ITEMID: 001-95470
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: BAYERL v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: The applicant, Mr Achim Bayerl, is a German national who was born in 1956 and lives in Russe, Bulgaria. He was represented before the Court by Mr J. Arnold, a lawyer practising in Munich.
may be summarised as follows.
The applicant and his wife C., also a German national, lived in Bulgaria where they operated their own company. They have two children, A. born in 2001 and D. born on 8 August 2004. In May 2004 the applicant and C. separated, and one year later C. moved out of the marital home.
On 8 May 2005 C.’s residence permit for Bulgaria expired, she could now stay in Bulgaria only up to ninety days within a six-month period; upon request dated 30 August 2005 C.’s right of residence was for humanitarian reasons prolonged once until 9 November 2005. On 9 May 2005 C. registered as a resident in Olpe, Germany, at her mother’s address. With letter dated 11 October 2005 the applicant terminated C.’s employment contract in view of her residence permit status in Bulgaria.
Since April 2005 C. repeatedly travelled to Germany with D. for medical treatment and for visits. In particular, in August 2005 D. underwent surgery in Cologne because of a kidney tumour. On 1 December 2005 C. and D. moved into their own flat in Olpe, but continued also to live in the former marital home in Russe, which had been assigned to C. by the Russe District Court’s decisions of July 2005 and May 2006. From September 2006 onwards C. stayed in Germany with D. more often; in December 2006 she moved her household and personal effects from Russe to Olpe.
In 2004 C. filed a divorce petition with the District Court in Russe. In a hearing on 21 April 2005 she informed the applicant and the court that D. had a suspected kidney tumour which she wanted to have treated in Germany. The parties concluded a settlement, approved by the court, whereby the applicant agreed that C. assume custody of D. until the end of the divorce proceedings, and that she could leave Bulgaria with D. at any time. At the same time contact rights for the applicant were set. In July 2005 the Russe District Court refused the applicant’s request that this settlement be modified, awarded C. also custody of A. and assigned the former marital home to her. In September 2005 this decision was modified by the Russe Regional Court to that effect that custody of A. was now awarded to the applicant. In October 2005 C. withdrew her divorce petition. Consequently, the proceedings were discontinued.
The applicant then filed his own divorce petition and on 19 May 2006 the Russe District Court, by way of temporary measure, awarded C. custody of D. and the applicant custody of A. until the end of the divorce proceedings. The District Court also set contact rights for both parties with regard to the other child and assigned the former marital home to C. This decision was upheld by the Russe Regional Court on 14 July 2006.
On 6 March 2007 the applicant lodged a request for the return of D. to Bulgaria, or alternatively for contact rights, pursuant to the provisions of the Hague Convention on Civil Aspects of International Child Abduction (hereafter “the Hague Convention”). On 4 July 2007 the Hamm District Court appointed a guardian ad litem (Verfahrenspflegerin) for D. On the same day the Youth Welfare Office submitted a report regarding D.’s social situation. On 16 November 2007, following two oral hearings, in which the District Court heard the applicant, C., D. and the guardian ad litem, it granted the applicant’s request and ordered C. to return D. to Bulgaria. In its decision the District Court mainly relied on a letter from the Bulgarian Ministry of Justice dealing primarily with a request of C. under the Hague Convention in respect of the older son A. as well as on a corresponding private expert opinion submitted by the applicant. It argued that C. had been awarded custody of D. only as a temporary measure until the end of the divorce proceedings. Her custody right therefore had to be interpreted as limited to the territory of Bulgaria. Consequently, the District Court considered the removal of D. to Germany wrongful under Article 3 of the Hague Convention because it violated the applicant’s joint custody right in so far as a change of D.’s residence outside of Bulgaria was concerned.
C. appealed the decision. On 20 December 2007 the Hamm Court of Appeal ordered the applicant to submit a certificate of illegality (Widerrechtlichkeitsbescheinigung) pursuant to Article 15 of the Hague Convention. By a letter dated 7 February 2008, submitted with an English translation, the Bulgarian Ministry of Justice stated that:
“... the care for the child D. is granted to the mother, in accordance with the usual residence of the child. The personal contact with the child [A.] ... – too. This contact has to be realized exactly in Bulgaria. Subsequent changes of the enacted temporary measures, motivated eventually by a changed place of residence of the mother, do not reflect on the executive force of the court decision. ...”
