ITEMID: 001-111682
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF S. v. GERMANY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Article 5-1-a - After conviction;Article 5-1-c - Reasonably necessary to prevent offence;Article 5-1-e - Alcoholics;Persons of unsound mind);Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicant was born in 1961 and is currently detained in Straubing Prison.
6. On 23 February 1996 the Munich I Regional Court acquitted the applicant of, inter alia, six counts of assault, nine counts of dangerous assault, of sexual assault and of procuring for lack of criminal responsibility and ordered his placement in a psychiatric hospital under Article 63 of the Criminal Code (see paragraph 46 below).
7. The Regional Court found that between 1991 and 1995 the applicant, who had previously been convicted, in particular, of several counts of assault in Romania and Germany, had committed the offences he had been charged with. The applicant was found, in particular, to have violently threatened with a gun and knife, hit and attempted to strangulate his wife, partly using dangerous instruments or teargas, on a number of occasions. He inflicted on his wife multiple injuries including fractures of her jaw, cheekbones, nose and skull, snags to her nose and genitals as well as lacerations, bruises and swellings all over her body. He had further forced his wife to prostitution for his own material benefit, had forced her to dance naked for an acquaintance and had chased her naked in a forest. Moreover, he had assaulted and sexually assaulted his female friend and a relative of his wife with whom he had an intimate relationship (fettering the latter naked to a tree, urinating on her and introducing fir cones into her rectum and vagina).
8. The Regional Court, having consulted three medical experts, found that the applicant suffered from a brain disorder, a borderline personality disorder manifesting itself in emotional instability and a paranoiac jealousy and had partly been drunk during his acts. Owing to his pathological mental disorder, it could not be excluded that he had acted without criminal responsibility. The Regional Court further considered that the applicant was to be placed in a psychiatric hospital as he was liable to commit further serious offences and was therefore dangerous to the public.
9. Following the Regional Court’s judgment, the applicant was placed in different psychiatric hospitals. From 23 February 1996 onwards, he was in Haar psychiatric hospital, from 7 February 1997 onwards in Straubing psychiatric hospital, from 26 October 1999 onwards in Düren psychiatric hospital and from 5 April 2000 onwards in Bedburg-Hau psychiatric hospital. Following his escape from that clinic in October 2002, he was again detained in Düren psychiatric hospital from 18 December 2002 onwards and subsequently in Lippstadt psychiatric hospital. His detention in a psychiatric hospital was confirmed yearly by the competent Regional Court.
10. On 22 November 2005 the city of Düren ordered the applicant’s expulsion to Romania after he had renounced German nationality in February 2004. The decision became final.
11. On 9 February 2007 the Paderborn Regional Court terminated the applicant’s detention in a psychiatric hospital ordered by the Munich I Regional Court on 23 February 1996 (Article 67d § 6 of the Criminal Code, see paragraph 42 below). It further delivered its decision, taken the day before, to order the applicant’s provisional detention pending the competent court’s decision whether or not he was to be placed in preventive detention retrospectively.
12. Having heard evidence from a psychiatric expert, K., who had examined the applicant in person, the Paderborn Regional Court found that the applicant suffered from a personality disorder with paranoiac and dissocial elements. However, that disorder did not exclude or diminish his criminal responsibility. His continued dangerousness for women, in particular for his ex-wife, did not result from a pathological mental disorder but from his chosen attitude towards women.
13. The applicant was accordingly transferred from the psychiatric hospital to prison.
14. On 30 July 2008 the Munich I Regional Court, relying on Article 66b § 3 of the Criminal Code (see paragraph 41 below), which it considered compatible with the Basic Law, ordered the applicant’s preventive detention retrospectively (nachträgliche Sicherungsverwahrung).
15. The Munich I Regional Court noted that, as required by Article 66b § 3 of the Criminal Code, the Paderborn Regional Court had terminated the applicant’s placement in a psychiatric hospital on 9 February 2007 pursuant to Article 67d § 6 of the Criminal Code.
16. The Regional Court further found that the requirements of Article 66b § 3 (1) of the Criminal Code were met. The Munich I Regional Court had ordered the applicant’s placement in a psychiatric hospital in February 1996 as the applicant had committed, inter alia, several counts of dangerous assault, an offence listed in Article 66 § 3 of the Criminal Code.
17. Furthermore, the Regional Court considered that a comprehensive assessment of the applicant, his offences and his development during his placement in the psychiatric hospitals revealed that it was very likely that, if released, he would again commit serious offences, similar to those following which he had been placed in a psychiatric hospital, against women related to him, resulting in considerable psychological and physical harm to the victims (Article 66 b § 3 (2) of the Criminal Code). It noted that both psychiatric experts it had consulted had convincingly diagnosed the applicant with a dissocial personality disorder necessitating therapy, and one of them, in addition, with sexual sadism, without his criminal responsibility being diminished or excluded thereby. Expert H., in particular, had considered that the applicant suffered from a combined personality disorder with dissocial, psychopathic, paranoiac and emotionally unstable elements and had formerly abused alcohol. Expert S. had found, in particular, that the applicant was a psychopath.
18. The Regional Court considered that the applicant’s offences disclosed a violent, degrading and partly sadist attitude towards women which had not changed during his placement in different psychiatric hospitals. The preventive detention of the applicant, who had a propensity to commit serious violent offences, was proportionate. In particular, the applicant’s planned departure to Romania was irrelevant in that respect because Article 66b § 3 of the Criminal Code served to protect potential victims not only in Germany, but also in other States including Romania.
19. On 1 August 2008 the applicant lodged an appeal on points of law which he reasoned on 13 October 2008. He argued that Article 66b § 3 of the Criminal Code and the decisions ordering his preventive detention retrospectively, which were based on that provision, violated his right to liberty and were thus incompatible with the Basic Law and with Article 5 § 1 of the Convention.
20. On 13 May 2009 the Federal Court of Justice dismissed the applicant’s appeal on points of law as ill-founded.
21. On 4 June 2009 the applicant, represented by counsel, lodged a constitutional complaint with the Federal Constitutional Court. He argued that the retrospective order for his preventive detention, based on Article 66b § 3 of the Criminal Code, violated his right to liberty under Article 2 § 2 of the Basic Law. It also disproportionately interfered with that right because his expulsion to Romania would have been as effective as his detention in order to protect potential victims in Germany while interfering less with his fundamental rights.
22. On 4 November 2009 a chamber of three judges of the Federal Constitutional Court, without giving reasons, declined to consider the applicant’s constitutional complaint (file no. 2 BvR 1237/09).
23. According to the Government, in Straubing Prison, five doctors, five psychologists, four educationists and nine social workers offer help to detainees (it has not been specified for how many detainees these staff members were responsible). Sexual and violent offenders may be transferred to a suitable social therapeutic institution if their reintegration into society may be better furthered thereby. If a group therapy proves unsuitable, they may be offered an individual therapy. There are additional courses aimed at preventing further offences on release, including antiaggression, anti-violence and reasoning and rehabilitation training. Furthermore, detainees who committed their offences under the influence of alcohol or drugs are offered addiction counselling.
24. The applicant had initially not been ready to apply for his transfer to Straubing Prison’s social therapeutic institution which, according to the prison therapists, would offer him a suitable social therapy for sexual offenders. He claimed to be a violent offender in the first place and to have undergone a sexual therapy already in the psychiatric hospitals. The Erlangen prison authorities later refused the applicant’s request dated 14 September 2009 to be admitted to its social therapeutic institution for violent offenders. It argued that he did not fit into the institution’s therapeutic concept targeted at offenders sentenced for offences of an average gravity. The applicant did not apply to be admitted to another social therapeutic institution in Kaisheim Prison. He further did not apply for any training courses or addiction counselling.
25. The applicant has been working in Straubing Prison. He received a visit from his sister once, spoke to his mother on the phone regularly and exchanged letters with her and with two other acquaintances. He has not received any relaxations in the conditions of his detention in view of the enforceable expulsion order against him.
26. On 29 October 2009 the Regensburg Regional Court dismissed the applicant’s request to declare his preventive detention unlawful. On 11 December 2009 the Nuremberg Court of Appeal dismissed the applicant’s appeal.
27. On 4 November 2010 the Regensburg Regional Court dismissed the applicant’s request of 5 June 2010 to declare the execution of his preventive detention unlawful. It found, in particular, that the judgment of the European Court of Human Rights of 17 December 2009 in the case of M. v. Germany (no. 19359/04, ECHR 2009) did not constitute a bar to the execution of the judgment in the applicant’s case. That court’s judgments were only binding between the parties to the proceedings in the case of M. v. Germany, which had, moreover, concerned a different subject-matter.
28. On 13 December 2010 the Nuremberg Court of Appeal dismissed the applicant’s appeal. It took the view that the question of whether the applicant’s preventive detention breached the prohibition of retrospective punishment could not be examined in the present proceedings concerning the execution of the applicant’s preventive detention. That issue had to be dealt with in review proceedings under Article 67e of the Criminal Code (see paragraph 45 below). In those proceedings, it had to be examined whether, owing to specific circumstances relating to his person or his conduct, it was highly likely that the applicant would commit the most serious crimes of violence or sexual offences if released.
29. On 13 October 2011 the Regensburg Regional Court, in review proceedings under Articles 67d § 2 and 67e of the Criminal Code (see paragraphs 44-45 below), declared the applicant’s preventive detention ordered by the Munich I Regional Court on 30 July 2008 terminated and ordered the applicant’s supervision of conduct.
