ITEMID: 001-109375
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: DORING v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska
TEXT: The applicant, Mr Peter Döring, is a German national who was born in 1956 and lives in Berlin.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant has a son born out of wedlock in 1995. He acknowledged his paternity of the child the same year. As the child’s parents did not make a joint custody declaration (gemeinsame Sorgerechtserklärung), the child’s mother obtained sole custody (alleinige Personensorge) pursuant to Article 1626a § 2 of the German Civil Code (the “Civil Code” – see Relevant domestic law below).
The applicant and the child’s mother had been living together with the child in a joint household in Berlin from 1995 until December 1997, when the parents separated and the mother moved to another flat in the neighbourhood. In the period from January 1998 to January 2002 each parent took care of the child on an equal alternating weekly basis.
In January 2002 the mother and son moved from Berlin to Speyer, located around 650 kilometres (km) from Berlin, without notifying the applicant. The mother alleged that she had moved since the applicant’s behaviour in the past had been detrimental to the child’s well-being.
In written submissions to the Berlin-Pankow-Weißensee District Court dated 29 January and 1 February 2002 the applicant requested that custody of the child or, alternatively, the right to determine where the child should reside (Aufenthaltsbestimmungsrecht) be transferred to him. The applicant further asked to be granted contact with his son on a weekly alternating basis and, in addition, requested an interim measure for the provisional regulation of his access to the child.
By a letter of 6 February 2002 the court informed the applicant that the matter had been referred to the Speyer District Court, where two separate proceedings were instituted, one related to the transfer of the right of custody to the applicant (file no. 41 F 36/02) and the other dealing with the applicant’s request to be granted contact with his son (file no. 41 F 37/02). Subsequently, the proceedings were to a large extent conducted simultaneously.
On 1 March 2002 the applicant brought criminal charges of, inter alia, child abduction against the mother. The preliminary proceedings (Ermittlungsverfahren) instituted against the mother as a consequence were discontinued by the public prosecution authorities. Following allegations by the mother that the applicant had sexually abused the child, preliminary criminal proceedings were instituted against the applicant by the Berlin Public Prosecutor.
On 21 June 2002 the Speyer Youth Welfare Office (Jugendamt) informed the District Court that owing to the mother’s refusal to communicate it was not in a position to give an opinion on how contact between father and son should be arranged.
During a hearing in the contact rights proceedings (file no. 41 F 37/02) on 26 June 2002, the applicant requested to be granted unsupervised access to his son.
By a decision of 5 November 2002 in the interim proceedings, the District Court provisionally granted the applicant supervised access in cooperation with the Schifferstadt branch of the German Child Protection Agency (Deutscher Kinderschutzbund), located in the vicinity of Speyer. The court rejected the applicant’s request for unrestricted contact, stating that such a decision could only be rendered in the main proceedings after the court had obtained an expert opinion on possible contact arrangements between the applicant and his son.
The parents and the child were heard on 11 and 18 December 2002 respectively in the main proceedings (files nos. 41 F 37/02 and 41 F 36/02). The child expressed his wish to stay with each of his parents on an alternating weekly basis.
By a decision of 14 January 2003 the Speyer District Court ordered a psychological expert opinion on the question of what attribution of custody and contact rights would be in the child’s best interests, and appointed an expert. Both parents objected to the court’s decision and to the expert appointed. Thereafter, the mother refused to cooperate with the expert.
Between 27 December 2002 and 18 July 2003 the applicant had supervised contact with his son on around a dozen occasions at the premises of the Schifferstadt branch of the Child Protection Agency. He then discontinued the visits considering that the conditions under which access to his son took place were detrimental to the child’s well-being.
By a letter of 25 June 2003, the Berlin public prosecution authorities informed the applicant that the preliminary criminal proceedings instituted against him in 2002 on suspicion of sexual abuse of his son had been discontinued.
On 2 and 16 July 2003 the applicant renewed his interim request for unsupervised access, maintaining that following the discontinuation of the preliminary criminal proceedings there was no longer any reason to subject contact with his son to restrictions.
In a decision of 16 January 2004 confirming the dismissal of a complaint of bias lodged by the applicant against the acting judge at the Speyer District Court, the Zweibrücken Court of Appeal indicated that an abusive obstruction of the applicant’s contact with the child by the mother could trigger doubts regarding her capacity to raise the child and even entail the withdrawal of her right to determine where the child should reside.
By a decision of 27 January 2004 the District Court ordered the parties to cooperate with the expert, failing which a fine of up to 2,000 euros (EUR) could be imposed.
On 29 January 2004 the applicant spent four hours alone with his son with the consent of the mother.
A first meeting between the expert and the mother took place in March 2004.
On 11 March 2004 the Zweibrücken Court of Appeal quashed the District Court’s decision of 27 January 2004, holding that while parents were under no legal obligation to have their child examined by an expert and could therefore not be subject to a fine, persistent refusals by the mother to cooperate with the expert in the case at hand could nevertheless raise doubts as to her capacity to exercise parental authority.
By a decision of 27 May 2004 the Speyer District Court rejected the applicant’s request to amend its decision of 5 November 2002 with a view to granting him unsupervised contact with his son. The court found that in view of the mother’s allegations of sexual abuse, unsupervised access could only be considered once the expert opinion had been rendered and provided clarifications on the veracity of such allegations.
On 18 June 2004 the expert met with the child.
On 5 and 8 July 2004 the applicant again made an interim request for unsupervised access to his son.
By a decision of 29 July 2004, following a change of the acting judge, the District Court appointed a guardian ad litem (Verfahrenspfleger) for the child.
A further hearing of the parents and the child took place on 5 August 2004.
By a decision of 11 August 2004 the District Court appointed a new expert after doubts as to the competence and impartiality of the initially appointed expert had arisen.
By a further decision of the same date the District Court, after hearing the parents and the child and referring to a written statement obtained from the initially appointed expert on 8 July 2004, rejected the applicant’s renewed interim request for a right to unsupervised contact pending the finalisation of an opinion by the newly appointed expert. After having heard the mother, the court was of the opinion that the allegations of sexual abuse were not entirely devoid of substance and therefore an expert opinion could not be dispensed with. The court further held that the applicant’s explicit refusal to meet his son within the parameters of supervised visits or to accept alternative arrangements in the context of supervised visits raised doubts as to how important the child’s well-being was to him.
The expert opinion was rendered on 12 November 2004 following examination of the parents and the child. The expert found that under the present circumstances, withdrawal of the right to custody from the mother and transfer of sole custody to the father would be contrary to the child’s well-being. Joint custody would also not be in the child’s interest since the relationship between the parents was still tense. The expert, however, recommended that regular contact should be established between the applicant and his son. At the beginning it could be envisaged that the father visit his son every second weekend at Speyer, and following a trial period of six months, longer stays by the child at the applicant’s household could be considered.
The guardian ad litem, having heard the parents and the child, in her written submissions dated 3 and 27 December 2004 also opposed a transfer of the right to custody to the applicant, while recommending that the latter be granted immediate unrestricted access to his son. The guardian ad litem recalled that under the applicable law the transfer of sole custody to the father of a child born out of wedlock without the mother’s consent was only possible under Article 1666 of the Civil Code in the event that the mother was unable to raise the child and thus the latter’s well-being was jeopardised. While the mother could be reproached for having taken the son out of his familiar environment in Berlin and having deprived him of his father’s company without a convincing reason, there was nothing to support the applicant’s allegations that she suffered from a mental disorder that made her unfit to raise her son. The guardian ad litem was further of the opinion that in view of the ongoing disputes and lack of any agreement between the parents as regards the child’s upbringing, joint custody was also not an option.
By a decision of 2 February 2005 the Speyer District Court accorded the applicant unsupervised contact with the child every other weekend, with the proviso that the meetings were to take place within a radius of 30 km from the mother’s place of residence. Both parties appealed against the decision.
By a decision of 15 July 2005 the Zweibrücken Court of Appeal amended the District Court’s decision of 2 February 2005 and granted the applicant regular unsupervised contact with the child every third weekend and during half the school holidays.
