ITEMID: 001-60649
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF BENJAMIN AND WILSON v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-4
JUDGES: Ireneu Cabral Barreto;Nicolas Bratza;Scott Baker
TEXT: 8. The first applicant, Mr Patrick Benjamin, was sentenced to life imprisonment for rape in 1983. His tariff period (the minimum period of detention satisfying the requirements of retribution and deterrence) was set at six years and expired in April 1989. His time in prison was characterised by periods of thought disorder, delusions and behavioural problems and the Secretary of State decided that he was in need of care and treatment in a secure hospital. In August 1989, he was made the subject of a transfer direction and a restriction order under, respectively, sections 47 and 49 of the Mental Health Act 1983 (the 1983 Act) and transferred to Broadmoor Special Hospital.
9. In October 1993, the Secretary of State decided, following consultation with the trial judge and the Lord Chief Justice, that the first applicant should be regarded as a “technical lifer” (that is a person who was suffering from a mental disorder which influenced him to a significant extent at the time of the offence although the court had not made a hospital order on sentencing).
10. In April 1994, the first applicant was transferred to Bracton Clinic Regional Secure Unit. On 1 July 1996, his case for discharge was considered by the Mental Health Review Tribunal which found that it was not satisfied that the first applicant did not any longer require treatment in a hospital for mental illness.
11. When his case was reviewed most recently, on 9 January 2001, the MHR Tribunal recommended his discharge. The Secretary of State accepted the recommendation and the first applicant was discharged.
12. The second applicant, Mr Hueth Wilson, was sentenced to life imprisonment for buggery of a young girl in 1977. The court had before it psychiatric evidence to the effect that he suffered from mental illness. Expert psychiatric evidence recommended that he should be made subject to a hospital order coupled with a restriction order without limit of time under sections 37 and 41 of the Mental Health Act 1959. Due to an absence of any beds in hospitals providing the level of security that the trial judge considered necessary, the judge felt unable to make the orders and passed, instead, a discretionary life sentence. The judge commented that the second applicant could later be transferred to hospital if his condition required it. His tariff period was set at eight years and expired in 1984.
13. In August 1977, the second applicant was transferred to hospital under the Mental Health Act 1959 (later replaced by the 1983 Act). In November 1977, the applicant returned to prison and there were several other transfers to and from hospital in subsequent years. In October 1992, the second applicant was transferred to Rampton Special Hospital under sections 47 and 49 of the 1983 Act. In June 1993, following consultation with the trial judge and the Lord Chief Justice, the Secretary of State decided that the second applicant should be regarded as a “technical lifer”.
14. On 6 July 1996 the MHR Tribunal considered the second applicant's case for discharge and found that they were not satisfied that he no longer required treatment in hospital for mental illness. His case was reviewed most recently on 13 June 2000 when the Tribunal again did not recommend discharge.
15. By decisions of the Secretary of State for the Home Department communicated to the applicants in October and November 1992, the Secretary of State refused to certify the applicants as eligible for review by the discretionary lifer panels empowered by section 34 of the Criminal Justice Act 1991 to order their release on licence. Leave to apply for judicial review of the decisions was granted on 17 May 1993.
16. On 22 October 1993 the High Court, granting the application, made a declaration that the Secretary of State's policy not to certify discretionary life prisoners under paragraph 9 of Schedule 12 to the Criminal Justice Act 1991 (“the 1991 Act”) on the ground that they had been transferred to hospital under the 1983 Act was unlawful ([1994] Q.B. 378).
17. On appeal, on 19 July 1994, the Court of Appeal reversed the High Court's decision in part. It considered that, although the applicants were existing life prisoners within the meaning of the paragraph 9 of Schedule 12, their discharge nevertheless remained subject to the procedure laid down in section 50 of the 1983 Act. The rights to a hearing under the 1991 Act were conferred only on persons who were solely subject to that Act, and not on those who were mental patients ([1995] Q.B. 43).
18. The applicants were informed by letter of 18 May 1995 that the House of Lords had refused leave to appeal.
19. Under section 47 of the Mental Health Act 1983 (“the 1983 Act”), the Secretary of State may transfer a person serving a sentence of imprisonment to hospital if he is satisfied that the person is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment, and that the mental disorder is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment, and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of the condition. A transfer under section 47 of the 1983 Act is called a “transfer direction”, and has the same effect as if a hospital order had been made under section 37 (1) of the 1983 Act (that is, where a court convicts a person and, instead of sentencing him, orders his detention in hospital).
20. At the same time as making a transfer direction, the Secretary of State may also make a “restriction direction” under section 49 of the 1983 Act. A restriction direction has the same effect as a restriction order made by a court under section 41 of the 1983 Act on conviction, save that because the person was not given a hospital order by the court, the Secretary of State must consent to his discharge from hospital, as well as to the granting of leave of absence or transfer to another hospital.
21. A transferred life prisoner subject to restriction directions can be discharged from hospital in three possible ways. Each can be initiated only by the Secretary of State.
(1) Section 42 (2) of the 1983 Act gives the Secretary of State power, if he thinks fit, by warrant to discharge the patient either absolutely or subject to conditions.
(2) Section 50 of the 1983 Act provides that where the Secretary of State is notified by the responsible medical officer, and other registered practitioner or a Mental Health Review Tribunal that the person no longer requires treatment in hospital for mental disorder, or that no effective treatment for the disorder can be given in the hospital, the Secretary of State may remit the person to a prison or to a different institution, or he may exercise any power of releasing or discharging him which would have been exercisable if he had been so remitted.
(3) Under Section 74 of the 1983 Act,
“(1) Where an application to a Mental Health Review Tribunal is made by a restricted patient who is subject to a restriction direction, or where the case of such a patient is referred to such a tribunal, the tribunal -
(a) shall notify the Secretary of State whether, in their opinion, the patient would, if subject to a restriction order, be entitled to be absolutely or conditionally discharged under Section 73 ...; and
(b) if they notify him that the patient would be entitled to be conditionally discharged, may recommend that in the event of his not being discharged under this section he should continue to be detained in hospital.
(2) If in the case of a patient not falling within subsection (4) below-
(a) the tribunal notify the Secretary of State that the patient would be entitled to be absolutely or conditionally discharged; and
(b) within the period of 90 days beginning with the date of that notification the Secretary of State gives notice to the tribunal that the patient may be so discharged,
the tribunal shall direct the absolute or, as the case may be, the conditional discharge of the patient.
...
(4) If, in the case of a patient who is subject to a transfer direction under Section 48 above, the tribunal notify the Secretary of State that the patient would be entitled to be absolutely or conditionally discharged, the Secretary of State shall, unless the tribunal have made a recommendation under subsection (1)(b) above, by warrant direct that the patient be remitted to a prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed.”
22. Section 73 of the 1983 Act (which relates to restricted patients under section 41 of the 1983 Act) provides that the tribunal must direct conditional discharge if they are satisfied that he is not suffering from mental illness or disorder of a type which makes it appropriate for the person to be detained in a hospital for medical treatment, or that it is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment, and they believe that it is appropriate for the patient to remain liable to be recalled to hospital for further treatment.
23. In 1985, the Home Secretary announced that life sentence prisoners who had been transferred to hospital would normally be discharged under section 50 of the 1983 Act rather than sections 42 (2) or 74 (2). This enables release on life licence with life-long control rather than the possibility of eventual absolute discharge by the Secretary of State. The policy was found to be lawful in the case of R. v. Secretary of State for the Home Department ex parte Stroud (16 July 1992).
24. Section 34 of the Criminal Justice Act 1991 provides that where a discretionary life prisoner has served his tariff (that is, the “punishment” part of his sentence), and the Parole Board is satisfied that it is no longer necessary for the protection of the public that he should be detained and has directed his release, it is the duty of the Secretary of State to release him. Under Paragraph 9 of Schedule 12, which is a transitional provision to the 1991 Act, the Secretary of State can apply the provisions of section 34 to discretionary life prisoners who were sentenced before section 34 of the 1991 Act came into force on 10 October 1992 by issuing a certificate that, if the 1991 Act had been in force when the person was sentenced, section 34 would have been applied.
25. On 2 October 2000 the Human Rights Act came into force in England and Wales. Section 6 provides as relevant:
“(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Sub-section (1) does not apply to an act if –
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect to in a way which is compatible with Convention rights, the authority was acting so as to give effect to or enforce those provisions.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4


ITEMID: 001-82420
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: VAN HARN v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Snejana Botoucharova
TEXT: The applicant, Mr Jan van Harn, is a Netherlands national who was born in Heteren in 1943 and lives in Ooij, the Netherlands. He is represented before the Court by Mr S. Nicolai, a lawyer practising in Wesel, Germany.
The respondent Government are represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant works as a lorry driver.