On 22 February 2008, following an earlier oral hearing to which it had summoned D. but had then refrained from hearing him because of his young age, the Court of Appeal ordered C. to adhere to the contact regime set out by the Russe District Court but dismissed the applicant’s request to return D. to Bulgaria. It found that, irrespective of whether German or Bulgarian law was applicable, since C. had sole custody of D. his removal had not been in breach of any custody right of the applicant. It could be deduced neither from the Bulgarian courts’ decisions nor from the provisional character of those decisions that the right was limited to the territory of Bulgaria. The Court of Appeal was not convinced by the reasoning of the Bulgarian Ministry of Justice and the private expert opinion; it found that their interpretation did not follow from the Bulgarian courts’ decisions or the relevant provisions of Bulgarian law and was not substantiated by case-law or professional literature. It further found that while a certificate of wrongness was meant to facilitate the determination of whether there was a violation of a custody right it did not bind the court. The decision was served on the applicant’s lawyer on 5 March 2008.
On 31 March 2008 the applicant lodged a constitutional complaint. On 15 April 2008 the Federal Constitutional Court refused to accept the constitutional complaint for examination, stating that it was inadmissible without giving further reasons.
Article 1
“The objects of the present Convention are –
a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”
Article 3
“The removal or the retention of a child is to be considered wrongful where –
a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”
Article 5
“For the purposes of this Convention –
a) "rights of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence;
b) "rights of access" shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.”
Article 15
“The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. ... ”


ITEMID: 001-85866
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: LEADBETTER v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi
TEXT: The applicant, Mr Robert Leadbetter, is a British national who was born in 1940 and lives in Manchester. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 4 February 1987. On 27 February 2002, the applicant made a claim for widows’ benefits. On the same day the applicant was informed that his claim had been disallowed as he was not entitled to the benefits at issue because his wife had died before 9 April 2001. On an unspecified date the applicant made another claim for widows’ benefits. On 4 March 2002 the applicant’s claim was disallowed.
The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The applicant was not in receipt of child benefit at the time of his claim.
The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV; and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-114652
LANGUAGEISOCODE: ENG
RESPONDENT: GEO
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF GOLOSHVILI v. GEORGIA
IMPORTANCE: 4
CONCLUSION: No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
TEXT: 6. The applicant was born in 1988 and is currently serving a prison sentence in Geguti no. 8 Prison.
7. On 8 March 2006 the applicant was arrested in connection with a robbery.
8. On 16 October 2006 the Kaspi District Court convicted him and three others of conspiracy to commit robbery. The conviction was based on various evidence, including the statements of the victim, who had identified the applicant and the other accused as the perpetrators during the trial. The applicant was sentenced to six years in prison.
9. As disclosed by the transcript of the trial, the victim, a person of Azerbaijani origin who had difficulty in speaking Georgian, was assisted by an interpreter. The lawyers of the accused, including that of the applicant, extensively examined the victim and other witnesses for the prosecution.
10. On 8 November 2006 the applicant appealed against the conviction of 16 October 2006, calling into question the lower court’s assessment of the evidence and accusing the investigating authority of procedural omissions. He stated, in particular, that the victim’s incriminating statements lacked credibility, in so far as the victim had been examined at the investigation stage without the assistance of an interpreter.
11. On 25 May 2007 the Tbilisi Court of Appeal, replying to all his major arguments, dismissed the applicant’s appeal of 8 November 2006. As regards the complaint concerning the victim’s statements, the court noted that the conviction had been based on the statements given during the trial, rather than on those obtained at the investigation stage. Having reviewed those statements, the appellate court confirmed their credibility.
12. The decision of 25 May 2007 dismissing the applicant’s appeal was finally upheld by the Supreme Court of Georgia on 17 January 2008.
13. According to the case file, prior to the initiation of the criminal proceedings against the applicant and his consequent detention, he had had no major medical problems and was in good health. Notably, he had been a member of a wrestling club in Gori and, as his coach confirmed, had been in excellent physical condition and been considered a promising sportsman at that time.
14. The case file also contains a document dated 4 November 2008 from the Gori tuberculosis hospital, stating that the applicant had never been registered as a patient there.
15. Subsequent to his arrest on 8 March 2006, the applicant was placed in Tbilisi no. 5 Prison, where he allegedly shared a cell with prisoners infected with pulmonary tuberculosis (“TB”).
16. On 29 February 2008, the applicant was transferred to Geguti no. 8 Prison, where his state of health began to deteriorate from late May 2008. His symptoms were fever and a cough.
17. On 18 June 2008, pursuant to a complaint of 17 June 2008 from the applicant’s mother, a medical expert examined the applicant, diagnosing him with TB. On the same day he was transferred to Ksani Prison, where prisoners with TB were housed.
