ITEMID: 001-82413
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: GLIHA AND JORAS v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;David Thór Björgvinsson
TEXT: The applicants, Ms Marija Gliha and Ms Amalija Joras, are Slovenian nationals who were born in 1936 and 1937 and live in Velika Loka and Ljubljana respectively. The Slovenian Government (“the Government”) were represented by their Agent, Mr Lucijan Bembič, State Attorney-General.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 30 January 1951 the applicants’ father Mr Rudolf Gliha was convicted and sentenced to 4 months’ deprivation of liberty and to forfeiture of immovable and movable property to the State (a house, several fields, forests, electric mill, etc.).
On 2 July 1990, further to the applicants’ request, the Public Prosecutor filed a request for legality with the Supreme Court in order to challenge the applicants’ father’s conviction.
On 30 July 1990 the applicants sent a letter to the Novo mesto Basic Court, the Trebnje Unit, requesting restitution of property confiscated to their late father in 1951.
On 29 August 1990 the Supreme Court quashed the conviction of the applicants’ late father and the sentence of forfeiture of his property to the State.
At the material time, Section 145 of the 1978 Act on Implementation of Penal Sanctions as then applicable (“the 1978 Act”) regulated the restitution of, and compensation for, the property forfeited through penal proceedings (see “Relevant domestic law and practice”).
The applicants then filed a request for restitution of confiscated property also with the local authorities – the Community of Trebnje. The latter forwarded the request to the Novo mesto Basic Court, the Trebnje Unit.
However, on 21 September 1990 the Novo mesto Basic Court, the Trebnje Unit, forwarded the request to the Community of Trebnje. On 4 October 1990 the latter, further to Section 145 of the 1978 Act, sent the request back to the Novo mesto Basic Court, the Trebnje Unit.
On 29 November 1991 the Denationalisation Act (“the DA”) was adopted, forming the basis for restitution of property (or its value) that had passed into State ownership after the Second World War. Its Section 92 provided that property forfeited in criminal proceedings that had terminated before 31 December 1958 should also be returned to previous owners under the DA (see “Relevant domestic law and practice”). One individual filed a constitutional initiative (ustavna pobuda) with the Constitutional Court challenging the constitutionality of Section 92.
Following the adoption of the DA, on 28 February 1992 the Novo mesto Basic Court, the Trebnje Unit decided that it lacked jurisdiction to examine the claim, since the administrative authorities enjoyed jurisdiction over denationalisation matters.
On 20 March 1992 the applicants filed an appeal. They also requested the issuing of an interim injunction and an exclusion of a judge.
On 20 May 1992 the Higher Court granted the appeal and remitted the case to the Novo mesto Basic Court, the Trebnje Unit.
On 30 June 1992 the President of the Novo mesto Basic Court refused the request for exclusion of a judge.
On 4 August 1992 the applicants lodged a new request for exclusion of a judge and for exclusion of the president of the Novo mesto Basic Court. On 11 September 1992 the Ljubljana Higher Court rejected it.
On 5 November 1992, the Constitutional Court rescinded Section 92 of the DA.
On 15 January 1991 the applicants started proceedings against the Community of Trebnje, the Republic of Slovenia and sixteen other defendants, among them twelve natural persons, before the Novo mesto Basic Court, the Trebnje Unit with a view to determine ownership rights over the confiscated real estate and its delivery. At the same time, they proposed an interim injunction on the prohibition of alienation and encumbrance of the real estate.
On 18 November 1991, following a hearing, the request for an interim injunction was rejected and the request for the note on the dispute in the land register was granted. The applicants’ representative was invited inter alia to produce complete extracts from the land register for all real estate in dispute.
On 10 March 1992 the Novo mesto Basic Court, the Trebnje Unit again summoned the applicants’ representative to reply to its request.
On 6 April 1992 the Novo mesto Basic Court, the Trebnje Unit decided to stay the proceedings and to continue them as non-contentious proceedings. At the same time, it decided to annul its decision on the note of the dispute.
On 26 October 1992 the Novo mesto Basic Court, the Trebnje Unit decided to join two sets of non-contentious proceedings.
On 26 November 1992 the applicants replied to the request of 10 March 1992. They also requested the Novo mesto Basic Court, the Trebnje Unit to issue a partial decision on restitution in kind and to stay the proceedings until the Supreme Court rendered a leading decision on restitution of property belonging to natural persons.
On 31 December 1992 the Community of Trebnje filed submissions.
On 8 March 1993 the applicants applied for an interim injunction.
On 5 April 1993 the Novo mesto Basic Court, the Trebnje Unit handed down a partial decision, returning the property that could be restituted in kind to the applicant’s late father.
On 15 April 1993 five defendants, all natural persons, requested the court to issue a supplementary decision on legal costs.
On 23 April 1993 the applicants lodged an appeal against the decision of 5 April 1993.
On 2 June 1993 the Ljubljana Higher Court rejected the appeal.
On 4 June 1993 the applicants filed a request for an interim injunction on prohibition of alienation or encumbrance of the remaining property.
On 11 June 1993 two defendants replied.
On 23 June 1993 the request was rejected. The applicants filed an appeal which the Ljubljana Higher Court dismissed on 13 October 1993.
On 24 January 1994 the new ownership of the real estate restituted in kind to the applicants’ late father was registered in the land register.
On 8 September 1994 the applicant Ms Gliha filed a document relating to a plot of land which had been allegedly omitted from the decision of 5 April 1993.
On 1 July 1997 the Trebnje Local Court (new style of the first-instance court further to the reform) received the applicant Ms Gliha’s request lodged with the Supreme Court on 18 June 1997.
On 9 August 1997 the Parliament passed the Act on the Temporary Suspension of certain Provisions of the Act on Denationalisation and of the 1978 Act on the Implementation of Penal Sanctions (“the Temporary Suspension Act”). It had the effect of suspending extant claims under the 1978 Act, originally until 20 December 1997 and subsequently, under new legislation, until 31 March 1998.
While those provisions were in abeyance, the Parliament passed the 1998 Act on Amendments and Supplements to the Act on Implementation of Legal Sanctions (the “1998 Act“). That Act added new Sections to the 1978 Act.
Section 145A applied the provisions of the DA regarding the form and scope of restitution as well as the restrictions on restitution and the valuation of property to claims for restitution of property forfeited in criminal proceedings terminated before 31 December 1958 (see “Relevant domestic law and practice”) .
In 1998 and 1999 several individuals filed a constitutional initiative challenging the 1998 Act before the Constitutional Court on the ground that its provisions were retroactive and discriminatory. On 16 July 1998 the Constitutional Court dismissed the initiative (decision no. U-I-60/98 - see “Relevant domestic law and practice”).
On 11 August 1998 the applicants filed a complaint with the Supreme Court concerning the length of the proceedings.
On 11 September 1998 the Trebnje Local Court informed the applicants that due to the change of legislation and stay of the proceedings, the court had been unable to proceed with the examination of their claim and that a hearing would probably be scheduled in October 1998.
On 2 November 1998, on the basis of the amended Article 145B of the 1978 Act, the Trebnje Local Court requested the applicants to designate entities liable for the restitution of property.
The applicants filed an appeal and lodged a request for “exclusion of all courts in the Dolenjska region and of the president of the Ljubljana Higher Court”. On 23 November 1998 the court adjourned a hearing pending the outcome of the request for exclusion.
On 16 December 1998 the president of the Supreme Court rejected the request for exclusion of the president of the Ljubljana Higher Court.
On 24 December 1998 the applicants were summoned to supplement their request for exclusion of all courts in the Dolenjska region.
In reply, on 11 January 1999 the applicant requested the transferral of jurisdiction. On 28 January 1999 the Supreme Court rejected this request.
On 14 April 1999 the Ljubljana Higher Court rejected the appeal against the decision of 2 November 1998.
On 28 May 1999 the applicants filed a request for exclusion of the Supreme Court judges and a request for protection of legality.
On 10 June 1999 the Trebnje Local Court rejected the applicants’ request for protection of legality as inadmissible.
On 9 July 1999 the applicants lodged a constitutional appeal against the Ljubljana Higher Court’s decision of 14 April 1999.
On 9 August 1999 the Attorney General rejected the applicants’ request to file a request of legality against the Higher Court’s decision.
On 16 October 2000 the Constitutional Court requested the applicants to supplement their appeal.
On 16 November 2000 the applicants replied and also filed a constitutional initiative challenging the 1998 Act.
On 28 November 2000 the Trebnje Local Court made inquiries about the state of denationalisation proceedings initiated by the applicants with the Trebnje Administrative Unit. The latter replied on 5 December 2000.
On 19 December 2000 the Constitutional Court dismissed the applicants’ constitutional appeal against the decisions of 2 November 1998 and 14 April 1999. It also separated the part of the applicants’ submissions pertaining to the 1998 Act and reserved it for a later decision.
On 22 February 2001 the Constitutional Court dismissed the applicants’ initiative challenging Sections 145A and 145C of the amended 1978 Act.
On 7 February 2002 the Trebnje Local Court again summoned the applicants to designate entities liable for the restitution of property, as requested by its decision of 2 November 1998. It also made inquiries about the confiscated real estate with the Regional Mapping and Surveying Administration of Novo mesto. A hearing was scheduled for 26 February 2002.