On 8 August 2001 he failed, in an inspection by an agent of the Federal Office for Goods Traffic (Bundesamt für Güterverkehr – hereinafter called Federal Office), to present documentation as to whether he had driven his lorry between 2 August and 7 August 2001. The protocol of that inspection was drawn up in German, contained the applicant’s comments and was signed by him. The protocol further noted that he had paid a security (Sicherheitsleistung) of 100 Dutch Guilders.
On 25 September 2001 the Federal Office issued a regulatory fine order (Bußgeldbescheid) against the applicant, stating that he had committed a regulatory offence (Ordnungswidrigkeit). It held that the applicant had violated section 8 no. 1 (a) in conjunction with section 4 (1) sentence 1 of the crew regulations (Fahrpersonalverordnung).
The Federal Office imposed a fine of 500 Deutschmarks (250 euros).
The applicant was served the regulatory fine order on 29 September 2001. The fine order was written in German and included an instruction about his available legal remedies (Rechtsbehelfsbelehrung) in German. According to that note the applicant had the right to lodge an objection with the Federal Office within two weeks after the serving of the decision.
On 3 October 2001 the applicant took notice of the regulatory fine order and sent it to his legal insurance company (Rechtsschutzversicherung) afterwards.
The latter received the fine order on 12 October 2001 and forwarded the regulatory fine order to the applicant’s legal counsel on 15 October 2001.
On 18 October 2001 the applicant’s legal counsel received the regulatory fine order and accompanying documents and lodged an objection with the Federal Office on the same day.
On 29 November 2001 the Federal Office informed the legal counsel that the objection had been lodged outside the statutory time-limit.
On 6 December 2001 the legal counsel requested the reinstatement of the proceedings (Wiedereinsetzung in den vorherigen Stand). He argued that according to the general terms and conditions of the legal insurance company the applicant had been required to send the regulatory fine order first to the insurance company instead of sending it directly to his legal counsel. Hence he could not be held responsible for the time it took the Netherlands Postal Service to deliver his mail. The applicant submitted an according affirmation in lieu of an oath, but he presented neither a copy of the general terms and conditions of his legal insurance company nor any proof for the actual period of time it had taken his letter to reach his legal insurance company.
On 4 January 2002 the Federal Office rejected the applicant’s objection as inadmissible for having been lodged out of time. Furthermore, the Federal Office rejected the applicant’s request for reinstatement of proceedings. It held that the period of time for the delivery of his mail was contrary to all life experience and that the general terms and conditions of his legal insurance company did not justify the delay.
On 17 January 2002 the applicant requested the review by court (Antrag auf gerichtliche Entscheidung). Invoking Article 6 § 3 (a) of the Convention, the applicant argued that the regulatory fine order should have been served in a language he understood. Therefore, the decision had not been effectively served (wirksam zugestellt). In this respect the applicant referred to instruction no. 181 of the “Instructions on Criminal Procedure and Administrative Fine Procedures” (Richtlinien für das Straf- und Bußgeldverfahren) which stipulates that if the recipient does not have a sufficient knowledge of the German language, all documents have to be served with a translation into a language he understands (see “Relevant domestic law and practice” below). Furthermore, the applicant drew the court’s attention to the decision of the Federal Constitutional Court decision of 10 June 1975 (see “Relevant domestic law and practice” below.)
On 29 January 2002 the Cologne District Court confirmed the Federal Office’s decision for the following reasons. It held that the Federal Office had not been obliged to provide a translation of its regulatory fine order and the instructions about the available legal remedies, because Article 6 § 3 (a) of the Convention was only applicable to criminal proceedings. It denied its applicability to proceedings relating to regulatory offences (Ordnungs-widrigkeitenverfahren). Furthermore, the court recalled that an affirmation in lieu of an oath was not sufficient in such proceedings, because it could only be qualified as a simple declaration.
The applicant then lodged a constitutional complaint with the Federal Constitutional Court arguing that his right to be heard by a court (Article 103 of the German Basic Law) had been infringed, because he had not been granted reinstatement of the proceedings. The applicant repeated that Article 6 § 3 (a) of the Convention had been applicable to his case.
On 7 October 2002 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint without providing any reasoning.
“No. 181
I...
II Summons, arrest warrants, penal orders and other court decisions are to be served to a foreigner, if he does not have sufficient knowledge of the German language, with a translation into a language he understands. ...
No. 296
Nos. 182 through 189 apply analogously to administrative fine proceedings “
Section 44
“If a person was prevented from observing a time-limit through no fault of his own, he shall be granted reinstatement of the proceedings upon his motion. ...
Section 45
(1) The motion for reinstatement of the proceedings shall be filed with the court at which the time-limit should have been observed, within one week after the reason for non-compliance no longer applies. To observe that time-limit it is sufficient to file the motion in a timely fashion with the court that will decide on that motion.
(2) The facts justifying the motion shall be demonstrated (glaubhaft machen) at the time the motion is filed or during the proceedings upon that motion. The omitted act shall subsequently be undertaken within the time limit for filing the motion. Where this is done, reinstatement may also be granted without an application being filed.”
In its decision (see no. 2 BvR 1074/74, Decisions of the Federal Constitutional Court (BVerfGE), vol. 40, pp. 95 et seq.) the Federal Constitutional dealt with the following case. A Turkish national, who could neither read nor write German, was served a penal order. It included instructions about his available legal remedies written in German. Having problems finding a translator, he missed the statutory time-limit for lodging an objection. His request for reinstatement of the proceedings was rejected. The Federal Constitutional Court held that the applicant’s right to be heard under Article 103 of the German Basic Law had been violated. It found that the applicant, lacking sufficient knowledge of the German language, had been unaware of the statutory time-limit for lodging an objection. Therefore, his lack of understanding of the instructions about his available legal remedies was the reason for missing the time-limit. It followed that the applicant had to be treated as if he had never received instructions about his available legal remedies. The Federal Constitutional Court concluded that as a consequence for future cases, reinstatement has to be granted, if the recipient of a penal order (Strafbefehl) or a regulatory fine order missed the time-limit for lodging an objection, because he did not understand the instructions about his available legal remedies.


ITEMID: 001-114981
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: TOTH v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos
TEXT: 1. The applicant, Mr Milenko Toth, is a Croatian national, who was born in 1962 and is currently serving a prison term in Lepoglava State Prison (“the Prison”).
2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. By a decision of the Prison Governor of 30 November 2007, the applicant was found to have committed two disciplinary offences. The relevant part of the decision reads:
“The accused inmate Toth Milenko ...
is guilty
(1) in that on 6 November 2007 when he was receiving his mail he started to curse and insult prison guard J.K. by telling him ‘It is obvious how much schooling you have now when you are searching this!’ and ‘I fuck you unschooled!’; and
(2) in that on 6 November 2007, during a search of prisoners in Section 1A of the Prison, he insulted prison guards D.S. and M.B. by calling them “garbage” and then prevented them from carrying out their duties by holding D.S. by the hand and starting to pull him and saying ‘Leave this, you garbage’ and when they used force against him he threatened them by yelling ‘I’m going to kill you all!’.”
As regards the offence under (1), the applicant was found to have disclosed impolite behaviour and to have verbally insulted the guards. He was punished with a prohibition on using money inside the Prison for a period of three months. As regards the offence under (2), he was found to have prevented an official from carrying out his duties and punished with twenty-one days of solitary confinement.
5. On an unspecified date the applicant lodged an appeal arguing that the facts of the case had been wrongly established.
6. On 4 January 2008 a Varaždin County Court sentence-execution judge (sudac izvršenja Županijskog suda u Varaždinu) in substance upheld the Governor’s decision, in that he found that the applicant had committed one minor disciplinary offence consisting of insults, making threats and impolite behaviour and one grave disciplinary offence consisting of preventing an official from carrying out his or her duties. He punished the applicant with twenty-one days of solitary confinement for the grave disciplinary offence and also upheld the other sanction imposed.
7. On 9 November 2007 the Prison administration lodged a criminal complaint against the applicant with the Ivanec Municipality State Attorney’s Office (Općinsko državno odvjetništvo u Ivancu) alleging that on 6 November 2007 the applicant had uttered threats to “find and kill them all” to prison guards D.S. and M.B.
8. In the course of the criminal proceedings a copy of the abovementioned disciplinary decision was enclosed in the case-file.
9. On 31 January 2008 the applicant was indicted on charges of making death threats to State officials in the Varaždin Municipal Court (Općinski sud u Varaždinu). On 7 April 2010 that court found the applicant guilty of two counts of making threats. The relevant part of the decision reads:
“The accused Toth Milenko ...
is guilty
in that at 1 p.m. on 6 November 2007 in Section 1A of the Lepoglava State Prison, during the search of his belonging, when he was separated from the other inmates by guards D.S. and M.B. because of the threat that he would burn down his cell, and, being revolted, he called guards D.S. and M.B. garbage and told them that he was going to find and kill them all.”