30. The Regional Court noted that in her report dated 15 August 2011, psychiatric expert L. had considered that the applicant suffered from a personality disorder with paranoiac, dissocial and narcissistic elements and from emotional instability. There was a risk of 44 per cent that the applicant would commit further violent offences against a person related to him in the seven years to come if released. The applicant therefore suffered from a mental disorder within the meaning of the Therapy Detention Act. However, in the Regional Court’s view, there was not a high risk, owing to specific circumstances relating to the applicant’s person or conduct, that he would commit the most serious crimes of violence or sexual offences if released. The requirements set up in the Federal Constitutional Court’s judgment of 4 May 2011 for a continuation of the applicant’s retrospective preventive detention, which applied a fortiori in a case like that of the applicant who had initially been acquitted for lack of criminal responsibility, had therefore not been met.
31. On 19 December 2011 the Nuremberg Court of Appeal, allowing the prosecution’s appeal, quashed the decision of the Regensburg Regional Court and ordered the applicant’s preventive detention to continue. Contrary to the Regional Court, it considered that under the Federal Constitutional Court’s judgment of 4 May 2011, it was sufficient for preventive detention ordered under Article 66b § 3 to continue if there was a risk, owing to specific circumstances relating to the applicant’s person or conduct, that the person concerned would commit serious crimes of violence or sexual offences. These requirements were met in the applicant’s case. It was not necessary that there was a high risk of the most serious crimes of violence or sexual offences or that the applicant suffered from a mental disorder. These requirements applied only to the (different) cases of preventive detention with retrospective effects which had been at issue in the Federal Constitutional Court’s judgment.
32. On 4 November 2010 the Straubing District Court, having heard the applicant in person, dismissed the request made by the city of Straubing to order the applicant’s placement in a psychiatric hospital under the Bavarian (Mentally Ill Persons’) Placement Act (see paragraph 47 below). It found that the disorder the applicant suffered from was not so serious as to affect the applicant’s free will. Consequently, the requirements for his detention under Article 1 § 1 of the Bavarian (Mentally Ill Persons’) Placement Act were not met. It was not the purpose of the said Act to authorise the detention of all persons suffering from a mental disease or to close gaps in the provisions on preventive detention.
33. On 3 January 2011 the Straubing Prison authorities lodged a request with the Regensburg Regional Court to order the applicant’s detention under Article 1 of the Therapy Detention Act (see paragraph 48 below).
34. On 24 October 2011 the Regensburg Regional Court ordered the applicant’s provisional detention for a maximum period of three months under the Therapy Detention Act from the moment the termination of the applicant’s retrospective preventive detention became final. It noted that the psychiatric experts H. and L. had found in their reports, drawn up on the basis of the case-file alone, that the applicant suffered from a personality disorder with dissocial, psychopathic / narcissistic and paranoiac elements and emotional instability. He had previously abused alcohol. He might suffer, in addition, from sexual sadism. The experts had considered that there was a high and a medium to high risk respectively that the applicant would commit further violent offences, in particular against persons closely related to him, if released. The court, endorsing the experts’ findings, therefore considered that there were grounds for concluding that the requirements for the applicant’s detention under the Therapy Detention Act were met.
35. A comprehensive summary of the provisions of the Criminal Code and of the Code of Criminal Procedure governing the distinction between penalties and measures of correction and prevention, in particular preventive detention, and the making, review and execution in practice of preventive detention orders, is contained in the Court’s judgment in the case of M. v. Germany (no. 19359/04, §§ 45-78, ECHR 2009). A summary of the provisions of the Basic Law governing the right to liberty (Article 2 § 2) and the ban on retrospective application of criminal laws (Article 103 § 2) can also be found in that judgment (ibid., §§ 57 and 61). The provisions referred to in the present case provide as follows:
36. Measures of correction and prevention (see Articles 61 et seq. of the Criminal Code) cover, in particular, placement in a psychiatric hospital (Article 63 of the Criminal Code) or in preventive detention (Article 66 of the Criminal Code). They may be ordered for offenders in addition to their punishment (compare Articles 63 et seq. of the Criminal Code). They must, however, be proportionate to the gravity of the offences committed by, or to be expected from, the defendants as well as to their dangerousness (Article 62 of the Criminal Code).
37. Article 66 of the Criminal Code governs orders for a person’s preventive detention made by the sentencing court when finding the person guilty of an offence. That court may, at the time of the offender’s conviction, order his preventive detention (a so-called measure of correction and prevention) under certain circumstances in addition to his prison sentence (a penalty), if the offender has been shown to be a danger to the public.
38. Under Article 66 § 3, first sentence, of the Criminal Code, in its version in force at the time of the order for the applicant’s retrospective preventive detention, preventive detention may be ordered in addition to a prison sentence if the perpetrator is sentenced for certain serious offences, including murder, rape and dangerous assault, to at least two years’ imprisonment, if he has previously been convicted (only) once of one or more such offences to at least three years’ imprisonment and if the remaining requirements laid down in Article 66 § 1 (2) and (3) are met.
39. The Retrospective Preventive Detention Act (Gesetz zur Einführung der nachträglichen Sicherungsverwahrung) of 23 July 2004, which entered into force on 29 July 2004, inserted Articles 66b and 67d § 6 into the Criminal Code; the latter provision was amended by an Act of 13 April 2007. The provisions in question were aimed at preventing the release of persons who could no longer be detained in a psychiatric hospital because the conditions for placement under Article 63 of the Criminal Code were no longer met (including cases in which they had never been met from the outset), but who were still dangerous to the public (see German Federal Parliament documents (BTDrucks), no. 15/2887, pp. 10, 13/14).
40. In fact, under the case-law previously established by the courts dealing with the execution of sentences, a person’s placement in a psychiatric hospital had to be terminated and the person concerned had to be released if he no longer suffered, or had in fact never suffered, from a condition excluding or diminishing his criminal responsibility, even if that person was still dangerous to the public (see Hamm Court of Appeal, no. 4 Ws 389/81, decision of 22 January 1982, Neue Zeitschrift für Strafrecht (NStZ) 1982, p. 300; Karlsruhe Court of Appeal, no. 1 Ws 143/82, decision of 30 June 1982, Monatsschrift für Deutsches Recht (MDR) 1983, p. 151; Federal Court of Justice, no. 3 StR 317/96, judgment of 27 November 1996, Collection of decisions of the Federal Court of Justice in Criminal Matters (BGHSt) no. 42, p. 310; see also Federal Constitutional Court, nos. 2 BvR 1914/92 and 2105/93, decision of 28 December 1994, Neue Juristische Wochenschrift (NJW) 1995, p. 2406; and Federal Court of Justice, no. 4 StR 577/09, decision of 12 May 2010, § 13 with further references).
41. Article 66b § 3 of the Criminal Code, in its version in force at the relevant time, provided:
“(3) If an order for placement in a psychiatric hospital has been declared terminated pursuant to Article 67d § 6 because the conditions excluding or diminishing criminal responsibility on which the order was based no longer persisted at the time of the decision terminating the placement, the court may order preventive detention retrospectively if
1. the placement of the person concerned under Article 63 was ordered on the basis of several of the offences listed in Article 66 § 3, first sentence, or if the person concerned had either already been sentenced to at least three years’ imprisonment or had been placed in a psychiatric hospital because of one or more such offences, committed prior to the offence having led to that person’s placement under Article 63, and
2. a comprehensive assessment of the person concerned, his offences and, in addition, his development during the execution of the measure revealed that it was very likely that he would again commit serious offences resulting in considerable psychological or physical harm to the victims.”
42. Article 67d § 6 of the Criminal Code, in its version in force at the relevant time, provided:
“(6) If, after enforcement of an order for placement in a psychiatric hospital has started, the court finds that the conditions for the measure no longer persist or that the continued enforcement of the measure would be disproportionate, it shall declare the measure terminated. On termination of the measure, the conduct of the person concerned shall be supervised. ...”
43. The said two provisions remained valid also under the Reform of Preventive Detention Act (Gesetz zur Neuordnung des Rechts der Sicherungsverwahrung) of 22 December 2010, which entered into force on 1 January 2011, for offences committed after the entry into force of that Act. As a result of the abolition of paragraphs 1 and 2 of Article 66b of the Criminal Code by the said Act, the former paragraph 3, slightly amended, became the only provision of that Article.
44. Article 67d of the Criminal Code governs the duration of preventive detention. Paragraph 2, first sentence, of that Article provides that if there is no provision for a maximum duration or if the time-limit has not yet expired, the court shall suspend on probation the further execution of the detention order as soon as it is to be expected that the person concerned will not commit any further unlawful acts on his release.
45. Pursuant to Article 67e of the Criminal Code, the court (that is, the chamber responsible for the execution of sentences) may review at any time whether the further execution of the preventive detention order should be suspended and a measure of probation applied or should be declared terminated. It is obliged to do so within fixed time-limits (paragraph 1 of Article 67e). For persons in preventive detention, this time-limit is two years (paragraph 2 of Article 67e).
46. The detention of mentally ill persons is provided for, first of all, in the Criminal Code as a measure of correction and prevention if the detention is ordered in relation to an unlawful act committed by the person concerned. Article 63 of the Criminal Code provides that if someone commits an unlawful act without criminal responsibility or with diminished criminal responsibility, the court will order his placement – without any maximum duration – in a psychiatric hospital if a comprehensive assessment of the defendant and his acts reveals that, as a result of his condition, he can be expected to commit serious unlawful acts and that he is therefore a danger to the general public.
47. Secondly, pursuant to sections 1 § 1, 5 and 7 of the Bavarian Act on the Placement in an Institution of Mentally Ill Persons and Their Care of 5 April 1992 (Bavarian (Mentally Ill Persons’) Placement Act – Bayerisches Gesetz über die Unterbringung psychisch Kranker und deren Betreuung) a court may order a person’s placement in a psychiatric hospital at the request of the authorities of a town or county if the person concerned is mentally ill and thereby poses a severe threat to public security and order. Such an order may only be executed as long as no measure under Article 63 of the Criminal Code has been taken (section 1 § 2 of the said Act).
