ITEMID: 001-102266
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF O'DONOGHUE AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Remainder inadmissible;Violation of Art. 12;Violation of Art. 14+12;Violation of Art. 14+9;Pecuniary and non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 1. The Certificate of Approval Scheme
5. In 2005 the Secretary of State for the Home Department introduced the first version of the Certificate of Approval Scheme (“the first version”). Section 19 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 provided a statutory basis for the scheme and further details were set out in the Immigration (Procedure for Marriage) Regulations 2005 (SI 2005/15) (“the 2005 Regulations”) and the Immigration Directorate's Instructions (“IDIs”).
6. The first version of the scheme required that in order to marry, persons subject to immigration control had to have either entry clearance expressly granted for the purpose of enabling them to marry in the United Kingdom or a Certificate of Approval. The definition of “persons subject to immigration control” excluded European Economic Area nationals and persons who had been granted Indefinite Leave to Remain.
7. In order to obtain a Certificate of Approval, a person subject to immigration control had to submit an application to the Secretary of State for the Home Department together with an application fee of GBP 295. If both parties to the proposed marriage were subject to immigration control, each party had to submit an application form and pay the required fee. The IDIs provided that in order to qualify for a Certificate of Approval, an applicant had to have been granted leave to enter or remain in the United Kingdom for a period of more than six months and he or she had to have at least three months of that leave remaining at the time of making the application.
8. The first version of the scheme did not apply to persons seeking to marry in accordance with the rites of the Church of England.
9. On 10 April 2006 Mr Justice Silber delivered judgment in the case of R (on the applications of Baiai and Others) v Secretary of State for the Home Department [2006] EWHC 823 QB (Admin), in which he considered whether the first version of the scheme interfered with the Articles 12 and 14 rights of those who were subject to immigration control and who were in the United Kingdom lawfully.
10. He found that it was permissible, according to the Court's jurisprudence, to introduce legislation to prevent marriages entered into for the purpose of avoiding immigration control even though this legislation might interfere with the right to marry. Furthermore, the legislative objective relied on by the Government of preventing sham marriages was sufficiently important to justify limiting an Article 12 right.
11. However, in the case of the first version of the scheme, the measures designed to meet the legislative objective were disproportionate as they were not rationally connected to it. First, all religious marriages other than those in the Church of England required a Certificate despite the fact that the evidence showed that sham marriages predominantly took place in registry offices. The treatment of religious marriages outside the Church of England was therefore a matter of concern as they were treated like registry office marriages even though evidence indicated that the same precautions which prevented sham marriages taking place in the Church of England were also present in other religious ceremonies. Secondly, there was no basis for the assumption that all religious marriages outside the Church of England were automatically to be treated as sham marriages, thus requiring a Certificate, while in contrast all marriages conducted according to the rites of the Church of England were to be regarded automatically as not being sham marriages and therefore did not require a Certificate. Thirdly, the first version of the scheme arbitrarily failed to take into account many factors which might be relevant in considering whether or not a proposed marriage was a sham, such as clear and corroborated evidence that the parties had enjoyed a loving relationship over a number of years, during which time they might have had children or bought a house together. It was difficult to understand how the scheme, which ignored factors such as these, could be “rationally connected” to the purported legislative aim of avoiding sham marriages. Fourthly, the first version of the scheme was not rationally connected to the legislative objective as it regarded the only relevant factors in determining whether a non-EU national could marry in the United Kingdom as his or her immigration status.
12. Mr Justice Silber therefore held that the first version of the scheme was not proportionate and constituted a substantial interference with Article 12 rights.
13. He also held that this version of the scheme was incompatible with Article 14 of the Convention as it was discriminatory on the grounds of religion and nationality. It constituted direct discrimination as it targeted individuals who were, because of their religious convictions or lack of them, unable or unwilling to marry pursuant to the rites of the Church of England. Meanwhile those who wished to marry in the Church of England were exempted from the scheme.
14. Furthermore, the fact that a fee was levied was also discriminatory as this was not required of those with the same characteristics wishing to marry in Church of England religious ceremonies.
15. In a separate judgment ([2006] EWHC 1454 (Admin)), Mr Justice Silber found that in the case of Mr Baiai, at the time an illegal immigrant, the refusal of permission to marry did not constitute an interference with his rights under Article 12, as permitting him to marry an EEA national would effectively have permitted him to “queue jump” and would have undermined the effectiveness of immigration control.
16. The Secretary of State accepted Mr Justice Silber's findings that the first version of the scheme under section 19 of the 2004 Act was discriminatory and did not seek to challenge this conclusion on appeal. However, he was granted permission to appeal against Mr Justice Silber's findings in respect of Article 12 of the Convention. Mr Baiai was also granted permission to appeal.
17. On 23 May 2007 the Court of Appeal delivered judgment in the case of SSHD v. Baiai and Others [2007] EWCA Civ 478. It agreed with Mr Justice Silber's finding that the first version of the scheme under section 19 of the 2004 Act was disproportionate and violated Articles 12 and 14 of the Convention. However, it disagreed with the conclusion reached in respect of Mr Baiai. The Court of Appeal held that the immigration status of Mr Baiai was irrelevant to the genuineness of his proposed marriage, which alone could properly determine whether he should be free to exercise his right to marry. It therefore dismissed the Secretary of State's appeal and allowed that of Mr Baiai. The Secretary of State was granted permission to appeal to the House of Lords.
18. On 30 July 2008 the House of Lords handed down its opinion in the case of R. (on the application of Baiai and others) v. Secretary of State for the Home Department [2008] UKHL 53. It dismissed the appeal and ordered that section 19(3)(b) of the 2004 Act should be read as meaning “has the written permission of the Secretary of State to marry in the United Kingdom, such permission not to be withheld in the case of a qualified applicant seeking to enter into a marriage which is not one of convenience and the application for, and grant of, such permission not to be subject to conditions which unreasonably inhibit exercise of the applicant's right under Article 12 of the European Convention.”
19. Lord Bingham observed that from the early days the Court had described the right to marry as “fundamental” and noted that Article 12, in contrast with Article 8, conferred a right and not a right to respect for specified areas of personal life.
20. Lord Bingham further observed that the scope afforded to national law was not unlimited and it had been emphasised that national laws governing the exercise of the right to marry should never injure or impair the substance of the right. In practice the Court had been firm in upholding the right to marry, finding in favour of applicants denied the exercise of that right because they were serving prisoners (Hamer v. the United Kingdom, no. 7114/75, Commission decision of 13 December 1979, DR 24, p. 62), because of a mandatory delay imposed before entering into a fourth marriage (F. v. Switzerland, 18 December 1987, Series A no. 128), or because one applicant was the father-in-law of the other and they could only exercise their right to marry if they obtained a private Act of Parliament (B. and L. v. the United Kingdom, no. 36536/02, 13 September 2005).
21. Lord Bingham considered, inter alia, the Court's decisions in Sanders v. France, no. 31401/96, Commission decision of 16 October 1996, DR 87 p. 160 and Klip and Krüger v. the Netherlands (1997) DR 91-A, p. 66. He concluded that:
“A national authority may properly impose reasonable conditions on the right of a third-country national to marry in order to ascertain whether a proposed marriage is one of convenience and, if it is, to prevent it. This is because Article 12 exists to protect the right to enter into a genuine marriage, not to grant a right to secure an adventitious advantage by going through a form of marriage for ulterior reasons.
... ... ...
[The authorities] establish ... that where a third-country national proposes to marry within the jurisdiction the member state may properly check whether the proposed marriage is one of convenience or not and seek information necessary for that purpose. The authorities give no support to the proposition that a significant restriction may be placed on all such marriages, or on a sub-class of such marriages, irrespective of whether they are marriages of convenience or genuine marriages and with no procedure to ascertain whether they are the one or the other.”
22. In respect of the first version of the scheme, Lord Bingham held:
“Apart from its discriminatory features, which the Secretary of State has said she will remove, I do not think section 19, read alone, is legally objectionable. It is open to a member state, consistently with article 12, to seek to prevent marriages of convenience. There is nothing in the text of section 19 which authorises or requires the withholding of permission to marry in the case of any marriage which is not a marriage of convenience. Indeed, the section makes no reference to marriages of convenience or sham marriages and gives no hint of the grounds on which permission may be granted or withheld. Section 19 could be operated, consistently with its terms and with article 12, in a manner which required persons subject to immigration control to give notice of a proposed marriage, enabled an appropriate authority to investigate whether the proposed marriage would be one of convenience and provided for the withholding of permission only in cases where it appeared that the proposed marriage would be one of convenience.
Subject to one qualification, the 2005 Regulations are similarly, in my opinion, unobjectionable. They provide in some detail in Schedule 2 for the information to be given by an applicant for permission to marry, and considerable detail (more than is required in the Schedule) is clearly necessary if enquiry is to be made whether a proposed marriage will be one of convenience. My qualification relates to the prescribed fee. It is plain that a fee fixed at a level which a needy applicant cannot afford may impair the essence of the right to marry which is in issue. A fee of £295 (£590 for a couple both subject to immigration control) could be expected to have that effect.
