – które naruszyły cześć Pana dr Mirosława Garlickiego).”
The court awarded the applicant compensation in the amount of PLN 7,000. It dismissed the remainder of the applicant’s action.
43. When establishing the facts, the court based its findings on the transcript of the press conference held by the Head of the CAB and the Minister of Justice – Prosecutor General on 14 February 2007, various official and private documents, press releases and rectifications issued by the Ministry of Justice and press articles.
44. As regards the question whether there was an infringement of the applicant’s personal rights, the Regional Court held that the defendant had damaged the applicant’s reputation (cześć). In this respect it found, inter alia:
“... the statements included in the defendant’s impugned announcement, including ... just the information about the prosecution’s charges brought against the claimant (whose identification was a simple matter since his first name, the first letter of his surname, his place of employment and the function held were given), without any need to refer to more categorical terms employed by the defendant such as ‘no-one else will ever again be deprived of life by this man’, or describing the claimant as a ruthless and cynical bribe-taker who de facto sentenced his patient to death and so on, objectively infringed the personal rights of the claimant...”
45. Once it was demonstrated that there was an infringement of the applicant’s personal rights, Article 24 of the Civil Code established a presumption that such infringement was unlawful. Accordingly, the Regional Court examined next whether there had been any grounds to exclude the defendant’s liability for unlawfully damaging the applicant’s reputation. The court held that the defendant’s actions had been unlawful, having regard to the nature of the allegations made against the claimant and the limitations stemming from the principle of the presumption of innocence. In this respect, the Regional Court found inter alia:
“...it was or could have been within the powers of the Prosecutor General – the office held by the defendant at the material time – to inform the public about particular investigations and their progress, and also to disclose – within the boundaries set by the law – information regarding the suspect or the accused. ...
However, those persons so authorised do not enjoy ‘complete freedom of expression’ as asserted by the defendant if their actions are undertaken in the public interest. That principle, despite the defendant’s assertion to the contrary, has not been accepted in the jurisprudence of the Polish courts; in particular it is not reflected in the position set out ... in the Supreme Court’s judgment of 23 July 2007 (case no. II CKN 285/97). It was clearly indicated [in this judgment] that a negative assessment of a person’s behaviour expressed by a State authority (or official) is not an unlawful assessment where, although it was not sufficiently verified or justified in the specific circumstances (because, for example, of the erroneous assessment of certain facts or the lack of complete factual material), it was nonetheless made within the scope of statutory competences and within the boundaries of matter-of-fact necessity (w ramach rzeczowej potrzeby).
Worth noting here is the judgment of the European Court of Human Rights of 10 February 1995, ... which states that freedom of expression, guaranteed by Article 10 of the Convention, includes the freedom to receive and impart information. Article 6 § 2 cannot therefore prevent the authorities from informing the public about criminal investigations in progress, but it requires that they do so with all the discretion and circumspection necessary if the presumption of innocence is to be respected (application no. 15175/89 [Allenet de Ribemont v. France]; see also the judgment of the ECHR of 26 March 2002, application no. 48297/99 [Butkevičius v. Lithuania]).
In the court’s assessment, the critical statement of the defendant fell short of this obligation. Indeed, the defendant did not only state the charge of having committed an offence specified in Article 148 of the Criminal Code as brought against the claimant on the basis of the prosecution’s decision and the circumstances justifying it, but in his emotional, exaggerated, unbalanced and judgmental statement emphasised this charge in a manner which excluded any doubts as to its correctness (lecz swoją emocjonalną, egzaltowaną, niewyważoną i ocenną wypowiedzią wyeksponował ów zarzut w sposób wykluczający jakiekolwiek wątpliwości co do jego słuszności). This effect was exacerbated by the statement that ‘no-one else will ever again be deprived of life by this man’ ... For in situations where there is unintentional deprivation of life it is rather accepted to use such terms as an accident, error, coincidence, misfortune or incident. ...
It should be stated once more that at the press conference no accurate information was given about the results of the investigation, [and] almost no concrete information about the investigation at all.
It should be underlined that the defendant undoubtedly had the right to disclose information related to the charge brought against the claimant; however due to the risk of misinterpretation of this information by the recipients he should have refrained from statements giving rise to belief in the claimant’s guilt. The more so since as the Prosecutor General, responsible for safeguarding the rule of law (section 2 of the Prosecution Authorities Act of 20 June 1985), [he] had the duty to comply with the important principle of the legal order imposing respect for the defendant’s presumption of innocence as a legally protected interest. In this connection, the defendant should have presented the information concerning the investigation, in particular in respect of the charge of homicide, in a moderate form, without passing his own judgment, which would go significantly beyond reporting on the proceedings. It should thus be considered that the behaviour of the defendant was not factual and cautious, [and] that the opinions expressed exceeded what was strictly necessary, and the terms employed were exaggerated in form and content.”
46. With regard to the redress for the damage to the applicant’s reputation, the Regional Court partly modified the text of the apology by having its second sentence deleted. In so doing it took into account the type of right infringed and the scope of the infringement. Concerning the enforcement of its judgment, it obliged the defendant to publish the apology at his expense rather than requiring him to express it personally. The court further considered that it would be appropriate to limit the number of places where the apology should be published to three major television stations (one public and two private). This decision was motivated by the need to achieve the compensatory and preventive rather than the repressive goal of the publication of an apology.
47. As regards compensation for non-pecuniary damage suffered on account of the infringement, the Regional Court held that the defendant’s fault, at least in the form of negligence, had been established. The use of words which clearly suggested that the claimant had undoubtedly committed homicide had breached the principle of the presumption of innocence, thereby infringing the claimant’s personal rights. At the relevant time the defendant had held the office of Minister of Justice – Prosecutor General, so he had been under a particular duty to formulate his statements carefully. The Regional Court awarded the applicant PLN 7,000 which it considered adequate in the circumstances, having regard to a number of relevant factors, including the gravity of the infringement and the extent of the damage suffered. It took into account that the applicant had failed to demonstrate what precise impact the impugned statement had had on his private life and that, in respect of his professional life, the applicant had been employed in a private hospital since the summer of 2008.
48. Both parties appealed. The applicant contested, inter alia, the manner of publication of the apology and the modification of its text. He took issue with the deletion of the second sentence from the apology, which he considered important for the restoration of his reputation. He further objected to the low amount of compensation for non-pecuniary damage.
49. The defendant challenged the Regional Court’s judgment in its entirety. He argued that he had not infringed the applicant’s personal rights and, alternatively, that any such infringement had been in accordance with the law. The defendant alleged that the court had erroneously applied substantive and procedural law. He also submitted that the order to publish the apology had taken the appearance of a financial sanction.
50. On 9 December 2008 the Cracow Court of Appeal held a hearing and gave judgment. It amended the first-instance judgment only in respect of the compensation awarded to the applicant which it increased to PLN 30,000. The Court of Appeal dismissed the remainder of the applicant’s appeal and dismissed the defendant’s appeal in its entirety.