It appears that the applicant was subsequently able to exercise his contact rights accordingly.
In preparation for a hearing in the still pending custody proceedings during which the expert had been invited to further elaborate on his opinion dated 12 November 2004, the applicant asked the Speyer District Court for a graduate pedagogue to be admitted to question the psychological expert on his behalf, since neither he nor his counsel had the necessary knowledge of psychology to put the relevant questions. By a decision of 25 July 2005 the court rejected the applicant’s request, holding that the latter’s counsel had already submitted a list of relevant questions to the expert in writing that did not support his allegations of a lack of knowledge. The court further was of the opinion that the pedagogue suggested by the applicant did not have the required qualifications. Pointing out that hearings in family law cases were as a rule held in camera and therefore the admission of additional advisers to the parties had to remain the exception, the court was of the opinion that there existed no exceptional circumstances in the case at hand that would justify deviating from this principle.
A hearing took place on 19 June 2006 during which the expert provided further explanations. The guardian ad litem reported that the child, following his last stay with his father earlier in June 2006, had expressed his wish to now live with his father and to only visit his mother.
By a decision of 23 August 2006, the Speyer District Court dismissed the applicant’s request that sole custody for the child or alternatively the right to determine where the child should reside be transferred to him under Article 1672 or 1666 of the Civil Code. It also dismissed his further alternative request that he be granted joint custody together with the mother and that the latter’s consent to joint custody as required by Article 1672 § 1 of the Civil Code be substituted by the courts in accordance with Section 224 (2) (a) of the Introductory Act to the Civil Code, a transitory provision that had been introduced by the German legislature on 31 December 2003 (see Relevant domestic law below).
As regards the transfer of sole custody the court found, firstly, that to the extent the applicant’s request was based on Article 1672 of the Civil Code it had to be rejected as inadmissible. The Court pointed out that the applicant and the mother of the child had never been married and had not made a joint custody declaration, and that therefore the mother had obtained sole custody of the child pursuant to Article 1626a of the Civil Code. Article 1672 § 1 stipulated that in the event that the parents had not only temporarily separated and that the mother had sole custody of the child pursuant to Article 1626a of the Civil Code, the father could request the transfer of sole custody or partial custody only with the mother’s consent. Since in the case at hand the mother had refused to give her consent, the father’s related request could not be based on Article 1672 § 1. The court further specified that it was irrelevant on what grounds the mother had refused consent since the said provision, as a rule, did not provide for the possibility of replacing the mother’s consent by a court decision. The court therefore held that, unfortunately, it had to be accepted that fathers of children born out of wedlock were still not on an equal footing with married fathers.
Secondly, the court considered whether a transfer of custody by court decision without the mother’s consent could be envisaged under the exceptional circumstances of Article 1666 of the Civil Code, which enabled the family court to order the necessary protective measures if the child’s physical, psychological or mental well-being was threatened and the parents were unwilling to take measures themselves. However, the court, having regard in particular to the expert opinion of 12 November 2004 as supplemented at the hearing dated 19 June 2006, was of the opinion that in the instant case the child’s well-being was not jeopardised by the attribution of sole custody to the mother. The expert had found that it would be contrary to the child’s interest to transfer custody to his father, in particular in view of the tense relationship between the parents which had its origin mainly in the father’s attempts to undermine the mother’s upbringing of their son. The mother’s previous allegations of sexual abuse had not led to a different assessment since she had not maintained these allegations before the expert and it appeared from the child’s examination that the trusting relationship between son and father had not been damaged as a consequence of the mother’s assertions. The expert had further specified that there were no indications to support the father’s argument that the mother was suffering from a pathological personality disorder that made her unfit to raise a child. The fact that following his last stay with the father in June 2006 the child had expressed his wish to now live with his father and to only visit his mother constituted a normal conflict reaction of a child whose parents were divorced. However, given that the son was only eleven years old and therefore unable to assess the consequences of moving in with his father, the child’s statements could not change the expert’s conclusion that sole custody should remain with the mother.
The expert’s conclusions had been corroborated by the statements of the guardian ad litem during the hearing on 19 June 2006, who had met with the child not long before the hearing and who had confirmed that the child was emotionally stable. In view of these findings the court was of the opinion that a further hearing of the child was not necessary.
Finally, the court held that the applicant’s alternative request to be granted joint custody in accordance with Article 1626a § 1 no. 1 of the Civil Code and Section 224 (2) (a) of the Introductory Act to the Civil Code was admissible but ill-founded. While this transitory provision provided in principle for the possibility of ordering joint custody and replacing the mother’s related consent in the event that the parents, as in the instant case, had separated before 1 July 1998 and had lived together with the child for a period of at least six months without interruption prior to their separation, it further required that joint custody would be in the child’s best interests. Referring to its reasoning with respect to the conditions of the transfer of sole joint custody under Article 1666 of the Civil Code and relying on the expert’s evaluation at the hearing of 19 June 2006 as well as the opinions of the representative of the Youth Welfare Office and the guardian ad litem, the court found it established that in view of the persisting tension between the parents, joint custody would lead to further disputes as regards their son’s upbringing, care and the question where he should reside. These disputes could jeopardise the positive development of the relationship between father and son and would thus be contrary to the child’s interest. The court further emphasised that there were no grounds to doubt the professional competence of the appointed expert or the accuracy of his findings.
The applicant appealed against the judgment in written submissions of 6 November 2006. He maintained in particular that in view of the fact that the child had last been heard by the judge and the expert in 2004 but had stated before the guardian ad litem in June 2006 that he now wished to live with his father, a further hearing of his son by the judge as well as a new expert opinion were indispensable with a view to determining what attribution of custody would be in the child’s best interests.
On 10 January 2007 the Zweibrücken Court of Appeal dismissed the applicant’s appeal. The Court of Appeal, endorsing the Speyer District Court’s findings, reiterated that joint parental authority required a minimum of willingness on the part of the parents to cooperate, a condition that had not been met in the case at hand where the irreconcilable conflicts between the parents were likely to be aggravated in the event of joint custody. These conclusions could be drawn from the content of the files without having recourse to a further expert opinion. A further hearing of the child or the further parties to the proceedings could also be dispensed with since no further decisive information regarding the attribution of parental authority could be expected from such a hearing.
On 30 January 2007, the applicant lodged a complaint with the Zweibrücken Court of Appeal, alleging a violation of his right to be heard (Anhörungsrüge).
On 14 February 2007 he lodged a constitutional complaint against the Speyer District Court’s decision of 23 August 2006 and the Zweibrücken Court of Appeal’s decision of 10 January 2007, challenging the refusal to grant him sole or alternatively joint custody of his son in accordance with Article 1666 of the Civil Code and Section 224 (2) (a) of the Introductory Act to the Civil Code.
By a decision of 22 February 2007 the Court of Appeal dismissed the applicant’s complaint that his right to be heard had been violated as illfounded. In addition to the reasoning in its decision of 10 January 2007 the Court of Appeal considered that the District Court had thoroughly assessed the facts of the case and had based its judgment on the statements of the parties to the proceedings who, except for the child, had been heard shortly before the court’’s decision and it could therefore be excluded that a new hearing would lead to a different assessment of the case. There was nothing to indicate that the mother was incapable of raising her son or that she had jeopardised the well-being of the child to an extent that would justify the withdrawal of her right of custody in accordance with Article 1666 of the Civil Code. Furthermore, it was beyond doubt that the considerable conflict between the parents had made joint custody impossible, and therefore a further expert opinion or additional hearing of the child could not influence the decision on the attribution of custody rights.
In written submissions of 26 March 2007 the applicant extended his constitutional complaint to the Court of Appeal’s decision of 22 February 2007.
On 3 March 2009 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint for adjudication without giving further reasons (no. 1 BvR 846/07). The decision was served on the applicant on 23 March 2009.
On 14 September 2005 the applicant lodged a first application with the Court under Article 34 of the European Convention on Human Rights (application no. 40014/05) concerning the custody and contact rights proceedings in relation to his son. Relying on Articles 6 § 1, 8 and 14 of the Convention, he complained about the length of the domestic proceedings and about the domestic court’s refusal to grant him unsupervised contact with his son.