On 26 February 2002 the applicants’ representative sent a letter to the Trebnje Local Court’s stating that its decision of 2 November 1998 had no legal ground. He also requested the court to initiate proceedings for review of constitutionality of the 1998 Act.
The applicants’ representative repeated this at the hearing held on the same day and stated that the applicants would initiate such proceedings themselves if the Trebnje Local Court failed to do so. The latter postponed the hearing.
On 27 February the Trebnje Local Court received the reply from the Regional Mapping and Surveying Administration of Novo mesto.
On 4 March 2002 the Trebnje Local Court informed the applicants that the Constitutional Court had already reviewed the constitutionality of the 1998 Act on 16 July 1998. It again requested the applicants to act in compliance with its decision of 2 November 1998.
A new hearing was scheduled for 26 March 2002 but the applicants’ representative requested the court to stay the proceedings since they had lodged a new initiative with the Constitutional Court. The Trebnje Local Court stayed the proceedings.
On 10 April 2003 the Constitutional Court rejected the initiative.
On 30 December 2003 the Trebnje Local Court rejected the applicants’ claim since they had not properly designated the entities liable for restitution of property.
On 13 February 2004 the applicants filed an appeal, stating that they had not been warned of possible consequences of poor representation. They also indicated the entity liable for restitution and the form of damages sought.
On 29 September 2004 the Ljubljana Higher Court granted the appeal and remitted the case to the first-instance court.
On 22 April 2005 the Court again made inquiries with the Regional Mapping and Surveying Administration Unit of Novo mesto about the confiscated real estate. The latter replied on 13 May 2005.
On 1 June 2005 the Trebnje District Court decided to appoint a court valuator – civil engineer. It instructed the applicants to pay his fees in advance, which they did.
On 29 June 2005, further to the change of legislation, the applicants filed a request for lost profits from the date of annulment of the conviction until 5 May 2007. They also requested to be exempted from payment of costs of the proceedings and an exclusion of a judge.
On 21 July 2005 the applicants’ representative requested the court to return the paid sum to them and to transfer the case to another court.
On 9 September 2005 the president of the Higher Court rejected the applicants’ request for exclusion of a judge.
On 22 September 2005 the Supreme Court rejected their request filed on 21 July 2005.
On 6 October 2005 the Trebnje Local Court requested the applicants to substantiate their request for the exemption of costs. On 27 October 2005 they replied to the court’s inquiries.
On 9 November 2005 the Trebnje Local Court rejected their request. The applicants lodged an appeal.
On 4 January 2006 the Ljubljana Higher Court rejected the appeal.
On 31 January 2006 the applicants supplemented their submissions of 29 June 2005.
On 6 February and 6 March 2006 hearings were held.
On 17 March 2006, a civil engineering expert was appointed. He prepared his opinion on 26 June 2006.
On 25 October 2006, after a hearing, the Trebnje Local Court issued a decision on the payment of compensation for the confiscated property in bonds of the Republic of Slovenia amounting to 16,281,754.00 SIT (67,942.55 EUR). The applicants filed an appeal.
On 17 November 2006 the Trebnje Local Court issued a supplementary decision on the payment of expert fees.
On 21 December 2006 the applicants filed an appeal and an application for exemption from payment of the court fees as well as a request for transferral of jurisdiction.
The proceedings are currently pending before the Ljubljana Higher Court.
The 1978 Act on Implementation of Penal Sanctions, as amended (Zakon o izvrševanju kazenskih sankcij, Official Journal nos. 17/78, 8/90) originally excluded from restitution all those sentenced before 31 December 1958.
“If the sanction of forfeiture of property is quashed, the forfeited property shall be restored to the person sentenced or his heirs.
If the restitution of property in whole or in part is physically or legally impossible, the actual value of that property at the time of the decision on its restitution, and according to the state of the property at the time of forfeiture, shall be paid by the socio-political unit to which the property was allocated. (...)”
The 2000 Act on Implementation of Penal Sanctions (Official Journal no. 22/2000) replaced the 1978 Act.
The Denationalisation Act (Zakon o denacionalizaciji, Official Journal no. 27/91) formed the basis for restitution of property (or its value) that had passed into State ownership through previous legislation (agrarian reform, nationalisation, confiscation, etc.).
Section 3 provides that all natural persons whose property had passed into State ownership on the basis of the listed legislation adopted in the aftermath of the Second World War are entitled to denationalisation. Section 4 further specifies that all other natural persons whose property was nationalised before 1963 are entitled to denationalisation.
Sections 2 and 42 to 44 provide that, where property cannot be returned in its original form, compensation is payable (not in cash but in State bonds payable in instalments over 15 years).
Section 92 of the 1991 Act extended its provisions to property forfeited in criminal proceedings that had terminated by 31 December 1958. That provision was rescinded by the Constitutional Court on 5 November 1992, partly on the ground that it was retroactive and therefore violated Article 155 of the Slovenian Constitution (decision no. U-I-10/92).
3. The 1997 Act on the Temporary Suspension of Certain Provisions of the Act on Denationalisation and of the Act on Implementation of Penal Sanctions
Section 2 of the 1997 Act on the Temporary Suspension of Certain Provisions of the Act on Denationalisation and of the Act of Implementation of Penal Sanctions (Zakon o začasnem zadržanju izvajanja nekaterih določb zakona o denacionalizaciji in zakona o izvrševanju kazenskih sankcij, Official Journal no. 49/1997) suspended, inter alia, originally until 20 December 1997 and subsequently, under new legislation, until 31 March 1998, those proceedings concerning claims for the restitution of or payment of compensation for property confiscated by virtue of criminal judgments handed down before 31 December 1958 and subsequently annulled.
4. The 1998 Act on Amendments of, and Supplements to, the Act on Implementation of Legal Sanctions
The 1998 Act on Amendments of, and Supplements to, the Act on Implementation of Legal Sanctions (Zakon o spremembah in dopolnitvah Zakona o izvrševanju kazenskih sankcij, Official Journal no. 10/98) made minor amendments to Section 145 of the 1978 Act.
It also added new Sections 145A and 145C to the 1978 Act. As far as the criminal proceedings terminated before 31 December 1958 are concerned, Section 145A replaced Section 145, applying the provisions of the DA regarding the form and scope of restitution as well as the restrictions on restitution and the valuation of property to claims for restitution of forfeited property. Section 145C expressly removed the right to compensation for the previous owner’s inability to make use of the property during the period of forfeiture.
Section 3 made the change applicable in non-contentious and contentious proceedings concerning the restitution of confiscated property when such proceedings commenced before the Act came into force, but had not become final by that time.
In June 2002, further to the Constitutional Court’s ruling of 15 November 2001, Section 145C was amended again so that persons entitled under Section 145A might claim compensation for being unable to use or to manage the property or for loss of earnings incurred throughout the period running from the quashing of the forfeiture of the property until the decision on its restitution becomes final.
The following provisions of the 1991 Constitution (Ustava Republike Slovenije, Official Journal no. 33/91) are relevant here:
“In Slovenia everyone shall be guaranteed equal human rights and fundamental freedoms irrespective of national origin, race, sex, language, religion, political or other conviction, material standing, birth, education, social status or any other personal circumstance.
All are equal before the law.”
“Human rights and fundamental freedoms shall be exercised directly on the basis of the Constitution.
The manner in which human rights and fundamental freedoms are exercised may be regulated by law whenever the Constitution so provides or where this is necessary due to the particular nature of an individual right or freedom.
Human rights and fundamental freedoms shall be restricted only by the rights of others and in such cases as are provided by this Constitution.
Legal protection of human rights and fundamental freedoms, and the right to obtain redress for the violation of such rights and freedoms, shall be guaranteed.
No human right or fundamental freedom regulated by legal acts in force in Slovenia may be restricted on the ground that this Constitution does not recognise that right or freedom or recognises it to a lesser degree.”
“Everyone shall be guaranteed equal protection of rights in any proceeding before a court and before other state authorities, local community authorities and bearers of public authority that decide on his or her rights, duties or legal interests.”
“Everyone has the right to have any decision regarding his rights, duties and any charges brought against him made without undue delay by an independent, impartial court constituted by law.
Only a judge duly appointed pursuant to rules previously established by law and by judicial regulations may judge such an individual.”
“Everyone shall have the right to compensation for damage caused by the unlawful acts of a person or body when performing a function or engaged in an activity on behalf of a state or local authority or as a holder of public office ...”
“Any person unjustly convicted of a criminal offence or deprived of his liberty without due cause has the right to rehabilitation and compensation, and other rights provided by law.”
“The right to private property and inheritance shall be guaranteed.”
“Laws and other regulations and general legal acts cannot have retroactive effect.
Only a law may establish that certain of its provisions have retroactive effect, if this is required in the public interest and provided that no acquired rights are infringed thereby.”
“The Constitutional Court shall hear:
... constitutional appeals in which specific acts are alleged to have infringed a human right or fundamental freedom; ...
Unless otherwise provided by law, the Constitutional Court shall hear a constitutional appeal only if legal remedies have been exhausted. The Constitutional Court shall decide whether a constitutional appeal is admissible for adjudication on the basis of statutory criteria and procedures.”
In 1998 and 1999 several individuals challenged the 1998 Act by constitutional initiative (ustavna pobuda) before the Constitutional Court on the ground that its provisions were retroactive and discriminatory.