51. The Court of Appeal noted that the claimant had established, in accordance with the burden of proof lying on him, that his personal right to respect for his reputation had been infringed by the defendant’s statement “no-one else will ever again be deprived of life by this man”. In that connection, it fully accepted the factual findings and legal assessment of the Regional Court. The infringement of the claimant’s personal right had been evident as the defendant had indicated that the charge of homicide had been made against the head of a specific department of a particular hospital. As regards the damage to the applicant’s reputation, the Court of Appeal found:
“... the first-instance court did not violate the provisions of substantive and procedural law referred to by the defendant in his appeal. Similarly the allegation of errors in respect of factual findings which were relevant for the determination of the issue could not stand. The facts weighing in favour of the infringement of the claimant’s personal right to respect for his reputation on account of the defendant’s impugned statement were so obvious (contra factum nullum argumentum) that no argument by the defendant can entail the intended legal consequences. It is not open to doubt that since the impugned statement was made by the Minister of Justice Prosecutor General the public reaction of persons who had no professional dealings with the law in respect of the claimant ... had to be negative, i.e. they would be convinced of his guilt.”
52. With regard to the presumption of unlawfulness of the infringement, the Court of Appeal held that the defendant had failed to rebut the presumption. It found inter alia:
“The constitutional and criminal-law principle of the presumption of innocence implies that an accused person (and even more so a suspect) must be presumed innocent until his guilt is proved and confirmed by a final court decision. ...
The impugned statement [of the defendant] was inadmissible at that stage of the ongoing proceedings, and in particular because of the principle of the presumption of innocence. The defendant, even though he was the Minister of Justice - Prosecutor General, was not authorised to make such a statement in respect of the claimant since at that stage [of the proceedings] no final judgment convicting him of the alleged offence had been given. He [the defendant] had the unquestionable right to inform the public about the charges brought against the claimant ... but the manner in which he did it ... was not appropriate for the office which he held ...
Moreover, the degree of unlawfulness of the defendant’s actions results from the fact that the prosecutor charged the claimant with homicide of a patient, and the court remanded the claimant in custody and his appeal was not allowed by the second-instance court. However, as it turned out later ... the evidence subsequently gathered in the investigation did not at all substantiate such accusations ...
The defendant’s impugned statement in the light of the final result of the criminal proceedings against the applicant in respect of the offence specified in Article 148 § 1 of the CC clearly underlines the essence and the purpose of the principle of the presumption of innocence.
In the circumstances of the present case the defendant cannot exactly claim that he acted in accordance with the law or in defence of a justifiable public interest. It cannot be accepted either that the impugned statement was made on the basis of information which was collected with due diligence. The principle of the presumption of innocence required that the defendant display exceptional care and diligence in formulating publicly any statements to the effect that the claimant, as a doctor, committed homicide on a patient, irrespective of the information and opinions given by the persons he requested to be heard as witnesses in the case. The defendant, being a lawyer holding a high public office, should in particular have consulted expert opinions. ...”
53. The Court of Appeal concurred with the Regional Court’s judgment in respect of the text of the apology and the form in which it was to be made. With regard to compensation for non-pecuniary damage, the Court of Appeal agreed that the defendant had been at fault through negligence, but held that it had been gross negligence. It found in this respect:
“... the defendant is a lawyer, and at the time of the infringement of the claimant’s personal right he held the office of Minister of Justice – Prosecutor General, and as such he should have known what information from the investigation ... he could make public, as well as what he could say about a person who was charged and remanded in custody. On the other hand, as a politician he should have been aware of the media effect of such a categorical statement as ‘no-one else will ever again be deprived of life by this man’ in the claimant’s case and where the defendant divulged the necessary information to enable the claimant’s identification. ... The impugned statement, having regard to the stage of the ongoing criminal proceedings against the claimant, violated the basic written rules of legal knowledge (the presumption of innocence and in dubio pro reo). Moreover, in a case where a doctor – whose mission, vocation and task is to save human life and health – was charged with homicide of a patient in connection with a surgical operation (it is difficult to imagine a more serious allegation against a doctor in relation to his profession) he should have realised that to make publicly so categorical and definite a statement was highly unprofessional and irresponsible ...”
The Court of Appeal, having regard to all’s statement attracted in the media and the moral suffering of the applicant, found that it would be appropriate to award PLN 30,000 for non-pecuniary damage.
54. Mr Z. Ziobro lodged a cassation appeal against the Court of Appeal’s judgment. On 29 October 2009 the Supreme Court refused to entertain his cassation appeal. It found that there had been no significant legal issue in the case which would justify the examination of the cassation appeal on the merits.
55. On an unspecified date the defendant paid the applicant the compensation awarded by the court.
56. On 9 January 2010 Mr Z. Ziobro’s apology was broadcast.
57. On 16 February 2007 the Regional Prosecutor made a seizure order in respect of the applicant’s property with a view to securing the payment of an anticipated fine in the amount of PLN 720,000 (EUR 180,000). The order extended to the applicant’s movable property, including money found in his flat, his salary and his bank accounts. The applicant was also prohibited from selling his car.
58. On the same day the prosecutor made a second seizure order in respect of the money found during the search of the house of the applicant’s parents. The prosecutor seized a total of approximately PLN 90,000.
59. The applicant appealed against the seizure orders, arguing that they were ultra vires at that stage of the investigation and clearly excessive in view of the charges against the applicant.
60. On 26 April 2007 the Warsaw-Mokotów District Court dismissed the applicant’s appeal. It found that the seizure orders had complied with the requirements specified in Article 291 §§ 1-2 of the Code of Criminal Procedure, namely that he had been charged with offences in respect of which a fine or obligation to compensate damage might be imposed. The court noted that at this stage of the proceedings the prosecutor’s decision could not be considered arbitrary, having regard to the evidence gathered in the case. Furthermore, the measure had been intended to effectively secure the payment of a significant fine which might be imposed on the applicant.
61. On 11 September 2007 the Warsaw Regional Prosecutor issued a press release announcing that some of the objects found in the applicant’s flat had been returned to him as they were his personal property and were irrelevant to the ongoing proceedings.
62. The relevant domestic law and practice concerning detention on remand (tymczasowe aresztowanie), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgment in the case of Kauczor v. Poland, no. 45219/06, §§ 25-27, 3 February 2009.
63. Article 42 § 3 of the Constitution provides:
“Everyone shall be presumed innocent until proved guilty in a final decision of a court of law.”
A similar principle is laid down in Article 5 § 1 of the Code of Criminal Procedure.
64. The Law of 20 June 1985 (as amended) on Prosecution Authorities (the Prosecution Authorities Act) (ustawa o prokuraturze) sets out general principles concerning the structure, functions and organisation of prosecution authorities.
Section 1 of the Act, in the version applicable at the material time, stipulated, in so far as relevant:
“1. The prosecuting authorities shall be the Prosecutor General and, subordinate to him, prosecutors, military prosecutors and prosecutors of the Institute of National Remembrance (...).
2. The Prosecutor General shall be the highest prosecution authority; his functions shall be carried out by the Minister of Justice.”
Under section 7 of the Act, in carrying out his or her statutory duties, a prosecutor must abide by the principles of impartiality and equality of citizens before the law.