In its related judgment of 8 July 2010, the Court, while finding that the length of the contact rights proceedings was still in compliance with the requirements of the Convention, held that the length of the custody right proceedings had infringed the “reasonable time” requirement embodied in Article 6 § 1 of the Convention and declared the remainder of the application inadmissible. The Court nevertheless specified that the applicant’s complaint under Article 8 concerned exclusively the contact rights proceedings, and that the compliance of the custody proceedings with this provision was the subject of a distinct application (the instant application no. 50216/09).
Pursuant to Article 6 § 2 of the German Basic Law (Grundgesetz) the care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The state oversees the performance of this duty.
The statutory provisions on custody and contact are to be found in the Civil Code (Bürgerliches Gesetzbuch). Article 1626 § 1 of the Civil Code provides that the father and the mother have the right and the duty to exercise parental authority (elterliche Sorge) over a child.
Under Article 1666 of the Civil Code, the family court may order the necessary protective measures if the child’s physical, psychological or mental well-being is threatened by negligence and if the parents are unwilling to take those measures themselves. Measures which result in the separation of the child from one parent are acceptable only if the child would be at risk otherwise (Article 1666a of the Civil Code).
As regards children born out of wedlock, custody was - pursuant to the former Article 1705 of the Civil Code - automatically obtained by the mother. That provision was however declared unconstitutional by the Federal Constitutional Court in 1996. On 1 July 1998 the amended Law on Family Matters of 16 December 1997 (Reform zum Kindschaftsrecht, Federal Gazette 1997, p. 2942), entered into force to implement the Federal Constitutional Court’s judgment of 1996. The relevant law in the Civil Code was changed as follows: under Article 1626a § 1, the parents of a minor child born out of wedlock may exercise joint custody if they make a declaration to that effect (joint custody declaration) or if they marry. Otherwise Article 1626a § 2 provides that the mother obtains sole custody.
If the parents have not merely temporarily separated, and if the mother has obtained sole custody in accordance with Article 1626a § 2 of the Civil Code, Article 1672 § 1 of the Civil Code provides that the family court may transfer sole custody to the father if one parent lodges the relevant application with the consent of the other parent. The application is to be granted if the transfer serves the child’s interest.
By contrast, parents exercising joint parental authority before their separation either because the child was born in wedlock, the parents have married following the child’s birth or they have made a joint custody declaration, retain joint custody following their separation unless the court at the request of one parent awards sole custody to the latter in accordance with the child’s best interest pursuant to Article 1671 of the Civil Code.
On 29 January 2003 the Federal Constitutional Court found that Article 1626a of the Civil Code was unconstitutional because it lacked a transitional period for unmarried couples with children who were living together in 1996 but who had separated before the amended Law on Family Matters entered into force on 1 July 1998 (that is, those who were unable to make a joint custody declaration). In order to resolve the above-mentioned constitutional flaws, the German legislature introduced Section 224 (2) (a) of the Introductory Act to the Civil Code (Einführungsgesetz in das Bürgerliche Gesetzbuch) on 31 December 2003, according to which a court may substitute the mother’s consent to joint custody at the father’s request if an unmarried couple have a child born out of wedlock, have lived together with the child for at least six months without interruption and separated before 1 July 1998, provided that joint custody would serve the best interests of the child (Kindeswohl).
In its judgment of 29 January 2003 the Federal Constitutional Court also held that Article 1626a § 2 of the Civil Code, apart from the lack of a transition period, did not breach the right to respect for the family life of fathers whose children had been born out of wedlock.
However, in a subsequent judgment of 21 July 2010 referring, inter alia, to the Court’s findings in the case of Zaunegger v. Germany (no. 22028/04, 3 December 2009), the Federal Constitutional Court found that to generally exclude a father of a child born out of wedlock from parental authority in the event that the child’s mother had refused to give her consent, without providing the possibility of the father obtaining a judicial review of whether joint custody or the transfer of sole custody would be in the child’s interests, had violated the father’s parental rights guaranteed under Article 6 § 2 of the German Basic Law. The Federal Constitutional Court consequently decided that Articles 1626a § 1 no. 1 and 1672 § 1 of the German Civil Code were unconstitutional and – pending the entry into force of the necessary statutory amendments – had to be applied with the proviso that the family courts transfer joint or sole custody at the request of a parent if such a transfer was considered to be in the child’s interest.


ITEMID: 001-88012
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF DARREN OMOREGIE AND OTHERS v. NORWAY
IMPORTANCE: 3
CONCLUSION: No violation of Art. 8
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The first applicant, Mr Louis Osaze Darren Omoregie, is a Nigerian national who was born in Sierra Leone in 1979. The second applicant is Mrs Elisabeth Skundberg Darren, a Norwegian national who was born in 1977. The third applicant is their daughter, Selma, who was born on 20 September 2006. The second and third applicants reside in Biri, Norway, as did the first applicant, before he was expelled to Nigeria on 7 March 2007.
7. The first applicant lived in Nigeria as from the age of 6 months until he went to Norway, where he arrived on 25 August 2001, without passport or other identity document. On the same date he applied for asylum.
8. In October 2001 he met the second applicant. The couple started cohabiting in March 2002.
9. The first applicant's asylum application was rejected by the Directorate of Immigration on 22 May 2002. He appealed to the Immigration Appeals Board and, pending a decision of his appeal, he was granted a stay of execution of his expulsion and a temporary work permit.
10. The first and second applicants got engaged on 10 September 2002.
On 11 September 2002 the Immigration Appeals Board rejected the applicant's appeal, stating inter alia
“This administrative decision means that the appellant is obliged to leave the country voluntarily. If the appellant does not leave the country voluntarily, the police shall implement the decision; see sections 40 and 41 of the Immigration Act.”
11. Shortly thereafter the Implementation Group of the Oslo Police District sent a notification of the decision to the first applicant's lawyer, giving the first applicant until 30 September 2002 to leave Norway. The notification further stated:
“Your client must contact the Implementation Group for Administrative Decisions as soon as possible to make arrangements for his departure from Norway. If we have not been contacted by the time the deadline expires, the decision will be implemented in accordance with section 41 of the Immigration Act. This could result in his arrest without further notice.”
12. On 1 October 2002 the first applicant requested the Board to stay his expulsion, which the Board refused on 7 October 2002.
13. No judicial appeal was lodged against the above decisions, which became final.
14. On 2 February 2003 the first and second applicants got married.
15. On 14 February 2003 the first applicant applied for a work permit on the ground of family reunification. The Directorate of Immigration rejected the application on 26 April 2003 and ordered him to leave Norway while indicating that the decision could be appealed against and that the police could set a time-limit for asking for respite of the expulsion. The decision was notified to him by local police on 7 May 2003 with an order to leave the country by 4 June 2003. The Directorate considered that the first applicant fell within a group of persons who were granted work permit for the purpose of family reunification under section 9 of the Immigration Act (and Article 23(1)(a) of the Immigration Regulation (Utlendingsforskriften)) but rejected the application on the ground that it was not documented that he had fulfilled the condition of ensured means of subsistence (Article 25 of the Regulation). In the view of the Directorate, there were no particularly strong human considerations warranting an exception being made from this condition in the instant case (Article 25(3)).
16. On 14 May 2003 the first applicant again appealed and requested stay of execution. The Directorate of Immigration rejected the request and local police notified him thereof on 19 October 2003 with an order to leave Norway by 30 October 2003.
17. Concurrently with the Immigration Appeals Board's examination of the first applicant's appeal of 14 May 2003, the Directorate of Immigration on 4 July 2003 warned him that it was contemplating to expel him pursuant to section 29(1)(a) of the Immigration Act. It referred to his registered gainful employment since 1 September 2002 and to his having worked in breach of section 6 of the Immigration Act since the rejection of his asylum application on 11 September 2002. Moreover, the Directorate referred to his defiance of his obligation to comply with the time-limit for leaving the country after the rejection of his asylum request. The Directorate considered that he had seriously contravened the provisions of the Act and had evaded implementation of the order to leave the country.