He was sentenced to three years and ten months’ imprisonment.
10. The applicant lodged an appeal whereby he complained, inter alia, that the principle of ne bis in idem had been violated. On 7 May 2010 the Varaždin County Court dismissed the appeal, finding that the first proceedings conducted in the prison had been disciplinary and not criminal in nature. The relevant part of the judgment reads:
“... a disciplinary measure is not a criminal punishment because the prison bodies which conduct disciplinary proceedings are not courts ... Even though the main purpose of a disciplinary measure ... is deterring of the perpetrator from committing a fresh disciplinary offence, a disciplinary offence ... does not involve deprivation of liberty ...”
11. On 11 May 2010 the applicant lodged a request for an extraordinary review of a final judgment with the Supreme Court (Vrhovni sud Republike Hrvatske) whereby he again complained, inter alia, that the principle of ne bis in idem had been violated.
12. On 20 May 2010 the applicant lodged a constitutional complaint whereby he also, inter alia, complained that the principle of ne bis in idem had been violated.
13. On 31 August 2010 the Supreme Court dismissed the request for the extraordinary review of a final judgment on the same basis as the County Court.
14. On 4 July 2012 the Constitutional Court (Ustavni sud republike Hrvatske) dismissed the applicant’s constitutional complaint of 20 May 2010, endorsing the views of the lower courts.
15. The relevant provisions of the Criminal Code (Kazneni zakon, Official Gazette nos. 110/1997, 27/1998, 50/2000, 129/2000, 51/2001, 113/2001, 190/2003, 105/2004, 84/2005, 71/2006, 152/2008 and 57/2011) read:
“(1) Whoever threatens another person with harm in order to intimidate or disturb that person shall be fined up to one hundred and fifty monthly wages or sentenced to imprisonment for a term not exceeding six months.
(2) Whoever seriously threatens to kill another person ... shall be fined or sentenced to imprisonment for a term not exceeding one year.
...”
“(1) Whoever insults another person shall be fined ... or sentenced to imprisonment for a term not exceeding three months.
(2) Whoever insults another person ... in front of other people ... shall be fined ... or sentenced to imprisonment for a term not exceeding six months.
...”
“(1) Whoever, [whether] by using force or threatening that he or she will use force, prevents an official from carrying out his or her duties or in the same manner forces him or her to carry out his or her duties shall be sentenced to imprisonment for a term of between three months and three years.
...”
16. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002, 63/2002, 62/2003 and 115/2006) read as follows:
“An infringement of the Criminal Code arises if:
...
3. there exist circumstances which exclude criminal prosecution, in particular, where ... the matter has already been finally adjudicated;
...”
“(1) A defendant who has been finally sentenced to a prison term ... may lodge a request for the extraordinary review of a final judgment on account of infringements of this Act.
(2) A request for the extraordinary review of a final judgment shall be lodged within a month after the final judgment has been served on the defendant.
...”
“The Supreme Court shall decide requests for the extraordinary review of a final judgment.”
“A request for the extraordinary review of a final judgment may be lodged [in respect of]:
1. an infringement of the Criminal Code to the detriment of the convicted person under Article 368(1)-(4) of this Act ...
...
3. an infringement of the rights of the defence at the trial or of the procedural rules at the appellate stage, if it may have influenced the judgment.”
17. The relevant provisions of the Enforcement of Prison Sentences Act (Zakon o izvršavanju kazne zatvora, Official Gazette nos. 128/1999 and 190/2003), read as follows:
“...
(2) Minor disciplinary offences are:
...
8. insulting and impolite behaviour;
...
(3) Grave disciplinary offences are:
...
4. violent behaviour;
...
10. preventing an official or any other person involved in the implementation of the programme of execution [of prison sentences] from performing their duties;
...”
“(1) Disciplinary offences are punishable with disciplinary measures.
(3) Disciplinary measures are:
1. an admonition;
2. restriction or prohibition on using money inside the prison for up to three months;
3. restriction or temporary deprivation of some or all privileges enumerated in sections 129 and 130 of this Act;
...
5. solitary confinement for up to twenty-one days during free time or [all] day and night;
...”
“(1) A prisoner who commits a criminal offence liable to State-assisted prosecution and a fine or imprisonment of up to six months shall be given a disciplinary punishment.
(2) When a prisoner commits any other criminal offence liable to State-assisted prosecution, the prison governor shall immediately inform a competent State attorney of it. The prison governor may order the temporary separation of that prisoner from the other prisoners ... until a court’s decision.
...”


ITEMID: 001-5027
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: BUHAGIAR v. MALTA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is a Maltese national, born in 1947 and living in Pieta, Malta.
She is represented before the Court by Professor Ian Refalo, a lawyer practising in Valletta, Malta.
The applicant, who is illiterate, was the tenant of M.F.R.
On 6 November 1996 M.F.R. requested the Rent Regulation Board (“the Board”) to grant her a re-possession order on the ground that the applicant had failed to pay rent. The applicant had been put on notice by M.F.R. that she was in arrears of rent in letters dated 15 November 1993 and 3 October 1994, the latter letter containing a warning that legal proceedings might be issued against her if she continued to fail to pay her rent.
The applicant was notified that she must appear before the Board on 8 January 1996 at 9 a.m. for a hearing on her landlady’s request for re-possession of her home.
The applicant failed to attend the hearing. M.F.R. did appear and gave evidence in support of her application for re-possession. On 7 May 1996 the Rent Regulation Board ordered that the applicant be evicted, being satisfied that she had been duly served with notice of the date of the hearing and of the nature of the summons served on her. An eviction warrant was issued on 9 October 1996.
The applicant appealed to the First Hall of the Civil Court, seeking a declaration that her right to a fair hearing had been breached and, in consequence, that the Board’s decision ordering her eviction was void. The applicant contended in particular that she could neither read nor write and that when she received the summons to appear before the Board she did not understand its contents. On that account the applicant maintained that she was not in a position to contest her landlady’s claim.
In its judgment of 23 March 1998 the First Hall of the Civil Court ruled against the applicant. The court found that M.F.R.’s application to the Board was served on the applicant on 9 November 1995 as evidenced by the fact that the applicant signed “the relative postal pink card.” However, she tore up the application, believing it to be a letter from the tax authorities. In the Court’s opinion:
“... the applicant acted unwisely when she tore up official documents not knowing what they referred to. ... It was her choice to remain ignorant of the contents ... since it was within her power to find out what the contents were. Her behaviour was not one in good faith. ... If the Court gives its approval to the maxim that says where ignorance is bliss it is folly to be wise, then everyone would act stupid in order to avoid paying his due.”
The First Hall of the Civil Court also gave weight to the fact that the applicant had been warned that her landlady might take legal proceedings against her and for that reason she should have been more cautious when she received official documents.
The applicant appealed to the Court of Appeal. She contended inter alia that the court documents sent to her through the post contained nothing to indicate their importance or how she was to proceed.
On 16 November 1998 the Court of Appeal upheld the decision of the First Hall of the Civil Court. The court found that the applicant was highly irresponsible with respect to official documents she received. The Court of Appeal rejected the applicant’s submission that the summons should have been hand delivered by a court official given that postal service of court documents was a universally recognised method of service. The court found that the applicant capriciously chose not to inform herself of the nature of the document she received by seeking the advice of a third party. It concluded that:
“It is difficult to imagine an appeal which is more frivolous or vexatious than this one.”


ITEMID: 001-69891
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF SILIADIN v. FRANCE
IMPORTANCE: 1
CONCLUSION: Preliminary objection joined to merits and rejected (victim);Violation of Art. 4;Costs and expenses award - Convention proceedings
JUDGES: Ireneu Cabral Barreto
TEXT: 9. The applicant was born in 1978 and lives in Paris.
10. She arrived in France on 26 January 1994, aged 15 years and 7 months, with Mrs D., a French national of Togolese origin. She had a passport and a tourist visa.
11. It had been agreed that she would work at Mrs D.'s home until the cost of her air ticket had been reimbursed and that Mrs D. would attend to her immigration status and find her a place at school. In reality, the applicant became an unpaid housemaid for Mr and Mrs D. and her passport was taken from her.
12. In the second half of 1994, Mrs D. “lent” the applicant to Mr and Mrs B., who had two small children, so that she could assist the pregnant Mrs B. with household work. Mrs B. also had another daughter from a first marriage who stayed with her during the holidays and at weekends. The applicant lived at Mr and Mrs B.'s home, her father having given his consent.
13. On her return from the maternity hospital, Mrs B. told the applicant that she had decided to keep her.
14. The applicant subsequently became a general housemaid for Mr and Mrs B. She worked seven days a week, without a day off, and was occasionally and exceptionally authorised to go out on Sundays to attend mass. Her working day began at 7.30 a.m., when she had to get up and prepare breakfast, dress the children, take them to nursery school or their recreational activities, look after the baby, do the housework and wash and iron clothes.