The Immigration Directorates' Instructions, promulgated (it is understood) without express parliamentary sanction, provide for the denial of permission to marry (save on compassionate grounds, relatively rarely allowed in practice) to all those who are in the country without leave, or whose grant of leave to enter or remain in the UK on the occasion in question did not total more than 6 months, or who did not have at least 3 months remaining at the time of making the application for permission. The vice of the scheme is that none of these conditions, although of course relevant to immigration status, has any relevance to the genuineness of a proposed marriage, which is the only relevant criterion for deciding whether permission should be given to an applicant who is qualified under national law to enter into a valid marriage. It may be that persons falling within the categories specified in the Instructions are more likely to enter into a marriage of convenience than others, and that may be a very material consideration when the genuineness of a proposed marriage is investigated. But the section 19 scheme does not provide for or envisage any investigation at all, because (as has been explained in the evidence) such investigation is too expensive and administratively burdensome. Thus, subject to the discretionary compassionate exception, the scheme imposes a blanket prohibition on exercise of the right to marry by all in the specified categories, irrespective of whether their proposed marriages are marriages of convenience or whether they are not. This is a disproportionate interference with exercise of the right to marry.”
23. Baroness Hale of Richmond considered that:
“It is not disputed that the Government would be free to deny any immigration advantage to a party to a marriage which had been entered into solely for the purpose of obtaining that advantage. (Indeed, the respondents argue that that is already the case, as the claimed advantages apply only to real relationships.) But the scheme in issue here does something very different. The legislation enables the Government to prohibit in advance a great many marriages irrespective of whether or not they are genuine, irrespective of whether or not there is any immigration advantage to be obtained thereby, and without any right of appeal other than judicial review. This strikes at the very heart of the right to marry which is guaranteed to everyone of full age by article 12 of the European Convention on Human Rights.”
24. She found that there were many objections to the scheme, other than its being discriminatory. In particular, she noted that:
“It covers anyone who is subject to immigration control, that is, anyone who is not an EEA national and requires leave to enter or remain in the United Kingdom (s. 19(4)). This covers all non-nationals unless they have already acquired the 'right of abode'. All of these people are required to give notice to the registrar in specified registration districts, irrespective of where they live or intend to get married; and both parties to the intended marriage must attend in person to deliver their notice (s. 19(2)). This is all irrespective of how long they have been living here, how close their relationship and how small or non-existent the immigration advantage there might be.
When they get to the registrar, there are only two categories of people who need go no further. The first is a person who has been given entry clearance expressly for the purpose of enabling him to marry in the United Kingdom (s 19(3)(a)). The second is a person who falls within a class specified in regulations (s 19(3)(c)). Regulation 6 of the Immigration (Procedure for Marriage) Regulations 2005 (SI 2005/15) specifies a person 'who is settled in the United Kingdom' within the meaning of paragraph 6 of the Immigration Rules. This basically means someone who is ordinarily resident here, not in breach of the immigration laws, and without any restriction on the period for which he may remain. A very large number of people who have been here lawfully for a long time will still not be 'settled' here in this sense.
Everyone subject to immigration control who does not fall within those two exceptions cannot marry without the written permission of the Secretary of State to marry in the United Kingdom (s. 19(3)(b)). Application must be made in writing accompanied by the fee prescribed in the 2005 Regulations, which is now £295. If both parties require permission, therefore, they must pay £590 to apply for it. There is no power in the regulations to waive or reduce the fee no matter how meritorious the case. This is on top of the much more modest fees for the actual marriage, of £30 for each notice to marry, £40 for the ceremony, and £3.50 for the marriage certificate, making a total of £103.50. It must be a positive disincentive to couples whose desire to marry is deep and sincere and has nothing to do with their immigration status or where they intend to live once married.
None of these applicants will be able to find out from the Act or the Regulations how good their chances are of getting permission. On the face of it, the Government can adopt whatever policy it chooses without even laying it before Parliament for scrutiny. The current policy is contained in the published “Immigration Directorates' Instructions", chapter 1, section 15. This does not depend upon any reasonable assessment, either of the immigration advantage which the marriage might bring, or of the genuineness of the relationship. It depends upon a rule of thumb: permission will be granted if each person needing it has been granted leave to enter or remain in the UK for more than six months (calculated from when his present stay in the UK first began) and has at least three months of this remaining when he makes the application. Even within this category, permission will be refused if there is good reason to believe that either of the parties lacks capacity to marry in English law. Outside this category, permission will be refused unless “there are exceptionally compassionate features” making it unreasonable to expect them to travel, either to marry abroad or to apply for entry clearance from abroad. The examples given are pregnancy or some other condition making the person unfit to travel abroad. They do not include features suggesting that the marriage is genuine, because that is not the point.
This policy automatically excludes all asylum seekers because they do not have leave to enter. The policy states that they should not normally be permitted to marry until after their claims have been determined. But if an initial decision on an application or an appeal has been outstanding for 18 months (and we understand that time starts running afresh once an appeal has been lodged), or if they cannot be expected to travel abroad for compelling compassionate reasons, the permission may be granted. It is, of course, extremely unlikely that any genuine asylum seeker will be in a position to travel back to the country from which he has fled to escape a wellfounded fear of persecution, nor would it be consistent with this country's obligations under the Refugee Convention to compel him to do so.
It is an indication of how over-inclusive the statutory scheme is that the great majority of applications for permission are granted. From 1 February 2005, when section 19 came into force, until 10 April 2006, when Silber J handed down his first judgment, 14,787 applications for permission to marry or enter a civil partnership were dealt with. 12,754 were granted, only 41 of these on exceptional or compassionate grounds, the rest because they met the leave criteria. 1,805 were refused. 228 were withdrawn or discontinued. We are told that this was quite deliberate. The Government simply decided to subject a large number of proposed marriages to the deterrent effect of scrutiny and to prohibit all those in the class which they thought most likely to contain the suspect unions. Making a serious attempt to distinguish between the “sham” and the genuine was considered too difficult and too expensive.”
25. Following the judgments of Mr Justice Silber on 10 April 2006, the first version of the scheme was amended. Under the new procedure (“the second version”), applicants who had insufficient leave to enter or remain at the time of applying for a Certificate of Approval could be asked to submit further information in support of their applications to enable the Home Office to satisfy itself that the proposed marriage or civil partnership was genuine.
26. Further amendments followed the Court of Appeal judgment on 23 May 2007 (“the third version”). Under the third version of the scheme, applications from individuals who did not have valid leave to enter or remain, who had until this point been refused a Certificate of Approval unless there were exceptional compassionate circumstances, were to be treated in line with the guidance for those who had limited but insufficient leave to qualify for a Certificate.
27. With effect from 9 April 2009 the Government suspended the requirement to pay any fee. On 10 July 2010 a scheme for repaying fees to applicants who met a financial hardship test at the time of the application met with Ministerial approval.
28. On 27 July 2010 a proposal for a draft Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (Remedial) Order 2010 was laid before Parliament. If the draft order is approved by both Houses of Parliament, it is expected to come into force early in 2011. Once in force, it will effectively abolish the Certificate of Approval scheme.
2. The circumstances of the applicants
29. The applicants were born in 1974, 1979, 2006 and 2000 respectively and live in Londonderry.
30. The first applicant has both Irish and British nationality. She is married to the second applicant, who is a Nigerian national of Biafran ethnic origin. The third applicant is the child of the first and second applicant and the fourth applicant is the first applicant's child from a previous relationship. Both the third and fourth applicants have British and Irish nationality.
31. The applicants are practising Roman Catholics.
32. The first and second applicants care for the third and fourth applicants and also for the first applicant's disabled parents. The first applicant receives Invalid Carer's Allowance, Income Support, Child Benefit and Housing Benefit. The second applicant is not entitled to work.
3. The factual background to the application
33. The second applicant arrived in Northern Ireland in 2004 and claimed asylum in 2006. In November 2009 he was granted Discretionary Leave to Remain, which runs until November 2011.
34. The second applicant met the first applicant in November 2004 and they began living together in December 2005. In May 2006 the second applicant proposed to the first applicant and she accepted.
35. On 9 July 2007 the first and second applicants applied for a Certificate of Approval and requested to be exempted from the GBP 295 fee. They explained in detail that the first applicant survived on Invalid Carer's Allowance and Income Support and that the second applicant was destitute as a result of not being permitted to work. This explanation was attached to the application and a supporting letter from their Member of Parliament was sent.
36. On 18 July 2007 their application was returned to them with a letter stating the following:
“If an applicant does not pay the specified fee, his or her application is invalid. The specified fee has not been paid in connection with your attempted application which you made by post on 9 July 2007. We do not consider that an exception to the requirement to pay the fee applies in this case, therefore your application is invalid and we are returning your documents.”
37. In July 2008 a group of the applicants' friends contributed towards the fee required to make an application for a Certificate of Approval. The applicants subsequently made an application with the donated funds. On receiving the application form, a case worker asked the first and second applicants to submit further information about their relationship. They submitted two sworn affidavits. The case worker was satisfied with the information provided and the applicants were issued with a Certificate of Approval on 8 July 2008. They married on 18 October 2008.