On 16 July 1998, the Constitutional Court ruled (a joined decision no. U-I-60/98) that the disputed provisions of Sections 145A and 145C of the 1998 Act did not conflict with the Constitution because such interference with the constitutional rights granted in Articles 30 (right to rehabilitation and compensation in criminal proceedings) and 33 (right to own and inherit property) of the Constitution was indispensable for the protection of the rights of other claimants under the DA.
Placing unjustly convicted persons on an equal footing with all other rightful claimants regarding the redress of post-war wrongs was an appropriate means through which the legislator had achieved his aim. The principle of the Welfare State empowered the legislator, with due consideration paid to the right of all citizens to social security, to have regard to the financial resources of the State and, in cases which were constitutionally admissible, also to restrict certain rights accordingly.
The Constitutional Court also added that, when deciding, in November 1992 (decision no. U-I-10/92), to quash Section 92 of the DA, it had been unaware of the full extent of the property forfeited through criminal proceedings prior to 31 December 1958 and thus also of the financial obligations incumbent on the State.
The Constitutional Court ruled that Section 3 of the 1998 Act was in conformity with the Constitution notwithstanding the fact that it retroactively interfered with acquired rights because the retroactive effect of the Act was justified by the public interest, and since such interference, provided it be subjected to rigorous constitutional scrutiny, was in conformity with paragraph 3 of Article 15 of the Constitution.
The Constitutional Court also emphasised the need, in the light of the Temporary Suspension Act and the 1998 Act, for swift completion of pending cases, all the more so as the restitution of property had twice been delayed by law and that the matter required an early solution.
On 15 November 2001, the Constitutional Court ruled that exclusion of claims for compensation for the inability to use or manage the property or in respect of lost profits for the period running from the quashing of the sentence of forfeiture until the decision on restitution became final was unconstitutional. In June 2002, the Parliament adopted a new wording of Section 145C.
On 22 February 2001 the Constitutional Court dismissed the applicants’ initiative challenging Sections 145A and 145C of the amended 1978 Act and on 10 April 2003 the Constitutional Court rejected another initiative lodged by the applicants.
The Act on the Protection of the Right to a Trial without undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Journal, No. 49/2006) has been implemented since 1 January 2007. Under its sections 1 and 2, the right to a trial within a reasonable time is guaranteed for a party to court proceedings, a participant under the Act governing non-contentious proceedings and an injured party in criminal proceedings.
Section 3 provides for two remedies to expedite pending proceedings - a supervisory appeal (nadzorstvena pritožba) and a motion for a deadline (rokovni predlog) - and, ultimately, for a claim for just satisfaction in respect of damage sustained because of the undue delay (zahteva za pravično zadoščenje).


ITEMID: 001-112165
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: GRANDCHAMBER
DATE: 2012
DOCNAME: CASE OF MOUVEMENT RAËLIEN SUISSE v. SWITZERLAND
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed (Article 35-3 - Manifestly ill-founded);No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
JUDGES: András Sajó;Ann Power-Forde;Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Françoise Tulkens;Ganna Yudkivska;George Nicolaou;Giorgio Malinverni;Helen Keller;Josep Casadevall;Khanlar Hajiyev;Kristina Pardalos;Ledi Bianku;Mark Villiger;Mihai Poalelungi;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Paulo Pinto De Albuquerque;Sverre Erik Jebens
TEXT: 10. The applicant association, which was set up in 1977, is a non-profit association registered in Rennaz (Canton of Vaud). It is the national branch of the Raelian Movement, an organisation based in Geneva and founded in 1976 by Claude Vorilhon, known as “Raël”. According to its constitution, its aim is to make the first contacts and establish good relations with extraterrestrials.
11. According to the information available on the applicant association’s website at the time of the adoption of the present judgment, the Raelian Movement’s doctrine is based on Raël’s alleged contact with the “Elohim”, extraterrestrials with “advanced technology”, who are said to have created life on earth and a number of world religions, including Christianity, Judaism and Islam. The Raelian Movement’s followers believe that scientific and technical progress is of fundamental importance and that cloning and the “transfer of conscience” will enable man to become immortal. In that connection the Raelian Movement has expressed opinions in favour of human cloning.
12. Some texts of the Raelian Movement or works written by Raël himself advocate a system of government called “geniocracy”, a doctrine whereby power should be entrusted only to those individuals who have the highest level of intellect.
13. In his book Sensual Meditation Raël defines this concept as an “instruction manual” given to humans by extraterrestrials, enabling each person “to discover his/her body and especially to learn how to use it to enjoy sounds, colors, smells, tastes, caresses, and particularly a sexuality felt with all one’s senses, so as to experience the cosmic orgasm, infinite and absolute, which illuminates the mind by linking the one who reaches it with the universes he/she is composed of and composes”.
14. On 7 March 2001 the applicant association requested authorisation from the police administration for the city of Neuchâtel (the “police administration”) to conduct a poster campaign in the period between 2 and 13 April 2001. The poster in question, measuring 97 cm by 69 cm, featured in the upper part the following wording in large yellow characters on a dark blue background: “The Message from Extraterrestrials”; in the lower part of the poster, in characters of the same size but in bolder type, the address of the Raelian Movement’s website, together with a telephone number in France, could be seen; at the very bottom was the phrase “Science at last replaces religion”. The middle of the poster was taken up by pictures of extraterrestrials’ faces and a pyramid, together with a flying saucer and the Earth.
15. On 29 March 2001 the police administration denied authorisation, referring to two previous refusals. It had been indicated in a French parliamentary report on sects, dating from 1995, and in a judgment of the president of the Civil Court for the district of La Sarine (Canton of Fribourg), that the Raelian Movement engaged in activities that were contrary to public order (ordre public) and immoral.
16. In a decision of 19 December 2001 the municipal council of the city of Neuchâtel dismissed an appeal from the applicant association, finding that it could not rely on the protection of religious freedom because it was to be regarded as a dangerous sect. The interference with freedom of expression had been based on Article 19 of the Administrative Regulations for the City of Neuchâtel (the “Regulations”); its purpose was to protect the public interest and it was proportionate, since the organisation advocated, among other things, human cloning, “geniocracy” and “sensual meditation”.
17. On 27 October 2003 the Neuchâtel Land Management Directorate upheld that decision. It noted that, for the Raelian Movement, life on earth had been created by extraterrestrials, who were also the founders of the various religions and were capable of saving the world, and accepted that this amounted to a religious conviction protected by freedom of conscience and belief. It further accepted that the Regulations constituted a sufficient legal basis in such matters. The Directorate observed that there was nothing offensive in the text and picture on the poster, or in the allusion to extraterrestrials. However, it pointed to the fact that the Raelian Movement advocated “geniocracy” (a political model based on intelligence) and human cloning. Moreover, in a judgment of 13 February 1998 the Fribourg Cantonal Court had found that the movement also “theoretically” advocated paedophilia and incest, especially in the works of Raël himself. The practice of “sensual meditation” could also easily lead to abuse. In addition, the website of Clonaid, to which the Raelian Movement’s site contained a link, offered specific services in the area of cloning, and the notion of eugenics was contrary to the principle of non-discrimination. The poster campaign was prejudicial to morals and to the rights of others. In any event, the Raelian Movement had other means by which to disseminate its ideas.
18. The applicant association appealed to the Administrative Court for the Canton of Neuchâtel. It claimed, among other things, that the mere defence of “geniocracy”, cloning and sensual meditation were not offensive opinions. Moreover, it argued that the movement denounced paedophilia through its association Nopedo. The refusal to authorise its poster thus amounted purely and simply to censorship, especially as the applicant association’s website was, in any event, accessible through a search engine.
19. In a judgment of 22 April 2005 the Administrative Court dismissed the appeal, after acknowledging, however, that the applicant association defended a global vision of the world and was entitled to both freedom of opinion and religious freedom. It found first that the impugned measure was based on the Administrative Regulations, which constituted a law in the substantive sense, and that the poster had to be assessed in relation to the message conveyed by the books and websites that could be accessed from the movement’s website. The services proposed by Clonaid were manifestly contrary to Swiss public order. The court further observed that criminal complaints had been filed against the Raelian Movement alleging the existence of sexual practices that were intended to systematically corrupt young teenagers. The content of the works on “geniocracy” and “sensual meditation” could lead certain adults to sexually abuse children, the child being described in certain works as a “privileged sexual object”. The comments on “geniocracy” and the criticisms of contemporary democracies were likely to undermine public order, safety and morality. For those reasons the Administrative Court concluded that it was not justifiable to authorise the dissemination of such ideas on the public highway.
20. The applicant association lodged a public-law appeal against that judgment with the Federal Court, requesting that it be set aside and that the case be referred back to the respondent authority for a new decision.
21. In a judgment of 20 September 2005, served on the applicant association on 10 October 2005, the Federal Court dismissed the appeal. The relevant passages read as follows:
“The Directorate, and subsequently the Administrative Court, acknowledged that the [applicant] association could rely on the right to freedom of religion (Art. 15 of the Constitution, Art. 9 ECHR and Art. 18 UN Covenant II), in so far as it defended a global vision of the world, especially as regards its creation and the origin of the various religions. The City of Neuchâtel disputes this, noting that the aim of the [applicant] association as defined in Article 2 of its Constitution, is not religious in nature. According to a report on ‘sects’ produced in 1995 for the French National Assembly, the Raelian Movement is classified among the movements that present dangers for the individual, especially on account of the excessive financial demands made of its members and practices that cause bodily harm, and also dangers for the community, in particular through an antisocial discourse. Many of the movement’s publications contain passages described as offensive.