18. On 26 August 2003 the Directorate of Immigration decided to expel the applicant pursuant section 29(1)(a) of the Immigration Act. It found that the applicant's alleged ignorance of the unlawfulness of his gainful occupation was no excuse and that it would not be disproportionate to expel him despite his marriage with the second applicant. It decided to prohibit the first applicant from re-entry into Norway for five years, with a possibility of re-entry on application - normally only after two years.
19. On 21 July 2004 the Immigration Appeals Board upheld the Directorate of Immigration's rejection of his request for family reunification and its decision that the basic conditions for expelling the first applicant under section 29(1) of the Immigration Act were fulfilled; for more than a year he had been in gainful occupation without a work/residence permit. The Board also noted that he had avoided the implementation of the decision refusing him asylum and obliging him to leave the country. The Board found that his expulsion would not be disproportionate or otherwise contrary to Article 8 of the Convention. It also dismissed his appeal against the Directorate's rejection of his application for a work permit.
20. By a judgment of 15 February 2005 the Oslo City Court quashed the Immigration Appeals Board's decision of 21 July 2004 as being invalid.
21. In its judgment the City Court observed that it found it obvious that the basic condition for expelling the first applicant – that he had seriously or repeatedly violated the Immigration Act or had defied implementation of the decision that he should leave the country – had been fulfilled. The question then was whether expulsion would be a disproportionate measure vis-à-vis the first applicant and his close family.
22. In this regard the City Court observed that, although the first applicant had failed to comply with one of the conditions for contracting marriage in Norway, namely lawful residence in the country (sections 5(a) and 7 (k) of the Marriage Act 1991), he had had reason to believe (as from February 2003) that he had a right to stay and to apply for a work permit and a residence permit. While he had failed to respect two time-limits for leaving the country (30 September 2002 and 4 June 2003), he could not be criticised for having exceeded such deadlines after 26 April 2003 as the information furnished to him by the Directorate of Immigration had been unclear as to the time-limits set for his leaving the country compared to those set for asking respite and the replies given to his requests for respite. He had worked unlawfully for nine months and had resided unlawfully for four and a half months. This was, relatively speaking, not a very serious offence, which fact counterbalanced his relatively weak links to Norway. To impose a prohibition on re-entry for five years would constitute a disproportionate measure towards the applicant and his family in the sense of section 29 of the Immigration Act. It could easily lead to the dissolution of the family. The second applicant would presumably have great difficulties of adaptation in the first applicant's home country. Even if the first applicant could apply for re-entry after two years, he would most probably only be granted permission to come for shorter visits. The City Court found it unnecessary to examine whether the disputed decision violated Article 8 of the Convention.
23. On an appeal by the State against the City Court judgment, the High Court reached a different conclusion. By a judgment of 27 February 2006, it found that the first applicant's omission to leave the country voluntarily, although not the same as going under ground, meant that he had avoided compliance with the order to leave the country, meaning that the basic conditions for his expulsion under section 29 of the Immigration Act were fulfilled.
24. The High Court noted from the outset that the first applicant had acknowledged that he had seriously or repeatedly infringed the provisions of the Immigration Act and that the formal conditions for expulsion were fulfilled. The first applicant disputed that he had evaded a decision to leave the country and had only omitted to voluntarily comply with the decision. However, the High Court considered that also such an omission constituted evasion for the purposes of the act, although it was less serious than going under ground.
25. The High Court found it established that the applicant had stayed lawfully in Norway from 25 August 2001 to 30 September 2002. It was undisputed that his stay was unlawful from 30 September or 1 October 2002 until 14 February 2003 when he applied for family reunification. It was further undisputed that he had worked unlawfully without a work permit for 9 months, from 30 September/1 October 2002 until early July 2003, when the Directorate of Immigration warned him about expulsion. Thus the formal grounds for expulsion according to section 29 of the Immigration Act (as defined in Circular 03-25) were fulfilled.
26. The High Court observed that the central issue was the one of proportionality. In this regard it noted that the first applicant's links to Norway were very limited. He had arrived in Norway aged 22 years, without any links to the country. At the time of the impugned decision he had lived there for less than three years, parts of the time unlawfully. Already after less than two years he had been warned of expulsion. His stay in Norway had been very short and could not have given him any legitimate expectation of being able to live there. This was not significantly altered by his marriage to the second applicant, which had been entered into shortly before the disputed decision and in breach of the provisions on marriage. It was not uncommon for a person whose expulsion had been decided to marry a Norwegian citizen and use this as an argument to have the expulsion order invalidated. In such a situation expulsion would inevitably interfere with an established family situation. In this case there was no indication that expulsion would entail extra burdens of any kind beyond what followed from the separation.
27. The High Court also found that the first applicant's links to Nigeria were particularly strong and far more so than his links to Norway. In Nigeria he had lived from the age of six months until the age of 22, had studied at university for four years, and had three brothers with whom he was still in contact. Nor were there any concrete factors suggesting that, because he sought asylum in Norway, he would encounter particular problems with the Nigerian authorities upon return.
28. As regards the second applicant, the High Court observed that at the time that they married she must already have been aware of the uncertainty of the first applicant's stay in Norway. Moreover, she was used to living abroad, having lived for several periods in South Africa. English was also the official language of Nigeria. In the view of the High Court, she would not face insurmountable problems by settling in Nigeria for a shorter or longer period, should she so wish.
29. As to the first applicant's violations of the Immigration Act, the High Court found them to be of a certain degree of seriousness but did not find them particularly aggravated. However, having regard to the tenuous character of his links to Norway, the High Court considered that the balance of interest was not in his favour. Were it to be otherwise, expulsion would be possible only in very rare cases, with the consequence that this would have for the implementation of adopted immigration policies. The only countervailing consideration was his marriage to the second applicant. However, this could not be decisive; otherwise it would leave open a practice which would completely undermine the authorities' implementation of the Immigration Act.
30. Relying essentially on the same considerations as mentioned above, the High Court, taking into account the Strasbourg Court's case law, did not find that the disputed decision would be incompatible with Article 8 of the Convention.
31. On 14 June 2006 the Appeals Leave Committee of the Supreme Court refused the applicant leave to appeal, finding it obvious that the appeal had no prospects of success.
32. In the meantime, on 15 February 2005 the first applicant had submitted a new application for a work permit on the ground of family reunification with the second applicant. The Directorate of Immigration rejected his application on 21 July 2006.
33. On 20 September 2006 the couple had a child, Selma, who is the third applicant.
34. On 31 October 2006 the Immigration Appeals Board rejected an appeal by the first applicant against the Directorate of Immigration's refusal of 21 July 2006. The Board found that quashing the refusal of re-entry was not required in the interest of the third applicant, inter alia noting that the child had been conceived after a final expulsion order and referring to the circumstances of the entry into marriage. It would be possible for the second and third applicants to live with the first applicant for shorter or longer periods in his home country. Although the fact that the first and second applicants had had a child together substantially altered the assessment of the proportionality of the prohibition of re-entry, the Board still did not find that the measure would be disproportionate. Neither Article 8 of the Convention nor the United Nations Children Convention could imply a different solution.
35. On 2 November 2006 the Directorate of Immigration refused to stay the applicant's expulsion.
36. On 13 December 2006 the applicants, represented by a lawyer, submitted an application under the Convention, which was received at the Registry on 3 January 2007. They complained that the first applicant's expulsion would entail a splitting of the family in breach of Article 8 of the Convention. It would not be possible for the second and third applicants to accompany him to Nigeria. They submitted that, having regard to the minor character of his breaches of the Immigration Act, the enforcement of the expulsion order would constitute a disproportionate interference with the applicant's family life. Any such enforcement should await a final decision by the Court.
37. On 5 January 2007 the President of the Section decided, in the circumstances, not to indicate to the Government of Norway, under Rule 39 of the Rules of Court, the interim measure requested. The circumstances underlying the application were not of the kind to which, in the Court's practice, Rule 39 was applied. On 19 January 2007 the applicants' lawyer informed the Court that they wished to maintain their application notwithstanding the refusal to apply Rule 39.