38. Section 19 (1) of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (“the 2004 Act”) imposed certain requirements before a person subject to immigration control was able to marry, otherwise than in accordance with the rites of the Church of England under Part II of the Marriage Act 1949.
39. Section 19 (3) of the 2004 Act stipulated, as relevant, that:
“(3) The superintendent registrar shall not enter in the marriage notice book notice of a marriage to which this section applies unless satisfied, by the provision of specified evidence, that the party subject to immigration control—
(a) has an entry clearance granted expressly for the purpose of enabling him to marry in the United Kingdom,
(b) has the written permission of the Secretary of State to marry in the United Kingdom....”
40. Section 19 (4) (a) of the 2004 Act provided that a person “subject to immigration control” was a person who was not a European Economic Area (EEA) national and who required leave to enter or remain in the United Kingdom.
41. Section 23 of the 2004 Act provided the following in relation to Northern Ireland:
“(1) This section applies to a marriage—
(a) which is intended to be solemnised in Northern Ireland, and
(b) a party to which is subject to immigration control.
(2) In relation to a marriage to which this section applies, the marriage notices—
(a) shall be given only to a prescribed registrar, and
(b) shall, in prescribed cases, be given by both parties together in person at a prescribed register office.
(3) The prescribed registrar shall not act under Article 4 or 7 of the Marriage (Northern Ireland) Order 2003 (S.I. 2003/413 (N.I.3)) (marriage notice book, list of intended marriages and marriage schedule) unless he is satisfied, by the provision of specified evidence, that the party subject to immigration control—
(a) has an entry clearance granted expressly for the purpose of enabling him to marry in the United Kingdom,
(b) has the written permission of the Secretary of State to marry in the United Kingdom, or ...”
42. Permission from the Secretary of State was granted by the issuing of a Certificate of Approval pursuant to the procedure provided for in the Immigration (Procedure for Marriage) Regulations 2005 (SI 2005/15) (“the 2005 Regulations”).
43. Regulation 7 of the 2005 Regulations provided that:
“(1) A person seeking the permission of the Secretary of State to marry in the United Kingdom under section 19(3)(b), 21(3)(b) or 23(3)(b) of the 2004 Act shall—
(a) make an application in writing; and
(b) pay a fee on the submission of the application in accordance with regulation 8.
(2) The information set out in Schedule 2 is to be contained in or provided with the application.”
44. Schedule 2 indicated that both parties to an intended marriage should state their name, date of birth, name at birth (if different), nationality, contact details, passport or travel document numbers, Home Office reference numbers (where applicable), details of their current immigration status (if applicable), the date on which their current leave was granted and the date on which that leave was to expire (where applicable), and details of any previous marriages and divorces.
45. The fee on application to the Secretary of State for the Home Department was initially fixed at GBP 135. It was increased to GBP 295 on 2 April 2007. There was no statutory right of appeal for an applicant who alleged that they could not afford to pay the fee. If the fee was not paid, the application for a Certificate was invalid and there was no discretion for the fee to be waived. The refusal of an application for a Certificate did not constitute an immigration decision and there was no statutory right of appeal against it.
46. In February 2005 the Immigration Directorate issued instructions on authority to marry. The Immigration Directorate's Instructions (“IDIs”) stated that under the 2004 Act persons subject to immigration control who wished to marry in the United Kingdom had to first meet an additional qualifying condition before they could give notice of the marriage: they were required to have an entry clearance or be settled in the United Kingdom or have a Home Office Certificate of Approval. Chapter 1, section 15, para 3, of the IDIs (“Criteria for Granting a Certificate of Approval”) provided that:
“In order to qualify for a certificate of approval, a person must have valid leave to enter or remain in the UK as follows. He must have been granted leave to enter or remain in the UK totalling more than 6 months on this occasion; and have at least 3 months of this leave remaining at the time of making the application.”
47. The IDIs stated that a Certificate of Approval would be refused if there was good reason to believe that there was a legal impediment to the marriage, as on grounds of age, consanguinity or an existing marriage. A Certificate of Approval would normally be refused to a person not qualified to be granted one, but a Certificate could be granted on compassionate grounds.
48. The Certificate of Approval scheme was amended following the judgment of Mr Justice Silber. UKBA guidance stated that under the new procedures UKBA could write to persons who had insufficient leave to enter or remain at the time of applying for a Certificate of Approval, asking that they submit further information in support of their application to enable UKBA to be satisfied that the proposed marriage or civil partnership was genuine. Any such letter would ask for information about:
when, where and how the applicant and their fiancé(e)/proposed civil partner met;
when the couple decided to marry or enter into a civil partnership;
where the couple intended to live if permitted to marry or to enter into a civil partnership in the United Kingdom;
arrangements for any religious ceremony, including the nature of the ceremony, the person conducting it and relevant contact details, arrangements for any reception or celebration, including details of the location, proof of booking and relevant contact;
the applicant's relationship with his or her fiancé(e)/proposed civil partner if the couple was not living together (e.g. letters and photographs as evidence of the relationship);
the applicant's life with his or her fiancé(e)/proposed civil partner if the couple was living together, including the address(es), how long they had lived together and documentary evidence in the form of correspondence addressed to both parties at the same address from utilities, government bodies, local authorities, financial institutions etc.;
any children from the applicant and his or her fiancé(e)/proposed civil partner's present or previous relationships, including where they lived, the length of time any of them had lived with the applicant and his or her fiancé(e)/proposed civil partner, the names of their natural parents and details of who supported them;
contact telephone numbers for the applicant and his or her fiancé(e)/proposed civil partner in case an officer wishes to contact either of you;
and any additional information which the applicant would like to submit, and/or any additional supporting evidence or documentation which might help the application.
49. Following the Court of Appeal judgment, the Government further amended the scheme. UKBA guidance indicated that applications from individuals who did not have valid leave to enter or remain (illegal entrants, persons who had been refused leave to enter but granted temporary admission or temporary admission pending the outcome of an application for leave to enter, and those who had overstayed their leave to remain), who had previously been refused unless there were exceptional compassionate circumstances for granting a Certificate of Approval, would be treated in line with the guidance for those who had limited, but insufficient, leave to qualify for a Certificate.
50. In March 2009 the AIRE Centre and the Joint Council for the Welfare of Immigrants brought judicial review proceedings in respect of the failure of the Home Office to comply with that part of the House of Lords judgment which related to the level of the fees being charged. The night before the ruling the Government agreed to suspend the fees with effect from 9 April 2009.
51. On 10 July 2010 a scheme for the repayment of the full fee to applicants who met a financial hardship test by making ex gratia payments received ministerial approval. In order to meet the test for real financial hardship, applicants would have to provide evidence that the payment of the fee led the couple to experience real financial hardship at the time of the application. The test would take into account whether both parties to the proposed marriage were on benefits, including asylum support, or whether they had income below a certain threshold.
52. In November 2009 the Government notified the Court of its intention to abolish the Certificate of Approval Scheme. On 27 July 2010 the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (Remedial) Order 2010 was laid before Parliament and it is anticipated that it will come into force early in 2011.
VIOLATED_ARTICLES: 12
14
9


ITEMID: 001-59614
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF KREPS v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Georg Ress
TEXT: 8. On 13 January 1993 the applicant was detained on charges of armed robbery, burglary and assault occasioning bodily injuries.
9. On 13 April 1993 a bill of indictment was lodged with the Warsaw Regional Court (Sąd Wojewódzki). The applicant was indicted on the charges of armed robbery, burglary and assault committed together with six other persons.
10. The court listed hearings for 4, 5 and 6 May 1994 but subsequently cancelled all of them because one of the applicant’s co-defendants had failed to appear. On the last of those dates, the hearing was postponed because Z.K. (one of the co-defendants) was ill and the court considered it necessary to obtain a medical report determining whether or not he would be able to take part in the trial. The relevant report was received at the court’s registry on 13 June.
11. Two days later the Regional Court set the trial for 6 and 7 September but, on 6 September, it adjourned the hearings since a court interpreter had failed to appear (D.B., one of the co-defendants, was of Lithuanian nationality and therefore not able to follow the trial without the assistance of an interpreter).
12. The first hearing on the merits was held on 8 November 1994. The court heard evidence from four defendants. The trial continued on 9 and 14 November 1994. In the course of those two hearings, the court heard evidence from other defendants.
13. The next hearing took place on 16 January 1995. During that hearing the applicant unsuccessfully asked the court to remit the case to the Warsaw Regional Prosecutor and order a further investigation with a view of indicting his wife. On 17 January 1995, in the course of the next hearing, he made a similar application and stated that if it was not granted, he would not attend hearings. Later, he apologised for his behaviour. A hearing listed for 18 January started with a delay because it emerged from a medical certificate made by a prison doctor that the applicant was ill. On that day the court however decided to proceed with the trial in the applicant’s absence because, on the basis of another, subsequently obtained medical certificate, it came to the conclusion that he had misinformed the prison authorities as to the state of his health. The trial continued on 19 and 20 January and on 17, 20 and 23 March 1995. Further hearings were listed for 17, 18 and 19 May 1995. The hearing set for 18 May did not take place because one of the co-defendants had not appeared before the court. In the meantime, on 8 May 1995, the applicant, relying on his previous record of psychiatric treatment, asked the court to order that he be examined by a psychiatrist.