48. Furthermore, on 1 January 2011, following the Court’s judgment in the case of M. v. Germany (cited above), the Act on Therapy and Detention of Mentally Disturbed Violent Offenders (Therapy Detention Act – Gesetz zur Therapierung und Unterbringung psychisch gestörter Gewalttäter) entered into force. Under sections 1 § 1 and 4 of that Act, the civil sections of the Regional Court may order the placement in a suitable institution of persons who may no longer be kept in preventive detention in view of the prohibition of retrospective aggravations in relation to preventive detention. Such a therapy detention may be ordered if the person concerned has been found guilty by final judgment of certain serious offences for which preventive detention may be ordered under Article 66 § 3 of the Criminal Code. The person must further suffer from a mental disorder owing to which it is highly likely that he will considerably impair the life, physical integrity, personal liberty or sexual self-determination of another person. The person’s detention must be necessary for the protection of the public.
49. On 4 May 2011 the Federal Constitutional Court delivered a leading judgment concerning the retrospective prolongation of the complainants’ preventive detention beyond the former ten-year maximum period and also concerning the retrospective order for a complainant’s preventive detention under Article 66b § 2 of the Criminal Code (file nos. 2 BvR 2365/09, 2 BvR 740/10, 2 BvR 2333/08, 2 BvR 1152/10 and 2 BvR 571/10). Reversing its previous position, the Federal Constitutional Court held that all provisions concerned, both on the retrospective prolongation of preventive detention and on the retrospective ordering of such detention, were incompatible with the Basic Law as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a State governed by the rule of law, read in conjunction with the constitutional right to liberty.
50. The Federal Constitutional Court further held that all the relevant provisions of the Criminal Code on the imposition and duration of preventive detention were incompatible with the fundamental right to liberty of persons in preventive detention. It found that those provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment (Abstandsgebot). These provisions included, in particular, Article 66 of the Criminal Code in its version in force since 27 December 2003 and Article 66b § 3 of the Criminal Code in its version of 23 July 2004.
51. The Federal Constitutional Court ordered that all provisions declared incompatible with the Basic Law remained applicable until the entry into force of new legislation and until 31 May 2013 at the latest. In relation to detainees whose preventive detention had been prolonged retrospectively, or ordered retrospectively under Article 66b § 2 of the Criminal Code (but not preventive detention ordered under Article 66b § 3 of the Criminal Code), the courts dealing with the execution of sentences had to examine without delay whether the persons concerned, owing to specific circumstances relating to their person or their conduct, were highly likely to commit the most serious crimes of violence or sexual offences and if, additionally, they suffered from a mental disorder within the meaning of section 1 § 1 of the newly enacted Therapy Detention Act. As regards the notion of mental disorder, the Federal Constitutional Court explicitly referred to the interpretation of the notion of “persons of unsound mind” in Article 5 § 1 sub-paragraph (e) of the Convention made in this Court’s case-law (see §§ 138 and 143-156 of the Federal Constitutional Court’s judgment). If the above pre-conditions were not met, those detainees had to be released no later than 31 December 2011. The other provisions on the imposition and duration of preventive detention could only be further applied in the transitional period subject to a strict review of proportionality; as a general rule, proportionality was only respected where there was a danger of the person concerned committing serious crimes of violence or sexual offences if released.
52. In its reasoning, the Federal Constitutional Court relied on the interpretation of Article 5 and Article 7 of the Convention made by this Court in its judgment in the case of M. v. Germany (cited above; see §§ 137 ss. of the Federal Constitutional Court’s judgment). It stressed, in particular, that the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment and the principles laid down in Article 7 of the Convention required an individualised and intensified offer of therapy and care to the persons concerned. In line with the Court’s findings in the case of M. v. Germany (cited above, § 129), it was necessary to provide a high level of care by a team of multi-disciplinary staff and to offer the detainees an individualised therapy if the standard therapies available in the institution did not have prospects of success (see § 113 of the Federal Constitutional Court’s judgment).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
VIOLATED_BULLETPOINTS: 5-1-a
5-1-c
5-1-e


ITEMID: 001-75419
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: COMERT v. DENMARK
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Snejana Botoucharova
TEXT: The applicant, Mr Hamit Cömert, is a Turkish national who was born in 1967 and lives in Konya. He is represented before the Court by Mr Haci Ali Özhan, a lawyer practising in Ankara. The Government are represented by their Agent, Mr Peter Taksøe-Jensen, of the Ministry of Foreign Affairs, and their Co-agent, Mrs Nina Holst-Christensen, of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a Turkish national, born in 1967. He entered Denmark in 1980, when he was thirteen years old.
Four years later, in Turkey he married a Turkish woman who remained in their country of origin. There, the spouses had a daughter in 1987 and a son in 1989.
In 1992, the applicant’s wife and his two children entered Denmark under the rules regarding family unification. In 1994 the spouses had another daughter.
On 19 April 2002 the applicant was detained on remand, charged with sexual offences allegedly having been committed throughout the past four years against his eldest daughter as from the time when she was eleven years old.
An indictment of 6 June 2002 was submitted to the Copenhagen City Court (Københavns Byret), before which the applicant, the daughter and three witnesses were heard, including a teacher in whom the daughter had confided, and a police officer who worked at the institution where the daughter had been placed. The applicant pleaded not guilty and explained among other things that he had commenced sleeping on a mattress in his daughter’s bedroom some years ago, approximately every 14 days, usually in connection with him having come home from a late night out. He did not wish to wake up his wife and his youngest daughter, who slept in the spouses’ bedroom. Also, he was suffering from backache, and it did him good to sleep on a flat surface. In response to the fact that a forensic examination of the sheets in his daughter’s bedroom revealed sperm cells, the applicant explained that he had slept with his wife in the daughter’s bedroom.
Before the Court the daughter explained among other things that the applicant had started sleeping with her when she was eleven years old in connection with her mother having gone to Turkey for a funeral.
The applicant’s wife was called to the witness stand but declined to give testimony against her husband. She was therefore exempted in accordance with the Administration of Justice Act (Retsplejeloven).
By judgment of 11 July 2002, pursuant to sections 232; 210, subsection 3 taken together with subsection 1; and 222, subsection 2 taken together with subsection 1; section 224; and partly section 21 of the Penal Code (Straffeloven) the applicant was convicted of having sexually abused his daughter by resorting to violence and threats during the period from the beginning of 1998 until April 2002
The Court found it established that the sexual abuse involved masturbation, oral sex, and attempts of intercourse, the latter having failed only because the daughter had expressed pain and because it had been physically impossible for the applicant.
The applicant was also convicted pursuant to section 266 of the Penal Code for having uttered threats against his daughter’s life in that, after the sexual abuse had been reported to the police, he sent her a Short Message Service (SMS) in which he wrote: “you are superfluous in Denmark, if I see you on the street, I will kill you. This I promise”. Also, it was found established that he had sent her an SMS in which he threatened to come and “fuck her” if she did not call him within 10 minutes.
The applicant was sentenced to 3 years’ imprisonment. Furthermore, pursuant to section 22 (ii) and (vi) of the Aliens Act (Udlændingeloven) he was expelled from Denmark forever. As to the latter the court noted on the one hand that the applicant had entered Denmark when he was 13 years old, that he had lived there for 21 years, and that his father and three siblings also lived in Denmark. On the other hand the court noted the seriousness and the nature of the crime, that the applicant’s mother and five siblings lived in Turkey, that the applicant had maintained strong contact with them and that almost every year he had spent his vacation in Turkey.
On 31 October 2002, on appeal, the judgment was upheld by the High Court of Eastern Denmark (Østre Landsret), before which the applicant’s wife agreed to testify. She confirmed that in March 1998 she had been in Turkey for sixteen days to participate in a funeral, and stated among other things that she had initiated a divorce from the applicant.
Leave to appeal against the judgment to the Supreme Court (Højesteret) was refused by the Leave to Appeal Board (Procesbevillingsnævnet) on 10 January 2003.
By judgment of 3 February 2003 the Copenhagen City Court granted the applicant’s wife a divorce and awarded her custody over the three children. The applicant did not request access to any of his children.
On 28 January 2004 the applicant was released from prison and expelled to Turkey.
The applicant’s father and brother who lived in Denmark also returned to Turkey, and the applicant’s family in Turkey thus consisted of his parents and five siblings.
In the summer of 2004 the applicant’s wife went to Turkey to obtain a divorce from the applicant also according to Turkish law. It appears that the applicant objected thereto and that the proceedings thereon are still pending.
During that summer the applicant’s two youngest children visited him and his family in Turkey.
During the summer of 2005 the applicant’s son stayed with him in Turkey.
The Aliens Act provided in so far as relevant:
Section 22
“An alien who has lawfully lived in Denmark for more than the last seven years, and an alien issued with a residence permit under sections 7or 8 may be expelled if:
...
(ii) the alien, for several criminal counts, is sentenced to minimum 2 years’ imprisonment or other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in a punishment of this duration;
...
(vi) the alien is sentenced, pursuant to provisions in Parts XII and XIII of the Penal Code or pursuant to section 119(1) and (2), 180, 181, 183(1) and (2), 183 a, 186(1), 187(1), 192 a, section 210(1) and (3), cf. subsection (1), section 216, 222, sections 224 and 225, cf. sections 216 and 222, section 237, 245, 245 a, 246, 252(2), 261(2), section 276, cf. section 286, sections 278 to 283, cf. section 286, section 288 or 290(2) of the Penal Code, to imprisonment or other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in a punishment of this nature.