38. On 30 March 2007 the Immigration Appeals Board dismissed an appeal by the first applicant against a rejection by the Directorate of Immigration of 30 October 2006 of a renewed request by the first applicant for family reunion with the third applicant. The request had been made on the basis of a provision in the Immigration Regulation which was applicable to cases of unmarried parents and therefore did not cover the applicants' case. Nor did the Board see any other reason for altering its earlier decision in the case.
39. In the meantime, on 7 March 2007 the Implementation Group of the Oslo Police District expelled the first applicant back to Nigeria.
40. The Immigration Act 1988 (Act of 24 June 1988 Nr 64, Lov om utlendingers adgang til riket og deres opphold her (utlendingsloven)) contained the following provisions of relevance to the present case:
Section 6 Work permits and residence permits
“Any foreign national who intends to take work with or without remuneration or who wishes to be self-employed in the realm must have a work permit.
Any foreign national who intends to take up residence in the realm for more than 3 months without taking work must have a residence permit.”
Section 8 When work and residence permits shall be granted
Any foreign national has on application the right to a work permit or a residence permit in accordance with the following rules:
[...]
3) There must not be circumstances which will give grounds for refusing the foreign national leave to enter the realm, to reside or work in accordance with other provisions of the Act.”
Section 9 Work or residence permits for family members
The closest members of the family of a Norwegian or Nordic national who is resident in the realm or of a foreign national who has or is granted lawful residence in the realm with a work permit or a residence permit without restrictions, have on application the right to a work permit or residence permit provided there are no such circumstances as mentioned in section 8 first paragraph, sub-paragraph 3. As a general rule subsistence must be ensured. The King may by regulations issue further rules.”
Section 41 Procedure for the implementation of decisions
“Any decision which means that any foreign national must leave the realm is implemented by ordering the foreign national to leave immediately or within a prescribed time limit. If the order is not complied with or it is highly probable that it will not lead to the foreign national's leaving the realm, the police may escort the foreign national out. When particular reasons so indicate, the foreign national may be conducted to another country than the one from which the foreign national came. Any decision which applies to implementation is not considered to be an individual decision, cf. section 2 first paragraph, sub-paragraph b, of the Public Administration Act.”
41. Moreover, section 29(1)(a) of the Immigration Act read:
“Any foreign national may be expelled
a)when the foreign national has seriously or repeatedly contravened one or more provisions of the present Act or evades the execution of any decision which means that the person concerned shall leave the realm”
42. According to section 29(4), an expulsion order may be accompanied by a prohibition of re-entry to Norway. However, the person expelled may, on application, be granted leave to enter Norway. Furthermore, according to well-established administrative practice, when considering an application for leave to enter under section 29(4), the Directorate of Immigration was under an obligation to consider the proportionality of its decision on prohibition of re-entry. The provision read:
“Expulsion is an obstacle to subsequent leave to enter the realm. Prohibition of entry may be made permanent or of limited duration, but as a general rule not for a period of less than two years. On application the person expelled may be granted leave to enter the realm, but as a rule not until two years have elapsed since the date of exit.”
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-60676
LANGUAGEISOCODE: ENG
RESPONDENT: PRT
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF CZEKALLA v. PORTUGAL
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1 and 6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Georg Ress
TEXT: 10. The applicant was born in 1953 and lives in Sonsbeck (Germany).
11. On 12 January 1993 the applicant was arrested in connection with an anti-drug-trafficking operation as a result of which the Sintra public prosecutor’s office brought criminal proceedings against about forty persons. The applicant was interviewed on 13 January 1993 by an investigating judge, in the presence of an interpreter and a lawyer appointed under the legal-aid scheme, and was then placed in pre-trial detention.
12. On 21 January 1993 a search of his home was carried out and large sums of money in several different currencies and a self-defence spray were seized.
13. On 28 April 1993 the applicant, represented by a lawyer whom he had in the meantime authorised to act for him, asked to be interviewed in the presence of another person involved in the case, one A.G. That request was refused on an unspecified date.
14. On 7 January 1994 the public prosecutor’s office filed the prosecution submissions (acusação) against the applicant and forty-three other persons. Mr Czekalla was accused of aggravated drug trafficking and conspiracy (associação criminosa). The indictment listed fifty prosecution witnesses and the submissions ran to 156 pages.
15. On 19 January 1994 the applicant asked the judge to let him have a copy of the case file so that he could prepare his defence. The judge granted his request and the file was made available to the applicant’s lawyer at the registry of the Sintra District Court.
16. On 23 January 1994 the applicant applied to the judge personally in English, asking for a translation of the prosecution submissions into German, his native language. On 27 January 1994 the investigating judge at the Sintra District Court, ruling on the basis of Article 92 § 1 of the Code of Criminal Procedure, refused that application without looking into its merits on the ground that it was not written in Portuguese.
17. In a letter of 16 February 1994 the German embassy in Lisbon asked the Sintra District Court to send the applicant a German translation of the prosecution submissions. The embassy later informed the court that it could assist it by providing the services of a sworn translator (letter of 8 September 1994).
18. On 20 February 1994 the applicant submitted a request similar to that of 23 January 1994 but written in Portuguese. In response to that request, on 27 April 1994, an interpreter appointed by the Sintra District Court went to the prison where the applicant was being held and gave him an oral translation of the prosecution submissions.
19. As a number of the accused had asked for the judicial investigation to be formally opened, that was done, on 16 March 1994. An adversarial hearing was held on 21 April 1994. On 27 April 1994 the investigating judge made an order (despacho de pronuncía) committing thirty-five of the accused, including the applicant, for trial. The order was read out to all the accused and simultaneous interpretation was provided in several foreign languages.
20. On 28 June 1994 the applicant filed his defence pleadings and submitted a list of the defence witnesses.
21. In a judgment of 7 July 1994 the Supreme Court (Supremo Tribunal de Justiça) ruled that the Sintra District Court could hold the trial on the premises of the Lisbon Criminal Court in Monsanto on account of the lack of space at its own courthouse in Sintra.
22. The trial began on 8 November 1994 and lasted for eight months, during which fifty-eight hearings were held. On 21 February 1995, in other words while the trial was still taking place, the applicant withdrew the authority to act he had given to his lawyer and asked the court to appoint a lawyer under the legal-aid scheme. The court appointed Ms T.M. as his defence counsel.
23. The Sintra District Court gave judgment on 24 July 1995. It found the applicant guilty of aggravated drug trafficking but not of conspiracy, and sentenced him to fifteen years’ imprisonment.
24. On 3 August 1995 the applicant personally appealed to the Supreme Court. His application was written in German. By an order of 12 September 1995 the judge of the Sintra Criminal Court, ruling on the basis of Article 92 § 1 of the Code of Criminal Procedure, dismissed the appeal without looking into its merits on the ground that it was not written in Portuguese.
25. On 7 August 1995 Ms T.M. lodged an appeal with the Supreme Court on her client’s behalf. She alleged breaches of a number of provisions of the Code of Criminal Procedure and of Articles 5 and 6 of the Convention.
26. In September 1995 the applicant asked a lawyer of his own choice to represent him in the proceedings, thus dispensing with the services of the lawyer appointed under the legal-aid scheme. On 27 September 1995 the applicant’s new lawyer lodged an appeal with the Supreme Court against the order made by the judge of the Sintra Criminal Court on 12 September 1995.
27. On 20 September 1995 the case file was sent to the Supreme Court.
28. On 10 July 1996 the Supreme Court gave judgment on a number of interlocutory appeals and on those which, in the judges’ opinion, could already be decided without further examination. Applying Article 412 of the Code of Criminal Procedure, the Supreme Court declared inadmissible the applicant’s appeal against his conviction, lodged through Ms T.M., ruling that the grounds of appeal had not been satisfactorily explained. The appeal contained no submissions and did not indicate in what way the legal provisions whose breach it alleged should have been interpreted and applied.