14. On 19 May 1995 the court ordered that evidence be obtained from psychiatrists to establish whether tempore criminis the applicant and two of his co-defendants had acted in a state of diminished responsibility. It adjourned the trial to 26 and 27 July 1995.
15. On 22 May 1995 the court requested the Department of Forensic Psychiatry of Warsaw-Mokotów Prison to place the applicant and his co-defendants under psychiatric observation. The applicant underwent that observation from 3 October 1995 to 15 January 1996.
16. On 29 December 1995, 13 January, 13 and 29 February, 4 March and 16 April 1996, the applicant asked the Warsaw Regional Court to release him. He submitted that his detention on remand had meanwhile exceeded two years and that it was putting a severe strain on his family, especially as his child was ill and his wife and mother needed his help.
17. The Warsaw Regional Court examined all those applications on 29 April 1996. It dismissed them, holding that the applicant’s detention should continue in view of the reasonable suspicion that he had committed the offences with which he had been charged and the need to secure the proper conduct of the proceedings. The court also considered that the length of the applicant’s detention could not in itself be a decisive factor militating in favour of his release. Finally, it added that there were no grounds for releasing him in view of his family situation, in particular under Article 218 of the Code of Criminal Procedure. In that respect, the court relied on a declaration made by the applicant’s wife (who stated that she did not wish to obtain any help from him).
18. The applicant appealed, stressing that his detention on remand had meanwhile exceeded three years but his trial had only just commenced. On 23 May 1996 the Warsaw Court of Appeal (Sąd Apelacyjny) dismissed the appeal in view of the serious nature of the offences with which the applicant had been charged and the need to secure the proper conduct of the proceedings.
19. Meanwhile, on 29 February 1996 and on an unknown date in April 1996, the psychiatric observations ordered with respect to the applicant’s co-defendants had been completed. The psychiatrists’ reports were received at the court’s registry on 21 March and 12 April 1996, respectively.
20. On 8 May 1996, the Regional Court scheduled hearings for 5 and 6 August 1996. It emerged from a subsequent decision of the Supreme Court (Sąd Najwyższy) of 13 February 1997 (see paragraph 26 below) that those hearings had been cancelled because the applicant’s co-defendants had “disorganised the trial”. In particular, one of them had inflicted injuries on himself.
21. On 28 May 1996 the applicant challenged the impartiality of the trial court. The challenge was dismissed on 3 June 1996.
22. On 18 June and 11 September 1996 the applicant made further applications for release. They were dismissed on 4 July and 19 September 1996 respectively. The applicant appealed and, on 28 September 1996, submitted a medical certificate stating that he suffered from gastric ulcers. Following inquiries into the applicant’s personal circumstances and his family’s situation made by the relevant courts, the contested decisions were eventually upheld on appeal. The courts reiterated the grounds previously given for the applicant’s continued detention.
23. On 8 November 1996 the Warsaw Regional Court held a hearing. However, the composition of the panel of the court had to be changed because one of the judges had meanwhile withdrawn from the case. In consequence, the newly-composed trial court had to rehear evidence that had to date been obtained. The trial continued on 12-13, 16 and 1819 December 1996. On 18 December 1996 the court, considering that the applicant behaved in a disorderly manner (he apparently interrupted the process of obtaining evidence from experts) ordered that he be temporarily removed from the court room. A hearing listed for 21 January 1997 was postponed to 4 February because one of the applicant’s co-defendants had failed to appear. In the course of the hearing held on 4 February 1997 the applicant for the second time challenged the impartiality of the trial court.
24. On 21 January 1997 the applicant asked the court to release him. On 6 February 1997 he lodged another application for release. The court dealt with his applications on 3 March 1997 and dismissed them, holding that there were no grounds for releasing him under Article 218 of the Code of Criminal Procedure
25. In the meantime, on 31 December 1996, the Warsaw Regional Court had made an application under Article 222 § 4 of the Code of Criminal Procedure to the Supreme Court, asking it to prolong the applicant’s and his co-defendants’ detention on remand until 30 May 1997, i.e. beyond the statutory time-limit set in such cases. The Regional Court considered that the prolonged psychiatric observation of three of the co-defendants, the need to obtain evidence and the fact that one co-defendant had gone on a hunger strike and had inflicted injuries on himself fully justified the opinion that the defendants had deliberately obstructed the termination of the proceedings within the statutory time-limit and, consequently, gave sufficient grounds for extending their detention. Referring to the applicant, the court held that he had, by his conduct, obstructed the termination of the proceedings. It did not specify how the applicant prevented completion of the trial.
26. The Supreme Court examined that application on 13 February 1997. It prolonged the applicant’s and his co-defendants’ detention on remand until 30 April 1997.
27. The trial was to continue on 7 March 1997 but – for unknown reasons – it was postponed to a later date.
28. On 21 March 1997 the applicant – again unsuccessfully – challenged the impartiality of the trial court.
29. The trial continued on 1, 4 and 16 April 1997. On 18 April 1997 the court gave judgment. The applicant was convicted as charged and sentenced to eleven years’ imprisonment and a fine of 3,000 Polish zlotys.
30. The applicant appealed against his first-instance conviction in July 1997. The Warsaw Court of Appeal dismissed the appeal on 2 December 1997.
31. At the material time the rules governing detention on remand were contained in Chapter 24 of the Law of 19 April 1969 - Code of Criminal Procedure (Kodeks postępowania karnego) entitled "Preventive measures" (“Środki zapobiegawcze”). The Code is no longer in force. It was repealed and replaced by the Law of 6 June 1997 (commonly referred to as the “New Code of Criminal Procedure”), which entered into force on 1 September 1998.
32. The Code listed as “preventive measures”, inter alia, detention on remand, bail and police supervision.
Article 209 set out the general grounds justifying imposition of the preventive measures. This provision read:
“Preventive measures may be imposed in order to ensure the proper conduct of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.”
Article 217 § 1 defined grounds for detention on remand. This provision, in the version applicable until 1 January 1996, provided, in so far as relevant:
“1. Detention on remand may be imposed if:
(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when he has no fixed residence [in Poland] or his identity cannot be established; or
(2) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means; or
(3) an accused has been charged with a serious offence or has relapsed into crime in the manner defined in the Criminal Code; or
(4) an accused has been charged with an offence which creates a serious danger to society.
...”
On 1 January 1996 sub-paragraphs 3 and 4 of Article 217 § 1 were repealed and the whole provision was redrafted. From that date onwards the relevant sub-paragraphs read:
“(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent abode [in Poland]; or
(2) [as it stood before 1 January 1996].”
Paragraph 2 of Article 217 provided:
“If an accused has been charged with a serious offence or an intentional offence [for the commission of which he may be] liable to a sentence of a statutory maximum of at least eight years’ imprisonment, or if a court of first instance has sentenced him to at least three years’ imprisonment, the need to continue detention in order to secure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed.”
33. The Code set out the margin of discretion in maintaining a specific preventive measure. Articles 213 § 1, 218 and 225 of the Code were based on the precept that detention on remand was the most extreme preventive measure and that it should not be imposed if more lenient measures were adequate.
Article 213 § 1 provided:
“A preventive measure [including detention on remand] shall be immediately lifted or varied, if the basis for it has ceased to exist or new circumstances have arisen which justify lifting a given measure or replacing it with a more or less severe one.”
Article 225 stated:
“Detention on remand shall be imposed only when it is mandatory; this measure shall not be imposed if bail or police supervision, or both of those measures, are considered adequate.”
The provisions for “mandatory detention” (for instance, detention pending an appeal against a sentence of imprisonment exceeding three years) were repealed on 1 January 1996 by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes.
Finally, Article 218 stipulated:
“If there are no special reasons to the contrary, detention on remand should be lifted, in particular, if:
(1) it may seriously jeopardise the life or health of the accused; or
(2) it would entail excessively burdensome effects for the accused or his family.”
34. Until 4 August 1996, i.e. the date on which the relevant provisions of the Law of 29 une 1995 (see also “Amendments to criminal legislation” above) entered into force, there were no time-limits for detention on remand in the court proceedings. From that date on, Article 222 of the Code of Criminal Procedure laid down such time-limits. It read, in so far as relevant:
”3. The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed one year and six months in cases concerning offences. In cases concerning serious offences [offences for the commission of which a person is liable to a sentence of a statutory minimum of at least three years’ imprisonment] this period may not exceed two years.
4. In particularly justified cases the Supreme Court may, on the application made by the court competent to deal with the case, ... prolong detention on remand for a further fixed period exceeding the time-limits set out in paragraphs 2 and 3, when it is necessary in connection with a suspension of the proceedings, a prolonged psychiatric observation of the accused, when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings in the terms referred to in paragraph 3.”
On 28 ecember 1996, by virtue of the Law of 6 ecember 1996, paragraph 4 of Article 222 was amended and the grounds for prolonging detention beyond the statutory time-limits included also:
“ ... other significant obstacles, which could not be overcome by the authorities conducting the proceedings...”