Section 26:
1. “In deciding on expulsion, regard must be had to the question whether expulsion must be assumed to be particularly burdensome, in particular because of:
(i) the alien’s ties with the Danish community, including whether the alien came to Denmark in his childhood or tender years;
(ii) the duration of the alien’s stay in Denmark;
(iii) the alien’s age, health, and other personal circumstances;
(iv) the alien’s ties with persons living in Denmark;
(v) the consequences of the expulsion for the alien’s close relatives livening in Denmark;
(vi) the alien’s slight or non-existent ties with his country of origin or any other country in which he may be expected to take up residence;
(vii) the risk that, in cases other that those mentioned in section 7(1) and (2), the alien will be ill-treated in his country of origin or any other country in which he may be expected to take up residence.
2. An alien may be expelled pursuant to section 22(iv) to (vi) unless the circumstances mentioned in subsection 1 above constitute a decisive argument against doing so.”


ITEMID: 001-113715
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: GRANDCHAMBER
DATE: 2012
DOCNAME: CASE OF CHABAUTY v. FRANCE
IMPORTANCE: 2
CONCLUSION: No violation of Article 14+P1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 para. 2 of Protocol No. 1 - Control of the use of property;General interest;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 of Protocol No. 1 - Protection of property)
JUDGES: Anatoly Kovler;André Potocki;Angelika Nußberger;Ann Power-Forde;David Thór Björgvinsson;Dean Spielmann;Françoise Tulkens;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Lech Garlicki;Ledi Bianku;Mark Villiger;Mirjana Lazarova Trajkovska;Nicolas Bratza
TEXT: 8. The applicant was born in 1934 and lives in Airvault.
9. The applicant inherited two plots of land in the municipality of Louin (département of Deux-Sèvres) with a total surface area of approximately ten hectares, which are included in the hunting grounds of the Louin approved municipal hunters’ association (association communale de chasse agréée – “ACCA”). He holds a hunting permit.
10. In France, hunting rights over land belong in principle to the landowner. However, Law no. 64-696 of 10 July 1964, known as the “Loi Verdeille”, provides for the pooling of hunting grounds within ACCAs. The creation of an ACCA in each municipality is compulsory in twenty-nine of the ninetythree départements of metropolitan France excluding Bas-Rhin, Haut-Rhin and Moselle, including in DeuxSèvres; in the remainder of those ninety-three départements it is optional. Landowners whose property forms part of the hunting grounds of an ACCA in this way automatically become members of the association. They lose their exclusive hunting rights over their own land but have the right to hunt throughout the area covered by the ACCA.
However, the owners of land with a surface area above a certain threshold may object to the inclusion of their land in the ACCA’s hunting grounds or request its removal from them (in the département of DeuxSèvres, the threshold is twenty hectares, which corresponds to the statutory minimum area). Since the entry into force of Law no. 2000-698 of 26 July 2000, landowners “who, being opposed to hunting as a matter of personal conviction, prohibit hunting, including by themselves, on their property” also have this option, irrespective of the surface area of their land (see paragraphs 18-23 below).
11. In a letter of 12 August 2002 the applicant informed the Prefect of Deux-Sèvres that he wished to “object to the practice of hunting by the Louin ACCA on [his] plots of land” “as a matter of personal conviction”. On 23 September 2002 the Prefect informed him of the procedure to follow in order to have his land removed from the ACCA’s hunting grounds on account of his opposition to hunting for reasons of conscience.
12. On 17 December 2003 the applicant again wrote to the Prefect, applying to have his land removed from the Louin ACCA’s hunting grounds. He stated as follows:
“... My application to have the land removed is not based on personal convictions but on the fact that the European Court of Human Rights, and subsequently the national administrative courts, have ruled ... that ‘while different treatment of persons in a comparable situation may be justified by the general interest resulting in particular from the need to ensure coherent and efficient management of game stocks, there does not appear to be any objective and reasonable justification for obliging landowners, by means of compulsory transfer, to join an approved municipal hunters’ association against their wishes.’ It is clear from these different court rulings that large and small landowners cannot be treated differently on the basis of provisions which are contrary to Article 1 of Protocol [No. 1] taken in conjunction with Article 14 of [the] Convention.
As I own only 10 hectares, 12 ares and 74 centiares, I would kindly request you to grant me permission, by means of a reasoned administrative decision, to immediately remove from the hunting grounds of the Louin ACCA the plots of land entered in section ... of the land register...”
13. On 6 February 2004 the Director of Agriculture and Forestry of the Deux-Sèvres Prefecture informed the applicant that his application had been rejected. Noting that the applicant was no longer citing his original reasons relating to personal convictions, but instead relied on Article 14 of the Convention and Article 1 of Protocol No. 1, the Director wrote as follows:
“... the provisions of the Law of 26 July 2000 and of the Environmental Code, and in particular Articles L. 422-10 and L. 422-13 thereof, were designed to bring the domestic law into line with the case-law of the Court ... by providing that only landowners who do not hunt and who are opposed to hunting as a matter of personal conviction have a right to raise objections to hunting irrespective of the surface area of their land, while maintaining the requirement for owners of land below a certain threshold (twenty hectares in Deux-Sèvres) to transfer the hunting rights over their land to the ACCA.
Our enquiries have revealed that you are the holder of a valid hunting permit for the current hunting season.
As a result ..., pursuant to Article L. 422-13 of the Environmental Code, I must inform you that I am unable to grant your request and that the land you seek to have removed shall remain within the hunting grounds of the Louin ACCA. ...”
14. On 23 March 2004 the applicant requested the Prefect of DeuxSèvres to reconsider the decision.
On 6 April 2004, having received no reply, he applied to the Poitiers Administrative Court for judicial review of the implicit refusal constituted by the Prefect’s failure to reply, and of the decision of 6 February 2004.
15. On 23 March 2005 the Poitiers Administrative Court allowed the application, in a judgment containing the following reasoning:
“...while different treatment of persons in a comparable situation may be justified by the general interest resulting in particular from the need to ensure coherent and efficient management of game stocks, there does not appear to be any objective and reasonable justification for obliging landowners, by means of compulsory transfer, to join an approved municipal hunters’ association against their wishes. ... thus, the difference in treatment between large and small landowners is contrary to Article 1 of Protocol [No. 1] read in conjunction with Article 14 of [the] Convention. ...”
16. The Louin ACCA applied to the Bordeaux Administrative Court of Appeal to have that judgment set aside, arguing that, as a hunter himself, the applicant could not claim to be a victim of a Convention violation.
The Administrative Court of Appeal rejected the application in a judgment of 18 July 2006. It considered that the Director of Agriculture and Forestry had not been competent to sign the decision of 6 February 2004, which was therefore unlawful, as was the implicit refusal. Accordingly, the court concluded that the Louin ACCA had no grounds for contesting the settingaside of the decisions in question.
17. On an application by the Louin ACCA, the Conseil d’Etat, in a judgment of 16 June 2008, quashed the judgment of the Bordeaux Administrative Court of Appeal. It held that the latter had committed an error of law in ruling that the Director of Agriculture and Forestry had not been competent to sign the decision in question, since he had been properly delegated to sign documents in the sphere concerned.
Ruling on the merits, the Conseil d’Etat went on to quash the judgment of the Poitiers Administrative Court of 23 March 2005 and rejected the applicant’s application for judicial review. The Conseil d’Etat held, inter alia, as follows:
“... The evidence in the file shows that Mr Chabauty, who owns land with a surface area below that specified in paragraph 3 of Article L. 422-10 of the Environmental Code, requested the removal of his land not on the grounds that he was opposed to hunting as a matter of personal conviction, as permitted by the fifth paragraph of that Article, but on the grounds that he wished to reserve the hunting rights over his land for his own use without allowing the members of the ACCA to benefit from them.
The system of approved hunters’ associations was devised on general-interest grounds to prevent the unregulated exercise of hunting and promote rational use of game stocks. Landowners who hunt and who transfer the rights over their land are automatically entitled, in accordance with Article L. 422-21 of the Environmental Code, to membership of the hunters’ association and, accordingly, to hunt throughout the association’s hunting grounds. Thus, the owners of land with a surface area below that specified in the third paragraph of Article L. 422-10 of the Code have a choice between relinquishing their hunting rights on the grounds that they are opposed to hunting as a matter of personal conviction or transferring the hunting rights over their land to the ACCA in exchange for the compensatory benefits referred to above. Accordingly, the system does not constitute disproportionate interference with the right to property and is not in breach of Article 1 of [Protocol No. 1].
The difference in treatment under the law between small and large landowners was introduced in the interests of hunters who own small plots of land, who can thus band together in order to obtain larger hunting grounds. Thus, this difference in treatment is based on objective and reasonable grounds and, since the owners of small plots remain free to use their land for a purpose in keeping with their conscience, the system in issue is not in breach of Article 1 of [Protocol No. 1] taken in conjunction with Article 14 of [the] Convention. It follows from the above that the Administrative Court incorrectly based its ruling on a breach of [these provisions] in setting aside the impugned decisions...”
18. In principle, hunting rights over land belong to the landowner. Article L. 422-1 of the Environmental Code states that “[n]o one shall have the right to hunt on land belonging to another without the consent of the owner or any person entitled through or under the owner”.
However, the legislature deemed it necessary for hunting grounds to be “pooled” in some cases. This was the purpose of Law no. 64-696 of 10 July 1964, known as the “Loi Verdeille”, which is applicable in the départements of metropolitan France other than Bas-Rhin, Haut-Rhin and Moselle and provides for the establishment of approved municipal and intermunicipality hunters’ associations (“ACCAs” and “AICAs”).
19. The ACCAs pool hunting grounds at municipal level. Under Article L. 422-2 of the Environmental Code, in the version applicable at the material time, they are “designed to ensure sound technical organisation of hunting. They shall encourage, on their hunting grounds, an increase in game stocks and wildlife while preserving a genuine balance between agriculture, forestry and hunting, provide instruction to their members in hunting-related matters and ensure the control of vermin and compliance with hunting plans ... Their role is also to ensure that hunters contribute to the conservation of natural habitats and wild flora and fauna”.