In the evening she prepared dinner, looked after the older children, did the washing up and went to bed at about 10.30 p.m. In addition, she had to clean a studio flat, in the same building, which Mr B. had made into an office.
The applicant slept on a mattress on the floor in the baby's room; she had to look after him if he woke up.
15. She was never paid, except by Mrs B.'s mother, who gave her one or two 500 French franc (FRF) notes.
16. In December 1995 the applicant was able to escape with the help of a Haitian national who took her in for five or six months. She looked after the latter's two children, was given appropriate accommodation and food, and received FRF 2,500 per month.
17. Subsequently, in obedience to her paternal uncle, who had been in contact with Mr and Mrs B., she returned to the couple, who had undertaken to put her immigration status in order. However, the situation remained unchanged: the applicant continued to carry out household tasks and look after the couple's children. She slept on a mattress on the floor of the children's bedroom, then on a folding bed, and wore second-hand clothes. Her immigration status had still not been regularised, she was not paid and did not attend school.
18. On an unspecified date, the applicant managed to recover her passport, which she entrusted to an acquaintance of Mr and Mrs B. She also confided in a neighbour, who alerted the Committee against Modern Slavery (Comité contre l'esclavage moderne), which in turn filed a complaint with the prosecutor's office concerning the applicant's case.
19. On 28 July 1998 the police raided Mr and Mrs B.'s home.
20. The couple were prosecuted on charges of having obtained from July 1995 to July 1998 the performance of services without payment or in exchange for payment that was manifestly disproportionate to the work carried out, by taking advantage of that person's vulnerability or state of dependence; with having subjected an individual to working and living conditions that were incompatible with human dignity by taking advantage of her vulnerability or state of dependence; and with having employed and maintained in their service an alien who was not in possession of a work permit.
21. On 10 June 1999 the Paris tribunal de grande instance delivered its judgment.
22. It found that the applicant's vulnerability and dependence in her relationship with Mr and Mrs B. was proved by the fact that she was unlawfully resident in France, was aware of that fact and feared arrest, that Mr and Mrs B. nurtured that fear while promising to secure her leave to remain – a claim that was confirmed by her uncle and her father – and by the fact that she had no resources, no friends and almost no family to help her.
23. As to the failure to provide any or adequate remuneration, the court noted that it had been established that the young woman had remained with Mr and Mrs B. for several years, was not a member of their family, could not be regarded as a foreign au pair who had to be registered and given free time in order to improve her language skills, was kept busy all day with housework, did not go to school and was not training for a profession and that, had she not been in their service, Mr and Mrs B. would have been obliged to employ another person, given the amount of work created by the presence of four children in the home.
It therefore concluded that the offence laid down in Article 225-13 of the Criminal Code (see paragraph 46 below) was made out.
24. The court also found it established that Mr and Mrs B. were employing an alien who was not in possession of a work permit.
25. The court noted that the parties had submitted differing accounts concerning the allegations that the working and living conditions were incompatible with human dignity.
It found that the applicant clearly worked long hours and did not enjoy a day off as such, although she was given permission to attend mass. It noted that a person who remained at home with four children necessarily began his or her work early in the morning and finished late at night, but had moments of respite during the day; however, the scale of Mrs B.'s involvement in this work had not been established.
26. The court concluded that, while it seemed established that employment regulations had not been observed in respect of working hours and rest time, this did not suffice to consider that the working conditions were incompatible with human dignity, which would have implied, for example, a furious pace, frequent insults and harassment, the need for particular physical strength that was disproportionate to the employee's constitution and having to work in unhealthy premises, which had not been the case in this instance.
27. As to the applicant's accommodation, the court noted that Mr and Mrs B., who were well-off, had not seen fit to set aside an area for the applicant's personal use and that, although this situation was regrettable and indicated their lack of consideration for her, her living conditions could not be held to infringe human dignity, given that a number of people, especially in the Paris region, did not have their own rooms. Accommodation which infringed human dignity implied an unhygienic, unheated room, with no possibility of looking after one's basic hygiene, or premises which were so far below the applicable norms that occupation would be dangerous.
28. Accordingly, the court found that the offence laid down in Article 22514 of the Criminal Code (see paragraph 46 below) had not been made out.
Nonetheless, the judges concluded that the offences of which Mr and Mrs B. were convicted were incontestably serious and were to be severely punished, particularly as the couple considered that they had treated the applicant quite properly.
Accordingly, they sentenced them to twelve months' imprisonment each, of which seven months were suspended, imposed a fine of FRF 100,000 and ordered them to pay, jointly and severally, FRF 100,000 to the applicant in damages. In addition, Mr and Mrs B. forfeited their civic, civil and family rights for three years.
29. Mr and Mrs B. appealed against this decision.
30. On 20 April 2000 the Paris Court of Appeal gave an interlocutory judgment ordering further investigations.
31. On 19 October 2000 it delivered its judgment on the merits.
32. The Court of Appeal found that the additional investigation had made it possible to confirm that the applicant had arrived in France aged 15 years and 7 months, in possession of a passport and a three-month tourist visa. During the period that she lived with Mrs D., from January to October 1994, she had been employed by the latter, firstly, to do housework, cook and look after her child, and, secondly, in the latter's clothing business, where she also did the cleaning and returned to the rails clothes that customers had tried on, without remuneration.
33. Around October 1994 the applicant had spent a few days at Mr and Mrs B.'s home, shortly before Mrs B. gave birth to her fourth child. She travelled by underground to Mr and Mrs B.'s home every day and returned to Mrs D.'s house in the evening to sleep.
34. In July/August 1994 she was “lent” to Mr and Mrs B., and stayed in their home until December 1995, when she left for Mrs G.'s home, where she was remunerated for her work and given accommodation. She had returned to Mr and Mrs B. in May/June 1996 on her uncle's advice.
35. The Court of Appeal noted that it had been established that the applicant was an illegal immigrant and had not received any real remuneration.
Further, it noted that it appeared that the applicant was proficient in French, which she had learnt in her own country.
In addition, she had learnt to find her way around Paris in order, initially, to go from Mrs D.'s home to the latter's business premises, and later to travel to Maisons-Alfort, where Mrs G. lived, and finally to return to Mr and Mrs B.'s home.
36. She had a degree of independence, since she took the children to the locations where their educational and sports activities were held, and subsequently collected them. She was also able to attend a Catholic service in a church near Mr and Mrs B.'s home. In addition, she left the house to go shopping, since it was on one of those occasions that she had met Mrs G. and agreed with her to go to the latter's home.
37. The Court of Appeal further noted that the applicant had had an opportunity to contact her uncle by telephone outside Mr and Mrs B.'s home and to pay for calls from a telephone box. She had met her father and her uncle and had never complained about her situation.
38. Furthermore, Mrs B.'s mother confirmed that the applicant spoke good French and that she was in the habit of giving her small sums of money for family celebrations. She had frequently had the applicant and her grandchildren to stay in her country house and had never heard her complain of ill-treatment or contempt, although she had been free to express her views.
39. The applicant's uncle stated that she was free, among other things, to leave the house and call him from a telephone box, that she was appropriately dressed, in good health and always had some money, which could not have come from anyone but Mr and Mrs B. He had offered to give her money, but she had never asked for any. He added that he had raised this question with Mrs B., who had told him that a certain amount was set aside every month in order to build up a nest egg for the applicant, which would be given to her when she left, and that the girl was aware of this arrangement.
He stated that, on the basis of what he had been able to observe and conclude from his conversations with the applicant and with Mrs B., the girl had not been kept as a slave in the home in which she lived.
40. The Court of Appeal ruled that the additional investigations and hearings had shown that, while it did appear that the applicant had not been paid or that the payment was clearly disproportionate to the amount of work carried out (although the defendants' intention to create a nest egg that would be handed over to her on departure had not been seriously disputed), in contrast, the existence of working or living conditions that were incompatible with human dignity had not been established.
It also considered that it had not been established that the applicant was in a state of vulnerability or dependence since, by taking advantage of her ability to come and go at will, contacting her family at any time, leaving Mr and Mrs B.'s home for a considerable period and returning without coercion, the girl had, in spite of her youth, shown an undeniable form of independence, and vulnerability could not be established merely on the basis that she was an alien.
Accordingly, the Court of Appeal acquitted the defendants on all the charges against them.
41. The applicant appealed on points of law against that judgment. No appeal was lodged by the Principal Public Prosecutor's Office.
42. In a letter of 27 October 2000 to the Chair of the Committee against Modern Slavery, the public prosecutor attached to the Paris Court of Appeal wrote:
“In your letter of 23 October 2000 you asked me to inform you whether the public prosecution office under my direction has lodged an appeal on points of law against the judgment delivered on 19 October 2000 by the Twelfth Division of the court which heard the appeal in the criminal proceedings against Mr and Mrs B.