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-3
6-1


ITEMID: 001-61692
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF KRZAK v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Inadmissible under Art. 6-1 with regard to criminal proceedings;Inadmissible with regard to the second applicant;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed
JUDGES: Nicolas Bratza
TEXT: 6. The applicants, Stanisław Krzak and Anna Krzak, a married couple, are Polish nationals. They were both born in 1921 and live in Sławnowice, Poland.
7. On 17 May 1988 W.Ł. (“the petitioner”) filed an application with the Żywiec District Court (Sąd Rejonowy), seeking a decision declaring that she had acquired a title to certain real property. The first applicant was one of the parties to the proceedings.
8. On 23 April 1991 the Żywiec District Court gave a decision. It declared that W.Ł. and her husband M.Ł. had acquired the title to the property which consisted of four plots of land. The first applicant appealed against that decision.
9. On 22 October 1993 the Bielsko-Biała Regional Court (Sąd Wojewódzki) set aside the first-instance decision and remitted the case in respect of one of the plots. It dismissed the remainder of the first applicant’s appeal.
10. The hearing listed for 10 January 1994 was adjourned since the first applicant had been improperly summoned.
11. On 7 February 1994 the court held a hearing. The first applicant was not present. At the next hearing, held on 18 March 1994, the court stayed the proceedings due to the death of M.K., one of the participants in the proceedings. On 29 August 1994 the court held hearing and resumed the proceedings. The hearing fixed for 11 October 1994 was adjourned at the petitioner’s request. The trial court held further hearings on 18 July, 6 September, and 6 October 1995.
12. On 19 October 1995 the court held a hearing. The first applicant failed to appear. The next hearing took place on 29 November 1995.
13. On 5 December 1995 the Żywiec District Court gave a decision (postanowienie). It held that W.Ł. and M.Ł. had acquired the title to the property in question.
14. On 15 March 1996 the first applicant asked for leave to file an appeal out of time. He claimed that he had been sick and he had not been able to lodge an appeal against the final decision within the prescribed time limit.
15. On 18 September 1996 the Żywiec District Court held a hearing in the appeal proceedings. At a further hearing held on 25 October 1996, the District Court dismissed the applicant’s appeal of 15 March 1996.
16. Later, on an unknown date, the first applicant asked the Minister of Justice for leave to file a cassation appeal with the Supreme Court (Sąd Najwyższy) against the above-mentioned decisions of the Żywiec District Court. On 23 June 1998 the Minister of Justice lodged a cassation appeal on the first applicant’s behalf.
17. On 8 October 1998 the Supreme Court quashed the decisions of the Żywiec District Court of 23 April 1991 and 5 December 1995 and remitted the case. It found that the District Court had not summoned all the parties to the proceedings.
18. On 9 February 1999 the Żywiec District Court held a hearing. It ordered W.Ł. to produce certain documents. On 16 March 1999 the court stayed the proceedings because W.Ł. had failed to comply with that order. On 25 June 1999 the Bielsko-Biała Regional Court dismissed the first applicant’s appeal against that decision.
19. On 26 July 1999 the Żywiec District Court dismissed the first applicant’s further appeal against the decision of 25 June 1999.
20. In a letter of 9 December 2003 the applicants informed the Court that the proceedings are still pending before the Żywiec District Court.
21. In 1991 the applicants requested the Żywiec District Prosecutor (Prokurator Rejonowy) to institute criminal proceedings against J.K. and W.K., complaining that the latter had destroyed their house and stolen their trees. On 30 September 1992 Żywiec District Prosecutor discontinued the investigation against the alleged culprits. On 15 March 1993 the BielskoBiała Regional Prosecutor (Prokurator Wojewódzki) upheld this decision.
22. In 1994, following the applicants’ complaint to the Minister of Justice, the Żywiec District Prosecutor reopened the investigation. On 15 February 1995 the District Prosecutor again discontinued the investigation considering that no criminal offence had been committed. The applicants subsequently complained to the Minister of Justice about that decision.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-76507
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF IOSUB CARAS v. ROMANIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Not necessary to examine Art. 6-1 and P1-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award (first applicant);Non-pecuniary damage - finding of violation sufficient (second applicant);Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson
TEXT: 5. The first applicant was born in 1972 and lives in Petah Tikva, Israel. The second applicant, the daughter of the first applicant, was born in 2001. She currently lives in Romania.
6. The first applicant and his wife, both Romanian and Israeli citizens, have had their permanent residence in Israel since 1997. Their child Iris was born there, in 2001, and acquired Israeli citizenship from birth.
7. In September 2001, the family visited Romania. On 11 October 2001, the date scheduled for the return of the family to Israel, only the first applicant left, while the wife and the second applicant remained in Romania.
Subsequently, the first applicant filed for the return of the child, under the Hague Convention (proceedings described under no. 1 below), while the wife filed for divorce and custody of the child with the Romanian courts (proceedings described under no. 2 below).
8. On 22 November 2001, upon arrival in Israel, the father filed a request for the return of his child under the Hague Convention of 25 October 1980 on the civil aspects of international child abduction (“the Hague Convention”). The request was submitted through the Israeli Ministry of Justice to the Romanian Ministry of Justice (“the Ministry”) which received it on 26 November 2001. The first applicant claimed that his wife was wrongfully retaining their daughter in Romania, without his consent. He also informed the Ministry that he had heard his wife had filed for divorce with the Romanian courts.
9. On 27 November 2001, he asked the Ministry to apply for a stay in the divorce proceedings (see infra, §§ 12-17), for as long as the Hague proceedings were pending.
10. On 11 January 2002, the Ministry, acting as the Central Authority for the purpose of the Hague Convention, instituted proceedings on behalf of the first applicant before the Bucharest District Court of the Sixth Precinct.
Based on the evidence adduced in the case, the district court found that the retention of the child in Romania was illegal, under Article 3 of the Hague Convention. However, it considered that, due to the political situation in Israel, which had worsened constantly since September 2000, there was a great risk that the return would expose the child to physical or psychological harm. Therefore, in a judgment of 15 April 2002, the district court rejected the request for the return of the child under Article 13 (b) of the Convention.
11. On 17 December 2002, the Bucharest County Court allowed the appeal lodged by the Ministry and ordered the return of the child on the grounds that the retention was illegal and that the mother had not proved the grave risk that the child would be exposed to, if returned to her father.
12. On 21 February 2003, the mother filed an appeal against this decision, allowed by the Bucharest Court of Appeal in a final decision of 5 June 2003.
The court rejected the request for return on the ground that, since the date of the commencement of the Hague proceedings, another Romanian court had ruled on the divorce of the parents and had granted sole custody of the child to the mother, in a final decision of 18 September 2002.
It also considered that, bearing in mind the child’s age, namely two years and four months, her return would be against her interests in so far as she had effectively been living in Romania, with her mother, since she was 7 months old. Lastly, on the basis of witness testimony, the court found it proved that the father had consented initially to remain in Romania and to establish there the domicile for the whole family.
Therefore, the court found that the child had legally resided in Romania since 12 September 2001.
13. On 10 October 2001, the first applicant’s wife filed for divorce, custody of their daughter and maintenance before the Bucharest District Court of the Sixth Precinct.
14. The court found that, except for the first hearing, the first applicant had been correctly summoned at his address in Israel through the Ministry, as required by the Code of Civil Procedure. The first applicant was not present at any of the four hearings held in the case.
15. In the judgment of 18 September 2002, as rectified on 6 November 2002, the district court granted divorce on the grounds of fault by the first applicant, awarded the custody of the child to the mother and ordered the first applicant to pay monthly maintenance of 824 American dollars for his daughter.
16. On 11 December 2002 the district court sent the judgment to the first applicant’s address.
17. In the absence of appeals against it, the judgment became final.
18. The first applicant informed the Court that he had not received any of the summonses sent to him or the judgment of 18 September 2002. It appears that he did not appeal at any point against the judgment.
“The removal or the retention of a child is to be considered wrongful where
a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. (...)”
“Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.
In particular, either directly or through any intermediary, they shall take all appropriate measures -
a) to discover the whereabouts of a child who has been wrongfully removed or retained;
b) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;
c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues;
d) to exchange, where desirable, information relating to the social background of the child;
e) to provide information of a general character as to the law of their State in connection with the application of the Convention;
f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access;
g) where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;
h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;
i) to keep other each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.”
“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.
If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.”
“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.”
“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that
a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal of retention; or
b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.”
“After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under the Convention is not lodged within a reasonable time following receipt of the notice.”
“The sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention, but the judicial or administrative authorities of the requested State may take account of the reasons for that decision in applying this Convention.”
“The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time.”
Paragraph 121 of the Explanatory Report on the 1980 Hague Convention comments on Article 16 of the Hague Convention as follows:
“This article, so as to promote the realisation of the Convention’s objectives regarding the return of the child, seeks to prevent a decision on the merits of the right to custody being taken in the State of refuge.”
“Unless otherwise provided in a treaty, international convention or special law, persons who are abroad and whose home address abroad is known shall be summoned to appear by registered mail. Article 1141 (4) applies accordingly...
In all cases in which those who are abroad have a known representative in Romania, the latter shall be summoned...”