The ACCAs are subject to the ordinary law on associations (Law of 1 July 1901) and to the specific provisions of the Loi Verdeille and the regulatory instruments implementing it (Articles L. 422-1 et seq. and Articles R. 422-1 et seq. of the Environmental Code). The prefect issues approval after checking that the requisite formalities have been completed and that the association’s constitution and internal rules conform to the statutory requirements (Articles L. 422-3 and R. 422-39 of the Environmental Code). The prefects are responsible for supervising the ACCAs, and any change to their constitutions, internal rules or hunting regulations must be submitted to the prefect for approval (Articles R. 422-1 and R. 422-2 of the Environmental Code). In the event of a breach by the ACCA of its constitution or hunting regulations or of damage to property, crops or public freedoms, or of a general breach of the relevant regulatory provisions (Articles R. 422-1 et seq. of the Environmental Code), the prefect may also adopt interim measures such as the suspension of hunting on all or part of the association’s hunting grounds or the dissolution of its executive committee (Article R. 422-3 of the Environmental Code).
20. The creation of ACCAs is mandatory only in certain départements named on a list drawn up by the Minister responsible for hunting on a proposal by the representative of the State in the relevant département, supported by the département council, and after prior consultation of the Chamber of Agriculture and the Hunters’ Federation in that département (Article L. 4226 of the Environmental Code). Twenty-nine of the ninetythree metropolitan départements other than Bas-Rhin, Haut-Rhin and Moselle are concerned. In the remainder of those ninety-three départements the representative of the State draws up a list of municipalities where an ACCA is to be set up. The decision is taken on an application by anyone who can furnish evidence that at least 60% of landowners holding at least 60% of the land in the municipality agree to set up an association for a minimum five-year period (Article L. 422-7 of the Environmental Code).
21. Landowners whose land is included in an ACCA’s hunting grounds are automatically members of the association (Article L. 422-21 of the Environmental Code). They lose their exclusive hunting rights over the land but, as members, have the right to hunt throughout the association’s hunting grounds in accordance with its regulations (Articles L. 422-16 and L. 42222 of the Environmental Code).
The transfer of hunting rights entitles the landowner to compensation, payable by the ACCA, for any loss of profits caused by being deprived of a previous source of income. The ACCA is also obliged to pay compensation to owners of hunting rights who have “made improvements to the land over which they have hunting rights” (Article L. 422-17 of the Environmental Code).
22. Article L. 422-10 of the Environmental Code provides:
“A municipal hunters’ association shall be established on lands other than those:
1. within a radius of 150 metres of any dwelling;
2. enclosed by a fence as defined in Article L. 424-3 [Article L. 424-3 provides that ‘... the owner of the land or the hunting rights may, at any time, hunt or arrange for the hunting of game animals on his or her land adjoining a dwelling and surrounded by a continuous and unbroken fence, forming an obstacle to any communication with neighbouring properties and incapable of being breached by game animals or by human beings’];
3. forming an uninterrupted area greater than the minimum area referred to in Article L. 422-13 and in relation to which the owners of the land or of the hunting rights have filed objections;
4. constituting public property belonging to the State, a département or a municipality or forming part of a public forest, or belonging to the French Rail Network or the French National Railway Company.
5. in relation to which objections have been filed by individual owners, or unanimously by several co-owners acting jointly, who, being opposed to hunting as a matter of personal conviction, prohibit hunting, including by themselves, on their property, without prejudice to the effects of owner liability, and particularly liability for damage caused by game from their lands. ...”
The fifth paragraph was added by Law no. 2000-698 of 26 July 2000 (published in the Official Gazette on 27 July 2000) for the purposes of executing the Court’s judgment in Chassagnou and Others v. France ([GC], nos. 25088/94, 28331/95 and 28443/95, ECHR 1999III) (see paragraph 24 below).
Articles L. 422-13, L. 422-14 and L. 422-15 of the Environmental Code further specify as follows:
“I. In order to be admissible, an objection by the owners of land or hunting rights referred to in the third paragraph of Article L. 422-10 must relate to at least twenty hectares of land in a single block.
II. That minimum shall be lowered in respect of waterfowl shooting
1. to three hectares for undrained marshland;
2. to one hectare for isolated ponds;
3. to fifty ares for ponds where, on 1 September 1963, there were fixed installations, shelters or hides.
III. The minimum shall be lowered in respect of hunting for birds of the family Colombidae to one hectare for land where, on 1 September 1963, there were fixed structures used for that purpose.
IV. The minimum shall be raised to one hundred hectares for land in mountain areas above the tree-line.
V. Orders made for each département under the conditions laid down in Article L. 422-6 may increase the minimum areas thus defined. These increases may not bring the new figure to more than twice the minimum laid down above.”
“The objections referred to in paragraph 5 of Article L. 422-10 shall be admissible provided that they relate to all the land belonging to the owner or co-owners in question.
Such objections shall entail relinquishment of the exercise of hunting rights on the land ...”
“Persons who have filed an objection shall be required to erect signs on their land to the effect that hunting is prohibited.
Owners of land or hunting rights who have filed an objection shall take steps to destroy vermin and to control the presence on their land of species that cause damage.
The crossing by hounds of land designated as a reserve or which is the subject of an objection under the third and fifth paragraphs of Article L. 422-10 shall not be considered as hunting on a reserve or on land belonging to another, except where the hunter has incited the hounds to enter the land.”
23. The Government stated that when an ACCA was being set up the owners of land not attaining the statutory minimum area or of hunting rights over such land could prevent the inclusion of their property in the ACCA’s hunting grounds by banding together to create a single block of land which exceeded the minimum area (Articles L. 422-10, third paragraph; R. 422-21; and R. 422-22 I, second paragraph, of the Environmental Code).
24. On 25 April 2005 the Committee of Ministers of the Council of Europe adopted the following Resolution (ResDH(2005)26):
“The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 (hereinafter referred to as “the Convention”),
Having regard to the final judgment of the European Court of Human Rights in the case of Chassagnou and others...
...
Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;
Having invited the government of the respondent state to inform it of the measures which had been taken in consequence of the judgment of 29 April 1999, having regard to France’s obligation under Article 46, paragraph 1, of the Convention to abide by it;
Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the individual and general measures taken in particular the amendment of Law No. 64696 of 10 July 1964 (the so-called “Verdeille Act”) which was criticised by the European Court in its judgment, so as to admit conscientious objection to hunting and thus avoid further violations similar to those found by the European Court against persons opposed to hunting (see the appendix to this resolution);
...
Declares, after having examined the information supplied by the Government of France, that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case.
Information provided by the Government of France during the examination of the case of Chassagnou and others by the Committee of Ministers
...
To give full effect to the Court’s judgment, Act No. 64-696 of 10 July 1964 (“the Verdeille Act”), impugned by the Court, has been amended, giving those opposed to hunting the right to object to it on grounds of conscience. Act No. 2000-698 on hunting, which introduces this amendment, was adopted on 26 July 2000 and published in the official gazette on 27 July 2000. Under Section 14 of that Act (the present Article L422-10 of the Environmental Code):
‘The municipal association [the licensed municipal hunting association – ACCA] shall be established on lands other than those:
...
5. Covered by objections lodged by individual owners, or unanimously by several co-owners acting jointly, who are opposed to hunting for reasons of personal conviction, and who forbid hunting, also by themselves, on their lands, without prejudice to the effects of owner liability, and particularly liability for damage caused by game from their lands.
When the owner is a corporation, the objection may be lodged by the chief executive of its decision-making body, duly authorised by it to do so.’
The government also notes that implementation of the provisions relating to the ACCA, as amended by the said Act of 26 July 2002, appears to have raised certain problems in respect of possibilities of withdrawing from the ACCA open to persons not wishing to plead objections of conscience. These problems have given rise to a number of proceedings which are still pending before the appeal courts, but in which the administrative courts based their first-instance judgments on principles derived from the Strasbourg case-law, and particularly the Chassagnou judgment.
At all events, the government considers, in view of the direct effect in French law of the European Convention on Human Rights and the case-law of the European Court, that there is no longer any risk of further violations of the kind suffered by the antihunting applicants according to the Chassagnou judgment.
...”
NON_VIOLATED_ARTICLES: 14
P1
NON_VIOLATED_PARAGRAPHS: P1-1
NON_VIOLATED_BULLETPOINTS: P1-1-1
P1-1-2


ITEMID: 001-57991
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1996
DOCNAME: CASE OF BOUGHANEMI v. FRANCE
IMPORTANCE: 3
CONCLUSION: No violation of Art. 8
JUDGES: N. Valticos
TEXT: 7. Mr Kamel Boughanemi was born on 23 November 1960 in Tunisia and has Tunisian nationality. He came to France in 1968 and lived there continuously until his deportation. His parents and his ten brothers and sisters reside in France. Eight of his brothers and sisters were born there. He claims that he lived with a woman of French nationality (Miss S.), whose child, born on 19 June 1993, he formally recognised on 5 April 1994.
8. The applicant was convicted on a number of occasions. On 21 December 1981 he was sentenced to ten months’ imprisonment, four of which were suspended, for burglary. On 22 September 1983 he was sentenced to two months’ imprisonment for an assault resulting in the victim’s not being fit for work for a period exceeding eight days. On 25 September 1986 he was fined 1,500 francs for driving without a licence and without insurance and on 24 March 1987 he was sentenced to three years’ imprisonment for living on the earnings of prostitution with aggravating circumstances.