Pursuant to section 8 of the Act, a prosecutor is independent in carrying out his or her duties, within the limits set out in this section. A prosecutor is required to abide by the instructions, guidelines and orders of his superiors. However, if an order relates to the substance of any action to be taken in proceedings, a prosecutor may request [his superior] to issue the order concerned with reasons in writing, to alter the order, to relieve him from performing an act prescribed by that order, or to remove him from conducting the case in question. Requests to be removed from a case must be decided by a hierarchical superior of the prosecutor who issued the order.
65. On 31 March 2010 the amendments to the Prosecution Authorities Act entered into force. The amended Act provides for the separation of functions between the Minister of Justice and the Prosecutor General.
66. The relevant domestic law and practice regarding the status of assessors, including the landmark judgment of the Constitutional Court of 24 October 2007 (case no. SK 7/06), are set out in the Court’s judgment in the case of Henryk Urban and Ryszard Urban v. Poland, no. 23614/08, §§ 16-25, 30 November 2010.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-61210
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF THE FORTUM CORPORATION v. FINLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award
JUDGES: Nicolas Bratza
TEXT: 9. The applicant is a multinational company specialising, inter alia, in the wholesale of petrochemical products, as was Neste at the time of relevance to the case.
10. In light of submissions lodged by another company in the field – Suomalainen Energiaosuuskunta (“SEO”) – the Competition Office (kilpailuvirasto, konkurrensverket), on 11 October 1993, initiated proceedings before the Competition Council (kilpailuneuvosto, konkurrensrådet), requesting that Neste be ordered to cease abusing its dominant position on the Finnish market for motor engine fuel. In the view of the Competition Office the reductions in Neste's wholesale prices discriminated against some of its clients, thereby violating the 1992 Act on Competition Restrictions (laki kilpailunrajoituksista, lag om konkurrensbegränsningar 480/1992). The Competition Office therefore requested that Neste be ordered to cease and desist from applying certain pricing criteria.
11. In a further submission of 11 February 1994 the Competition Office requested that an administrative fine (seuraamusmaksu, påföljdsavgift) be imposed. As a new fact the Competition Office referred to Neste's unwillingness to concede that it had been violating the relevant provisions and accordingly to change the price of fuel sold to SEO.
12. On 16 June 1994 the Competition Council held that Neste had abused its dominant position on the relevant market but found no reason to impose a fine on the company. Neste, SEO and the Competition Office all appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen). Neste maintained that it did not hold a dominant position on the market in question and in any case had not been abusing it. SEO appealed in so far as the Competition Council had accepted certain of Neste's criteria for price differentiation. The Competition Office contended that a fine should have been imposed.
13. On 9 and 14 September 1994 Neste forwarded to the Competition Office its interpretation of the Competition Council's decision as to the pricing criteria to be applied in light of the latter's decision. On 17 October 1994 the Competition Office replied that its interventions were limited to questions of principle. It could therefore not pronounce itself on Neste's proposed interpretation regarding the acceptable pricing criteria.
14. On 14 and 30 November 1994 Neste again drew the Competition Office's attention to its difficulties in interpreting the Competition Council's decision.
15. In a submission to the Supreme Administrative Court dated 26 June 1995 Neste demanded equality of arms in the proceedings. Reference was made to a telephone conversation between Neste's representative and a legal officer of the Supreme Administrative Court from which it had transpired that a secret memorandum of the Competition Office dated 19 June 1995 had been filed with the Supreme Administrative Court. The memorandum discussed Neste's conduct following the Competition Council's decision. The document had been released to Neste by the Competition Office itself on 22 June 1995 in response to the company's request.
16. In a further submission to the Supreme Administrative Court dated 24 July 1995 Neste challenged the accuracy of the Competition Office's memorandum, including the conclusions drawn. Neste again objected to the Supreme Administrative Court's failure to hear it formally in respect of the Competition Office's observations and apparently other memoranda.
17. By decision of 30 November 1995 (reported in its 1995 Yearbook A, p. 246) the Supreme Administrative Court, without commenting on Neste's procedural objections of 26 June and 24 July 1995, upheld the Competition Council's decision in large part. The court found, inter alia, that Neste, being in a dominant position on the relevant market, could in principle have objectively justifiable grounds for treating its clients differently according to certain criteria. In the case under examination Neste had not, however, shown any convincing grounds for differentiating between its clients on any ground other than on the basis of the volume of fuel purchased. By applying other pricing criteria Neste had accordingly abused its dominant position.
18. Having concluded that a fine should have been imposed on Neste, the Supreme Administrative Court referred the fixing of its amount to the Competition Council. It further ordered that Neste's conduct after 16 June 1994, in respect of which the court had received “substantial new information”, was to be taken into account. The court declined to examine itself what significance should be given to that information.
19. The Supreme Administrative Court's case-file indicates that it deliberated on 22 and 30 May as well as on 14 June 1995.
20. On 4 December 1995 the Competition Council confirmed to the parties that the sole question which remained to be decided was the size of the fine to be imposed on Neste. In January 1996 the Competition Office proposed a fine in the amount of 100,000,000 Finnish Marks (FIM) (approximately 16,819,000 euros (EUR) ). This proposal was rejected by the Competition Council. The Competition Office then filed a new proposal in which the amount of the fine was maintained but on different grounds.
21. In the beginning of 1996 Neste's representative found in the Supreme Administrative Court's case-file a copy of further observations drawn up by the Competition Office and dated 6 March 1995. They bore a stamp indicating that they had been received by the Supreme Administrative Court on 8 March 1995. The Competition Office had forwarded a copy to the Competition Council but not to Neste. The observations sought to refute Neste's arguments by highlighting the salient points of a 1994 decision of the European Commission in the case Texaco v. Norsk Hydro which the Competition Office argued supported the Competition Council's decision of 16 June 1994. The Supreme Administrative Court had not heard Neste in respect of those observations.
22. Following an oral hearing the Competition Council, by decision of 30 October 1996, fixed Neste's fine at FIM 2,000,000 (about EUR 336,000). It noted that Neste's pricing practice from 1 January to 8 February 1993 had clearly discriminated against SEO and had been found to be unlawful under the 1992 Act. While the prohibited pricing practice had not been significant in nature, it had not been so insignificant as to justify a waiver of the fine.
23. As regards Neste's conduct from 17 June 1994 to 30 November 1995 the Competition Council found that it had not deviated to such an extent from its decision of 16 June 1994 as to justify the imposition of a fine. In addition, Neste's attempts to obtain approval of its amended pricing practice had been in vain, since the Competition Office had failed in its obligation to direct and supervise the implementation of that decision. Accordingly, no fine was imposed for Neste's conduct during that period.
24. On 5 July 2000 the Supreme Administrative Court refused, in extraordinary proceedings, the applicant company's request for an annulment of its decision of 30 November 1995 in the ordinary proceedings under the 1992 Act. The court found that no procedural error had taken place and reasoned, inter alia, that in so far as it had ordered that the fine to be imposed on Neste should take account of its conduct between the Competition Council's decision of 16 June 1994 and the court's decision of 30 November 1995, it had not become evident that the court had based itself on material in respect of which Neste had not been heard. Moreover, the court had expressly declined to draw any conclusion as to whether the supplementary information received by it should be taken into account when considering the amount of the fine to be imposed.