“Persons resident abroad... shall be informed [through the summons] of the obligation to establish residence in Romania for the purpose of service of procedural acts. If they do not comply with this requirement, service shall be effected by registered mail, the proof that the letter was presented to a Romanian post office being sufficient evidence that the summoning procedure was respected.”
“The parties [in divorce proceedings] shall be present before the courts ruling on the merits, except where one of the spouses... resides abroad; in the latter situation the parties may participate through a representative.”
VIOLATED_ARTICLES: 8


ITEMID: 001-71738
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF MAJERCSIK v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
TEXT: 4. The applicant was born in 1949 and lives in Mátészalka, Hungary.
5. In proceedings instituted by the applicant, on 12 November 1993 the Supreme Court finally declared that his former employer had terminated his employment unlawfully and granted him severance pay and damages. Simultaneously, on 25 May 1993 the applicant brought an action before the Nyíregyháza Labour Court against the employer claiming pecuniary and non-pecuniary damages.
6. On 15 June 1995 the Labour Court dismissed the applicant’s claims. On appeal, on 26 June 1996 the Szabolcs-Szatmár-Bereg County Regional Court granted the applicant damages plus accrued interest.
7. On 15 April 1997 the Supreme Court’s review bench quashed the second-instance decision in its part concerning the pecuniary damages, and remitted this aspect of the case to the Regional Court.
8. In the resumed second-instance proceedings, on 29 September 1998 the Regional Court granted damages plus accrued interest to the applicant. This decision was partially quashed by the Supreme Court’s review bench on 8 July 1999 for procedural shortcomings.
9. In the resumed second-instance proceedings, on 29 February 2000 the Regional Court granted some damages plus accrued interest to the applicant and dismissed the remainder of his action. On 29 March 2001 the Supreme Court’s review bench partially quashed this decision as the Regional Court had miscalculated the amount granted to the applicant.
10. In the proceedings resumed for the third time, on 30 October 2001 the Regional Court granted the applicant damages plus accrued interest.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-87142
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF MILINIENE v. LITHUANIA
IMPORTANCE: 3
CONCLUSION: No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
JUDGES: Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Jean-Paul Costa;Nona Tsotsoria
TEXT: 8. The applicant was born in 1964 and lives in Vilnius, where she formerly worked as a judge.
9. The facts of the case, as submitted by the parties, may be summarised as follows.
10. On 10 June 1998 the applicant was approached by SŠ, an acquaintance, with whom, she alleged, she had merely discussed the sale of her car. Unbeknownst to her, their conversation during that meeting was secretly recorded by SŠ.
11. On 16 June 1998 a special anti-corruption police unit of the Ministry of the Interior (Specialiųjų tyrimų tarnyba, hereafter referred to as the STT) received a complaint by SŠ that the applicant had demanded a payoff, in the form of a new car, in return for admitting and deciding SŠ’s civil claim to declare null and void the auction of his property.
12. On the same date the STT applied to the Deputy Prosecutor General, requesting a “Criminal Conduct Simulation Model” (“the model”) to be authorised for a period of one year. The STT stated in the application:
“[T]he STT received an application by [SŠ] concerning [the applicant’s] demand for a bribe in return for admitting his civil action and ruling in [his] favour.
[The applicant] ... guaranteed that the auction would be lifted by a court decision taken by her. In return, [the applicant] asked for a good car, to be bought by [SŠ] with his money.
With a view to recording and discontinuing [the applicant’s] unlawful act, [SŠ] has agreed to collaborate with STT officers, and simulate the following crimes: the buy-off and breach of currency and securities regulations ... under Articles 284 and 329 of the [Criminal Code].
[The model] will be executed by STT officers by way of a separate operational action plan.
Basis - application by [SŠ].”
13. On 17 June 1998 the model was authorised by the Deputy Prosecutor General. The text of the model reiterated the wording of the STT application of 16 June 1998.
14. On 8 October 1998 the STT wrote a letter to the Prosecutor General, informing him, as follows, about the facts established on the basis of the conversations secretly recorded by SŠ with technical equipment provided by the STT:
a) By 16 June 1998 SŠ had met the applicant three times: on 10 June in her office; on 16 June at 11.30 a.m. again in her office; on 16 June at 5 p.m. in SŠ’s car. In the course of their exchanges, the applicant had demanded a bribe of 10,000 American dollars (“USD”) in return for a favourable resolution of SŠ’s civil dispute. Following the authorisation of the model on 17 June 1998, SŠ had been given money by the anti-corruption police. In the morning of that day he had handed over USD 1,000 to the applicant and, in the afternoon, he had given her a further USD 9,000, to be used by the applicant for a new car. At a meeting in the evening of 17 June 1998, the applicant had drafted SŠ’s civil claim and had instructed him on the future course of the proceedings. On 30 June 1998 the applicant had further instructed SŠ on his case, whilst assuring him of its favourable outcome.
b) On 11 September 1998 the applicant had asked SŠ to obtain new winter tyres for her car. On 24 and 25 September 1998 the applicant had informed SŠ that further payments might be required to buy off certain judges of the higher court. On 28 September 1998 the applicant had taken from SŠ a further bribe of USD 500 for the winter tyres. On the same date she had obtained from him USD 1,000 for bribing higher judges. The applicant had thus taken a total of USD 10,500 in personal bribes, as well as USD 1,000 to buy-off certain higher court judges.
15. The STT also submitted that the case materials disproved any element of undue instigation as the applicant had:
- recommended a particular lawyer to SŠ for his civil case;
- drafted his claim, assuring him of its favourable outcome;
- registered SŠ’s case in court and had personally undertaken to examine it;
- bought a new car after having received the bribe; and
- met SŠ on a number of occasions on her own initiative, whilst assuring him of the favourable outcome of his claim.
16. On 9 October 1998 the applicant was apprehended in her office whilst receiving a further USD 4,000 from SŠ. On the same date the STT wrote a letter to the Prosecutor General, requesting the applicant’s prosecution, whereupon the Prosecutor General decided to institute criminal proceedings against the applicant for accepting a bribe (Article 282 of the Criminal Code as then in force).
17. On 12 October 1998 the Prosecutor General applied to the Seimas (Parliament), requesting that the applicant’s judicial immunity be lifted and that she be suspended from her functions pending the outcome of the criminal case. It was noted in this connection that the applicant had demanded and obtained a bribe from SŠ. On 5 November 1998 Parliament lifted the applicant’s immunity. By a decree of 10 November 1998, the President dismissed the applicant from her position as a judge.
18. SŠ died on 12 April 1999.
19. On 25 May 1999 the applicant was indicted for accepting a bribe in large amounts (Article 282 paragraph 2 of the Criminal Code as then in force), cheating (Article 274) and official malpractice (Article 285). On 4 August 1999 the prosecution rejected the applicant’s request to discontinue the case. On 9 August 1999 the case was transmitted to the Vilnius Regional Court, a judge of which, on 17 August 1999, committed the applicant for trial on the above counts.
20. On 7 October 1999 the applicant requested the Vilnius Regional Court to apply to the Constitutional Court to examine the compatibility of the Operational Activities Act with the Lithuanian Constitution. In particular, she claimed that the Act had not duly protected persons from possible incitement by the investigating authorities to commit offences. In addition, it was alleged that the power conferred upon the prosecution under the Act to authorise the model - which effectively allowed private persons like SŠ to imitate criminal acts but avoid criminal liability - had gone beyond the constitutional competence of the prosecutors. Consequently, the authorisation of such models should only have been issued by courts. She further claimed that a judicial authorisation should have been required for certain intrusive measures under the Act such as the secret recording of conversations.
21. On 8 October 1999 the Vilnius Regional Court accepted the request and applied to the Constitutional Court with a view to establishing the compatibility of the Operational Activities Act with the Constitution. On 8 May 2000 the Constitutional Court found this legislation to be generally compatible with the Constitution (see Ramanauskas v. Lithuania, [GC], no. 74420/01, § 34).
22. In the course of the trial, the Vilnius Regional Court reclassified the charge of cheating as an attempt to buy off State officials.
23. On 22 September 2000 the Vilnius Regional Court convicted the applicant of accepting a bribe in large amounts (Articles 282 paragraph 2 of the Criminal Code as then in force), attempting to buy off State officials (Articles 16 and 284) and official malpractice (Article 285). She was acquitted of cheating (Article 274). The applicant was sentenced to four years’ imprisonment, banned from State service for five years, and had her property confiscated. The court based the conviction mostly on the recordings made by SŠ when implementing the model, finding that she had promptly accepted a bribe from him of USD 10,000 on 17 June 1998 and then a further USD 500 on 28 September 1998. On 28 September 1998 she had obtained from SŠ another USD 1,000 with which to bribe certain higher court judges in order to ensure the favourable outcome of his case on appeal. It was established that, in return for the bribe, the applicant had drafted SŠ’s civil claim (as of the evening of 17 June 1998), had made the necessary arrangements to be appointed as the judge in his case, and had started examining it. The court did not find that the USD 4,000 obtained by the applicant from SŠ on 9 October 1998 had been used for any criminal purpose. She was therefore acquitted of any offence in respect of this money.