9. On 8 March 1988 the Minister of the Interior issued an order for Mr Boughanemi’s deportation worded a follows:
"... Having regard to sections 23 and 24 of Ordinance no. 45-2658 of 2 November 1945, as amended,concerning the conditions of entry and residence ofaliens in France;
Having regard to Decree no. 82-440 of 26 May 1982;
Whereas Kamel Boughanemi ... committed the followingoffences: on 21 August 1981 a burglary; on21 November 1981 an assault on the person of arepresentative of the public authority who was performinghis duties; on 25 January 1983 an assault; and from 26 September 1986 to 10 October 1986, acts amounting toliving on the earnings of prostitution with aggravating circumstances;
Whereas on account of his behaviour the presence of thisforeign national on French territory represents a threatto public order;
... IT IS HEREBY ORDERED AS FOLLOWS
Article 1: the above-mentioned person is enjoined to leave the French territory;
Article 2: the Prefect of Police and the prefects are instructed to serve and execute this order.
..."
10. The deportation order was executed on 12 November 1988 but the applicant returned to France and lived there illegally.
11. On 16 March 1989 the Lyons Administrative Court dismissed the applicant’s appeal alleging that the deportation order was an abuse of authority.
12. On 21 March 1990 the applicant applied to the Minister of the Interior to have the deportation order rescinded. His application was rejected on 10 August 1990 on the following grounds:
"...
I hereby inform you that the deportation order was madeby the competent authorities in view of the nature andincreasing gravity of the offences committed by theapplicant. The threat to public order was also assessedwith reference to Mr Boughanemi’s general conduct as wasrequired under the circular on the implementation of theLaw of 9 September 1986.
In addition, the Lyons [Administrative Court] confirmed the deportation order on 16 March 1989.
It is accordingly impossible for me to grant your request. The deportation order of 8 March 1988 must therefore remain in force.
..."
13. On 9 October 1990 Mr Boughanemi lodged with the Lyons Administrative Court an application for judicial review of the Minister’s decision refusing to rescind the deportation order. In its judgment of 26 February 1991 dismissing the application, the Lyons court gave the following grounds:
"...
Under section 23 of the Ordinance of 2 November 1945, asamended in particular by the Law of 2 August 1989,’subject to the provisions of section 25, deportation maybe decided by order of the Minister of the Interior if analien’s presence on French territory constitutes aserious threat to public order. The deportation ordermay be rescinded at any time by the Minister of theInterior ...’ Although section 25, as amended by theaforementioned Law, prohibits the Minister, save in casesof extreme urgency as provided for in section 26, fromordering the deportation of certain categories of alien,that provision cannot be usefully invoked to support anapplication to have a previously issued deportation orderrescinded. It is exclusively a matter for the Ministerto whom such an application has been made to assesspursuant to section 23 whether the presence of the personconcerned on French territory constitutes at the date onwhich he gives his decision a serious threat to public order.
In the first place, it follows from the foregoing thatthe submission based on the fact that Mr Boughanemi haslived continuously in France since the age of 8 and thatfor that reason, in accordance with the new section 25 ofthe Ordinance of 2 November 1945, a deportation ordercould not be made against him after the coming intooperation of the Law of 2 August 1989 is without force inregard to the decision refusing to rescind thedeportation order made against him on 8 March 1988. Norcan he rely on the principle that more lenient criminallegislation should be applied with retrospective effect.
Secondly, an appeal brought against the deportationdecision of 8 March 1988 alleging that it was an abuse ofauthority was dismissed as unfounded by a judgment ofthis court on 16 March 1989. That decision carries withit the authority of res judicata, which precludesMr Boughanemi from pleading the unlawfulness of thatmeasure in support of his submissions directed againstthe refusal to rescind it.
Finally, the documents in the file show that theMinister, who took his decision in the light of all thecircumstances of the case, did not make a manifest errorof assessment in concluding, on the basis of the actsthat gave rise to the applicant’s being arrested andprosecuted on several occasions between 1981 and 1988 andaspects of Mr Boughanemi’s conduct, that the latter’spresence on French territory constituted a serious threatto public order and in refusing on those grounds torescind the deportation order made against him.
It follows from all the foregoing considerations that the applicant’s submission that the impugned decision isvitiated as an abuse of authority is unfounded and hisapplication to have it set aside on that ground must fail."
14. On 7 December 1992 the Conseil d’Etat dismissed the applicant’s appeal lodged on 23 October 1991. It gave, inter alia, the following reasons:
"...
Although the wording of section 25 of the above-mentioned Ordinance of 2 November 1945 was amended by the Law of 2 August 1989, Mr Boughanemi cannot usefully rely on thischange in the legal position in order to plead that the Minister of the Interior was under a duty to rescind thedeportation order issued against him under previouslegislation concerning aliens. It was exclusively amatter for the Minister to whom an application for suchan order to be rescinded has been made to determinewhether, in accordance with section 23 of the Ordinance of 2 November 1945 as in force at the date of theapplication, the presence of the person concerned onFrench territory represented a serious threat to public order.
It appears from the documents in the file that the Minister, who took his decision in the light of all theevidence in the case, did not make a manifest error ofassessment in finding that the presence in France of theappellant, who had committed repeated and increasingly serious offences, including that of living on theearnings of prostitution with aggravating circumstances,still represented, as at 10 August 1990, a serious threatto public order. He was therefore entitled to refuse torescind the order for Mr Boughanemi’s deportation.
In the circumstances of this case, the Minister of the Interior’s refusal to rescind the deportation order made against Mr Boughanemi, who returned to France and lived there illegally after the execution of that deportationorder, did not interfere with the latter’s family life toan extent that exceeded what was necessary to preservepublic order. Thus the submission that the refusal torescind the deportation order of 8 March 1988 infringed the right to respect for family life guaranteed byArticle 8 (art. 8) of the European Convention on Human Rights must fail.
..."
15. Mr Boughanemi was arrested on 28 July 1994 for breach of the deportation order and was sentenced to three months’ imprisonment. On 12 October 1994 he was deported to Tunisia.
16. On 20 June 1994 the Commission received from Miss S. (see paragraph 7 above) the following letter, dated 15 June 1994:
"As partner (concubine) and mother of the child ofMr Kamel Boughanemi, I wish by this letter to draw yourattention to our situation.
The difficulty of getting his identity papers back makesit impossible for us to lead a normal life.
There is also the fact that, as I am myself unemployed,my financial circumstances make it impossible for me togive him either moral or financial support. What ismore, I am his partner and, despite all his efforts to berecognised as a normal citizen, it is unfortunately impossible for us to live together. Faced with all the problems raised by his getting administrative recognition, I write to you in the hope that you willtake account of the fact that both he and I are acting ingood faith.
..."
On 6 December 1994 Miss S. made the following statement to an officer of the criminal investigation department (extracts from the police report):
"...
I do know Kameledine Boughanemi. I’ve known him for about three years. I lived with him from the end of 1992 till Christmas 1993 when we separated because of a disagreement.
When we lived together he was out of work. He lived at my place ... I paid for his keep.
He never gave me any money because he didn’t have any.
He didn’t recognise my son until April 1994, because tobegin with I wasn’t too keen on the idea.
So far he has never sent any money for our child. Hecalls me from time to time to find out if there is anynews about his application to the European Court. I don’t intend to live with him if he comes back.
I have nothing else to say on this matter.
..."
17. Deportation is governed by Ordinance no. 45-2658 of 2 November 1945 concerning the conditions of entry and residence of aliens in France, as amended by, inter alia, the following Laws: no. 81-973 of 29 October 1981; no. 86-1025 of 9 September 1986; no. 89-548 of 2 August 1989; no. 91-1383 of 31 December 1991; and no. 93-1027 of 24 August 1993.
18. According to the first paragraph of section 23 of the Ordinance, as amended by the Law of 9 September 1986, "subject to the provisions of section 25, deportation may be decided by order of the Minister of the Interior if an alien’s presence on French territory constitutes a threat to public order".
The Law of 2 August 1989 restored the wording that this section had contained prior to the Law of 9 September 1986, to the effect that deportation might only be ordered in the event of a "serious" threat to public order.
19. Section 24, as amended by the Laws of 29 October 1981 and 9 September 1986, stated:
"Deportation as provided for in section 23 may be orderedonly where the following conditions are satisfied:
1o The alien must be given advance notice in accordancewith the conditions laid down in a decree of the Conseild’Etat;
2o The alien shall be summoned to be interviewed by aboard which is convened by the prefect and is composed asfollows:
the President of the tribunal de grande instance of theadministrative capital of the département or a judge delegated by him, chairman;
a judicial officer (magistrat) designated by the generalassembly of the tribunal de grande instance of theadministrative capital of the département; and
an administrative court judge.
The head of the aliens’ department at the prefectureshall act as rapporteur; the director of health andsocial affairs of the département or his representativeshall be heard by the board. They shall not attend theboard’s deliberations.
The summons, which must be served on the alien at leasteight days before the board’s meeting, shall inform himthat he has the right to be assisted by a lawyer or byany other person of his choice and to be heard with thehelp of an interpreter.
The alien may request legal aid in accordance with theconditions laid down in Law no. 72-11 of 3 January 1972.This possibility shall be mentioned in the summons. Aprovisional grant of legal aid may be decided by thechairman of the board.
The board’s hearing shall be public. The chairman shallensure the proper conduct of the proceedings. All theorders made by him to that end must be executedimmediately. Before the board the alien may put forwardall the reasons that militate against his deportation.A report recording the alien’s statements shall betransmitted, together with the board’s opinion, to theMinister of the Interior, who shall give a decision. Theboard’s opinion shall also be communicated to the person concerned."
The Law of 2 August 1989 inserted, inter alia, the following provision:
"3o If the board issues an opinion opposing deportation,a deportation order may not be made."
The latter provision was however repealed by the Law of 24 August 1993.