29. On 11 December 1996 the Supreme Court delivered a second judgment. It first upheld an appeal by the prosecution concerning some of the defendants, including the applicant, finding that the latter was also guilty of conspiracy. The applicant’s sentence was accordingly raised to twenty-one years’ imprisonment. The Supreme Court then considered the appeal against the order made by the judge of the Sintra Criminal Court on 12 September 1995. It held that the application made by the applicant alone was provided for in Article 98 of the Code of Criminal Procedure, which permitted a defendant to submit pleadings or observations directly to the court. Taking into account Article 6 § 3 (e) of the Convention, the Supreme Court then set aside the impugned decision and ordered the appeal lodged by the applicant to be translated so that it could be “duly examined”. Lastly, the Supreme Court decided that the statements of one of the defendants, who had cooperated with the police investigating the case and had refused to answer the questions put by counsel for the other defendants, could not be admitted in evidence.
30. Some of the defendants, but not the applicant, appealed against the above decision to the Constitutional Court (Tribunal Constitucional).
31. The applicant requested a clarification (aclaração) of the last part of the Supreme Court’s judgment of 11 December 1996. He wanted to know in particular when his conviction would become final, regard being had to the Supreme Court’s decision to set aside the order of 12 September 1995.
32. In a judgment of 12 February 1997 the Supreme Court dismissed the above application on the ground that no clarification was called for. On the other hand, it corrected a mistake discovered in the judgment of 11 December 1996 concerning determination of the sentences imposed on some of the defendants and reduced the applicant’s sentence to eighteen years’ imprisonment.
33. On 15 July 1997 the Constitutional Court dismissed the appeals by some of the defendants.
34. On 18 July 1997 the applicant asked the Supreme Court to inform him how it intended to follow up the final part of the judgment of 11 December 1996 with regard to the application he had lodged with the Sintra Criminal Court on 3 August 1995. On an unspecified date the reporting judge ordered the registry to inform the applicant that the application would be examined by the Sintra Criminal Court in due course.
35. In a judgment of 1 October 1997 the Supreme Court made it clear that the applicant was to be regarded as serving his sentence, since the Constitutional Court had dismissed the appeals by other defendants, with the result that the Supreme Court’s judgment of 11 December 1996, as corrected by the judgment of 12 February 1997, had therefore become final.
36. On 14 October 1997 the applicant asked to be released. He submitted that the Supreme Court’s judgment of 11 December 1996 had not become final in so far as he himself was concerned. He pointed out that the last part of the judgment had not been executed, as his appeal of 3 August 1995 had not yet been duly examined as required by the judgment in question.
37. On 23 October 1997 the reporting judge refused the above application in the following terms:
“The application in issue [the one made on 3 August 1995] ... was submitted under Article 98 of the Code of Criminal Procedure. If by means of that application the applicant intended to appeal against his conviction, it must be pointed out that it could not have such an effect. The appeal by the defendant Czekalla against his conviction was the one lodged by the lawyer representing him under the legal-aid scheme, which has already been heard. ... The content [of the application of 3 August 1995], whatever it is – and that is a matter to be ascertained when the file has been transmitted to the court of first instance – could not therefore affect or influence the course of the proceedings. That is why the application cannot prevent the transition to res judicata [trânsito em julgado] of the Supreme Court’s judgment of 11 December 1996.”
38. The applicant lodged a constitutional appeal against the above decision. On 16 January 1998 the reporting judge declared the appeal inadmissible for failure to exhaust ordinary remedies, the applicant having omitted to challenge the decision before the Judicial Committee (conferência). The applicant then appealed against the inadmissibility decision to the Constitutional Court, which dismissed his appeal in a judgment of 13 May 1998.
39. By a decision of 16 March 1999, of which the applicant was informed on 29 October 1999, the Sintra District Court ruled, in accordance with the Supreme Court’s judgment of 11 December 1996, on the application made by the applicant on 3 August 1995. It noted firstly that the application amounted to an appeal against conviction. It went on to say that the applicant had only reproduced the appeal lodged at the time by his lawyer, but had not made use of the remedy provided for in Article 63 § 2 of the Code of Criminal Procedure, whereby he could have revoked the act carried out by his counsel. It noted that in any event the application was signed only by the applicant and not by his lawyer, and that accordingly it could not be declared admissible.
40. In a judgment of 23 June 2000 the Evora Court of Appeal allowed an application for transfer to Germany made by the applicant under the Convention on the Transfer of Sentenced Persons.
41. The applicant was serving the remainder of his sentence in Germany when he was paroled on 14 March 2001.
42. On 11 November 1995 the applicant lodged a complaint against Ms T.M. with the Lisbon Bar Council. He alleged that her conduct had caused him prejudice in that, contrary to his instructions, she had herself lodged with the Supreme Court an appeal that did not satisfy the formal conditions.
43. On 16 October 1996 the Bar Council decided to open disciplinary proceedings against Ms T.M.
44. The applicant asserted that he had received from the Bar Council a letter dated 12 May 1997 informing him that a disciplinary penalty had been imposed on Ms T.M. for “unethical conduct”. The document concerned has not been produced before the Court.
45. The provisions of the Code of Criminal Procedure relevant to the present case are the following:
“1. The accused may instruct counsel at any stage of the proceedings.
2. Where it is provided by law that the accused must be represented and the accused has not appointed or does not propose to appoint a person to defend him, the judge shall assign one officially, preferably a member or trainee member of the Bar; but the officially assigned representative shall cease to have authority to act if the accused instructs counsel of his own choosing. ...”
“The accused may revoke any act carried out on his behalf by the person defending him, provided that he expressly declares that intention before any decision has been taken in respect of the act in question.”
“1. Where a representative is assigned officially, the accused shall be notified of the fact if he was not present at the material time.
2. The officially assigned representative may be excused from assisting the accused if he puts forward a ground that the court considers valid.
3. The court may replace the officially assigned representative at any time on an application by the accused that contains a valid ground.
4. Until such time as he is replaced, an officially assigned representative shall continue to act in respect of subsequent steps in the proceedings.
5. The representative shall always be remunerated for his services; the terms and the amount shall be determined by the court, within the limits laid down in a scale approved by the Ministry of Justice or, failing that, in the light of the fees normally paid for services of a similar nature and of equal importance.
Payment shall be the responsibility, as the case may be, of the accused, the assistente, the civil parties or the Ministry of Justice.”
“1. To be valid, all steps in the proceedings, whether written or oral, must be made in Portuguese.
2. Where a person who does not know or master the Portuguese language has to take part in proceedings, an appropriate interpreter shall be appointed free of charge ...
3. An interpreter shall likewise be appointed if it proves necessary to translate a document in a foreign language which is not accompanied by a certified translation.
...”
“An accused, even if at liberty, may submit observations, pleadings or applications at any stage of the proceedings, even if they are not signed by his representative, provided that they relate to the subject matter of the proceedings or are intended to protect his fundamental rights. Such observations, pleadings or applications shall always be placed in the case file.”
“1. The pleadings shall set forth in detail the grounds of appeal and end with submissions, set out point by point, in which the appellant summarises the reasons for his appeal.
2. If the reasons concern the law, the submissions shall also indicate the following, failing which the appeal shall be dismissed:
(a) the legal provisions that have been infringed;
(b) the way in which, in the appellant’s opinion, the lower court interpreted or applied each provision and the way in which that provision should have been interpreted or applied ...”
46. Like Article 412 of the Code of Criminal Procedure, Article 690 of the Code of Civil Procedure requires an appellant to complete his appeal with submissions. These must likewise indicate both the legal provisions infringed and the way in which, according to the appellant, they should have been interpreted or applied by the lower court. However, paragraph 4 of Article 690 provides:
“Where there are no submissions, or where the submissions are incomplete, obscure or complex ... the reporting judge must ask the appellant to produce them, add to them, clarify them or summarise them, failing which the appeal shall not be heard ...”
47. Formerly, it was the established case-law of the Supreme Court that it was permissible to dismiss outright any appeals submitted in breach of the formal conditions laid down in Article 412 of the Code of Criminal Procedure. In particular, it took the view that an appellant was not entitled to be asked to make good any deficiencies of his appeal, unlike the position provided for in Article 690 of the Code of Civil Procedure. That was justified by the particular requirements of speedy trial imposed by criminal procedure, the question of celerity being deemed not to be raised in the same terms in civil cases. It was therefore normal for the Supreme Court to dismiss appeals on points of law, for example, on account of the prolixity of the related pleadings, regard being had to the provision in Article 412 § 1 requiring an appellant to “summarise” the reasons for his appeal.