The Court of Appeal's decision to acquit the defendants of the two offences of insufficiently remunerating a person in a vulnerable position and subjecting a person in a vulnerable or dependent state to demeaning working conditions was based on an assessment of elements of pure fact.
Since the Court of Cassation considers that such assessments come within the unfettered discretion of the trial courts, an appeal on points of law could not be effectively argued.
That is why I have not made use of that remedy.”
43. The Court of Cassation delivered its judgment on 11 December 2001. It ruled as follows:
“All judgments must contain reasons justifying the decision reached; giving inadequate or contradictory reasons is tantamount to giving no reasons.
After an investigation into the situation of [the applicant], a young Togolese national whom they had employed and lodged in their home since she was 16, V. and A.B. were directly summoned before the criminal court for, firstly, taking advantage of a person's vulnerability or dependent state to obtain services without payment or any adequate payment, contrary to Article 225-13 of the Criminal Code and, secondly, for subjecting that person to working or living conditions incompatible with human dignity, contrary to Article 225-14 of the same Code.
In acquitting the defendants of the two above-mentioned offences and dismissing the civil party's claims in connection therewith, the appeal court, having noted that [the applicant] was a foreign minor, without a residence or work permit and without resources, nonetheless stated that her state of vulnerability and dependence, a common constituent element of the alleged offences, had not been established, given that the girl enjoyed a certain freedom of movement and that vulnerability could not be established merely on the basis that she was an alien.
Furthermore, in finding that the offence defined in Article 225-13 of the Criminal Code had not been made out, the court added that 'it does appear that the applicant has not been paid or that the payment was clearly disproportionate to the amount of work carried out (although the defendants' intention to build up a nest egg that would be handed over to her on departure has not been seriously disputed)'.
Finally, in acquitting the defendants of the offence set out in Article 225-14 of the Criminal Code, the courts found that subjection to working or living conditions incompatible with human dignity 'had not been established'.
However, in ruling in this way, with reasons that were inadequate and ineffective with regard to the victim's state of vulnerability and dependence and contradictory with regard to her remuneration, and without specifying the factual elements which established that her working conditions were compatible with human dignity, the Court of Appeal failed to draw from its findings the legal conclusions that were required in the light of Article 225-13 of the Criminal Code and did not justify its decision in the light of Article 225-14 of that Code.
The judgment must therefore be quashed.
For these reasons,
[The Court of Cassation] quashes the above-mentioned judgment of the Paris Court of Appeal dated 19 October 2000 but only in respect of the provisions dismissing the civil party's requests for compensation in respect of the offences provided for in Articles 225-13 and 225-14 of the Criminal Code, all other provisions being expressly maintained, and instructs that the case be remitted, in accordance with the law, for a rehearing of the matters in respect of which this appeal has been allowed. ...”
44. The Versailles Court of Appeal, to which the case was subsequently referred, delivered its judgment on 15 May 2003. It ruled, inter alia, as follows:
“As was correctly noted at first instance, the evidence shows that [the applicant], an alien who arrived in France at the age of 16, worked for several years for Mr and Mrs B., carrying out household tasks and looking after their three, and subsequently four, children for seven days a week, from 7 a.m. to 10 p.m., without receiving any remuneration whatsoever; contrary to the defendants' claims, she was not considered a family friend, since she was obliged to follow Mrs B.'s instructions regarding her working hours and the work to be done, and was not free to come and go as she pleased.
In addition, there is no evidence to show that a nest egg has been built up for her, since the list of payments allegedly made by the defendants is in Mrs B.'s name.
It was only at the hearing before the tribunal de grande instance that the defendants gave the victim the sum of 50,000 francs.
Finally, far from showing that [the applicant] was happy to return to Mr and Mrs B.'s home, the conditions in which she did so after an absence of several months are, on the contrary, indicative of the pressure she had been subjected to by her family and of her state of resignation and emotional disarray.
With regard to the victim's state of dependence and vulnerability during the period under examination, it should be noted that this young girl was a minor, of Togolese nationality, an illegal immigrant in France, without a passport, more often than not without money, and that she was able to move about only under Mrs B.'s supervision for the purposes of the children's educational and sports activities.
Accordingly, it was on appropriate grounds, to which this court subscribes, that the court at first instance found that the constituent elements of the offence punishable under Article 225-13 of the Criminal Code were established in respect of the defendants.
With regard to the offence of subjecting a person in a vulnerable or dependent position to working or living conditions that are incompatible with human dignity:
As the court of first instance correctly noted, carrying out household tasks and looking after children throughout the day could not by themselves constitute working conditions incompatible with human dignity, this being the lot of many mothers; in addition, the civil party's allegations of humiliating treatment or harassment have not been proved.
Equally, the fact that [the applicant] did not have an area reserved for her personal use does not mean that the accommodation was incompatible with human dignity, given that Mr and Mrs B's own children shared the same room, which was in no way unhygienic.
Accordingly, the constituent elements of this second offence have not been established in respect of Mr and Mrs B.
Independently of the sums due to [the applicant] in wages and the payment of 50,000 francs in a belated gesture of partial remuneration, Mr B., whose intellectual and cultural level was such as to enable him to grasp fully the unlawfulness of his conduct, but who allowed the situation to continue, probably through cowardice, has, together with Mrs B., caused [the applicant] considerable psychological trauma, for which should be awarded 15,245 euros in compensation, as assessed by the court of first instance.”
45. On 3 October 2003 the Paris industrial tribunal delivered judgment following an application submitted by the applicant. It awarded her 31,238 euros (EUR) in respect of arrears of salary, EUR 1,647 in respect of the notice period and EUR 164 in respect of holiday leave.
46. The Criminal Code as worded at the material time
“It shall be an offence punishable by two years' imprisonment and a fine of 500,000 francs to obtain from an individual the performance of services without payment or in exchange for payment that is manifestly disproportionate to the amount of work carried out, by taking advantage of that person's vulnerability or state of dependence.”
“It shall be an offence punishable by two years' imprisonment and a fine of 500,000 francs to subject an individual to working or living conditions which are incompatible with human dignity by taking advantage of that individual's vulnerability or state of dependence.”
47. The Criminal Code as amended by the Law of 18 March 2003
“It shall be an offence punishable by five years' imprisonment and a fine of 150,000 euros to obtain from an individual whose vulnerability or state of dependence is apparent or of which the offender is aware, the performance of services without payment or in exchange for payment which is manifestly disproportionate to the amount of work carried out.”
“It shall be an offence punishable by five years' imprisonment and a fine of 150,000 euros to subject an individual whose vulnerability or state of dependence is apparent or of which the offender is aware to working or living conditions which are incompatible with human dignity.”
“The offences set out in Articles 225-13 and 225-14 shall be punishable by seven years' imprisonment and a fine of 200,000 euros if they are committed against more than one person.
If they are committed against a minor, they shall be punishable by seven years' imprisonment and a fine of 200,000 euros.
If they are committed against more than one person, including one or more minors, they shall be punishable by ten years' imprisonment and a fine of 300,000 euros.”
48. Information report by the French National Assembly's joint fact-finding taskforce on the various forms of modern slavery, tabled on 12 December 2001 (extracts)
“The situation of minors, who are more vulnerable and ought to receive special protection on account of their age, strikes the taskforce as highly worrying: ..., children doomed to work as domestic servants or in illegal workshops ... represent easy prey for traffickers of all kinds ...
What solutions can be proposed in view of the growth in these forms of slavery? Some already exist, of course. We have available a not inconsiderable arsenal of punitive measures. However, these are not always used in full and are proving an insufficient deterrent when put to the test. The police and the justice system are obtaining only limited results.
...
The determination of the drafters of the new Criminal Code to produce a text imbued with the concept of human rights is particularly clear from the provisions of Articles 225-13 and 225-14 of the Code, which created new offences making it unlawful to impose working and living conditions that are contrary to human dignity. As demonstrated by the explanatory memorandum to the initial 1996 bill, the purpose of those provisions was primarily to combat 'slum landlords' or other unscrupulous entrepreneurs who shamelessly exploit foreign workers who are in the country illegally.
...
The concept, found in both Articles 225-13 and 225-14 of the Criminal Code, of the abuse of an individual's vulnerability or state of dependence contains ambiguities that could be prejudicial to their application.
...
Thus, by failing on the one hand to specify the possible categories of individuals defined as vulnerable and, further, by failing to require that the vulnerability be of a 'particular' nature, the legislature has conferred on Articles 225-13 and 225-14 an extremely wide, or even vague, scope, one that is likely to cover circumstances of vulnerability or dependence that are 'social or cultural in nature'.
...