25. At the time of the proceedings before the Supreme Administrative Court, domestic law contained no general provisions on the manner in which parties to administrative proceedings were to be heard in writing. Even in the absence of such provisions it was considered an essential feature of fair administrative proceedings that all parties were properly heard. The hearing requirement was considered to include the right of a party to be informed of a matter affecting him or her, of the progress of the proceedings and of any evidence adduced. It entitled a party to submit observations on any evidence adduced by other parties but only if that evidence could affect the outcome of the case. Whenever such evidence had been adduced, the court could not rely on it unless the other party had been heard. A party needed not be heard when a certain claim was not examined on its merits or was rejected immediately.
26. The Act on the Supreme Administrative Court (74/1918) provided, inter alia, that the court could request an opinion or other observations for the purpose of seeking evidence. The cases were dealt with by respecting “lawful court procedure” (sections 14-15).
27. As from 1 December 1996 the Act on Administrative Court Procedure (hallintolainkäyttölaki, förvaltningsprocesslag 586/1996) applies to proceedings before the Supreme Administrative Court. It contains explicit provisions on the hearing of parties. Provisions on parties' right to be heard can also be found in section 21 (2) of the Constitution (Suomen Hallitusmuoto, Regeringsform för Finland 731/1999; section 16 (2) of the former Constitution as amended by Act no. 969/1995).
28. According to section 2, subsection 1 of the Act on Publicity of Official Documents (laki yleisten asiakirjojen julkisuudesta, lag om allmänna handlingars offentlighet 83/1951), as in force at the relevant time, any document prepared and issued by an authority as well as any document sent or handed in to an authority and remaining in its possession was to be deemed an official document. Under section 9, however, a document could be ordered to be kept secret by Decree, for example when this was deemed necessary in order to safeguard business activities.
29. The Decree on Certain Exceptions to the Publicity of Official Documents (asetus sisältävä eräitä poikkeuksia yleisten asiakirjain julkisuudesta, förordning innefattande vissa undantag i fråga om allmänna handlingars offentlighet 650/1951) stipulated, inter alia, that documents containing information about commercial or industrial activities, the pursuit of a trade or profession or about the financial position of a private person were to be kept secret, unless the concerned company or person consented to disclosure (section 1).
30. On the one hand, a party within the meaning of section 19 of the Act on Publicity of Official Documents (whose interest, right or obligation the matter concerned) had the right to obtain information even from a document not designated as publicly accessible, if that information could influence, or could have influenced, the consideration of the case. On the other hand, it was possible to withhold from a party information appearing even in an document of the aforementioned nature, if disclosure thereof would have been contrary to a particularly important public or private interest.
31. The 1951 Act and Decree were replaced, on 1 December 1999, by a new Act on the Public Character of Activities Conducted by Public Authorities (laki viranomaisten toiminnan julkisuudesta, lag om offentlighet i myndigheternas verksamhet 621/1999) which contains comparable provisions on private economic interests and on parties' right of access to documents.
32. According to the Act on the Competition Office (711/1988), the Office shall publish its findings to the extent deemed appropriate. Information regarded as a business or professional secret shall not be disclosed, unless the concerned party has consented thereto (section 3).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-111532
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: HIZB UT-TAHRIR AND OTHERS v. GERMANY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger
TEXT: 1. The first applicant, Hizb Ut-Tahrir, is an unincorporated association which did not inform the Court of any registered address. The second applicant, Mr Shaker Hussein Assem, an Austrian national who lives in Germany, is the appointed representative of the first applicant for the purposes of the proceedings before the Court. The third to seventeenth applicants (see list appended) are members or supporters of the first applicant residing in Germany and Romania (applicant no. 5). They were represented before the Court by Mr Tayab Ali of Irvine Thanvi Natas solicitors, a law-firm practising in London.
The German Government (“the Government”) were represented by their agent, Ms Almut Wittling-Vogel, of the Federal Minstry of Justice and by Mr Thomas Giegerich, professor of international law at Kiel University.
Having been informed on 15 June 2010 of their right to submit written observations, the Austrian Government indicated to the Court that they did not intend to take part in the proceedings. The Turkish Government did not express an intention to take part in the proceedings.
2. The first applicant, whose name means “Liberation Party”, describes itself as a “global Islamic political party and/or religious society”. It was established in Jerusalem in 1953 and advocates the overthrow of governments throughout the Muslim world and their replacement by an Islamic State in the form of a recreated Caliphate. The first applicant has achieved a small, but highly committed following in a number of Middle Eastern states and has also gained popularity among Muslims in Western Europe. In Germany, where the first applicant has been active since the 1960s, it has approximately two hundred followers.
3. On 10 January 2003 the German Federal Ministry of the Interior (Bundesministerium des Innern) issued a decision by which it proscribed the first applicant’s activities within German territory under sections 3 § 1, 14 § 2 no. 4 in conjunction with sections 15 § 1 and 18 § 2 of the Law on Associations (see relevant domestic law, below). It further ordered the first applicant’s assets to be confiscated. Assets of third parties were confiscated as far as they had been intentionally used or were intended to be used to promote the first applicant’s illegal activities.
4. The Ministry considered that the first applicant was a foreign private association operating on an international scale and that there existed no known sub-organisation in Germany. Its activities in Germany included the distribution of leaflets and brochures and the distribution of information via internet as well as, more recently, the organisation of public events.
5. The Ministry considered that the first applicant’s activities were directed against the principle of international understanding and that the applicant advocated the use of violence as a means to achieve its political goals. The organisation’s mouthpiece and ideological platform in Germany was the quarterly magazine “Explizit”.
6. Basing its decision on the book “The inevitability of the battle of cultures”, published in 1953 by the organisation’s founder, Taqiuddin AnNabhani, as well as on a number of publications attributed to the first applicant, in particular articles published in the magazine “Explizit”, leaflets and publications on the organisation’s website, the Ministry considered that the first applicant denied the right of the State of Israel to exist and called for its destruction and for the killing of Jews. This constituted an expression of the applicant’s basic philosophical position, which included the “active Jihad”. The applicant agitated in a targeted fashion against Islamic States and the governments, which overthrow it repeatedly called for. It pursued its objectives, which were directed against the concept of international understanding, in a pro-actively aggressive manner. It did not thereby restrict itself to merely criticising existing political or social conditions or rejecting peaceful coexistence between States and peoples but also called for the armed struggle against the State of Israel, Jews and the Governments of Islamic States.
7. The Ministry further considered that the first applicant was not a political party, as it did not intend to stand for elections in Germany. It further held that the first applicant was not to be regarded as a religious or philosophical community (Religions- oder Weltanschauungsgesellschaft), as it did not pursue religious, but political objectives.
8. On 10 February 2003 the applicants, represented by counsel, lodged an application against the prohibition order with the Federal Administrative Court (Bundesverwaltungsgericht). They alleged, in particular, that the prohibition violated their right to freedom of religion under Article 4 of the Basic Law. They denied that they advocated the use of violence.
9. On 24 November 2003 the Federal Administrative Court ordered the first applicant to submit evidence as to where the organisation was based. On 7 January 2004 the first applicant pointed out that its organisation was prohibited in all Arab states, they were thus forced to work clandestinely and were unable to reveal the organisation’s address.