48. In its judgment no. 337/2000 of 27 June 2000, published in the Official Gazette on 21 July 2000, the Constitutional Court declared, with general binding force, that Article 412 of the Code of Criminal Procedure was unconstitutional if interpreted so as to permit the outright dismissal of an appeal on points of law on account of the wordiness of the related pleading without the appellant being first asked to rectify his appeal. It emphasised that the particular requirements of speedy trial imposed by criminal procedure could not justify such a restriction of the right to due process.
49. In its judgment no. 265/01 of 19 June 2001, published in the Official Gazette of 16 July 2001, the Constitutional Court declared, with general binding force, that Articles 59 and 61 of Legislative Decree no. 433/82, which are similar to Article 412 of the Code of Criminal Procedure and applicable to summary offences, were unconstitutional if interpreted so as to permit the outright dismissal of an appeal on account of its being unaccompanied by submissions without the appellant being first asked to make such submissions. The Constitutional Court referred to its case-law concerning the dismissal of appeals on points of law on account of the wordiness of the related pleading, observing that the same reasoning applied to the case under consideration, regard being had to the requirements of the principle of fair trial and the right to due process.
50. The legal profession in Portugal is free and independent. Lawyers are completely independent from the State and are bound only by their statute, approved by Legislative Decree no. 84/84 of 16 March 1984.
51. The Bar Council is a public-law association, regulated by Act of Parliament but independent of the State. It has disciplinary jurisdiction over lawyers, who must be registered with the Council in order to be able to practice, the question of disciplinary responsibility being a quite separate matter from any civil or criminal responsibility (Article 96 of Legislative Decree no. 84/84).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57505
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1987
DOCNAME: CASE OF INZE v. AUSTRIA
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (victim);Violation of Art. 14+P1-1;Pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: J.A. Carrillo Salcedo
TEXT: 8. The applicant, who was born out of wedlock in 1942, is an Austrian citizen and resides at Stallhofen, Carinthia.
9. Until 1965, the applicant lived on a farm at St. Bartlmä, Carinthia, which had belonged first to his maternal grandmother and then to his mother, Theresia Inze. When his mother married Mr. Rudolf Fischer, the applicant remained in the house not only with his grandmother and his mother, but also with her husband and subsequently with their son, Manfred Fischer, who was born in wedlock in 1954. At the age of 23, he left the farm and later he married and settled down a few kilometers away.
The applicant’s mother died intestate on 18 April 1975 and left as her heirs, apart from the applicant, her husband and her second son. According to the provisions of the Civil Code, the widower was entitled to a one-fourth part of the inheritance (Article 757) and each of the sons (irrespective of their illegitimate or legitimate birth) to three-eighths thereof (Articles 732 and 754). In proceedings commenced ex officio before the Klagenfurt District Court (Bezirksgericht), the applicant, his step-father and his half-brother stated that they were willing to accept these shares. The District Court decided on 31 March 1976 that the declarations of acceptance were valid.
10. However, the farm in question was subject to the special regulations in the Carinthian Hereditary Farms Act of 1903 (Erbhöfegesetz, Provincial Law Gazette, no. 33/1903, "the Provincial Act") providing that farms of a certain size may not be divided in the case of hereditary succession and that one of the heirs must take over the entire property and pay off the other heirs (see paragraph 25 below).
The applicant had claimed on 8 August 1975 that he should be called to take over his mother’s farm as he was the eldest son. He later submitted that the regulation giving precedence to legitimate children had in the meantime been abrogated, and that both his step-father and his half-brother were in any event excluded as being unfit to work the farm, under section 7(4) of the Provincial Act (see paragraph 25 below).
11. On 28 April 1976, the District Court held a hearing in the presence of the parties. On 26 August, it appointed an expert to submit an opinion concerning the following matters: first, the classification of the farm as a "hereditary farm" within the meaning of the Provincial Act; second, its value for the purpose of determining the sums to be paid to the ceding heirs; and third, the conditions of its exploitation since the death of the applicant’s mother.
12. The opinion, dated 1 October 1976, was filed with the court on 27 October. According to the expert, the farm was subject to the provisions of the Provincial Act, and its value was 331,040 Austrian schillings (ATS). However, the property was in a very bad condition and could not by itself provide a sufficient livelihood for a family. After the previous owner’s death, it had been worked mainly by her widower, who had kept only a few cattle and used all the land for pasture. The grassland had partly run wild and the fields had no longer been tilled.
13. After a further hearing on 18 January 1977, the court decided on 25 January that the property had the character of a "hereditary farm" and fixed its value, in accordance with the expert opinion, at 331,040 ATS. This decision became final, as none of the parties appealed.
14. The question of the determination of the heir entitled to take over the farm, including the applicant’s claim that his step-father and half-brother should be excluded for this purpose, was referred to the Klagenfurt Regional Court (Landesgericht) in accordance with section 7(4) of the Provincial Act (see paragraph 25 below).
The District Court communicated its file to the Regional Court on 20 July 1977. After a hearing scheduled to take place on 16 January 1978 had been cancelled, the Regional Court returned the file to the District Court on 17 January 1978, with the request to take further evidence relating to the ability of the applicant’s half-brother to work the farm. The expert opinion was therefore to be supplemented in this respect, and the District Court was asked to add its own legal opinion when re-submitting the file (section 7(4) of the Provincial Act; see paragraph 25 below).
15. The District Court then ordered a supplementary expert opinion which was lodged on 6 April 1978. It stated that the conditions of the exploitation of the farm had further deteriorated, some lands having been left to a motor-cross club and some to a neighbour who had deposited various construction materials there. It was therefore hardly possible to speak of an orderly exploitation of the farm.
As regards the ability of the applicant’s half-brother to run the farm at the same time as continuing with his job as an unskilled worker, the expert answered in the affirmative. Not very much was required to be done on the farm and his workplace was not so far away as to prevent his daily presence on the property.
16. At a hearing held on 31 January 1979, after several postponements, the parties failed to arrive at any agreement as to who should take over the farm even just for the duration of the proceedings, the applicant’s step-father and half-brother being opposed to the appointment of a curator.
17. The District Court re-submitted the file to the Regional Court in February 1979. The Regional Court decided on 25 June 1979 to declare the applicant’s claim inadmissible in so far as he sought a ruling that his step-father was excluded from taking over the farm, since the latter had not in fact maintained that he was entitled to do so. As regards the claim for exclusion of the applicant’s half-brother, the Regional Court found that he was neither prevented by his profession from working the farm, nor incapable of doing so at the same time as continuing with his job. Furthermore, he could not be held responsible for the negligent exploitation since his mother’s death because it was his father who had run the farm in the meantime.
18. The applicant appealed against this decision to the Graz Court of Appeal (Oberlandesgericht), claiming that certain evidence had been disregarded by the Regional Court when refusing the exclusion of his half-brother. He also submitted that the provision in section 7(2) of the Provincial Act giving precedence to legitimate children (see paragraph 25 below) had been abrogated by the new version of Article 754 § 1 of the Civil Code, enacted in 1970, and by Article 14 (art. 14) of the European Convention on Human Rights. He requested the court to submit the question of the constitutionality of the provision to the Constitutional Court (Verfassungsgerichtshof).
19. The Court of Appeal dismissed the appeal on 26 September 1979. After confirming the Regional Court’s finding that the applicant’s half-brother was not excluded, it stated that it had no doubts as to the constitutionality of the provision giving precedence to legitimate children. In its opinion, the provision had an objective justification because it was a peculiarity of the rural family and economic structure that legitimate children lived with the family on the farm, whereas illegitimate children were not infrequently brought up elsewhere and therefore did not have the same close link with the farm as legitimate children. This was also the situation in the present case. The Court of Appeal therefore saw no reason to submit the issue of constitutionality to the Constitutional Court.