The current wording of the Criminal Code, especially that of Article 225-14, is highly ambiguous, since it requires, on the one hand, that the victim has been subjected to working or living conditions that are incompatible with human dignity and, on the other, that those conditions have been imposed through the 'abuse' of his or her vulnerability or state of dependency.
It may therefore logically be concluded, as Mr Guy Meyer, deputy public prosecutor at the Paris public prosecutor's office, stated before the taskforce, that, 'by converse implication... provided one has not taken advantage of [an individual's] vulnerability, it is alright to undermine human dignity [...] Undermining human dignity ought to be an offence in itself and, possibly, abuse of [an individual's] vulnerability or status as a minor an aggravating factor'.
That said, and since the law is silent, it is up to the court to determine where the scope of those provisions ends. In this connection, analysis of the case-law reveals differences in evaluation that impede the uniform application of the law throughout France, since, as Ms Françoise Favaro rightly noted when addressing the taskforce: 'We are in a sort of ephemeral haze in which everything is left to the judge's assessment.'
...
Even more surprisingly, on 19 October 2000 the same court of appeal refused in another case to apply the provisions of Articles 225-13 and 225-14 in favour of a young woman, a domestic slave, despite the fact that she was a minor at the relevant time. In its judgment, the court noted, inter alia: 'It has not been established that the young girl was in a position of vulnerability or dependence as, by taking advantage of the possibility of coming and going at will, contacting her family at any time, leaving Mr and Mrs X's home for a considerable period and returning without coercion, she has, in spite of her youth, shown an undeniable form of independence, and vulnerability cannot be established merely on the basis that she was an alien.'
It is therefore apparent that, in the absence of legal criteria enabling the courts to determine whether there has been abuse of [an individual's] vulnerability or state of dependence, the provisions of Articles 225-13 and 225-14 of the Criminal Code are open to interpretation in different ways, some more restrictive than others.
...
Whether with regard to actual or potential sentences, the shortcomings of the provisions are clearly visible, in view of the seriousness of the factual elements characteristic of modern slavery.
...
Bearing in mind, on the one hand, the constitutional status of the values protected by Articles 225-13 and 225-14 of the Criminal Code and, on the other, the seriousness of the offences in such cases, the inconsequential nature of the penalties faced by those guilty of them is surprising, and raises questions about the priorities of the French criminal justice system.
...
The minors whose cases the taskforce has had to examine are minors caught up or at risk of being caught up in slavery, whether for the provision of sex or labour. More often than not they are illegal immigrants.”
“In France, since its foundation in 1994, the Committee against Modern Slavery (CCEM) has taken up the cases of over 200 domestic slavery victims, mostly originating from West Africa (Ivory Coast, Togo, Benin) but also from Madagascar, Morocco, India, Sri Lanka and the Philippines. The majority of victims were women (95%). One-third arrived in France before they came of age and most of them suffered physical violence or sexual abuse.
The employers mostly came from West Africa or the Middle East. 20% are French nationals. 20% enjoyed immunity from prosecution, among them one diplomat from Italy and five French diplomats in post abroad. Victims working for diplomats mainly come from India, Indonesia, the Philippines and Sri Lanka. It has been estimated that there are several thousand victims of domestic slavery in France.”
“1. In the last few years a new form of slavery has appeared in Europe, namely domestic slavery. It has been established that over 4 million women are sold each year in the world.
2. In this connection the Assembly recalls and reaffirms Article 4, paragraph 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which prohibits slavery and servitude, and also the definition of slavery derived from the opinions and judgments of the European Commission of Human Rights and the European Court of Human Rights.
3. The Assembly also recalls Article 3 of the ECHR, which provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment, and Article 6, which proclaims the right of access to a court in civil and criminal matters, including cases where the employer enjoys immunity from jurisdiction.
...
5. It notes that the victims' passports are systematically confiscated, leaving them in a situation of total vulnerability with regard to their employers, and sometimes in a situation bordering on imprisonment, where they are subjected to physical and/or sexual violence.
6. Most of the victims of this new form of slavery are in an illegal situation, having been recruited by agencies and having borrowed money to pay for their journey.
7. The physical and emotional isolation in which the victims find themselves, coupled with fear of the outside world, causes psychological problems which persist after their release and leave them completely disoriented.
...
9. It regrets that none of the Council of Europe member States expressly make domestic slavery an offence in their criminal codes.
10. It accordingly recommends that the Committee of Ministers ask the governments of member States to:
i. make slavery and trafficking in human beings, and also forced marriage, offences in their criminal codes;
ii. strengthen border controls and harmonise policies for police cooperation, especially with respect to minors;
...
vi. protect the rights of victims of domestic slavery by:
a. generalising the issuing of temporary and renewable residence permits on humanitarian grounds;
b. taking steps to provide them with protection and with social, administrative and legal assistance;
c. taking steps for their rehabilitation and their reintegration, including the creation of centres to assist, among others, victims of domestic slavery;
d. developing specific programmes for their protection;
e. increasing victims' time limits for bringing proceedings for offences of slavery;
f. establishing compensation funds for the victims of slavery;
...”
“1. The Parliamentary Assembly is dismayed that slavery continues to exist in Europe in the twenty-first century. Although, officially, slavery was abolished over 150 years ago, thousands of people are still held as slaves in Europe, treated as objects, humiliated and abused. Modern slaves, like their counterparts of old, are forced to work (through mental or physical threat) with no or little financial reward. They are physically constrained or have other limits placed on their freedom of movement and are treated in a degrading and inhumane manner.
2. Today's slaves are predominantly female and usually work in private households, starting out as migrant domestic workers, au pairs or 'mail-order brides'. Most have come voluntarily, seeking to improve their situation or escaping poverty and hardship, but some have been deceived by their employers, agencies or other intermediaries, have been debt-bonded and even trafficked. Once working (or married to a 'consumer husband'), however, they are vulnerable and isolated. This creates ample opportunity for abusive employers or husbands to force them into domestic slavery.
...
5. The Council of Europe must have zero tolerance for slavery. As an international organisation defending human rights, it is the Council of Europe's duty to lead the fight against all forms of slavery and trafficking in human beings. The Organisation and its member States must promote and protect the human rights of the victim and ensure that the perpetrators of the crime of domestic slavery are brought to justice so that slavery can finally be eliminated from Europe.
6. The Assembly thus recommends that the Committee of Ministers:
i. in general:
a. bring the negotiations on the Council of Europe draft convention on action against trafficking in human beings to a rapid conclusion;
b. encourage member States to combat domestic slavery in all its forms as a matter of urgency, ensuring that holding a person in any form of slavery is a criminal offence in all member States;
c. ensure that the relevant authorities in the member States thoroughly, promptly and impartially investigate all allegations of any form of slavery and prosecute those responsible;
...
ii. as concerns domestic servitude:
a. elaborate a charter of rights for domestic workers, as already recommended in Recommendation 1523 (2001) on domestic slavery. Such a charter, which could take the form of a Committee of Ministers' recommendation or even of a convention, should guarantee at least the following rights to domestic workers:
– the recognition of domestic work in private households as 'real work', that is, to which full employment rights and social protection apply, including the minimum wage (where it exists), sickness and maternity pay as well as pension rights;
– the right to a legally enforceable contract of employment setting out minimum wages, maximum hours and responsibilities;
– the right to health insurance;
– the right to family life, including health, education and social rights for the children of domestic workers;
– the right to leisure and personal time;
– the right for migrant domestic workers to an immigration status independent of any employer, the right to change employer and to travel within the host country and between all countries of the European Union and the right to the recognition of qualifications, training and experience obtained in the home country;
...”
50. Council of Europe Convention on Action against Trafficking in Human Beings, opened for signature on 16 May 2005 (extracts)
“...
Considering that trafficking in human beings may result in slavery for victims;
Considering that respect for victims' rights, protection of victims and action to combat trafficking in human beings must be the paramount objectives;
Considering that all actions or initiatives against trafficking in human beings must be non-discriminatory, take gender equality into account as well as a child-rights approach;
...
Bearing in mind the following recommendations of the Parliamentary Assembly of the Council of Europe: ... 1663 (2004) Domestic slavery: servitude, au pairs and mail-order brides;
...”
“1. The purposes of this Convention are:
(a) to prevent and combat trafficking in human beings, while guaranteeing gender equality;
(b) to protect the human rights of the victims of trafficking, design a comprehensive framework for the protection and assistance of victims and witnesses, while guaranteeing gender equality, as well as to ensure effective investigation and prosecution;
...”
“For the purposes of this Convention:
(a) 'Trafficking in human beings' shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
(b) The consent of a victim of 'trafficking in human beings' to the intended exploitation set forth in sub-paragraph (a) of this Article shall be irrelevant where any of the means set forth in sub-paragraph (a) have been used;
(c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered 'trafficking in human beings' even if this does not involve any of the means set forth in sub-paragraph (a) of this Article;
(d) 'Child' shall mean any person under eighteen years of age;
(e) 'Victim' shall mean any natural person who is subject to trafficking in human beings as defined in this Article.”