10. On 21 January 2004 the Federal Administrative Court severed the first applicant’s application from the remainder of the proceedings and declared it admissible. That court considered that the first applicant had the legal standing to lodge an application against the prohibition order. Furthermore, it had been properly represented before the court. On the same day, the Federal Administrative Court orally informed the applicants, that, under its established case-law (compare paragraph 34, below) actions lodged by individual members of a prohibited association were to be declared inadmissible. A decision on the admissibility of the remaining applicants’ actions was postponed until 25 February 2004.
11. On 3 February 2004 the second to seventeenth applicants withdrew their applications with reference to the indication given by the Federal Administrative Court as to the inadmissibility of their applications. On 19 February 2004 the Federal Administrative Court decided to discontinue the proceedings insofar as they concerned the applications lodged by these applicants.
12. In its submissions dated 8 and 29 November 2004, the first applicant accepted that it was not to be regarded as a political party within the meaning of the relevant law. The first applicant claimed, however, that all its activities had a religious foundation and that it enjoyed the protection of freedom of religion under the Basic Law. It further submitted that the Government had misconstrued the nature of its ideology, stressing, in particular, that the first applicant promoted peaceful dialogue and had never advocated the use of violence. It contested that the magazine “Explizit” was the organisation’s mouthpiece. The first applicant further pointed out that it did not seek to establish a “caliphate” in any of the Western European democracies. Lastly, it complained of a violation of its rights under Articles 9, 10 and 11 of the Convention.
13. On 8 August 2005 the Federal Administrative Court, by court order without a prior oral hearing, rejected the first applicant’s application as unfounded. Relying on the so-called “organisational law” submitted by the applicants, the court considered that the first applicant did not fulfil the requirements of a religious community, as its activities did not include the exercise of a common religious practice. Furthermore, the first applicant could not be regarded as a philosophical community, as its existence and activities were based on Islam.
14. The Federal Administrative Court further confirmed that the first applicant’s activities were directed against the principle of international understanding and were thus subject to prohibition under Article 9 § 2 of the German Basic Law in conjunction with the Law on Associations. Examining the sources already relied upon by the Federal Ministry of the Interior, the court considered that numerous statements were attributable to the applicant, which called for the violent elimination of the State of Israel and for the physical destruction of human lives and thus worked contrary to a peaceful resolution of the Middle East conflict.
15. The Court considered that articles published in the magazine “Explizit” contained denials of Israel’s right to exist and called for the violent elimination of the State of Israel or for people to be killed. The Article “Wie lange noch?” (How long?; Explizit, issue no. 30 March to June 2002, p. 4 et seqq.) addressed the political and military situation in Palestine. The article sharply criticised the Saudi Arabian peace deal adopted at the summit meeting of Arab States in Beirut in March 2002. This was followed by criticism of the Palestinian authority, which was accused of not pursuing the goal of
“freeing Palestine, but of handing over Palestine in the name of the Palestinian people to the Jews.”
This assessment was followed by the statement:
“As Muslims, we must be clear that the problem of “Israel” is not a border issue but an existential issue. The Zionist foreign body at the heart of the Islamic world can under no circumstances be allowed to continue to exist...We repeat again the unalterable Islamic duty: There can only be one response to the Zionist aggression in Palestine: Jihad. Allah, the Exalted, commands: “And slay them wherever ye catch them, and turn them out from where they have turned you out” (Al Baquarah 2, Aya 191).”
This was followed by the opinion that Israel was to be overcome by military means and that the
“Muslim armies (had) never really fought against the Zionist aggressor”.
16. The court considered that the call to Jihad in the article represented a summons to violently eliminate the State of Israel. It conceded that the term “Jihad” was multilayered in Islamic usage, referring to more than just the “Holy War”. The term described every endeavour, effort and strengthening of Islam. What was decisive in the present context, however, was how the term was to be understood by readers in the context of the article. It was embedded in the statement that Israel could on no account be allowed to continue to exist and the summons to eliminate the State by military means. In this context there could be no doubt that the call to Jihad was aimed at the violent destruction of Israel as a solution to the Israeli-Palestinian conflict. This interpretation corresponded to the quotation from the Qur’an relied upon in the article. It did not have to be decided how this quotation was to be understood in its original context. In the context of the article, it constituted a call to take violent action with the intention of causing physical destruction and banishment.
17. In the article “Fünfzig Jahre – Happy Birthday Israel?” (Fifty years – Happy birthday Israel?, Explizit, issue no. 5, April to June 1998, p. 2 et seqq.) it was stated that the creation of the State of Israel to the detriment of the Palestinian people was accompanied by crimes against humanity and that Israel thus lacked legitimacy. The article closed with the following statement:
“Whoever accepts the State of Israel is against Allah’s commands and thus commits a serious sin.”
This was followed by a quotation from the Qur’an of a “command by Allah”:
“And fight for Allah against those who fight against you, but do not transgress! Truly, Allah loves those who do not transgress. And slay them wherever ye catch them, and turn them out from where they have turned you out.”
18. The court considered that it could be left open whether the denial of Israel’s right to exist already breached the concept of international understanding. An any rate, that concept had been interfered with as soon as the assertion was followed by a call violently to eliminate the State of Israel, as had been the case with regard to the quotation from the Qur’an.
19. The Federal Administrative Court analysed the content of one further article published in the magazine Explizit in 2001 and concluded that that article also contained a call for the destruction of the State of Israel.
20. According to the court, there were a number of indications, which taken as a whole, left no doubt that there was a close link between the magazine “Explizit” and the first applicant, and that therefore the articles discussed in the above were attributable to the first applicant.
21. The call to eliminate the State of Israel by force and to kill people was not restricted to the magazine “Explizit”. Among other sources, the court referred to a transcript dated 8 August 2002 of a programme broadcast on Berlin local television about a debate on the Middle East conflict at the Technical University of Berlin, according to which the second applicant said the following with regard to suicide attacks in Israel:
“These actions would be banned in Germany or in other countries in the West – since Islam rejects violence against civilians, but there are no civilians in Israel; all of them, women and men, are part of the military and the founding of the State of Israel was an act of aggression. Everyone who goes to Israel and lives there is complicit in it. An attack on an institution with adults inside is an act of self-defence. If children are also killed, their parents are responsible for having decided to live in Israel.”
The Federal Administrative Court considered that these statements, in which the second applicant justified the physical destruction of Israeli nationals, spoke for themselves. According to the court, the same objective was reflected in a statement made by the second applicant at an event held on 27 October 2002, during which he said:
“For us, Israel is a State of aggression. A State of violence, a State of attack. That is why we are not prepared to accept this State, to make peace with this Zionist entity. This State was built upon the blood of Muslims, through aggression, through violence and we have a duty as Muslims to liberate the land again.”
22. According to the Federal Administrative Court, the denial of Israel’s right to exist, linked to the call to eliminate the State by force, was also the subject matter of several of the first applicant’s flyers. The court quoted, inter alia, a flyer dated 29 March 2001, which read:
“The whole of Palestine, from the sea to the river, is Islamic territory. Muslims are duty bound to liberate it from the rule of the Jews, even if it costs the lives of millions of martyrs.”