20. The applicant appealed against this decision to the Supreme Court (Oberster Gerichtshof), adducing essentially the same arguments as before the Court of Appeal. The Supreme Court rejected the appeal by a decision of 9 April 1980, on the ground that it was directed against a decision of the Court of Appeal confirming a previous decision of the Regional Court; in such a case, an appeal is admissible only when a decision is clearly contrary to law or inconsistent with the file, or when there has been a procedural defect entailing nullity of the proceedings. As to the first condition, the Supreme Court denied that section 7(2) of the Provincial Act had been abrogated by Article 754 § 1 of the Civil Code, as amended.
The Supreme Court also held that there was no reason to submit the matter to the Constitutional Court, on the following grounds.
As regards the conformity of section 7(2) with the constitutional provision in Article 14 (art. 14) of the Convention, Article 14 (art. 14) was applicable only in relation to the enjoyment of the rights and freedoms set forth in the Convention. In its opinion, the Convention did not deal with the question of hereditary succession, and Article 1 of Protocol No. 1 (P1-1), which secured the right to the peaceful enjoyment of possessions, did not exclude regulations providing for different rules of succession according to birth in wedlock or out of wedlock.
Furthermore, there was no doubt as to the compatibility of section 7(2) with the constitutional principle of equality. This principle required that legislation make no legal distinction based on the personal status of an individual unless this was justified by objective reasons. The impugned regulations in the Provincial Act did not, however, appear to be unjustified. Similar provisions also existed in the provincial legislation of Tyrol (Höfegesetz) and in the federal legislation for the other provinces (Anerbengesetz) and these limited illegitimate children’s rights even further, in that they could take over a hereditary farm only if they had been brought up on it.
The preparatory materials on this legislation showed that the precedence accorded to legitimate children was based on convictions of rural society. Neither was the regulation in question contradicted by attempts to assimilate the legal position of illegitimate children to that of legitimate children, because it reflected the special convictions and attitudes of the rural population which, among other things, also affected the legal position of the widower. Furthermore, the Supreme Court observed, the family was an important element of the legal organisation of human relationships. Having regard to all these circumstances, it could not be said that the regulations contained in the Provincial Act were not based on objective considerations.
21. After the European Convention on the Legal Status of Children born out of Wedlock, of 15 October 1975, had entered into force in respect of Austria with effect from 29 August 1980, the applicant again appealed to the Supreme Court, asking it to reconsider its decision of 9 April 1980. Article 9 of this Convention provides that "a child born out of wedlock shall have the same right of succession in the estate of its father and its mother and of a member of its father’s or mother’s family, as if it had been born in wedlock". However, Austria ratified that Convention with the following reservation:
"In pursuance of Article 14 § 1 of the Convention, the Republic of Austria reserves the right not to accord to a child born out of wedlock, as provided for in Article 9 of the Convention, the same right of succession in the estate of its father and of a member of its father’s family, as if it had been born in wedlock."
On 6 October 1980, the Supreme Court rejected the appeal as inadmissible, having regard to the binding effect of its previous final decision and to the absence of a legal possibility to re-open the procedure.
22. The first-instance proceedings were resumed in October 1981. On 12 October, a judicial settlement was reached between the applicant and his half-brother whereby the applicant renounced any claim to take over his mother’s hereditary farm, which would pass to his half-brother. In return, he was to receive a certain piece of land which had been promised to him by his mother during her lifetime, but no other compensation.
The judicial proceedings in the hereditary case were then terminated on 31 December 1981 by the transfer (Einantwortung) of the title to the whole farm to the applicant’s half-brother.
23. The implementation of the above settlement was left to subsequent agreement between the parties, which they concluded on 26 May 1982.
However, the separating-off of the piece of land, which consisted of forest, assigned to the applicant under the agreement still required the approval of certain administrative authorities, including in particular the competent forestry authority, having regard to the provisions of the Carinthian Provincial Forestry Act (Provincial Law Gazette, no. 77/1979). Certain difficulties arose in this respect. The piece of land was not sufficiently large for its separating-off to be permissible under the above Act except in the case of a predominant public interest, the existence of which the authority denied. The difficulties were apparently overcome after the Constitutional Court had in a different case found the relevant provisions of the Carinthian Provincial Forestry Act to be unconstitutional.
The land was then registered in the applicant’s name in the official land register. This has been confirmed in an extract from the land register, dated 13 January 1984.
24. The relevant provisions of the Civil Code read as follows (translation from German):
"Capacity to inherit can be determined only when the estate actually passes. This is generally when the de cuius dies (Article 703)."
"Once he has accepted the inheritance, the heir represents the de cuius in respect of the estate. Both shall be regarded as being one and the same person as regards third parties. Until the heir has accepted the inheritance, the estate shall be treated as if it were still in the deceased’s possession."
"Where there is more than one heir, they shall be regarded, in respect of their joint right to inherit, as being one person. Until the estate is transferred by court order, the heirs shall be jointly and severally liable. The extent to which they shall be liable thereafter is laid down in the chapter on taking possession of the estate."
25. The Carinthian Hereditary Farms Act, while leaving unaffected the general rules in the Civil Code on the determination of hereditary shares, regulates the attribution of these shares in cash or in kind.
The following provisions of this Act are relevant (translation from German):
"If the estate of the owner of a farm devolves on several persons, only one person, the principal heir (Anerbe), may inherit the farm and its equipment ..."
"The principal heir shall be determined according to law and the order which it prescribes for the devolution of estates. When there are several heirs and no agreement can be reached among them, they shall be called to take over the farm in the following order:
(1) In general, male heirs shall take precedence over female, and older over younger heirs of the same sex; lots shall be drawn between heirs of the same age. Those more closely related shall, however, take precedence over those more distantly related.
(2) Children related by blood shall always take precedence over adopted children and legitimate children over illegitimate children.
...
(4) The following shall, in general, be excluded from taking over the farm:
...
(b) persons who, by reason of a mental or physical disability, seem incapable of running the farm themselves,
...
(d) persons who are prevented by their profession from managing the farm on the spot and working it in person.
... The decision regarding ... the existence of grounds of exclusion under paragraphs (b) to (e) shall be reserved to the court of first instance (Landesgericht and Kreisgericht), to which the District Court (Bezirksgericht) shall submit the file on the administration of the estate, together with its own opinion."
"When the estate is being divided, the farm (section 6) shall devolve on the principal heir, who shall become the estate’s debtor for the value of the farm free of charges."
"(1) The value of the farm shall be determined by agreement among the persons concerned.
(2) If no such agreement can be reached, the court shall call on experts to make an assessment, shall hear the municipal council and the parties and shall determine on an equitable basis the value of the farm in such a way that the principal heir is not burdened with undue financial difficulties (wohl bestehen kann)."
"(1) The law on reserved portions (Articles 765 and 766 of the Civil Code) is not affected by the regulations on division of estates.
(2) The value of reserved portions shall be assessed with reference to the value of the farm, determined in accordance with section 9(2) ..."
26. To meet social changes that have occurred in recent years, the Federal Minister of Justice has prepared two Bills, one for all provinces except Tyrol and Carinthia and another concerning only Carinthia. The latter Bill was, in accordance with the usual practice, the subject of a consultation procedure in 1985. It is being amended in the light of the views expressed and will be laid before Parliament in the near future. Section 8 of the Bill reads as follows (translation from German):
"If the deceased was the sole owner of the farm, the person taking it over shall be determined according to law and the order which it prescribes for the devolution of estates. If there are several heirs and no agreement has been reached among them, they shall be called to take over the farm in the following order:
1. Heirs who have been trained as farmers shall take precedence over those who have not. If several heirs have been trained as farmers, those who were brought up on the farm in question shall take precedence over those who were not.
2. Children, including adopted children, of the deceased shall take precedence over a surviving spouse; a surviving spouse shall, however, take precedence over descendants who were not brought up on the farm and over other relatives."
..."
The explanatory report states that this provision is designed to eliminate, inter alia, the disadvantages suffered by illegitimate and adopted children as compared with legitimate children.
VIOLATED_ARTICLES: 14
P1
VIOLATED_PARAGRAPHS: P1-1