“Each Party shall consider adopting such legislative and other measures as may be necessary to establish as criminal offences under its internal law, the use of services which are the object of exploitation as referred to in Article 4 paragraph (a) of this Convention, with the knowledge that the person is a victim of trafficking in human beings.”
“1. For the purposes of this Convention the term 'forced or compulsory labour' shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.
2. Nevertheless, for the purposes of this Convention the term 'forced or compulsory labour' shall not include:
(a) Any work or service exacted in virtue of compulsory military service laws for work of a purely military character;
(b) Any work or service which forms part of the normal civic obligations of the citizens of a fully self-governing country;
(c) Any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations;
(d) Any work or service exacted in cases of emergency, that is to say, in the event of war or of a calamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests, and in general any circumstance that would endanger the existence or the well-being of the whole or part of the population;
(e) Minor communal services of a kind which, being performed by the members of the community in the direct interest of the said community, can therefore be considered as normal civic obligations incumbent upon the members of the community, provided that the members of the community or their direct representatives shall have the right to be consulted in regard to the need for such services.”
“For the purposes of this Convention the term 'competent authority' shall mean either an authority of the metropolitan country or the highest central authority in the territory concerned.”
“1. The competent authority shall not impose or permit the imposition of forced or compulsory labour for the benefit of private individuals, companies or associations.
2. Where such forced or compulsory labour for the benefit of private individuals, companies or associations exists at the date on which a Member's ratification of this Convention is registered by the Director-General of the International Labour Office, the Member shall completely suppress such forced or compulsory labour from the date on which this Convention comes into force for that Member.”
“For the purpose of the present Convention, the following definitions are agreed upon:
1. Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised;
2. The slave trade includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade or transport in slaves.”
“The High Contracting Parties shall give to one another every assistance with the object of securing the abolition of slavery and the slave trade.”
“The High Contracting Parties recognise that recourse to compulsory or forced labour may have grave consequences and undertake, each in respect of the territories placed under its sovereignty, jurisdiction, protection, suzerainty or tutelage, to take all necessary measures to prevent compulsory or forced labour from developing into conditions analogous to slavery.
It is agreed that:
1. Subject to the transitional provisions laid down in paragraph 2 below, compulsory or forced labour may only be exacted for public purposes;
2. In territories in which compulsory or forced labour for other than public purposes still survives, the High Contracting Parties shall endeavour progressively and as soon as possible to put an end to the practice. So long as such forced or compulsory labour exists, this labour shall invariably be of an exceptional character, shall always receive adequate remuneration, and shall not involve the removal of the labourers from their usual place of residence;
3. In all cases, the responsibility for any recourse to compulsory or forced labour shall rest with the competent central authorities of the territory concerned.”
“Each of the States Parties to this Convention shall take all practicable and necessary legislative and other measures to bring about progressively and as soon as possible the complete abolition or abandonment of the following institutions and practices, where they still exist and whether or not they are covered by the definition of slavery contained in Article 1 of the Slavery Convention signed at Geneva on 25 September 1926:
(a) Debt bondage, that is to say, the status or condition arising from a pledge by a debtor of his personal services or of those of a person under his control as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined;
(b) Serfdom, that is to say, the condition or status of a tenant who is by law, custom or agreement bound to live and labour on land belonging to another person and to render some determinate service to such other person, whether for reward or not, and is not free to change his status;
...
(d) Any institution or practice whereby a child or young person under the age of 18 years, is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour.”
“1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.”
“1. States Parties recognise the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development.
2. States Parties shall take legislative, administrative, social and educational measures to ensure the implementation of the present Article. To this end, and having regard to the relevant provisions of other international instruments, States Parties shall in particular:
(a) Provide for a minimum age or minimum ages for admission to employment;
(b) Provide for appropriate regulation of the hours and conditions of employment;
(c) Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present Article.”
“States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child's welfare.”
VIOLATED_ARTICLES: 4


ITEMID: 001-57490
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 1987
DOCNAME: CASE OF F. v. SWITZERLAND
IMPORTANCE: 2
CONCLUSION: Violation of Art. 12;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: C. Russo;J.A. Carrillo Salcedo;N. Valticos
TEXT: 8. The applicant, a Swiss national born in 1943, has married four times since 1963. The first three marriages were dissolved by divorce; the sole issue in the instant case is the temporary prohibition on remarriage imposed on him following the third divorce.
9. F married Miss G in 1963 and divorced her on 8 May 1964.
On 12 August 1966, he was remarried to Mrs. B, a divorcee, who bore him a son on 26 November of the same year. The couple separated in December 1978, and F cohabited with another woman. Mrs. B obtained a divorce on 27 October 1981. The court prohibited the applicant from remarrying within a year, under Article 150 of the Swiss Civil Code (see paragraph 22 below).
10. The applicant advertised for a secretary. On 11 January 1983, Miss N appeared in response to his advertisement. Four days later they were living together and on 26 February the couple married.
11. On 11 March 1983, F began divorce proceedings in the Lausanne District Civil Court.
At the beginning of April, his wife left the matrimonial home after he had taken up again with a former mistress.
12. After an attempt at conciliation had failed, the parties signed an agreement covering the ancillary effects of the divorce on 16 May 1983; in particular, the applicant undertook to pay his wife the sum of 17,000 Swiss francs (CHF) as compensation for non-pecuniary damage.
13. The Civil Court gave judgment on 21 October 1983. It dismissed F’s petition, allowed the wife’s cross-petition of 21 June and approved the agreement reached between them. It also imposed on the applicant a three-year prohibition on remarriage; in its opinion, the applicant’s unacceptable attitude rendered him solely responsible for the breakdown of the marriage.
The divorce became final on 21 December 1983.
14. The applicant appealed to the Appellate Division of the Vaud Cantonal Court to discharge the order prohibiting remarriage. He denied that the statutory conditions were satisfied, namely that the fault committed was exceptionally serious and had played a decisive role in the breakdown. He also argued that the order complained of contravened Article 12 (art. 12) of the European Convention on Human Rights.
15. On 7 May 1984, the Appellate Division upheld the Civil Court’s judgment.
The seriousness of the fault could not be disputed. F’s behaviour had so grossly disregarded the laws of marriage and the most elementary requirements of that status that a prohibition on remarriage was imperative.
Article 12 (art. 12) of the Convention was not an obstacle to the application of Article 150 of the Civil Code. Furthermore, the reference to national legislation in Article 12 (art. 12) had the effect of incorporating into the Convention the national law governing the right to marry.
16. F appealed to the Federal Court on points of law (recours en réforme), arguing that the conditions for the application of Article 150 of the Civil Code were not satisfied and that the prohibition on remarriage violated Articles 12, 8 and 3 (art. 12, art. 8, art. 3) of the Convention.
17. The Federal Court gave judgment on 18 October 1984. It ruled that the appeal was inadmissible in relation to the alleged incompatibility of Article 150 with the Convention, on the ground that this plea should have been raised by way of a public-law appeal (recours de droit public) and not by way of an appeal on points of law. It said:
"It is doubtful whether in an appeal on points of law (recours en réforme) the appellant can rely on the incompatibility of Article 150 of the CC [Swiss Civil Code] with the rights secured in the ECHR [European Convention on Human Rights]. Admittedly, under section 43(1), first sentence, of the OJ [Federal Judicature Act] an appeal on points of law is admissible for violations of federal law, including international treaties concluded by the Confederation. But by the second sentence of the above-cited provision, the right to enter a public-law appeal (recours de droit public) in respect of violations of citizens’ constitutional rights remains unaffected. According to the established case-law, the rights protected by the ECHR and which the latter requires Switzerland to guarantee to its own nationals and others, are in the nature of constitutional rights: this close relationship between constitutional rights and the rights protected by the ECHR makes it possible, from a procedural point of view, to treat violations of the Convention on the same footing as violations of a constitutional right within the meaning of section 84(1) of the OJ.
At all events, under Article 113 para. 3 Cst. [the Federal Constitution] the Federal Court has a duty to apply the Acts passed by the Federal Assembly and the decrees of that Assembly which are of general application. It is thus under an obligation to follow this legislation without inquiring whether it is incompatible with the Constitution. The ECHR has made no change in this respect. It does not in any way alter the separation of powers between the legislature and the highest court as governed by domestic law, and accordingly does not confer on the Federal Court any jurisdiction other than the one it hitherto enjoyed under the Constitution and the Judicature Act (judgment of the 1st Public-Law Division, 14 June 1983, in Hofstetter v. Attorney-General of St. Gall, unreported). It follows that the question whether Article 150 CC is compatible with the ECHR lies outside the jurisdiction of the Federal Court; the appeal is therefore inadmissible on this point."