There is no need to ascertain whether a religious movement may, on account of the dangers it represents, be precluded from relying on the right to freedom of religion, or whether the [applicant] association presents such dangers. Indeed, the parties agree that the [applicant] is entitled to rely on the right to freedom of opinion. As to the conditions in which such freedom may be restricted, as laid down in Article 36 of the Constitution, it makes little difference whether Article 15 or Article 16 of the Constitution is relied on (see also Article 9 § 2 and Article 10 § 2 ECHR). The [applicant][applicant] relies on the principles of proportionality and public interest, without distinction as to the constitutional right invoked.
...
5.2 According to case-law, citizens do not have an unconditional right to an extended use of public space, in particular when a means of advertising on the public highway involves activity of a certain scale and duration, and excludes any similar use by third parties (Federal Court judgment 128 I 295 point 3c/aa p. 300 and the judgments cited therein). When it wishes to grant authorisation for extended or private use of public space, or when it supervises the conditions under which a licence is used, the State must nevertheless take into account, in balancing the interests at stake, the substantive content of the right to freedom of expression (Federal Court judgment 100 Ia 392 point 5 p. 402).
5.3 In the present case, the grounds given by the Cantonal Court to confirm the refusal by the City of Neuchâtel relate to respect for morality and the Swiss legal order. The Administrative Court took the view that it was necessary to take into account not only the content of the poster but also the ideas conveyed by the Raelian Movement, together with the works and websites that could be accessed from the movement’s website. Three different criticisms are thus directed against the [applicant] association. Firstly, the [applicant] association’s website contains a link to that of Clonaid, via which this company offers specific cloning-related services to the general public and announced, in early 2003, the birth of cloned babies. Cloning is prohibited under Swiss law, pursuant to Art. 119 of the Constitution and to the Medically-Assisted Reproduction Act (RS 814.90). Secondly, the Administrative Court referred to a judgment of the District Court of La Sarine, which mentioned possible sexual abuse of children. Numerous members of the movement had, moreover, been investigated by the police because of their sexual practices. Thirdly, the promotion of ‘geniocracy’, a doctrine according to which power should be given to the most intelligent individuals, and the criticism consequently directed at contemporary democracies, was likely to undermine the maintaining of public order, safety and morality.
5.4 The [applicant] no longer contests, at this stage, the existence of a sufficient legal basis, namely, in this case, Article 19 of the Regulations. A municipal by-law offers the same guarantees, in terms of democratic legitimacy, as a Cantonal law, and thus constitutes a sufficient legal basis (judgment 1P.293/2004 of 31 May 2005, point 4.3, Federal Court judgment 131 I xxx; Federal Court judgment 122 I 305, point 5a, p. 312; 120 Ia 265, point 2a, pp. 266-267 and the references cited therein). The [applicant] invokes, however, the principle of public interest and criticises the respondent authorities for going beyond the content of the poster and engaging in an assessment of the [applicant] association’s activities. It argues that if it had generally engaged in conduct that was immoral or in breach of public order, it would have been dissolved by the courts pursuant to Article 78 of the Civil Code. If no decision had been taken to that effect, it would not be possible to prohibit it from publicising its philosophy and world vision.
5.5 The poster in itself does not contain anything, either in its text or in its illustrations, that was unlawful or likely to offend the general public. Above the central drawing representing extra-terrestrials appears the text ‘The Message from Extraterrestrials’, without any explanation. Below that, the [applicant] association’s website address and a telephone number are printed in bolder type. The phrase ‘Science at last replaces religion’ is admittedly capable of offending the religious beliefs of certain persons, but it is merely the expression of the movement’s doctrine and cannot be described as particularly provocative.
The poster as a whole can thus clearly be seen as an invitation to visit the website of the [applicant] association or to contact it by telephone. Faced with such advertising, the authority must examine not only the acceptability of the advertisement’s message as such, but also that of its content. It is therefore legitimate to ascertain whether the website in question might contain information, data or links capable of offending people or of infringing the law.
Moreover, contrary to the [applicant]’s allegation, an association may be criticised for opinions or activities which, without constituting grounds for dissolution within the meaning of Article 78 of the Civil Code, nevertheless justify a restriction on advertising.
5.5.1 As regards cloning, it was not the opinions expressed by the [applicant] association in favour of such practices (particularly in the book Yes to Human Cloning, published in 2001 and available via the [applicant]’s website) that were penalised, but the link with the company Clonaid, set up by the association itself, which offers various practical services in this area for payment. The issue is thus not simply, contrary to what the [applicant] has argued, the expression of a favourable opinion of cloning, protected by Article 16 of the Constitution, but the practice of that activity, in breach of its prohibition under Article 119 § 2 (a) of the Constitution. That provision, accepted in 1992 by the majority of the population and of the Swiss Cantons (in the form of Article 24 novies (a) of the Constitution), falls in particular within a policy of protection of human dignity, according to the conception thereof that is generally shared in this country (FF 1996 III 278; see also the response of the Federal Council to a question from R. Gonseth of 9 June 1997). The [applicant] does not contest the unlawfulness of human cloning, especially if it is carried out for commercial gain (section 36 Medically Assisted Reproduction Act; Art. 119 § 2 (e) of the Constitution). Nor can it seriously contest the fact that the link to the Clonaid website contributes to the promotion of an unlawful activity, and goes further than the mere expression of an opinion. On that first point, which already justifies the decision under appeal, the [applicant] has not put forward any real relevant argument within the meaning of section 90 § 1 (b) of the Judicial Organisation Act.
5.5.2 On 15 October 2003 the Intercantonal Beliefs Information Centre provided information on the Raelian Movement. This information shows, among other things, that the movement apparently has a political mission. Virulently attacking democracies, which are referred to as ‘mediocracies’, it defends the notion of ‘geniocracy’, a political model based on individuals’ level of intelligence. A world government would consist of geniuses, elected by individuals whose intelligence is 10% higher than average. Admittedly, ‘geniocracy’ is presented as a utopia and not as a genuine political project; contrary to the finding of the Administrative Court, this doctrine does not appear likely to undermine public order or safety.
However, apart from the fact that the doctrine appears to be largely inspired by eugenics, it is manifestly capable of offending the democratic and anti-discriminatory convictions that underpin the rule of law (see, in particular, the wording of the preamble to the Federal Constitution of 18 April 1999, together with Article 8 of the Constitution concerning equality and the prohibition of discrimination).
5.5.3 Lastly, according to the judgment under appeal, it cannot be considered that the Raelian Movement advocates paedophilia. However, numerous members have apparently been investigated by the police on account of their sexual practices. According to a judgment delivered on 28 November 1997 by the District Court of La Sarine, concerning a right of reply requested by the Mouvement Raëlien Suisse, the remarks made by Raël in his works could lead certain adults to commit acts of sexual abuse against children. The judgment quotes extracts from works by Raël that can be downloaded from the website of the [applicant] association, according to which the sexual education of children should not only be theoretical but should consist of a sensual education aimed at showing them how to derive pleasure from it. That judgment further indicates that, notwithstanding the denial subsequently issued on this point, certain articles published in the quarterly newsletter Apocalypse described the child as a ‘privileged sexual object’. Lastly, it is stated that a friend and a member of the Raelian Movement were convicted by the Vaucluse Assize Court and sentenced to five years’ imprisonment for sexually assaulting a twelve-year-old girl. The judgment was confirmed on 13 February 1998 by the Fribourg Cantonal Court. An ordinary appeal and a public-law appeal by the Mouvement Raëlien were dismissed on 24 August 1998 by the Federal Court, having regard in particular to the equivocal writings of the movement’s founder or members (judgments 5P.172/1998 and 5C.104/1998).
The case-file, moreover, contains various documents concerning criminal proceedings brought against members of the [applicant association] for sexual assault. A judgment of 24 January 2002 of the Lyons Court of Appeal clearly shows that acts of sexual abuse were committed by leaders of the movement against minors. The movement’s leaders are thus said to have advocated ‘a broad sexual freedom strongly encouraging commission of the act’; they had thus corrupted young teenagers by supposedly philosophical discourse, by increasingly specific sexual fondling and by inciting them more and more forcefully, in order to satisfy ‘their sexual needs and fantasies with young girls who had just turned fifteen, and who were changing partners very quickly’.
The fact that the impugned articles date from the 1980s and that there has been no conviction in Switzerland does not negate the involvement of members of the [applicant] association in acts leading to criminal sanctions. The [applicant] does not dispute the fact that certain passages in the books available via its website could lead adults to abuse children. On that point also, the [applicant]’s arguments do not address the grounds set out in the decision under appeal. Since acts of abuse have indeed been recorded on the part of certain members of the Raelian Movement, the argument that paedophilia is strongly condemned by the movement’s official doctrine is not decisive.
5.6 Having regard to the foregoing, the refusal issued to the [applicant] appears to be justified by sufficient public-interest grounds, because it is necessary to prevent the commission of acts constituting criminal offences under Swiss law (reproductive cloning and sexual acts with children). Moreover, certain passages in the works available via the [applicant]’s website (in particular about the ‘sensual awakening’ of children, and ‘geniocracy’) are likely to be seriously offensive to readers.