20. Section 25 of the Ordinance, as amended by the Law of 29 October 1981, subsequently amended by the Law of 9 September 1986, provided:
"A deportation order made under section 23 may not be issued against the following persons:
1o A minor alien under 18 years of age, unless adeportation or removal order has been made against thepersons who actually provide for his or her maintenanceand no other person lawfully residing in France is in aposition to so provide for him or her; in the case of aminor alien under 16 years of age, the opinion of thedeportation board of the département must be in favour ofdeportation;
2o An alien, who has been married for at least one yearand whose spouse is a French national, provided that thetwo spouses genuinely live together;
3o An alien who is the father or the mother of a Frenchchild residing in France provided that he or sheexercises parental rights, even only on a partial basis,in respect of the child or actually provides for him orher;
4o An alien who proves by any means that he hashabitually resided in France since the age of 10 oryounger or for over ten years and who has not beenconvicted with final effect of an offence for which he orshe has been sentenced to a non-suspended term ofimprisonment of at least six months or a suspended termof one year or several terms of imprisonment whoseaggregate is at least equal to such periods;
5o An alien who is in receipt of an industrial accidentdisability pension paid by a French institution where hisor her permanent and partial disability is at least 20%."
21. The Law of 2 August 1989 amended those provisions, restoring to a large extent the wording in force prior to the Law of 9 September 1986:
"A deportation order made under section 23 may not beissued against the following persons:
1o A minor alien under 18 years of age;
2o An alien who proves by any means that he hashabitually resided in France since the age of 10 oryounger;
3o An alien who proves by any means that he hashabitually resided in France for more than fifteen yearsor an alien who has lawfully resided in France for morethan ten years;
4o An alien, who has been married for at least six monthsand whose spouse is a French national;
5o An alien who is the father or the mother of a Frenchchild residing in France provided that he or sheexercises parental rights, even only on a partial basis,in respect of the child or actually provides for him orher;
6o An alien who is in receipt of an industrial accidentor occupational disability pension paid by a Frenchinstitution where his or her permanent disability is atleast 20%;
7o An alien residing lawfully in France by virtue of oneof the residence permits provided for in this Ordinanceor in the international agreements, who has not beensentenced with final effect to a non-suspended term ofimprisonment of one year or more.
..."
The same law added a paragraph, which was worded as follows:
"The aliens referred to in sub-paragraphs 1o to 6o maynot be the subject of a removal order made undersection 22 of this Ordinance or of an exclusion ordermade by a court under section 19 of this Ordinanceprohibiting them from entering the territory."
22. Section 25 was further amended and supplemented by the Laws of 31 December 1991 and 24 August 1993:
"A deportation order made under section 23 may not beissued against the following persons:
1o A minor alien under 18 years of age;
2o An alien who proves by any means that he hashabitually resided in France since the age of 6 oryounger;
3o An alien who proves by any means that he hashabitually resided in France for more than fifteen yearsor an alien who has lawfully resided in France for morethan ten years, unless for the whole of this period hehas been in possession of a temporary residence permitbearing the word ‘student’;
4o An alien, who has been married for at least one yearand whose spouse is a French national provided that theyhave not ceased to live together and that the spouse haskept his or her French nationality;
5o An alien who is the father or the mother of a Frenchchild residing in France provided that he or sheexercises parental rights, even only on a partial basis,in respect of the child or actually provides for him orher;
6o An alien who is in receipt of an industrial accidentor occupational disability pension paid by a Frenchinstitution where his or her permanent disability is atleast 20%;
7o An alien residing lawfully in France by virtue of one of the residence permits provided for in this Ordinanceor in the international agreements, who has not beensentenced with final effect to a non-suspended term ofimprisonment of one year or more.
...
The aliens referred to in sub-paragraphs 1o to 6o may notbe the subject of a removal order made under section 22of this Ordinance.
By way of derogation from the provisions of this section,a deportation order under sections 23 and 24 may be madeagainst an alien falling within one of the categorieslisted in sub-paragraphs 3o, 4o, 5o and 6o if he or shehas been sentenced with final effect to a non-suspendedterm of imprisonment of at least five years."
23. Section 26 of the Ordinance, as amended by the Law of 9 September 1986 provided:
"In cases of extreme urgency and by way of derogation from sections 23 to 25, deportation may be ordered where the alien’s presence on French territory constitutes a particularly serious threat to public order
This procedure may not however be applied in respect ofminors under the age of 18."
24. Section 26 was subsequently amended by the Law of 2 August 1989 and then by the Law of 24 August 1993 and now reads as follows:
"Deportation may be ordered:
(a) in cases of extreme urgency, by way of derogationfrom section 24 (2o);
(b) where such a measure constitutes an absolutenecessity for the security of the State and publicsafety, by way of derogation from section 25.
In cases of extreme urgency and where the measure is anabsolute necessity for the security of the State andpublic safety, deportation may be ordered by way ofderogation from sections 24 (2o) and 25.
The procedures provided for in this section may not beapplied in respect of a minor alien under 18."
25. The second paragraph of section 23 of the Ordinance, as amended by the Law of 9 September 1986, provided:
"The deportation order may at any time be rescinded bythe Minister of the Interior. Where the application foran order to be rescinded is submitted on the expiry of aperiod of five years from the actual execution of theorder, it may be rejected only after the opinion of theboard provided for in section 24 has been sought. The person concerned may be represented before the board."
The wording that applied prior to the Law of 9 September 1986 was restored by the Law of 2 August 1989: the Minister was required to abide by the opinion expressed by the board.
However, this provision was again amended by the Law of 24 August 1993 to the effect that the board’s opinion must compulsorily be sought, but it no longer binds the Minister.
26. Section 27 of the Ordinance, as amended by the Law of 9 September 1986, provided:
"Any alien who has evaded or attempted to evade theexecution of a deportation order or a removal order orwho, having been deported or being subject to aprohibition on entering the territory, re-enters the national territory without an authorisation shall beliable to a term of imprisonment of from six months to three years.
The court may in addition issue an order banning a personso convicted from re-entering the territory for a periodnot exceeding ten years.
The ban on re-entering the territory automaticallyentails the convicted person’s removal from Frenchterritory, on completion of his prison sentence whereappropriate."
27. The Law of 31 December 1991 states that the same penalty applies to "any alien who has evaded or attempted to evade the execution of a measure refusing him or her entry into France" (the first paragraph as supplemented) or "who has not submitted to the relevant administrative authority the travel documents making possible the execution of one of the measures referred to in the first paragraph or who, where he or she has no such documents, has failed to communicate the information making it possible to execute such measures" (new paragraph inserted between the first and second paragraphs).
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-102104
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: COMMITTEE
DATE: 2010
DOCNAME: CASE OF KOSTAKOV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Mirjana Lazarova Trajkovska;Rait Maruste;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1972 and lives in Kyiv.
5. On 27 June 2000 the applicant was arrested. The applicant, Mr D., and Mr B. were charged with one count of robbery. The applicant was also charged with handling of two handguns with cartridges.
6. On 25 September 2000 the proceedings against Mr B. were disjoined.
7. On 27 July 2001 the applicant was released having given a written undertaking not to abscond.
8. In the period prior to 10 October 2002 the Darnitsky District Court of Kyiv (the district court) remitted the case twice for additional pre-trial investigation.
9. On 10 October 2002 the district court found the applicant guilty and sentenced him to five years’ imprisonment. The applicant was arrested.
10. On 4 June 2003 the Kyiv City Court of Appeal (the court of appeal) quashed the part of the judgment concerning the applicant’s conviction and remitted the case for fresh consideration to the district court. The court of appeal upheld the applicant’s detention on remand.
11. On 14 November 2003 the district court remitted the case for additional pre-trial investigation. The applicant was remanded in custody.
12. On 14 April 2004 the court of appeal quashed the ruling of 14 November 2003 and remitted the case to the district court for consideration. By the same decision it upheld the applicant’s detention on remand.
13. On 9 June 2004 the Supreme Court dismissed the applicant’s appeal in cassation against the ruling of 14 April 2004.
14. On 7 July 2004 the applicant was released having given a written undertaking not to abscond.
15. On 23 December 2005 the district court sentenced the applicant to four years and 10 days’ imprisonment.
16. On 22 November 2006 and 12 June 2007 the court of appeal and the Supreme Court, respectively, upheld the judgment of 23 December 2005.
17. According to the records provided by the Government, the applicant challenged a judge sitting in his case on six occasions, and once he challenged a prosecutor. On three occasions the applicant failed to appear.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-5976
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: NWOSU v. DENMARK
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is a Nigerian national, born in 1959. At present he is resident in Nigeria to where he was returned by the Danish authorities. He is represented before the Court by Mr Bjørn Elmquist, a lawyer practising in Copenhagen.
The respondent Government are represented by their Agent, Mr Hans Klingenberg, and Co-Agent Ms Nina Holst-Christensen of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant came to Denmark in October 1992 and applied for asylum. In the beginning of 1993 he married a Danish citizen but the marriage only lasted about half a year. In December 1993 he married another Danish citizen. His request for asylum was rejected by the Danish authorities but he received in March 1994 a residence permit due to the fact that he was married to a Danish citizen. No children have resulted from any of the marriages. His parents as well as two sisters still live in Nigeria whereas other members of his family live in the United States and the United Kingdom. While living in Denmark the applicant visited Nigeria three times, most recently he spend a month there in January 1998. He experienced no problems while he was there. He received a new Nigerian passport in 1997.
In February 1998 the applicant was arrested and charged with narcotics offences, namely for having been in possession of 1,127 kilo of heroin and 200.5 grams of cocaine, for the purpose of passing it on. He was detained on remand. On 18 June 1998 an indictment was served and the trial commenced in the Copenhagen City Court (byretten) on 19 June 1998. The applicant pleaded guilty to the charges brought against him whereas he opposed the prosecutor’s request for an expulsion due to the fact that he had lived in Denmark since 1992, had been married to a Danish citizen since 1993 and since he allegedly risked 5 years’ imprisonment according to Nigerian law, due to his conviction in Denmark, in conditions which would be cruel and inhuman.