For the rest, the Court dismissed the appeal in the following terms:
"The cantonal court held that there was a causal relationship between the husband’s adultery and the breakdown of the marriage. This is a finding of fact binding on the Federal Court in an appeal on points of law (section 63(2) OJ). The appellant’s behaviour played ... a decisive role in the breakdown, of which it was the sole cause. The wife was bewildered when her husband expressed his intention to divorce: she protested and expressed her affection for him. She only left the matrimonial home after being worn down by all that F had done to force her to go.
The appellant’s fault is of exceptional gravity. He pressed his mistress to marry him despite the shortness of their acquaintance and then only a few days after the ceremony said he wanted a divorce without giving any valid explanation. By this capricious attitude he showed that he was making a mockery of the institution of marriage. He was not only offhand, but contemptuous and cruel. When his wife tried to maintain the marriage bonds by showing him her affection, he used the most despicable means to frustrate her efforts. Regardless of the duties imposed by the laws of marriage, he treated his wife as an object and, seeking only to bring about a break, he went so far as to commit adultery and provoke scenes during which he was rude and odious. The respondent has suffered greatly from this broken marriage: the compensation which the court of first instance granted her by approving the agreement on the ancillary effects of the divorce, bears witness that her sufferings went beyond what a wife can humanly be expected to bear.
In view of the above, the cantonal court could, without violating federal law, reasonably take the view that a prohibition on remarriage for three years was necessary."
18. In a statement dated 14 March 1986, F and the woman with whom he was living stated that they intended to get married as soon as possible.
The woman in question, who was still a party to a previous marriage, had commenced proceedings for divorce. The decree of divorce was granted on 19 March 1986 and became absolute on 21 April 1986. On 22 May 1986, the president of the Lausanne court allowed her application to have the waiting time (délai de viduité - Article 103 of the Swiss Civil Code) reduced and gave her leave to remarry as from that date.
19. On 2 September 1986, the Head of the Department of Justice and Legislation refused to publish the banns before the prohibition on the applicant’s remarriage had expired.
Two days later, F appealed to the Conseil d’Etat of the Canton of Vaud, which dismissed his appeal on 14 November 1986. It stated, inter alia:
"... it cannot be right that the registrar of births, deaths and marriages should take any measure until all impediments to remarriage have been removed, both from considerations of public policy and for elementary reasons of legal certainty."
20. The banns were published as soon as the waiting period imposed on the applicant had expired, and he married Mrs. F on 23 January 1987. A child was born of this marriage on 23 February 1987.
21. By Article 54 of the Swiss Federal Constitution,
"The right to marry shall enjoy the protection of the Confederation.
No impediment to marriage may be based on denominational grounds, the poverty of either of the spouses, their conduct or any other grounds of administrative policy.
Marriages entered into in a canton or abroad in accordance with local legislation, shall be recognised as valid throughout the Confederation.
...".
22. Although the Civil Code recognises the right to divorce, the right to remarry after divorce cannot be exercised in some cases until a certain time has elapsed. The Swiss Civil Code provides in Article 150, which came into force in 1912:
"When granting a divorce the court shall fix a period of not less than one and not more than two years during which the party at fault shall not be entitled to remarry; where the divorce is granted on the ground of adultery, this period may be extended to three years.
The period of judicial separation ordered by the court shall be included in this period."
23. The application of this provision has, however, been made more flexible by decisions of the courts. Thus, in the judgment of 16 December 1981 in X v. X, the Federal Court stated:
"[The temporary prohibition of remarriage] is criticised by legal writers (cf. Bühler/Spühler, note 5 on Art. 150 CC and references), some of whom go so far as to suggest that the rule in Article 150 CC should be abandoned because its application gives rise to numerous inequalities and because it is easily evaded by marrying abroad (Deschenaux/Tercier, Le mariage et le divorce, 2nd ed., p. 110).
As early as 1912, the Federal Court noted that the penalty of a waiting period entailed a considerable restriction of individual freedom and of the right to marry guaranteed in Article 54 para. 2 of the Constitution: it should not be imposed unless there had been a serious violation of essential conjugal duties and the courts should, therefore, exercise some restraint in applying Article 150 CC (ATF [Judgments of the Swiss Federal Court] 38 II 62; cf. ATF 68 II 149, point 2 of the reasons, and 69 II 353).
The interpretation of this provision must be brought into line with the whole body of case-law on divorce, which shows that the courts are tending to depart from rigorous theory and seeking to avoid unduly severe sanctions by having regard to the circumstances of the particular case. Thus adultery is no longer an absolute ground for divorce (ATF 98 II 161, point 4 (b) of the reasons) and the notion of the innocent spouse, within the meaning of Articles 151 and 152 of the Civil Code, does not exclude all fault (ATF 103 II 169, point 2 of the reasons, and references). From this standpoint, even more restraint should be exercised in applying Article 150 of the Civil Code. Courts should not impose a prohibition on remarriage unless the fault committed is of exceptional gravity and has also played a decisive role in the breakdown of the marriage." (Judgments of the Swiss Federal Court, vol. 107, part II, p. 395)
24. On 28 June 1965, the Study Group on the partial reform of family law presented its report to the Federal Department of Justice and Police, which had appointed the Study Group. It advocated repeal of Article 150 of the Civil Code, relating to the waiting period:
"For some years now a number of members of Parliament have been disturbed by the application (or more precisely, the non-application) of Article 150 (Petites questions Obrecht et Bourgknecht, interpellation Schaffer, REC [Revue de l’état civil] 31, 1963, 228; 32, 1964, 82-83). The issue has also been raised in the press (Beobachter of 15 June 1956, ‘Wer Geld hat, darf heiraten!’).
What is the problem? Under Article 150 the court must prohibit a spouse found to be at fault from remarrying for a given period. But disregard of this prohibition does not in any way affect the validity of a marriage entered into in spite of it (Götz, notes 10 and 14 on Art. 104). Such a breach, however, can scarcely occur in Switzerland, where it would involve a serious dereliction of duty or even connivance on the part of the registrar of births, deaths and marriages. It can happen, on the other hand, that a spouse prohibited from remarrying goes abroad, preferably to England, to enter into a valid marriage there. On returning to Switzerland, he asks to have his marriage registered. In view of Articles 104 and 130, this cannot be refused. At most, cantonal provisions could render such conduct liable to a criminal sanction; this is the case in the cantons of Basle Urban and Basle Rural only. It is understandable that a person can, in good faith, come to the conclusion that money and a journey abroad are all that is needed in order to evade a prohibition on remarriage.
A means must be found of remedying the offensive aspects of this situation. This certainly cannot be done by converting the prohibition on remarriage which is inherent in the waiting period into an impediment to marriage. In Articles 120 et seq. the legislation provides for nullity of marriage only in very exceptional cases. Article 54 para. 3 Cst. would also preclude this solution. Nor can one seriously contemplate a solution which would involve introducing serious criminal sanctions throughout Switzerland. If equality before the law is to be guaranteed, there is only one solution and that is to delete Article 150 CCS [Swiss Civil Code]. This is the solution proposed by Götz (REC 32, 1964, 84-88), who has given very convincing reasons. It was strongly supported by the Conference of cantonal authorities responsible for supervising civil status at its assembly on 15 October 1964 (see on this question the report by Heiz, REC 32, 1964, 401-404; 33, 1965, 4-8, 54-59, 92-98). The Study Group unanimously supports this suggestion.
It must be expressly stated that this proposal by the Group is not intended to indicate any particular sympathy for behaviour contrary to the spirit of marriage. It is based on a recognition of the fact that Articles 104 and 150 ‘are not in accordance with the policy of the Constitution’ (Knapp in RDS [Revue de droit suisse] 71, 1952, I, 293). It is also clear that Article 150 will not have the effect of making spouses at fault think again and mend their ways (Grisel in JdT [Journal des tribunaux] 1943, I, 326; Picot in RDS 48, 1029, 62(a)). The Group also wishes to point out that the inequalities noted do not only appear in the case of a possible marriage. They may become apparent during divorce proceedings, because the case-law on the application of Article 150 varies from canton to canton; and in the case of divorce by consent, many spouses, even if at fault, agree to present their case in such a way that no waiting period is imposed (Stocker in RSJ [Revue suisse de jurisprudence] 47, 1951, 19)".
25. The same proposal was repeated by the Committee of Experts on Family Law Reform, which considered the reform of divorce from 1974 to 1976.
After reform of the law on various subjects, the Committee concentrated its attention on the provisions relating to divorce. In 1988, it is due to adopt a Bill which will be submitted to interested organisations and groups for comment. The Federal Government will then draw up a Bill to be laid before Parliament. Parliament will not be able to debate the Bill before 1992, so that the new divorce law is not expected to come into force until 1995 at the earliest.
VIOLATED_ARTICLES: 12