5.7 The [applicant] invokes the principle of proportionality. It points out that the poster itself contains nothing that is contrary to public order, and maintains that the measure is not appropriate to the aim pursued.
5.7.1 In accordance with Article 36 § 3 of the Constitution, any restriction on a fundamental right must be proportionate to the aim pursued. It must be appropriate to the fulfilment of that aim and any damage to private interests must be kept to a minimum (Federal Court judgment 125 I 474, point 3, p. 482, and the references cited therein).
5.7.2 In the present case, the public interest does not only consist in limiting the publicity given to the [applicant] association’s website, in view of the reservations expressed above about public order and morality; it is even more important to ensure that the State does not provide any support for such publicity by making public space available for it, which might suggest that it endorses or tolerates the opinions or conduct in question. From that perspective, the prohibition of the posters is appropriate to the aim pursued. Furthermore, the measure criticised by the [applicant] is confined to the display of posters in public spaces. The [applicant] association remains free to express its beliefs by many other means of communication at its disposal (see the Murphy judgment of 10 July 2003, ECHR 2003-IX, p. 33, § 74).
5.7.3 The [applicant] takes the view that the authority should have suggested that it make changes to the poster in order to make the content acceptable. However, even though it was aware of the objections raised against its poster campaign, the [applicant] itself never proposed a version of the poster that was likely to be authorised. The Administrative Court, for its part, found that the poster should be prohibited even without the reference to the website, but this seems questionable; there is no doubt, however, that the removal of the address in question would deprive the poster campaign of its object, which, as has been shown, is essentially to advertise the website itself. It is therefore difficult to see what comprehensible meaning the poster could have had without that reference to the website and to the telephone number.
5.7.4 The impugned measure therefore respects the principle of proportionality, in all its aspects. It constitutes, for the same reasons, a restriction that is necessary ‘in a democratic society’, in particular for the protection of morals, within the meaning of Article 9 § 2 and Article 10 § 2 of the ECHR.”
22. Posters of a similar design to that concerned by the present case – also containing the Raelian Movement’s website address and a telephone number but a different text, namely “The true face of God” – were authorised in December 1999 in a number of Swiss cities such as Zurich and Lausanne. The applicant association was also able to conduct further campaigns with posters of other designs – some of which indicated the Raelian Movement’s website address – between 2004 and 2006 in various Swiss towns and cities other than Neuchâtel. However, in October 2004, the town council of Delémont refused to authorise a poster that the applicant association wished to display with the wording “God does not exist”.
23. Article 119 of the Federal Constitution of 18 April 1999 concerns reproductive medicine and gene technology involving human beings. That provision reads as follows:
“Human beings shall be protected against the misuse of reproductive medicine and gene technology.
The Confederation shall legislate on the use of human reproductive and genetic material. In doing so, it shall ensure the protection of human dignity, privacy and the family and shall adhere in particular to the following principles:
(a) All forms of cloning and interference with the genetic material of human reproductive cells and embryos are unlawful.
(b) Non-human reproductive and genetic material may neither be introduced into nor combined with human reproductive material.
(c) Methods of medically assisted reproduction may be used only if infertility or the risk of transmitting a serious illness cannot otherwise be overcome, but not in order to conceive a child with specific characteristics or for research purposes; the fertilisation of human egg cells outside a woman’s body is permitted only under the conditions laid down by the law; no more human egg cells may be developed into embryos outside a woman’s body than are capable of being immediately implanted.
(d) The donation of embryos and all forms of surrogate motherhood are unlawful.
(e) Trade in human reproductive material and in products obtained from embryos is prohibited.
(f) The genetic material of a person may be analysed, registered or made public only with the consent of the person concerned or if the law so provides.
(g) Everyone shall have access to data relating to their ancestry.”
24. In a response of 21 May 2003 to a Swiss National Council Member, who had asked whether measures should be taken against the Raelian Movement under paragraph (a) of that Article, the Federal Council stated:
“As, in Switzerland, the Raelian Movement is merely calling for the social recognition of cloning techniques – or for the lifting of the ban on cloning – its activity falls within the freedom of opinion ...”
25. In Neuchâtel, as in other Swiss municipalities, the management of posters in public areas is entrusted to a private company. The municipal council granted such company a concession for this purpose under the Administrative Regulations of 17 January 2000, of which the relevant provisions read as follows:
“1. The installation of billboards and advertising panels in public areas, and in private areas visible from public areas, shall be subject to authorisation.
2. Such authorisation shall be granted only if the urban-planning and safety conditions are satisfied.”
“1. The Police may prohibit posters that are unlawful or immoral.
2. Flyposting shall be prohibited.”
“An exclusive right in respect of posters displayed within the area of the municipality may be granted by the municipal council.”
26. The Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, also known as the “Convention on Human Rights and Biomedicine”, opened for signature on 4 April 1997 in Oviedo (the “Oviedo Convention”), entered into force on 1 December 1999. It has applied to Switzerland since 1 November 2008.
27. The Additional Protocol to the Oviedo Convention, opened for signature on 12 January 1998 in Paris, entered into force on 1 May 2006 and has been applicable to Switzerland since 1 March 2010. It prohibits “any intervention seeking to create a human being genetically identical to another human being, whether living or dead”.
NON_VIOLATED_ARTICLES: 10
NON_VIOLATED_PARAGRAPHS: 10-1


ITEMID: 001-57509
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: CHAMBER
DATE: 1976
DOCNAME: CASE OF KJELDSEN, BUSK MADSEN AND PEDERSEN v. DENMARK
IMPORTANCE: 2
CONCLUSION: No violation of P1-2;No violation of Art. 14+P1-2;No violation of Art. 8+P1-2;No violation of Art. 9+P1-2
TEXT: 14. The applicants, who are parents of Danish nationality, reside in Denmark. Mr. Viking Kjeldsen, a galvaniser, and his wife Annemarie, a schoolteacher, live in Varde; Mr. Arne Busk Madsen, a clergyman, and his wife Inger, a schoolteacher, come from Åbenrå; Mr. Hans Pedersen, who is a clergyman, and Mrs. Ellen Pedersen have their home in Ålborg.
All three couples, having children of school age, object to integrated, and hence compulsory, sex education as introduced into State primary schools in Denmark by Act No. 235 of 27 May 1970, amending the State Schools Act (Lov om ændring af lov om folkeskolen, hereinafter referred to as "the 1970 Act").
Primary education in general
15. According to Article 76 of the Danish Constitution, all children have the right to free education in the State primary schools (folkeskolen), although parents are not obliged to enrol them there and may send them to a private school or instruct them at home.
During the school year 1970/71, a total of 716,665 pupils were attending 2,471 schools, of which 277 were private with 43,689 pupils. Some parents chose to educate their children at home.
16. At the time of the facts at issue, primary education in State schools was governed by the State Schools Act (Lov om folkeskolen) (a consolidated version of which was set out in Executive Order No. 279 of 8 July 1966), which had been amended on various occasions between 1966 and 1970.
Primary education lasted for nine years; a tenth year, as well as a pre-school year for children of five to six years, were voluntary.
The subjects taught in the first four years were Danish, writing, arithmetic, knowledge of Christianity (kristendomskundskab), history, geography, biology, physical training, music, creative art and needlework. In the fifth and sixth years, English and woodwork were added, and in the seventh year German, mathematics, natural sciences and domestic science. As from the eighth year the pupils were, to some extent, allowed to choose from these courses the subjects they preferred.
Under the Act, the Minister of Education determined the objectives of schooling and the local school authorities fixed the contents of the curriculum and the number of lessons. There were, however, two exceptions to this rule. Firstly, religious instruction was to be in conformity with the Evangelical Lutheran doctrine of the National Church, but children might be exempted therefrom. Secondly, the legislator had directed schools to include in their curricula, often in conjunction with traditional subjects, certain new topics such as road safety, civics, hygiene and sex education.
17. The administration of State schools in Denmark is largely decentralised. These institutions are run by the municipal council, the highest education authority in each of the some 275 municipalities in that country, as well as by a school commission and a school board.
The school commission (skolekommissionen) is as a general rule composed of eleven members of whom six are elected by the municipal council and five by the parents. The commission, in consultation with the teachers’ council and within the limits laid down by law, prepares the curriculum for the schools within its district. The curriculum must be approved by the municipal council. To assist these bodies in the performance of their tasks, the Minister of Education issues guidelines prepared by the State Schools’ Curriculum Committee (hereinafter referred to as "the Curriculum Committee"), set up in 1958.
Each State school has a school board (skolenævn) which comprises three or five members; one member is chosen by the municipal council, the two or four others by the parents. The board supervises the school and organises co-operation between school and parents. It decides, upon recommendation from the teachers’ council, what teaching aids and in particular what books are to be used by the school and it also determines the distribution of lessons among the teachers.
18. Primary education at private schools or at home must not fall below the standards laid down for State schools; it must cover the same compulsory subjects and be of comparable quality. While a school may be established without any advance approval, it is subsequently supervised by the school commissions in order to ensure, in particular, that adequate instruction is given in Danish, writing and arithmetic. The same applies to education given in the home; if the school commission finds twice in succession that such teaching is inadequate, the parents are required to send the child to a State or private school.