By judgment of the same day the applicant was found guilty of the charges brought against him and sentenced to 3½ years’ imprisonment. The City Court also decided to expel the applicant from Denmark for ever.
The applicant appealed against the judgment requesting a more lenient sentence and acquittal as regards the decision to expel him. On 7 September 1998 the High Court of Eastern Denmark (Østre Landsret) upheld the City Court judgment in its entirety. As regards the expulsion order the High Court stated:
“Due to the character and extent of the criminal activity concerned (the High Court) agrees that the requirements for expulsion pursuant to the Aliens Act ... are fulfilled. The allegations that (the applicant) might perhaps be sentenced to an additional term of imprisonment in Nigeria for the crimes committed and that serving a sentence in a Nigerian prison would run counter to the minimum standards of prison conditions acknowledged by Denmark do not speak decisively against expulsion. Furthermore, there appears to be no other special reasons speaking in favour of refraining from expulsion pursuant to the Aliens Act ...”
On 17 September 1998 the applicant applied for leave to appeal to the Supreme Court (Højesteret). This was refused on 26 October 1998. On 2 November 2000 the deportation order was carried out.


ITEMID: 001-4664
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: YAZICI v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a Turkish national, born in 1963 and living in Vienna. He is an interpreter and translator (Turkish/German) by profession.
A.
I. Procedure relating to the Vienna Civil Regional Court’s list of registered interpreters
On 5 March 1993 the applicant applied to the President of the Vienna Civil Regional Court (Landesgericht für Zivilrechtssachen) to be entered on this court’s list of registered interpreters (allgemein beeidete Dolmetscher) for the Turkish language.
On 26 March 1993 the President of the Vienna Civil Regional Court, referring to sections 14 and 4(1) of the Court Experts and Interpreters Act 1975 (Bundesgesetz über den allgemein beeideten gerichtlichen Sachverständigen und Dolmetscher), dismissed this request on the ground that the applicant was entered on the Feldkirch Regional Court’s list of registered interpreters. The President noted that the decision of the President of the Feldkirch Regional Court dated 24 February 1993, namely to strike the applicant off that court’s list of registered interpreters, had not yet become final.
On 19 May 1993 the applicant again applied with the President of the Vienna Civil Regional Court to be entered on this court’s list of registered interpreters for the Turkish language.
On 24 May 1993 the President of the Vienna Civil Regional Court, referring to sections 14 and 2(2) of the Court Experts and Interpreters Act 1975, dismissed this request on the ground that there was no need for registered interpreters.
On 29 July 1993 the Constitutional Court (Verfassungsgerichtshof) granted the applicant’s request for legal aid and counsel was appointed to represent the applicant for the purposes of complaint proceedings. Counsel filed the complaint with the Constitutional Court on 14 September 1993, alleging in particular discrimination and a violation of the freedom to practise a profession.
In his observations of 5 November 1993, the President of the Vienna Civil Regional Court stated that the need for registered interpreters was known to the President keeping the lists concerned due to his regular contacts with the judges of the Regional Court and of the District Courts, and judges of other courts in the respective judicial district. Extensive inquiries were therefore not necessary. No suggestions for more registered interpreters had been made prior to the applicant’s application. Moreover, the keeping and updating of these lists required a considerable amount of administrative work which indicated that not all persons fulfilling the statutory conditions should be entered on the respective lists. The President also noted that a registered interpreter did not have any privileges compared to an unregistered interpreter, as any competent person could be called in concrete proceedings to act as an expert or interpreter. Any person speaking a foreign language could practise as an interpreter without registration, irrespective of whether he or she were appointed, on a case by case basis, by courts or administrative authorities, or were working as a free lance translator. Moreover, the question of registration did not affect the occupation as an employed translator.
In his supplementary observations of 11 April 1994, the applicant submitted that the handling of applications for registrations in 1993 disclosed arbitrariness on the part of the President of the Vienna Civil Regional Court. He further maintained that registered interpreters were given preference upon appointment for court proceedings and that the lack of registration also had repercussions when otherwise practising as interpreter.
On 14 June 1994, pursuant to Article 144 § 2 of the Federal Constitution, the Constitutional Court declined to accept the applicant's complaint. It found that the bulk of the complaint related to allegations that the ordinary law had been applied incorrectly. To the extent that the complaint did touch upon questions of constitutional law, it did not have sufficient prospects of success; moreover, the case did not lie outside the jurisdiction of the Administrative Court (Verwaltungsgerichtshof). At the applicant’s request, it also decided to refer the application to the Administrative Court.
On 23 August 1994 the Administrative Court stayed the proceedings before it as the applicant’s application did not satisfy the substantive and formal requirements of section 34(2) of the Administrative Court Act (Verwaltungsgerichtshofsgesetz). The applicant’s amended submissions were received at the Administrative Court on 24 October 1994. He also applied for legal aid; his request was to no avail.
On 25 November 1994 the Administrative Court rejected the applicant’s appeal. It observed that, in accordance with Article 130 § 1 of the Federal Constitution, its jurisdiction was limited to applications alleging that a final administrative decision (letztinstanzlicher Bescheid) had infringed the complainant’s rights. An administrative decision within the meaning of this provision presupposed that the handling of an administrative matter had involved a legal ruling. This had not been the case for the impugned letter of 24 May 1993 as, under section 4(2), in conjunction with section 14, of the Court Experts and Interpreters Act 1975, persons applying for entry on the list of registered interpreters had no right to registration. The refusal of registration could not, therefore, adversely affect the applicant’s legal status, nor had there been a decision on the applicant’s rights. Rather, the President had sent an informal reply (formlose Beantwortung) to the applicant’s application.
This decision was served on 24 May 1995.
II. Procedure concerning the Feldkirch Regional Court’s list of registered interpreters
On 24 August 1993 the applicant, who had been struck off the Feldkirch Regional Court’s list of registered interpreters by the President’s decision of 8 February 1993 as Feldkirch was not his regular place of residence and practice, applied to be restored to the Feldkirch list. In his application, he mentioned that there was a need for registered interpreters for the Turkish language, as, on several occasions, he had been called to act as interpreter, registered interpreters not being available.
On 1 March 1994 the President of the Feldkirch Regional Court dismissed the request.
On 14 June 1994, pursuant to Article 144 § 2 of the Federal Constitution, the Constitutional Court declined to accept the applicant's complaint of 6 April 1994. It found that the bulk of the complaint related to allegations that the ordinary law had been applied incorrectly. To the extent that the complaint did touch upon questions of constitutional law, it did not have sufficient prospects of success; moreover, the case did not lie outside the jurisdiction of the Administrative Court. At the applicant’s request, it also decided to refer the application to the Administrative Court.
On 25 October 1994 the Administrative Court stayed the proceedings before it as the applicant’s application did not satisfy the substantive and formal requirements of section 34(2) of the Administrative Court Act. The applicant’s amended submissions were received at the Administrative Court on 12 January 1995.
On 20 October 1995 the Administrative Court rejected the applicant’s appeal for the same reasons as stated in the above-mentioned decision of 25 November 1994.
B. Relevant domestic law
1. Registered interpreters
The qualifications of registered interpreters (allgemein beeidete gerichtliche Dolmetscher) are specified in the Court Experts and Interpreters Act 1975 (Bundesgesetz über den allgemein beeideten gerichtlichen Sachverständigen und Dolmetscher, Bundesgesetzblatt für Österreich No. 137/1975). According to section 14 of this Act, the provisions regarding experts (sections 2 - 12) are also applicable to interpreters, with the exception of section 2(2)(1) b and f (requiring a minimum period of professional experience and Austrian nationality).
Section 2 lays down the conditions for registration in the lists to be kept by the presidents of the courts of first instance (i.e. at the level of the regional courts - section 3). Section 2(2)(1) concerns the personal qualifications such as special knowledge (Sachkunde), full capacity to perform legal transactions (volle Geschäftsfähigkeit), physical and mental fitness (körperliche und geistige Eignung), trustworthiness (Vertrauenswürdigkeit), regular residence or place of professional activity (gewöhnlicher Aufenthalt oder Ort der beruflichen Tätigkeit) in the judicial district of the court where registration is sought, and financially sound circumstances. According to section 2(2), there must be a need for registered experts (interpreters).
Section 4 governs the registration procedure. The possibility of registration is limited to one list. The candidate has to prove his or her qualifications and the president has to conduct all necessary inquiries and, if necessary, to question the candidate. According to the third sentence of section 4(2), the candidate has no right to be entered on the list.
The oath taken in accordance with section 5(1) has the legal effect that the expert or interpreter, as long as he or she is registered, does not have to take any specific oath when acting in court (section 5(2)).
The respective lists are regularly updated (every two years) and communicated to the president of the superior court of appeal and subsequently to the courts in the judicial district concerned (section 7). Sections 9 to 12 concern the expiration of registration and striking off the list.
2. Procedure before the Constitutional Court and the Administrative Court
By Article 144 § 1 of the Federal Constitution, the Constitutional Court, when an application (Beschwerde) is made to it, has to determine whether an administrative decision (Bescheid) has infringed a right guaranteed by the Constitution or has applied regulations (Verordnung) contrary to the law, a law contrary to the Constitution or an international treaty incompatible with Austrian law.
By Article 130 § 1 of the Federal Constitution, the Administrative Court has jurisdiction to hear, inter alia, applications alleging that an administrative decision is unlawful.
Section 34 (1) of the Administrative Court Act (Verwaltungsgerichtshofsgesetz) provides inter alia that applications upon which, on account of the Administrative Court's manifest lack of jurisdiction, it is not appropriate to adjudicate, shall be rejected, without further proceedings, by a decision taken in closed sitting.