18Ksani TB Prison issued an opinion which confirmed that the applicant’s right lung had been affected by TB, with a positive sputum culture, and that the disease was at the stage of disaggregation; the applicant was occasionally coughing up blood. The opinion further disclosed that the applicant had started receiving anti-TB medication under the DOTS programme (Directly Observed Treatment, Short-course – the treatment strategy for detection and cure of TB recommended by the World Health Organisation) on 26 June 2008. Notably, he had been prescribed with daily dosages of such conventional antibiotics as isoniazid (300 mg), ethambutol (1,100 mg), rifampicin, pyrazinamide (1,600 mg) and streptomycin (1 gr).
19. On 2 July 2008 the prison authorities arranged for the applicant’s sputum culture and sensibility to be tested by the National Centre for Tubercular and Lung Diseases. The results of those tests, issued on 2 September 2008, showed that the sputum culture was already negative. It was also established that the applicant’s TB bacterium maintained sensitivity with respect to the administered antibiotic drugs, which confirmed the suitability of the ongoing treatment.
20. On 19 September 2008 the prison authority arranged for another round of specific bacteriological tests (smear, culture and susceptibility), the results of which, issued on 22 September 2008, disclosed that the applicant’s treatment was continuing to show promising results.
21. On 26 February 2009 the applicant’s treatment was completed, and on the following day he was transferred from Ksani TB Prison to Geguti no. 8 Prison. The termination of the treatment was based on the opinion of the doctor who had been monitoring the applicant since 26 June 2008, as well as on the results of laboratory tests of the applicant’s sputum, dated 18 February 2008, which confirmed that TB bacilli were no longer present in the applicant’s lungs.
22. The applicant’s medical file further discloses that during the whole period of his treatment, from 26 June 2008 until 26 February 2009, his intake of antibiotics had been closely monitored by medical personnel with the appropriate training.
23. On 19 April 2010 the prison authorities arranged for an X-ray examination of the applicant’s thorax, the results of which confirmed that there were no new tubercular signs in the applicant’s lungs, thus excluding the risk of relapse.
24. Article 207 of the General Administrative Code stated that an individual could sue a State agency for damage under the rules on liability for civil wrongs contained in the Civil Code.
25. Article 413 of the Civil Code entitled an individual to request compensation for non-pecuniary damage caused in respect of damage to his or her health.
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-91576
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF COLAK AND TSAKIRIDIS v. GERMANY
IMPORTANCE: 3
CONCLUSION: No violation of Art. 2-1;No violation of Art. 8;No violation of Art. 6-1
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 7. The first applicant (“the applicant”) was born in 1968 and lives in Wiesbaden.
8. In December 1992 the applicant’s companion found out that he was suffering from lymph gland cancer and Aids. He informed the applicant about the cancer but concealed his Aids infection.
9. On 21 January 1993 he informed their family physician about his diseases but forbade him to disclose to anybody that he had developed Aids. When the applicant consulted the physician on 29 January 1993 he did not mention to her that her companion was suffering from Aids. On 22 December 1994 the applicant’s companion died. During a further consultation in March 1995 the physician informed the applicant that her companion had died from Aids.
10. In April 1995 a blood test established that the applicant was HIV-positive. Since 1995 the applicant has been following antiretroviral treatment. She is not suffering from full-blown Aids.
11. Subsequently, the applicant sued her physician for damages before the Wiesbaden Regional Court (Landgericht). She submitted that the physician had failed to inform her that her companion was suffering from Aids and had thus prevented her from protecting herself against infection.
12. On 28 April 1998 the court-appointed expert, having examined the case file and a number of laboratory results, submitted his expert opinion. The expert considered that it was probable that the applicant had contracted the virus before 29 January 1993. The laboratory results dating from April 1995, combined with general statistical data, only allowed a rough estimate of the time of infection. The expert further considered that it was not general medical practice in early 1993 to treat early HIV infections with antiretroviral drugs. During the oral hearing before the Regional Court the expert expressed the view that an infection before January 1993 was very likely.
13. On 24 February 1999 the Wiesbaden Regional Court, which was in possession of the physician’s medical records on the first applicant and on her late partner, rejected the action. That court considered that the physician had not been obliged to disclose her companion’s infection to the applicant. Having regard to his duty of confidence towards the applicant’s companion, he would only have been under such an obligation if this could be regarded as the only possibility of preventing the applicant’s infection. This had not been the case, as the physician had consistently advised the applicant’s companion to take the necessary steps to prevent infection and could reasonably believe that the latter would follow his advice. Under these circumstances, the Regional Court did not find it necessary to determine whether there was a causal connection between the applicant’s contracting HIV and the physician’s alleged failure to inform her about her companion’s infection.