The State supports private schools provided that they have not less than twenty pupils in all and not less than ten pupils per class. The State subsidises 85 per cent of their running costs (principal’s and teachers’ salaries, maintenance of buildings, heating, electricity, water, cleaning, insurance, etc.). In addition, private schools may be granted government loans on favourable terms for construction and improvement of buildings. As a result, parents who enrol their children at a private school do not in general have to bear school fees in excess of 1,200 Kroner per child per annum; during the 1973/1974 school year their average expenditure scarcely exceeded 1,050 Kroner. The Danish Parliament voted in May 1976 in favour of a proposal which would oblige municipalities to bear a large proportion of the cost of transport for children attending private schools.
The statistics on private schools show that, in the school year 1973/74, there were about seventy "free" schools; one hundred and one private grammar schools without special religious background; twenty-five Catholic schools; nineteen German minority schools; ten schools for members of other religious societies; eight "Christian free" schools; and some thirty-five other schools.
The applicants claim that there are insufficient private schools and that their pupils frequently have to travel long distances to attend them; moreover, parents wishing to send their children to a private school in Copenhagen have to enter them on waiting lists at least three years in advance.
Sex education
19. In Denmark, sex education in State schools has been a topic of discussion for thirty-five years. As early as 1945, sex education was introduced in the State schools of Copenhagen and several institutions outside the capital copied this example. Nevertheless, the Minister of Education spoke against compulsory sex education when the question was raised in 1958.
In 1960, the Curriculum Committee published a "Guide to teaching in State schools" which distinguished between instruction on the reproduction of man and sex education proper. The Committee recommended that the former be integrated in the biology syllabus while the latter should remain optional for children and teachers and be provided by medical staff. The Committee also advised that guidelines for schools be drawn up on the contents of, and the terminology to be used in, sex education.
In a Circular of 8 April 1960, the Minister of Education adopted the Committee’s conclusions: as from the school year 1960/61 reproduction of man became a compulsory part of biology lessons whereas an official guide issued by the Ministry, dating from September 1961, specified that only those children whose parents had given their express consent should receive sex education proper.
20. The Danish Government, anxious to reduce the disconcerting increase in the frequency of unwanted pregnancies, instructed a committee in 1961 to examine the problem of sex education (Seksualoplysningsudvalget). The setting up of such a committee had been urged, among others, by the National Council of Danish Women (Danske Kvinders Nationalråd) under the chairmanship of Mrs. Else-Merete Ross, a Member of Parliament, and by the Board of the Mothers’ Aid Institutions (Mødrehjælpsinstitutionernes Bestyrelse). Every year the latter bodies received applications for assistance from about 6,000 young unmarried mothers of whom half were below twenty years of age and a quarter below seventeen. In addition, many children, often of very young parents, were born within the first nine months after marriage. Legal abortions, for their part, numbered about 4,000 every year and, according to expert opinions, illegal abortions about 15,000 whereas the annual birth rate was hardly more than 70,000.
21. In 1968, after a thorough examination of the problem, the above-mentioned committee, which was composed of doctors, educationalists, lawyers, theologians and government experts, submitted a report (No. 484) entitled "Sex Education in State Schools" (Seksualundervisning i Folkeskolen m.v., Betænkning Nr. 484). Modelling itself on the system that had been in force in Sweden for some years, the committee recommended in its report that sex education be integrated into compulsory subjects on the curriculum of State schools. However, there should be no obligation for teachers to take part in this teaching.
The report was based on the idea that it was essential for sexual instruction to be adapted to the children’s different degrees of maturity and to be taught in the natural context of other subjects, for instance when questions by the children presented the appropriate opportunity. This method appeared to the committee particularly suited to prevent the subject from becoming delicate or speculative. The report emphasised that instruction in the matter should take the form of discussions and informal talks between teachers and pupils. Finally it gave an outline of the contents of sex education and recommended the drawing up of a new guide for State schools.
22. In March 1970, the Minister of Education tabled a Bill before Parliament to amend the State Schools Act. The Bill provided, inter alia, that sex education should become obligatory and an integrated part of general teaching in State primary schools. In this respect, the Bill was based on the recommendations of the committee on sex education, with one exception: following a declaration from the National Teachers’ Association, it did not grant teachers a general right of exemption from participation in such instruction.
The Bill had received the support not only of this Association but also of the National Association of School and Society representing on the national level education committees, school boards and parents’ associations, and of the National Association of Municipal Councils.
Section 1 para. 25 of the 1970 Act, which was passed unanimously by Parliament and became law on 27 May 1970, added "library organisation and sex education" to the list of subjects to be taught, set out in Section 17 para. 6 of the State Schools Act. Accordingly the latter text henceforth read as follows (Bekendtgørelse No. 300 of 12 June 1970):
"In addition to the foregoing, the following shall also apply to teaching in primary schools:
road safety, library organisation and sex education shall form an integral part of teaching in the manner specified by the Minister of Education.
..."
The Act entered into force on 1 August 1970. As early as 25 June, a Circular from the Minister of Education (Cirkulære om ændring af folkeskoleloven) had advised municipal councils, school commissions, school boards, teachers’ councils and headmasters of schools outside Copenhagen "that further texts, accompanied by new teaching instructions, on sex education would be issued". The Circular specified that "henceforth, parents (would) still have the possibility of exempting their children from such education and teachers that of not dispensing it".
23. After the passing of the 1970 Act, the Minister of Education requested the Curriculum Committee to prepare a new guide to sex education in State schools intended to replace the 1961 guide (paragraph 19 above). The new guide (Vejledning om seksualoplysning I folkeskolen, hereinafter referred to as "the Guide") was completed in April 1971; it set out the objectives of sex education as well as certain general principles that ought to govern it, and suggested detailed curricula for the various classes.
24. On the basis of the recommendations in the Guide, the Minister of Education laid down in Executive Order No. 274 of 8 June 1971 (Bekendtgørelse om seksualoplysning i folkeskolen) the rules of which he had given notice in his Circular of 25 June 1970.
The Executive Order - which applied to primary education and the first level of secondary education in State schools outside Copenhagen – was worded as follows:
(1) The objective of sex education shall be to impart to the pupils knowledge which could:
(a) help them avoid such insecurity and apprehension as would otherwise cause them problems;
(b) promote understanding of a connection between sex life, love life and general human relationships;
(c) enable the individual pupil independently to arrive at standpoints which harmonise best with his or her personality;
(d) stress the importance of responsibility and consideration in matters of sex.
(2) Sex education at all levels shall form part of the instruction given, in the general school subjects, in particular Danish, knowledge of Christianity, biology (hygiene), history (civics) and domestic relations. In addition, a general survey of the main topics covered by sex education may be given in the sixth and ninth school years.
(1) The organisation and scope of sex education shall be laid down in or in accordance with the curriculum. Assistance in this respect is to be obtained from the Guide issued by the State Schools’ Curriculum Committee. If the special instruction referred to in the second sentence of Section 1 para. 2 is provided in the sixth and ninth years, a small number of lessons shall be set aside each year for this purpose.
(2) Restrictions may not be imposed upon the range of matters dealt with in accordance with sub-section 1 so as to render impossible the fulfilment of the purpose of sex education.
(3) The restrictions on the carrying out of sex education in schools, as indicated in Part 4 of the Guide, shall apply regardless of the provisions of the curriculum.
(1) Sex education shall be given by the teachers responsible for giving lessons on the subjects with which it is integrated in the relevant class and in accordance with the directives of the principal of the school. If it is not clear from the curriculum which subjects are linked to the various topics to be taught, the class teachers shall distribute the work, as far as need be, in accordance with the recommendation of the teachers’ council; this latter opinion must be approved by the school board pursuant to section 27 para. 5 of the School Administration Act.
(2) A teacher cannot be compelled against his will to give the special instruction in the sixth and ninth years referred to in the second sentence of section 1 para. 2.
(1) The present Order shall come into force on 1 August 1971.
(2) At the same time the right of parents to have their children exempted from sex education given at school shall cease. They may nevertheless, on application to the principal of the school, have them exempted from the special instruction referred to in the second sentence of section 1 para. 2.
(3) ..."
25. A Ministry of Education Circular (Cirkulære om seksualoplysning i folkeskolen), also dated 8 June 1971 and sent to the same authorities as that of 25 June 1970 (paragraph 22 above), gave the recipients, inter alia, certain particulars on the preparation of State school curricula in this field. It drew, in particular, their attention to the fact that "it was for the school commission, after discussion with the joint council of teachers, to prepare draft provisions governing sex education to be included in the curricula of the schools of the municipality". Recalling that these provisions may take the form of a simple reference to the recommendations in the Guide, the Circular pointed out that the Guide gave, for the fifth to tenth year classes, various possibilities as regards the manner and scope of teaching. Thus, if there were a simple reference to the Guide, "it is for the institution (teachers’ council) to take a decision in this respect with the agreement of the school board".
26. The objectives set out in the Executive Order of 8 June 1971 were identical with those of the Guide, except that the latter contains an addition to the effect that schools must try to develop in pupils openness with regard to the sexual aspects of human life and to bring about such openness through an attitude that will make them feel secure.