Another flyer dated 28 February 2002 contained the following:
“The Palestinian question is not a question of withdrawing from the region called the Palestinian territories. Nor is it a question of the withdrawal from the West Bank, the Gaza Strip or from Jerusalem. It is the Jewish entity itself which unlawfully appropriated Palestine. The solution is to uproot the Jewish entity from the entire Palestinian territory. Thus speaks Allah: “And slay them wherever ye catch them, and turn them out from where they have turned you out”...(2:191). Every recognition, every negotiation with the Jews is treason against Allah, His Prophet and the believers. We are not allowed to accept this or to keep quiet about it.”
23. Lastly, the court considered that the prohibition was proportionate. In this connection, it observed that the first applicant did not enjoy special protection under the Constitution as a religious or philosophical community. It further considered that the Federal Government did not have a milder means at their disposition to achieve the pursued aim.
24. On 3 October 2005 the first applicant submitted its comments on the court order. It alleged, in particular, that the court’s interpretation of the notion “religious community” had been too restrictive and was not consistent with the case law of the Federal Constitutional Court. It further requested an oral hearing to be held.
25. By judgment of 25 January 2006, which was served on the applicants’ counsel on 6 March 2006, the Federal Administrative Court, following a hearing, rejected the application as unfounded. At the outset, the court confirmed its ruling that the applicant could not be regarded as a religious community, as its aims were primarily of a political nature, even if they were based on religious foundations.
26. The Federal Administrative Court further considered that, even assuming that the first applicant could be regarded as a religious community or a religious association (religiöser Verein), it remained subject to prohibition under Article 9 § 2 of the Basic Law. The court was satisfied that the conditions for a ban to be issued were fulfilled because a multitude of public statements attributable to the first applicant against the backdrop of the Israeli-Palestinian conflict called for the violent elimination of the State of Israel and for people to be killed.
27. The Federal Administrative Court considered that the first applicant’s objections against this ruling were not convincing. The evidence presented in the court order was sufficient to justify the assumption that the cited articles were attributable to the first applicant. Irrespective of this fact, the first applicant’s calls for the State of Israel to be eliminated by force and for people to be killed were not only restricted to the magazine “Explizit”.
28. The court lastly found that, having regard to the seriousness of the statements attributable to the first applicant, the measure taken had to be regarded as proportionate even if the first applicant did enjoy the right to religious freedom. It would, in particular, not have been sufficient exclusively to ban the second applicant’s activity, as the impugned statements were not only made by the second applicant. Neither would it have been sufficient to ban the first applicant from issuing statements on the Middle East conflict, as the first applicant regarded it as a primary duty to combat and violently to destroy the State of Israel. As was demonstrated by the multitude of statements examined by the court in its court order, and had been confirmed by the first applicant during the oral hearing, the first applicant considered it as a main duty of the Caliphate to be created to destroy the State of Israel. These statements had such a weight that even the protection, which religious and philosophical associations generally enjoyed under the Constitution, did not call for renouncing the prohibition for the mere reason that the statements had so far not been followed by actions.
29. On 3 April 2006 the first applicant lodged a constitutional complaint, alleging, in particular, that the prohibition was disproportionate and violated its right freely to assemble as a religious community (religiöse Vereinigungsfreiheit) under Article 4 § 1 of the Basic Law. The first applicant complained, in particular, that Article 9 § 2 of the Basic Law was not applicable in the instant case. Furthermore, the prohibition order failed sufficiently to take into account its interests as a religious community and was disproportionate. According to the first applicant, it would have been sufficient to order the second applicant or other members of the association to refrain from making political statements on the Middle East conflict. The first applicant further alleged that the impugned decisions violated its rights under Articles 9, 10, 11 and 14 of the Convention.
30. On 27 December 2007 the Federal Constitutional Court, sitting as a panel of three judges, refused to admit the first applicant’s complaint for adjudication. According to that court, the complaint was inadmissible because the first applicant was not qualified to file a complaint as it did not have a registered address in Germany. Pursuant to the relevant provisions of the Law on proceedings before the Federal Constitutional Court, only those persons who could claim a violation of their constitutional rights were entitled to lodge a constitutional complaint. Article 19 § 3 of the Basic Law provided that the basic rights also applied to domestic legal persons to the extent that the nature of such rights permitted. The applicant, however, was a foreign legal person. While it might be considered that a foreign legal person based in another member State of the European Union had a right to equal treatment under Community Law, this did not apply in the first applicant’s case, as it had not been established that the first applicant had a registered office in another EU member State.
31. This decision was served on the first applicant’s counsel on 18 January 2008.
32. The relevant provisions of the German Basic Law (Grundgesetz) read as follows:
Article 2
[Personal freedoms]
“(1) Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law.”
Article 4
[Freedom of faith and conscience]
“(1) Freedom of faith and of conscience, and freedom to profess a religious or philosophical creed, shall be inviolable.
(2) The undisturbed practice of religion shall be guaranteed.
...”
Article 9
[Freedom of association]
“(1) All Germans shall have the right to form corporations and other associations.
(2) Associations whose aims or activities contravene the criminal laws, or that are directed against the constitutional order or the concept of international understanding, shall be prohibited.
...”
Article 19
[Restriction of basic rights – Legal remedies]
“(1) Insofar as, under this Basic Law, a basic right may be restricted by or pursuant to a law, such law must apply generally and not merely to a single case. In addition, the law must specify the basic right affected and the Article in which it appears.
(2) In no case may the essence of a basic right be affected.
(3) The basic rights shall also apply to domestic legal persons to the extent that the nature of such rights permits.
(4) Should any person’s rights be violated by public authority, he may have recourse to the courts. If no other jurisdiction has been established, recourse shall be to the ordinary courts...”
33. The relevant sections of the Law on Associations (Vereinsgesetz) read as follows:
Section 3
Banning
“(1) An association can only be treated as being banned (Article 9 § 2 of the Basic Law) if the competent authority established by decree that its aims or its activity contravene the criminal law or that they are directed against the constitutional order or against the idea of international understanding ; the order shall decree the dissolution of the association (ban). As a general rule, such ban shall entail confiscations and seizure of
1. the association’s assets,
2...and
3. property of third parties provided that the owner, by handling the items over to the association, has deliberately promoted the association’s anti-constitutional activities or if the items were intended to further such activities.
...”
Section 18
Geographical applicability of bans imposed on associations
“...If a (foreign) association does not have a sub-organisation within the geographical applicability of this Act, the ban (section 3 paragraph 1) is directed against its activity within that territory.”
Section 20
“Anyone who, within the geographical applicability of this act, by pursuing an activity
(...)
4. contravenes an enforceable prohibition under section 18 sentence 2 (...) will be sentenced to up to one year’s imprisonment or to a fine.”
34. Under the established case-law of the Federal Administrative Court (compare judgment of 13 August 1984, no. 1 A 26/83 and decision of 3 April 2003, no. 6 A 5/02), individual members of an association are not entitled to lodge actions against the banning of the respective association, because the ban exclusively affects the legal position of the respective association, and not the individual rights of its members.


ITEMID: 001-83583
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF ISMAILOVA v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life)
JUDGES: Loukis Loucaides
TEXT: 6. The applicant was born in 1972 and lives in the town of Makhachkala.