24. As regards the applicant’s allegations of incitement, the court held as follows:
“The acts of [SŠ] as a whole are not considered to be a provocation because he acted under [the model] authorised in accordance with the law[.] From his application [of 16 June 1998] it appears that he applied to the law enforcement authorities alleging, in his opinion, unlawful actions on the part of [the applicant]. ... The case contains no objective evidence of close or intimate relations between [SŠ and the applicant], or that she had been intimidated [by SŠ] ...
[T]he model was authorised on 17 June 1998, while [SŠ] applied to the officers on 16 June 1998[;] and on the same day he taped his meeting with [the applicant] by a voice recorder given by the officers ... This recording constitutes proper evidence, in that it was made in order to collect and verify the preliminary information about the crime ... On 17 June 1998, [only after] the STT officers had properly verified the preliminary information about [the applicant’s] criminal intentions and [following] the authorisation of the model in accordance with the law, [SŠ] “joined” the continuing, but not completed, offences of the applicant ... . The chamber considers that [SŠ] did not overstep the limits established by [the] model.”
25. The court excluded from the incriminating evidence against the applicant the transcript of a secretly taped telephone conversation between her and SŠ at 9 a.m. on 16 June 1998, as it had been obtained without the appropriate judicial authorisation. However, the court found no domestic unlawfulness in the admission as evidence of the remainder of SŠ’s recorded conversations with the applicant.
26. Upon the applicant’s appeal, on 23 November 2000 the Court of Appeal amended the lower judgment, quashing the applicant’s conviction for official malpractice, but upholding her conviction for accepting a bribe and the attempted buy-off. The sentence of imprisonment remained unchanged. The Court of Appeal confirmed the exclusion from the evidence of the recording of the early morning telephone conversation of 16 June 1998. However, the court ruled that the secret recording by SŠ of his other conversations with the applicant, and the rest of the evidence subsequently collected in implementing the model, had been lawful, there being no signs of incitement to commit the offences.
27. The applicant submitted a cassation appeal in which she alleged the unlawfulness of the recordings of her conversations with SŠ obtained between 10 June 1998 and 9 October 1998, and the improper use of those recordings as evidence to support her conviction. The applicant also complained that SŠ and the authorities had entrapped her into committing offences upon which she had not been ready to embark. In this respect, the applicant complained that the authorities had had no good reason to suspect her of contemplating taking a bribe, as her meeting with SŠ on 10 June 1998 had only attested to their discussion about her intention to sell her car. She stated that, in his application to the STT of 16 June 1998, SŠ had seriously distorted the facts. The applicant alleged that, in executing the model, the authorities had exceeded its scope by paying a much more significant amount of money than had been required to obtain her conviction for bribery. She claimed that all the investigative actions by SŠ and the authorities should have been discontinued upon her receiving the first instalment of USD 1,000 in the morning of 17 June 1998. The subsequent payments had served only to inflate the impugned criminal act (accepting a bribe) out of all proportion, and to obtain the commission by her of a further crime (the attempted buy-off of higher court judges) which had not been foreseen when authorising the model.
28. On 13 March 2001 the Supreme Court amended the appeal judgment, but upheld the conviction for accepting a bribe and the attempted buy-off of higher court judges. The applicant’s sentence remained unchanged. In reply to the applicant’s allegations of incitement, the Supreme Court stated inter alia:
“The recording of the conversation of 10 June 1998 ... attests that [SŠ] asks [the applicant] to accept his suit and declare the auction null and void ... The applicant, albeit not eagerly, agrees to take the case, asking [SŠ] to sell her car. [SŠ] presented this recording to [the STT] together with his application, stating that [the applicant] demands a bribe ... This was the initial information about the preparation of the offence (Article 4 paragraph 1 of the Operational Activities Act, hereinafter the OAA). Since that [information] was insufficient to undertake operational steps, the STT officers decided to verify it (Article 4 paragraph 2 (2) of the OAA). For this purpose, on 16 June 1998 [SŠ] was given a recorder to tape secretly his [next] conversation with [the applicant]. It was established during the verification that the applicant has for some time intended to get a newer car ... She ... asked [SŠ] to sell the car in her possession, and buy a newer car with the money received. [SŠ] explained to the applicant [the] difference between the value of her present car and the desired car ... [whilst] offering to cover the price difference with his own money, in return for [the applicant] admitting his civil action ... and deciding it in his favour ... The applicant agreed with this proposal, i.e. the preliminary information on [the applicant’s] readiness to accept a bribe was confirmed. The cassation arguments that [the applicant] was provoked into commit the crime are unsubstantiated. The above circumstances confirm that [the applicant] had wanted to take a bribe, in that she immediately accepted the offer without any outside pressure. The recordings also confirm that on 16 June 1998 [SŠ and the applicant] agreed upon the specific object of the bribe, a car ... costing 10,000 US dollars. The specific agreement about the bribe corresponds to the preparatory stage of a crime provided for in Article 282 of the Criminal Code. The criminal conduct simulation model was only approved the next day, on 17 June 1998. Therefore [the authorities] “joined” the crime already being committed, in conformity with the decision of the Constitutional Court of 8 May 2000. ... [While the interests of SŠ] in applying to file the action ... to a familiar judge was unlawful, ... this fact does not invalidate the criminal conduct simulation model, which served to protect the more important general interest of preventing someone who has accepted a bribe to work as a judge ... . An offer to accept a bribe cannot be considered to be active pressure to commit an offence, which is not allowed by Article 8 paragraph 1 (3) of the OAA, and which would contradict the Constitutional Court’s decision of 8 May 2000 ... The criminal conduct simulation model [as authorised in this case] confirms that its limits were defined not by a number of actions, but by specifying the Articles of the Criminal Code establishing criminal responsibility for the simulated offences ... On 17 June 1998 the STT officers could not discontinue the execution of the model because it was necessary to establish if the applicant would keep her word - if she were to admit [SŠ’s] action [on her case docket] and decide it in favour of the plaintiff. The qualification of [the applicant’s] actions depended on her future conduct: had [she] refused to examine the case, her act would have been classified not under Article 282 paragraph 2, but under Article 274 paragraph 3 of the Criminal Code (obtaining property in large amounts by deception). Nor were the confines of the model exceeded in terms of time, in that [it] had been authorised for a year ... The evidence collected in the course of executing the model ... confirm that [the applicant] was indeed trying to keep the promise given to [SŠ]: she accepted (without the knowledge of the court president) and rectified [his] draft civil claim, gathered favourable evidence, consulted her mother [a lawyer] on this question, and discussed the questions raised by [SŠ’s] civil case even during her holidays.”
29. The Supreme Court also found that the recordings made by SŠ had been properly admitted as evidence, and that the unlawfully-obtained evidence (the secretly taped telephone conversation of 16 June 1998; paragraph 26 above) had been rightly excluded from the case. That decision was final.
30. On an unspecified date the applicant was released from prison after having completed her sentence.
31. The relevant domestic law and practice, as well as the relevant international law, have been summarised in the judgment of 5 February 2008 in the case of Ramanauskas v. Lithuania ([GC] no. 74420/01, §§ 31-37).
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-71692
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: KUKTA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Petr Petrovich Kukta, is a Ukrainian national who was born in 1959 and lives in Dniprodzerzhynsk.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 5 October 2001 the Zavodskyi District Court of Dniprodzerzhynsk ordered the Elektrotekhservice Collective Enterprise, a private company, to pay the applicant UAH 2,623.92 in salary arrears and compensation for pecuniary and non-pecuniary damage.
On 7 November 2001 the Zavodskyi District Bailiffs’ Service of Dniprodzerzhynsk instituted enforcement proceedings.
On 1 March 2003 the applicant was paid UAH 1,623.92.
On 7 October 2004 the Bailiffs’ Service terminated the enforcement proceedings in view of the debtor’s lack of funds. The applicant did not challenge that decision before the domestic courts.
The judgment of 5 October 2001 remains partially unenforced (UAH 1,000).
In February 2003 the applicant lodged with the Zavodskyi District Court of Dniprodzerzhynsk two separate defamation claims against the newspapers “Litsa” and “Dneprovskaya Pravda”, and a journalist Mrs Z. The applicant sought refutation of the information contained in two articles published by the defendants and compensation for non-pecuniary damage.
The applicant failed to provide any further information as to the outcome of these proceedings.


ITEMID: 001-66784
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF KUIBISHEV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-3 with regard to right to be brought promptly before a judge;Violation of Art. 5-3 with regard to length of pre-trial detention;Violation of Art. 5-4;No violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. The applicant was born in 1954 and lives in Plovdiv.
9. On 8 April 1993 a preliminary investigation was opened against the applicant who was suspected of forgery of bank guarantees with a view to obtaining loans for himself and one of his business partners (Article 212 of the Penal Code).
10. On 14 July 1993 an investigator charged the applicant and ordered his detention pending trial. A prosecutor approved the detention order on an unspecified date.
11. Between an unspecified date in 1993 and September 1996 the applicant resided in the Netherlands. He applied unsuccessfully for asylum there. Upon his return to Bulgaria, on 11 September 1996, he was arrested and detained pending trial.
12. Between September 1996 and March 1997 the investigator examined documentary material, heard ten witnesses, appointed experts, examined their reports and questioned the applicant.