27. The principle of integration, provided for in paragraph 2 of section 1 of the Executive Order, is explained as follows in the Guide:
"The main purpose of integration is to place sex guidance in a context where the sexuality of man does not appear as a special phenomenon. Sexuality is not a purely physical matter ... nor is it a purely technical matter .... On the other hand it is not of such emotional impact that it cannot be taken up for objective and sober discussion. ... The topic should therefore form an integral part of the overall school education ..."
28. As for the definition of the manner and scope of sex education (section 2 para. 1 of the Executive Order), the Guide indicates the matters that may be included in the State school curricula.
In the first to fourth years instruction begins with the concept of the family and then moves on to the difference between the sexes, conception, birth and development of the child, family planning, relations with adults whom the children do not know and puberty.
The list of subjects suggested for the fifth to seventh years includes the sexual organs, puberty, hormones, heredity, sexual activities (masturbation, intercourse, orgasm), fertilisation, methods of contraception, venereal diseases, sexual deviations (in particular homosexuality) and pornography.
The teaching given in the eighth to tenth years returns to the matters touched on during the previous years but puts the accent on the ethical, social and family aspects of sexual life. The Guide mentions sexual ethics and sexual morals; different views on sexual life before marriage; sexual and marital problems in the light of different religious and political viewpoints; the role of the sexes; love, sex and faithfulness in marriage; divorce, etc.
29. The Guide advocates an instruction method centred on informal talks between teachers and children on the basis of the latter questions. It emphasises that "the instruction must be so tactful as not to offend or frighten the child" and that it "must respect each child’s right to adhere to conceptions it has developed itself". To the extent that the discussion bears on ethical and moral problems of sexual life, the Guide recommends teachers to adopt an objective attitude; it specifies:
"The teacher should not identify himself with or dissociate himself from the conceptions dealt with. However, it does not necessarily prevent the teacher from showing his personal view. The demand for objectivity is amplified by the fact that the school accepts children from all social classes. It must be possible for all parents to reckon safely on their children not being influenced in a unilateral direction which may deviate from the opinion of the home. It must be possible for the parents to trust that the ethical basic points of view will be presented objectively and soberly."
The Guide also directs teachers not to use vulgar terminology or erotic photographs, not to enter into discussions of sexual matters with a single pupil outside the group and not to impart to pupils information about the technique of sexual intercourse (section 2 para. 3 of the Executive Order).
The applicants claim, however, that in practice vulgar terminology is used to a very wide extent. They refer to a book by Bent H. Claësson called "Dreng og Pige, Mand og Kvinde" ("Boy and Girl, Man and Woman") of which 55,000 copies have been sold in Denmark. According to them it frequently uses vulgar terminology, explains the technique of coitus and shows photographs depicting erotic situations.
30. On the subject of relations between school and parents, the Guide points out, inter alia:
"In order to achieve an interaction between sex education at the school and at home respectively, it will be expedient to keep parents acquainted with the manner and scope of the sex education given at school. Parent class meetings are a good way of establishing this contact between school and parents. Discussions there will provide the opportunity for emphasising the objective of sexual instruction at the school and for making it clear to parents that it is not the school’s intention to take anything away from them but rather ... to establish co-operation for the benefit of all parties. It can also be pointed out to parents that the integrated education allows the topic to be taken up exactly where it arises naturally in the other fields of instruction and that, generally, this is only practicable if sex education is compulsory for pupils. ... Besides, through his contacts with the homes the class teacher will be able to learn enough about the parents’ attitude towards the school, towards their own child and towards its special problems. During discussions about the sex education given by the school, sceptical parents will often be led to realise the justification for co-operation between school and home in this field as well. Some children may have special requirements or need special consideration and it will often be the parents of these children who are difficult to contact. The teacher should be aware of this fact. When gradually the teacher, homes and children have come to know each other, a relationship of trust may arise which will make it possible to begin sex education in a way that is satisfactory to all parties."
31. The Executive Order No. 313 of 15 June 1972, which came into force on 1 August 1972, repealed the Executive Order of 8 June 1971. The new Order reads:
(1) The objective of the sex education provided in Folkeskolen shall be to impart to the pupils such knowledge of sex life as will enable them to take care of themselves and show consideration for others in that respect.
(2) Schools are therefore required, as a minimum, to provide instruction on the anatomy of the reproductive organs, on conception and contraception and on venereal diseases to such extent that the pupils will not later in life land themselves or others in difficulties solely on account of lack of knowledge. Additional and more far-reaching goals of instruction may be established within the framework of the objective set out in sub-section (1) above.
(3) Sex education shall start not later than in the third school year; it shall form part of the instruction given in the general school subjects, in particular Danish, knowledge of Christianity, biology (hygiene), history (civics) and domestic relations. In addition, a general survey of the main topics covered by sex education may be given in the sixth or seventh and in the ninth school years.
The organisation and scope of sex education shall be laid down in or in accordance with the curriculum. If the special instruction referred to in the second sentence of section 1 para. 3 is provided, a small number of lessons shall be set aside for this purpose in the relevant years.
(1) Sex education shall be given by the teachers responsible for giving lessons on the subjects with which it is integrated in the relevant class and in accordance with the directives of the principal of the school. If it is not clear from the curriculum which subjects are linked to the various topics to be taught, the class teachers shall distribute the work, as far as need be, in accordance with the recommendation of the teachers’ council; this latter opinion must be approved by the school board pursuant to section 27 para. 5 of the School Administration Act.
(2) A teacher cannot be compelled against his will to give the special instruction referred to in the second sentence of section 1 para. 3. Nor shall it be incumbent upon the teacher to impart to pupils information about coital techniques or to use photographic pictures representing erotic situations.
On application to the principal of the school, parents may have their children exempted from the special instruction referred to in the second sentence of section 1 para. 3.
..."
32. In a Circular of 15 June 1972 (Cirkulære om ændring af reglerne om seksualoplysning i folkeskolen), sent to the same authorities as that of 25 June 1970 (paragraph 22 above), the Minister of Education stated that the aim of the new Executive Order was to enable local school authorities and, consequently, parents to exert greater influence on the organisation of the teaching in question. In addition, sex education, which "remains an integral part of school education, which is to say that it should form part of the instruction given in obligatory subjects", was to have a more confined objective and place greater emphasis on factual information.
The Circular pointed out that henceforth sex education could be postponed until the third school year. It also mentioned that, whilst the Executive Order no longer contained a reference to the Guide - which was still in force -, this was to emphasise that the Guide was simply an aid to local school authorities in the drawing up of curricula.
Finally, the Circular gave details on the role of teachers. If a teacher thought he would not be able to take care of this instruction in a satisfactory manner, he should be afforded the opportunity of attending one of the information courses provided by the Teachers’ Training College. In addition, the Minister expressly recommended that special consideration be given to the personal and professional qualifications of teachers when courses including sex education are distributed amongst them.
According to the applicants, the result of the Executive Order of 15 June 1972 was to free teachers from the duty of giving instruction in sex. It was alleged that in fact the Minister of Education issued it because many teachers vigorously protested against this duty.
33. On 26 June 1975, the Danish Parliament passed a new State Schools Act (Act No. 313), which became fully effective on 1 August 1976. However, it has not amended any of the provisions relevant to the present case; sex education remains an integral and obligatory part of instruction in the elementary school. Neither has the Act changed the former rules on the influence of parents on the management and supervision of State schools.
While the Bill was being examined by Parliament, the Christian People’s Party tabled an amendment according to which parents would be allowed to ask that their children be exempted from attending sex education. This amendment was rejected by 103 votes to 24.
34. Although primary education in private schools must in principle cover all the topics obligatory at State schools (paragraph 18 above), sex education is an exception in this respect. Private schools are free to decide themselves to what extent they wish to align their teaching in this field with the rules applicable to State schools. However, they must include in the biology syllabus a course on the reproduction of man similar to that obligatory in State schools since 1960 (paragraph 19 above).
35. The applicants maintain that the introduction of compulsory sex education did not correspond at all with the general wish of the population. A headmaster in Nyborg allegedly collected 36,000 protest signatures in a very short space of time. Similarly, an opinion poll carried out by the Observa Institute and published on 30 January 1972 by a daily newspaper, the Jyllands-Posten, is said to have shown that, of a random sample of 1,532 persons aged eighteen or more, 41 per cent were in favour of an optional system, 15 per cent were against any sex education whatsoever in primary schools and only 35 per cent approved the system instituted by the 1970 Act.
According to the authors of two articles, published in 1975 in the medical journal Ugeskrift for Læger and produced to the Court by the Commission, the introduction of sex education has not, moreover, brought about the results desired by the legislator. On the contrary indeed, the number of unwanted pregnancies and of abortions is said to have increased substantially between 1970 and 1974. The Government argue that the statistics from 1970 to 1974 cannot be taken as reflecting the effects of legislation whose application in practice began only in August 1973.
Facts relating to the applicants
36. Mr. and Mrs. Kjeldsen have a daughter called Karen. She was born in December 1962 and attended St. Jacobi municipal school in Varde. All the municipal schools in this town were still using, until the 1972/73 school year, the curricula adopted in 1969, that is, before the 1970 Act entered into force. In Varde the curriculum changed only with effect from the 1973/74 school year.
37. On 25 April 1971, the applicants asked the Minister of Education to exempt their daughter from sex education, saying they wished to give her this instruction themselves.
On 6 May 1971, the Ministry replied to the effect that a new Executive Order on sex education in State schools was in the course of preparation.