7. The applicant married in 1990. The applicant and her husband were nominal but non-practising Muslims at that time.
8. Two children, a boy and a girl, were born to the couple in 1993 and 1997 respectively.
9. It appears that the family lived at a house of the paternal grandparents in the village of Novomugri, Sergokalinskiy District of the Republic of Dagestan.
10. Being upset with various difficulties in the relations with her husband who was a seaman and frequently away at sea, in June 1999 the applicant started associating with the Jehovah's Witnesses.
11. In June 2000 the mounting tensions between the spouses over the applicant's religious interests resulted in the applicant's decision to leave the matrimonial home together with the children. The applicant and children started living with the maternal grandparents.
12. In December 2000 the applicant was baptised as a Jehovah's Witness.
13. There appear to have been only occasional contacts between the applicant's husband and the children between June 2000 and July 2001. As the applicant's husband failed systematically to provide financial support for the upbringing of the children, in early 2001 the applicant filed in court a request for maintenance. On 26 April 2001 the court ordered the husband to pay for the support of the children.
14. On 1 July 2001 the children went to visit their paternal grandparents and on 26 August 2001 the grandparents refused to return the children to the applicant. The applicant submits that she has had no regular access to the children since then.
15. On 17 September 2001 the father filed a divorce petition in the Leninskiy District Court of Makhachkala (“the District Court” – Ленинский районный суд г. Махачкала).
16. He also submitted that he was ready to provide the children with better living and moral conditions than the applicant, that the applicant had taken the children to religious meetings with a view to converting them to the faith of the Jehovah's Witnesses, that the children had become irritable and did not want to return to their mother, and requested the court to grant him custody of both children.
17. In response, the applicant accepted that the marriage had irretrievably broken down but contested the husband's claim for custody.
18. At a preliminary hearing the District Court ordered a report on the issue of custody of the children to be prepared by the Custody and Guardianship Agency attached to Leninskiy District Council of the town of Makhachkala (“the Custody and Guardianship Agency” – Орган опеки и попечительства при Администрации Ленинского района г. Махачкалы).
19. A letter of instruction dated 24 October 2001 contained a request to report on the applicant's living conditions and to give a conclusion concerning “the possibility of leaving the children with her, having regard to the fact that [the applicant] attends [meetings of] the sect 'Jehovah's Witnesses'”.
20. On 4 December 2001 an official, U., drew up a report on the preliminary inquiry into [the applicant's] living conditions. The report described the three room flat measuring in total 68.5 square metres in which the applicant, her two parents and three brothers were living and then stated:
“... Additional information about [the applicant's] family: [the applicant] attends [meetings] of the organisation 'Jehovah's Witnesses'; members of the organisation sometimes meet at her home and study the relevant literature. [The applicant's] parents are critical of her religion.
I deem it, in the interests of the minor children, to be more advisable for them to live with their father ... in the village of Novomugri, Sergokalinskiy District.”
21. On an unspecified date the District Court added the report of 4 December 2001 to the case-file.
22. On 11 December 2001, upon the District Court's request, the Leninskiy District Council of the Town of Makhachkala (“the District Council” – Администрация Ленинского районного г. Махачкалы) submitted to the court observations (заключение) in which it advised that custody of the children should be granted to their father.
23. The District Council reasoned as follows:
“The Custody and Guardianship Agency attached to Leninskiy District Council of the town of Makhachkala established that [the applicant] resided in her parents' house... In 1990 she had married Mr Magomed Gazimagomedov, from whom she bore two minor children: Abdul Gazimagomedov, born in 1993, and Aminat Gazimagomedova, born in 1997.
The spouses resided in the village Novomugri of the Sergokalinskiy District. She worked in a neighbour village as a school teacher; his work was related to sea trips.
As of June 2000 spouses Gazimagomedovy de facto interrupted their marital relations. The children started living with their mother in Makhachkala.
Long before their divorce, [the applicant] began attending [meetings of] the religious organisation 'Jehovah's Witnesses'. Her attendance at [these] meetings which involved travelling [to other towns] was the reason for the discord and break-up of the family. Villagers and relatives spoke out against the conduct of [the applicant].
When living with the children in Makhachkala, contrary to her parents' will, she did not refrain from regularly attending the meetings of the 'Jehovah's Witnesses'. She began actively advocating the ideas of this organisation. Sometimes her fellow believers gather together at her parents' home and they study the relevant literature. She would also take her children to the meetings. After attending these meetings, the children became shy and irritable, they perceived the surrounding world and natural phenomena in the way the 'Jehovah's Witnesses' teaching presents it (the children were afraid of the 'Worldwide Flood' whenever it rained, they called the [applicant's] mother-in-law 'Satan', they would not attend their classmates' birthdays or other celebrations because the religion did not permit this).
The children's father ... was seriously concerned that the children's association with their mother threatened their upbringing; he was against their returning to Makhachkala.
The minor children are presently living with their father. [The son] is now getting good marks at [school]...
On the basis of the aforementioned, considering the fact that the parents must provide each child with the possibility of growing healthy, physically and spiritually, and based on the interests of the minor children, the Custody and Guardianship Agency deems it advisable for the children to reside with their father.”
24. On 15 March 2002 the District Court terminated the marriage between the applicant and her husband and granted custody of the children to their father.
25. The District Court reasoned as follows:
“... [The spouses] married on 6 December 1990, then resided in different locations, and since 1997 in a private house of Gazimagomedov in the village of Novomugri of the Sergokalinskiy District of the Republic of Dagestan.
[They] have children in marriage: Abdula, born on 30 May 1993, and Aminat, born on 15 January 1997.
In June 2000, having gone to visit her parents, [the applicant] joined the organisation 'Jehovah's Witnesses'. The family began to have problems and since that time they have not been living together as husband and wife. The family has split apart. The court fixed them a period for reconciliation but the parties failed to reunite and have requested to terminate their marriage.
It follows that the family cannot be preserved and the marriage should be dissolved.
From the submissions of [the applicant] and her mother ... it transpires that the members of the 'Jehovah's Witnesses' organisation come to the flat in which [the applicant] and her parents reside a few times a week to conduct their activities. Furthermore, [the applicant] attends the weekly meetings of the 'Jehovah's Witnesses'.
[The applicant's mother] was questioned in court and confirmed the fact that at the beginning her grandchildren had been very afraid of rain and wind and had been saying that a 'Worldwide Flood' and an earthquake would take place. That is when [the applicant's mother] learned that [the applicant] had been taking the children to meetings of the sect 'Jehovah's Witnesses'.
From the case-file documents and the parties' submissions it transpires that at present [the applicant's husband] resides, along with his parents, in the village of Novomugri in a two-storey house. The household in fact belongs to him. For a few months of the year he works at sea and the same amount of time he spends at home.
The children have been living with him and his parents.
According to a certificate of a Novomugri Secondary School, [the applicant's son] has excellent results at school.
[The applicant] works as a teacher and has good references.
From a report on [her] living conditions it transpires that a three-room flat is occupied by the applicant, her parents and [the applicant's] three brothers.