13. On 31 March 1997 the Sofia City Prosecutor’s Office submitted an indictment against the applicant to the Sofia City Court.
14. A hearing was listed for 4 July 1997. In preparation therefor, in April and May 1997 the Sofia City Court summoned the civil plaintiff and ten witnesses and sought police assistance for the establishment of the address of one of them.
15. The Sofia City Court held five trial hearings.
16. On 4 July 1997 the Sofia City Court heard four witnesses, the applicant and two experts. Several witnesses did not appear. Both the prosecution and the applicant sought to adduce additional evidence. The hearing was adjourned until 12 September 1997.
17. On 12 September 1997 the court heard one witness. The remaining witnesses did not appear. The prosecution requested an adjournment as it considered important the examination of the witnesses who had not appeared. The applicant objected. The court granted the prosecutor’s request and listed the next hearing for 10 December 1997.
18. On that day the Sofia City Court heard one witness. The other witnesses failed to appear. The prosecutor insisted on them being heard and sought an adjournment. The applicant’s lawyers objected, stating that reading out those witnesses’ testimony given before the investigator would be sufficient. The court granted the prosecutor’s request for an adjournment and scheduled the next hearing for 26 January 1998.
19. On 26 January 1998 the court heard two witnesses. One witness did not appear. The applicant’s lawyers stated that they considered the examination of the remaining witness important and sought an adjournment. The court granted the request. It fixed the next hearing for 15 June 1998.
20. On the day of the last trial hearing, 15 June 1998, the applicant was found guilty under Articles 212 § 2 and 308 of the Penal Code and sentenced to five years’ imprisonment. He was acquitted on certain of the initial charges. The court reserved its reasoning.
21. On 25 June 1998 the applicant appealed to the Sofia Appellate Court. The prosecution also appealed.
22. On an unspecified date in September 1998 the Sofia City Court delivered the reasoning of its judgment of 15 June 1998.
23. The Sofia Appellate Court listed a hearing for 12 February 1999 which was however cancelled as the prosecution had not supplemented its appeal following the delivery of the reasoning of the first instance judgment.
24. The hearing took place on 28 May 1999. On the same day the Sofia Appellate Court upheld the applicant’s conviction of forgery of bank guarantees with intention to use them (Article 308 of the Penal Code) and acquitted him for the remainder. It accordingly reduced the applicant’s sentence to three years’ imprisonment.
25. On 25 June 1999 the applicant lodged an appeal on points of law with the Supreme Court of Cassation. It was dismissed on 10 December 2000.
26. On an unspecified date in 1992 the applicant was sentenced by the Peshtera District Court to a suspended term of imprisonment. It appears that this conviction concerned facts linked to those which were the subject matter of the 1993 - 2000 criminal proceedings.
27. Separately, on 27 January 1997 the Pazardzik Regional Court found the applicant guilty of mismanagement of assets belonging to a cooperative for which he had been working during the period 1986-1988. He was sentenced to ten months’ imprisonment. The applicant appealed. On 13 October 1997 the Supreme Court of Cassation quashed the judgment and terminated the criminal proceedings as the prosecution had become timebarred.
28. On 11 September 1996 the applicant was arrested. On the following day he was placed under pre-trial detention. The parties have not submitted details as regards the applicant’s detention during the preliminary investigation stage of the criminal proceedings.
29. On 23 April 1997, shortly after the case was brought before the Sofia City Court for trial, the applicant filed with that court an application for release on bail stating that his wife was seriously ill and could not look after their two children.
30. On 2 May 1997 the judge-rapporteur dismissed the application in private. She found that since other criminal proceedings were pending against the applicant, those concerning mismanagement of assets of a cooperative, Article 152 § 3 of the Code of Criminal Procedure (“CCP”) made his remand in custody mandatory. Therefore, it was “not possible to substitute pre-trial detention for a more lenient measure despite the information concerning the [applicant’s] difficult family circumstances”.
31. The applicant’s appeal against the above decision was not examined owing to a clerical error of the Sofia City Court.
32. On 2 July 1997 and at the hearing on 4 July 1997 the applicant reiterated his arguments seeking release on bail. He also made extensive additional submissions arguing that Article 152 § 3 CCP, which provided for a mandatory detention of persons against whom more than one set of criminal proceedings were pending and of recidivists, was incompatible with the Convention. Further, he maintained that there was insufficient evidence that he had committed the offence he was charged with.
33. On the same day, 4 July 1997, the Sofia City Court dismissed the renewed application for bail. It stated, inter alia:
“The court finds that there is a danger of the applicant’s absconding as ... he and his wife sought asylum in the Netherlands at the time when ... the investigation proceedings were pending ... The charges ... concern an offence allegedly committed during the operational period of [the applicant’s] suspended [imprisonment sentence]... of 1992. That fact is sufficient to justify a finding that there is a danger of reoffending...”
34. Addressing the applicant’s arguments against mandatory detention under Article 152 § 3 CCP, the Sofia City Court stated that it had no power to disregard the law on the ground that it was contrary to the Constitution or international treaties and noted that the Supreme Court had submitted the matter to the Constitutional Court.
35. On 7 July 1997 the applicant appealed to the Supreme Court of Cassation on the grounds that there was insufficient evidence that he had committed the offence and that there was no danger of his obstructing the course of justice. Confiscation of his passport and bail would be sufficient guarantees against absconding.
36. On 11 August 1997, pursuant to an amendment to the CCP, mandatory detention under paragraph 3 of Article 152 was abolished.
37. On 12 September 1997, before transmitting the appeal of 7 July 1997 to the Supreme Court of Cassation, the Sofia City Court sitting in private refused to reconsider its decision of 4 July 1997.
38. In the end of September and the beginning of October 1997 the applicant submitted additional appeals against his detention pending trial.
39. On 23 October 1997 the Supreme Court of Cassation examined the appeal of 7 July 1997 in closed session in the presence of a prosecutor and in the absence of the applicant or his representative. The prosecutor submitted written comments and made an oral statement inviting the court to dismiss the appeal. The applicant was not informed thereof and could not comment in reply.
40. The Supreme Court of Cassation dismissed the appeal and upheld the Sofia City Court’s decision of 4 July 1997 finding that the applicant’s detention was justified under Article 152 § 1 CCP. It also upheld the Sofia City Court’s findings that there was a danger of the applicant’s absconding or committing further offences.
41. The Supreme Court of Cassation also stated that issues of “sufficient evidence” within the meaning of domestic law or “reasonable suspicion” within the meaning of Article 5 § 1 (c) of the Convention could not be considered in proceedings on applications for bail. They could only be decided by way of judgment on the merits of the criminal case.
42. At the hearing on 10 December 1997 before the Sofia City Court the applicant renewed his appeal against detention. He referred to the fact that on 13 October 1997 his conviction of 27 January 1997 had been quashed as the prosecution had become time-barred. He also reiterated his previous arguments.
43. On the same day the Sofia City Court dismissed the appeal, stating that the applicant’s attempt to remain in the Netherlands and the fact that the charges against him concerned an offence allegedly committed during the operational period of his 1992 suspended imprisonment sentence (see above) indicated that there was a danger of his absconding and re-offending. The court also confirmed its earlier position that in the context of the applicant’s appeal against detention it would not entertain arguments as to whether or not the charges were well founded, that being an issue going to the merits of the criminal case.
44. On 16 December 1997 the applicant appealed to the Supreme Court of Cassation against the decision of 10 December 1997.
45. The Supreme Court of Cassation examined the appeal on 15 January 1998 sitting in closed session in the presence of a prosecutor and in the absence of the applicant and his representative. The court heard the prosecutor’s opinion that the appeal should be dismissed. The court dismissed the appeal.
46. It stated that remand in custody was justified under Article 152 § 1 CCP as the applicant was charged with a serious offence within the meaning of the Code. Furthermore, the applicant’s attempt to settle in the Netherlands with his family demonstrated a clear danger of absconding. The court also found that there had been no unjustified delays in the criminal proceedings.
47. At the hearing on 26 January 1998 before the Sofia City Court the applicant again requested his release. He argued that the facts had been clarified and that therefore there would be no danger of him obstructing the course of justice.
48. The appeal was dismissed on the same day. The Sofia City Court reiterated the reasoning of the previous decisions.
49. On 29 January 1998 the applicant appealed against the above decision to the Supreme Court of Cassation. On 11 March 1998 the appeal was dismissed on the same grounds. The appeal was dealt with in closed session in the presence of a prosecutor who sought its dismissal and in the absence of the applicant and his representative.
50. On 15 June 1998 the Sofia City Court convicted the applicant on some of the charges and sentenced him to five years’ imprisonment.
51. The relevant provisions of the Code of Criminal Procedure and the Bulgarian courts’ practice at the relevant time are summarised in the Court’s judgments in several similar cases (see, among others, the Nikolova v. Bulgaria [GC], no. 31195/96, §§ 25-36, ECHR 1999-II; Ilijkov v. Bulgaria, no. 33977/96, §§ 55-62, 26 July 2001; and Yankov v. Bulgaria, no. 39084/97, §§ 79-88, ECHR 2003-XII).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3
5-4
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1