The applicants complained to the Danish Parliament but without any result. They then approached the Parliamentary Ombudsman (Folketingets ombudsmand) who told them on 2 June 1971 that he had no competence to deal with the matter.
38. The Ministry of Education, in a letter of 14 July 1971, advised the applicants that Executive Order No. 274 (paragraph 24 above) had been issued and added that, for practical reasons, it was not possible to exempt children from integrated sex instruction.
On 5 August 1971, the applicants wrote again to the Ministry of Education, this time enquiring about sex education in private schools. The Ministry told them on 20 September that private schools were not obliged to provide instruction beyond that which, since 1960, they had been obliged to give within the context of the biology syllabus.
Some weeks before, that is, on 31 August 1971, the school commission of Varde had refused a request by the applicants that their daughter should be given free private education.
39. On 13 October 1971, the Ministry replied to a further letter, dated 6 September, in which the applicants had requested new legislation to provide for free education without sex instruction. The Ministry said that it did not intend to propose such legislation and it also refused to arrange for the applicants’ daughter to receive separate education. Referring to the reply given to another person who, in the same field, had invoked Article 2 of Protocol No. 1 (P1-2), the Ministry stated that Danish legislation on sex education complied with this provision, particularly in view of the existence of private schools.
On 15 April 1972, the applicants asked the Ministry of Education why the curricula of the Varde municipal schools had not yet been adapted to the new legislation on sex education; the file in the case does not reveal whether the Ministry replied.
40. Meanwhile, the applicants had withdrawn their daughter from the St. Jacobi school and during the 1971/72 school year they educated her at home. In August 1972 they again sent her to the Varde municipal school (Brorsonskolen).
They maintained before the Commission that the nearest private school was nineteen kilometres from their home and that their daughter, who had diabetes, could not be away from home for a long period of time. The Government did not contest these claims.
41. Mr. and Mrs. Busk Madsen have four children, the eldest of whom began school in 1972 at a State school in Åbenrå. They attempted unsuccessfully to have their children exempted from sex instruction.
42. Mr. and Mrs. Pedersen have five children, of whom three were of school age in 1972. Two of them, Ester, born in 1957, and Svend, born in 1965, attended private schools in order to avoid having to follow sex education courses; the third, Hans Kristian, born in 1961, was enrolled at the Poul Paghs Gade municipal school in Ålborg. The applicants paid 660 Kroner a month for Ester, who left the latter school in summer 1972 to attend a private boarding school at Korinth (Fyn), and 75 Kroner for Svend.
The Pedersens had asked the competent authorities – likewise unsuccessfully - to exempt their children from sex instruction. They stated in their application that they were considering sending their third child as well to a private school, if the Commission could not help them.
43. In March 1972, the applicants complained about the use of certain books on sex education at the above-mentioned school. These books had apparently been approved by the school board in consultation with the teachers at the school.
The Education and Culture Committee of the Northern Jutland County Council (Nordjyllands amtsråds undervisnings - og kulturudvalg) decided, however, on 16 June 1972 to uphold the school board’s action and this decision was confirmed by the Minister of Education on 13 March 1973.
NON_VIOLATED_ARTICLES: 14
8
9
P1
NON_VIOLATED_PARAGRAPHS: P1-2


ITEMID: 001-76254
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF TELECKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
TEXT: 7. The applicant was born in 1959 and lives in Lublin, Poland.
8. On 1 February 1999 the Bielsko-Biała District Court (Sąd Rejonowy) ordered that the applicant be remanded in custody in view of the reasonable suspicion that, acting in an organised group, he had committed fraud. The applicant appealed against this decision, but on 19 March 1999 the BielskoBiała Regional Court dismissed the appeal, finding that his detention was necessary to ensure the proper course of the proceedings.
9. On 13 April 1999 the Lublin Regional Court (Sąd Okręgowy), to which the case was in the meantime transferred, further prolonged the applicant’s detention. The court relied in particular on the complexity of the case, the need to obtain expert opinions and the seriousness of the charges against the applicant. In addition, the court considered that there existed a danger that the applicant, if released, would obstruct the process of collection of evidence.
The applicant appealed. On 20 May 1999 the Lublin Court of Appeal (Sąd Apelacyjny) dismissed the appeal.
10. By a decision of 16 June 1999 the Lublin Court of Appeal further prolonged the applicant’s detention on remand. The court considered that the reasons for which the detention had been ordered still existed and that the prosecuting authorities continued the process of obtaining evidence. The applicant’s appeal against this decision was dismissed on 29 July 1999 by the Supreme Court (Sąd Najwyższy) relying on the strong suspicion against the applicant and on the complexity of the case.
11. In September 1999 the applicant was indicted before the Biskupiec District Court. The bill of indictment, directed against the applicant and one coaccused, concerned 16 counts of fraud allegedly committed by them between July and September 1997.
12. On 17 September 1999 the Biskupiec District Court prolonged the applicant’s pre-trial detention relying on the strong suspicion against the applicant and the severity of the anticipated sentence. The court further stated that there was a risk of absconding, in particular, with regard to the second co-accused. The applicant appealed but his appeal was dismissed by the Olsztyn Regional Court on 15 October 1999.
13. On 14 March 2000 the Biskupiec District Court further prolonged the applicant’s detention. The court found that the grounds for the detention given in previous decisions were still valid. On 31 March 2000 the Olsztyn Regional Court dismissed the applicant’s appeal against this decision.
14. At an unspecified later date the applicant requested his release. By decisions of 25 April 2000 and of 10 May 2000, the Biskupiec District Court, rejected his requests, considering that the grounds for detaining the applicant still remained valid.
15. By a decision of 28 June 2000 the Biskupiec District Court prolonged the applicant’s detention until 30 November 2000. The court repeated the reasons given previously. On 14 July 2000 the Olsztyn Regional Court dismissed his appeal against this decision finding that the period of his detention was not excessive.
16. The first trial hearings scheduled for 11 and 12 April 2000 were adjourned as the applicant’s lawyer failed to appear before the court. The court appointed another lawyer for the applicant. The trial started on 8 November 2000.
17. At the hearing held on 21 November 2000 the Biskupiec District Court prolonged the applicant’s detention until 31 January 2001. The court stated that the reasons justifying the applicant’s detention remain valid. The trial court held the hearings on 12 December 2000 and 16 January 2001.
18. By a decision of 31 January 2001, upheld by the Olsztyn Regional Court on 9 February 2001, the Biskupiec District Court prolonged the applicant’s detention until 31 May 2001, finding no grounds on which to order his release under Article 259 of the 1997 Code. The trial court further established that the process of hearing witnesses was incomplete and consequently retaining the applicant in custody was necessary to secure the proper conduct of the proceedings. The court also held that the measure was justified by the severity of the anticipated sentence and the danger that the applicant would interfere with the course of the proceedings.
19. The court held hearings on 20 February, 27 February, 28 March, 24 April and 29 May 2001. From December 2000 till May 2001 the court heard over 60 witnesses.
20. On 9 April 2001, 30 April 2001 and 14 May 2001 the Biskupiec District Court rejected other requests for the applicant’s release.
21. On 31 May 2001 the Biskupiec District Court prolonged the applicant’s detention until 31 July 2001 repeating the grounds given on the previous occasion. The applicant appealed. On 20 June 2001 the Olsztyn Regional Court dismissed his appeal and upheld the contested decision.
22. On 26 June 2001 the Biskupiec District Court convicted the applicant of 16 counts of fraud and sentenced him to 5 years’ imprisonment. The applicant lodged an appeal.
23. On 22 January 2002 the Olsztyn Regional Court held a hearing in the appellate proceedings, at which the applicant’s lawyer was present. The court dismissed the applicant’s appeal and upheld the contested judgment.
24. The applicant lodged a cassation appeal but on 28 November 2002 the Supreme Court dismissed his cassation appeal as unsubstantiated.
25. The Code of Criminal Procedure of 1997 (“1997 Code”), which entered into force on 1 September 1998, defines detention on remand as one of the socalled “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition to leave the country (zakaz opuszczania kraju).
26. Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads:
“Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused committing another, serious offence; they may be imposed only if evidence gathered shows a significant probability that an accused has committed an offence.”
27. Article 258 lists grounds for detention on remand. It provides, in so far as relevant:
“1. Detention on remand may be imposed if:
(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland];
(2) there is a justified fear that an accused will attempt to induce [witnesses or codefendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means;
2. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years’ imprisonment, or if a court of first instance has sentenced him to at least 3 years’ imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.”
28. The Code sets out the margin of discretion as to the continuation of a specific preventive measure. Article 257 reads, in so far as relevant:
“1. Detention on remand shall not be imposed if another preventive measure is sufficient.”
Article 259, in its relevant part, reads:
“1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would:
(1) seriously jeopardise his life or health; or
(2) entail excessively harsh consequences for the accused or his family.”
The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue.
29. Article 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided:
“1. Imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months.
whole may not exceed 12 months.
3. The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed 2 years.
4. Only the Supreme Court may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, a prolonged psychiatric observation of the accused, a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad, when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.”
On 20 July 2000 paragraph 4 was amended and since then the competence to prolong detention beyond the time-limits set out in paragraphs 2 and 3 has been vested with the court of appeal within whose jurisdiction the offence in question has been committed.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3