The members of the 'Jehovah's Witnesses' organisation gather at the same place and study the relevant literature. According to a report on [the applicant's] living conditions and the observations of the Custody and Guardianship Agency, 'the parents are obliged to provide their children with an opportunity to grow physically and spiritually healthy; regard being had to the interests of [the children], the Custody and Guardianship Agency considers it appropriate to grant custody [of both children] to their father'.
The court too is of the view that, having regard to the fact that [the children] have been living with their father for more than five years and have not yet attained the age of 10, and also in the interests [of the children] as defined by sections 54-56 and 61-66 of the RF Family Code, that custody should be granted to their father...”
26. The applicant and her counsel appealed against the judgment of 15 March 2002 to the Supreme Court of the Republic of Dagestan (“the Supreme Court” – Судебная коллегия по гражданским делам Верховного суда Республики Дагестан).
27. In her grounds of appeal she argued that the first-instance judgment was discriminatory in that it had been based on the applicant's affiliation to the Jehovah's Witnesses, that the first-instance court's findings were perverse, unsustainable and misconstrued, that the court had failed to take account of all the factors which were relevant to the case according to section 65 (3) of the Family Code (the father's frequent absence owing to his work at sea, the applicant's demonstrated pedagogical competence as a professional school teacher, a prior and recent history of both parents' involvement in the upbringing of their children, the father's allegedly immoral adulterous behaviour, etc.) and that the court had acted on the presumption of the Jehovah's Witnesses being a dangerous organisation.
28. The applicant also cited domestic jurisprudence in child custody cases and the judgment of 23 June 1993 of the European Court of Human Rights in the case of Hoffmann v. Austria.
29. On 17 April 2002 the Supreme Court, sitting in a composition of three professional judges, examined the applicant's appeal and by two votes to one rejected it as unfounded.
30. In particular, the majority established the following:
“... In making the decision that the father should have custody of the children, the trial court came to the sound conclusion that this was in the best interests of the children. The court decision is based on the conclusion of the Custody and Guardianship Agency and the case circumstances established in court.
Thus the court established that the children's mother ... who is a member of the Jehovah's Witnesses organisation, took the children with her to the sect's meetings, and involved them in associating with the sect's members at their homes. She thereby violated the requirements of Article 28 of the Constitution of the Russian Federation, under which everyone is guaranteed freedom of conscience and religion. Under Article 17 (2) of the Constitution fundamental human rights are unalienable and belong to everyone at birth. The [court] finds irrelevant [the applicant's] arguments that the court, by its decision, has deprived her of the right to educate her children because of her religion and membership of the Jehovah's Witnesses organisation. Pursuant to Article 17 (3) of the Constitution and Article 65 (1) of the Family Code, [the applicant's] exercise of her constitutional rights, including the right to practice any religion and her parental rights, must not impinge on the rights and freedoms of others or conflict with the interests of the children. The right of a parent to educate a child from whom he or she is living apart, is guaranteed by section 66 of the Family Code, which defines the procedure for a parent to exercise parental rights.
The court also established that [the applicant's husband's] financial status and housing conditions are better than those of [the applicant]. [The applicant's husband] is employed, lives with his parents, and owns a two-storey house with the necessary living conditions for the children. [The paternal grandparents] do not object to their grandchildren living with them. [The applicant] works as a history teacher in [a school] in Makhachkala. She lives in her parents' 48-square-metre, three-bedroom flat, along with her father, mother and three brothers, born in 1977, 1983, and 1985.
The Custody and Guardianship Agency concluded that it was in the best interests of the children that they remain in the custody of their father... [The applicant's] argument, stated in her appeal, that the granting of custody to the father would have negative repercussions on the children's emotional state in the future, was not substantiated. The argument that the religious organisation Jehovah's Witnesses has state registration, benefits society, and so forth, cannot be taken into consideration since it is irrelevant to the matter being examined by the court. There are no reasons in [the applicant's] appeal to reverse [the first-instance judgment] handed down in the case...”
31. The dissenting judge gave the following opinion:
“... I hold that the decision handed down by the first-instance court was subject to reversal owing to the failure to investigate the circumstances specified in section 65 (3) of the Family Code of the RF.”
32. The applicant's subsequent attempts to seek reconsideration of the decisions in her case by way of supervisory review were unsuccessful.
33. All her respective requests were dismissed as unfounded.
34. The latest decision in this respect was taken by the Supreme Court of the Republic of Dagestan on 28 November 2003.
35. The applicant alleged that her former husband had remarried and that his new wife had not attempted to assume the role or responsibilities of step-mother. In the absence of the father, who was frequently away at sea, the paternal grandmother had effectively become the sole carer.
36. The applicant further alleged that she was allowed to visit her children only occasionally and could never remain with them alone.
37. The Government submitted that, according to the information provided by the head of the Sergokalinskiy local administration of the Republic of Dagestan, the applicant's children resided with their father and paternal grandparents in a two-storey private house. They had all necessary facilities for the upbringing and education of the children. Their father had remarried and had had a third child. The applicant's children had developed emotional ties with the third child.
38. Article 28 of the Russian Constitution of 12 December 1993 reads:
“Everyone shall be guaranteed the right to freedom of conscience, freedom of religion, including the right to profess, either alone or in community with others, any or no religion, to choose, have and disseminate religious or other convictions freely and to act according to them.”
39. Section 65 (on the exercise of parental rights) of the Family Code of the Russian Federation provides as follows:
“3. The place of the children's residence, if the parents live apart, shall be established by an agreement between the parents.
In the absence of an agreement, the dispute between the parents shall be resolved in court, proceeding from the children's interests and taking into account the children's opinion. In doing so, the court shall take into account the child's affection for each of his parents and for his brothers and sisters, the child's age, the moral and other personal characteristics of the parents, the relations existing between each of the parents and the child, and the possibility of creating optimal conditions for the child's upbringing and development (the parent's kind of activity and work regime, their material situation and family status, etc.).”
40. Section 66 (on the exercise of parental rights by the parent residing separately from the child) of the Code provides as follows:
“1. The parent residing separately from the child shall have the right to communicate with the child and to take part in his upbringing and in resolving the issue of the child's education.
The parent with whom the child lives shall not prevent the child's communication with the other parent, unless such communication damages the child's physical and mental health or his moral development.
2. The parents shall have the right to enter into a written agreement on the way the parent residing apart from the child may exercise his or her parental duties.
If the parents cannot reach an agreement, the dispute shall be resolved in court with the participation of the guardianship and trusteeship body, upon the claim of the parents (or one of them).
3. In the event of failure to abide by the court decision, the measures stipulated by the civil procedural legislation shall be applied to the respective parent. In the case of persistent failure to comply with the court decision, the court shall have the right, upon the claim of the parent residing separately from the child to take a decision on passing the child over to that parent, proceeding from the child's interests and taking into account the child's opinion.
4. The parent residing separately from the child shall have the right to obtain information on his or her child from the educational establishments and medical centres, from the institutions for the social protection of the population and from other similar institutions. The information may be refused only if the parent presents a threat to the child's life and health. Refusal to provide information may be disputed in court.”
NON_VIOLATED_ARTICLES: 14
8
NON_VIOLATED_PARAGRAPHS: 8-1