14. On 5 October 1999 the Frankfurt Court of Appeal (Oberlandesgericht) dismissed the applicant’s appeal. Contrary to the Regional Court’s opinion, the Court of Appeal considered that the physician had misconceived his duty of care owed towards the applicant in his position as family physician and overestimated his duty of confidence owed towards her companion. As laid down in section 34 of the Criminal Code (see Relevant domestic law below) a physician’s duty of confidence owed towards a patient had to be restricted or even given up if a superior value was at stake. By not informing the applicant about the fatal threat to her health, he had committed an error in treatment. The court considered, however, that the physician had not disregarded medical standards in a blindfold way, but had only overestimated his duty of confidence while balancing the different interests. It followed that his behaviour could not be qualified as a gross error in treatment which, according to the established case-law of the Federal Court of Justice, would have entailed a reversal of the burden of proof as to the causality of the error in treatment and the first applicant’s HIV-positive status. Referring to the written opinion submitted by the court-appointed expert in the first-instance proceedings, the Court of Appeal considered that the applicant had not been able to prove that she had contracted the virus after January 1993, when the physician himself had been informed that her companion was HIV-positive. According to the expert’s opinion, it was more likely that she had already become HIV-positive before January 1993. The Court of Appeal further considered that there was no doubt about the expert’s high competence. The expert opinion was well reasoned and took into account relevant scientific publications. Under these circumstances, the Court of Appeal did not find it necessary to hear further expert opinion as requested by the applicant.
The Court of Appeal further considered that medical treatment such as was available in 1993 would not have improved the first applicant’s physical condition, even if she had been informed of her HIV status by that time.
15. On 4 April 2000 the Federal Court of Justice (Bundesgerichtshof) dismissed the applicant’s appeal on points of law for lack of prospect of success.
16. On 14 November 2000 the Federal Constitutional Court (Bundesverfassungsgericht), sitting as a panel of three judges, refused to admit the applicant’s constitutional complaint.
17. In August 2002, in the course of separate criminal investigations against the physician, another medical expert submitted his opinion on the applicant’s HIV-positive status to the Wiesbaden Public Prosecutor. While not concurring with the first expert’s opinion that it was very likely that she had contracted the virus before January 1993, the expert considered that a date prior to January 1993 could not be excluded. In April 2003 the Public Prosecutor discontinued criminal investigations on the ground that it could not be excluded beyond reasonable doubt that the applicant had contracted the virus before January 1993. Appeals by the applicant were to no avail.
18. On 14 September 2007 the applicant requested the physician to hand her the complete medical files. On 5 October 2007 the physician informed her that he had destroyed the medical files after expiry of the time-limit for storage.
19. Section 823 of the Civil Code provides inter alia:
“A person who, wilfully or negligently, unlawfully injures another person’s life, body, health (...) is bound to compensate him for any damage arising therefrom.”
Section 847 as in force at the material time provides inter alia:
“In the case of injury to the body or health (...) the injured party may also demand fair compensation in money for moral prejudice.”
20. A patient requesting damages from a physician under section 823 of the Civil Code generally carries the burden of proof for the requisite causal connection between the physician’s negligence and the damage to his health. According to the established German case-law, in case of gross error in treatment the burden of proof is reversed to the physician. A gross error in treatment is generally assumed if the physician clearly breaches well-established medical rules or assured medical knowledge, and has committed an error which does not appear to be comprehensible from an objective point of view, as a physician must absolutely not commit such an error (see Federal Court of Justice, 26 November 1991, no. VI ZR 389/90, and 4 October 1994, no. VI ZR 205/963). The existence of a gross error has been accepted in cases where a physician had not discovered a serious disease (meningitis) in spite of unambiguous symptoms (see Stuttgart Court of Appeal, 31 October 1996, no. 14 U 52/95, or Oldenburg Court of Appeal, 20 February 1996, no. 5 U 146/95) or had failed to order undoubtedly necessary medical examinations or treatments (Federal Court of Justice, 29 March 1988, no. VI ZR 185/87) or to inform the patient about the necessity to undergo further medical examinations (Federal Court of Justice, 25 April 1989, no. VI ZR 175/88).
21. Section 229 of the Criminal Code provides:
“Whoever negligently causes bodily injury to another person shall be punished with imprisonment for not more than three years or a fine.”
Section 203 provides inter alia:
“Whoever, without authorisation, discloses the secret of another, in particular, a secret which belongs to the realm of personal privacy (...) which was confided to, or otherwise made known to him in his capacity as a physician (...) shall be punished with imprisonment for not more than a year or with a fine.”
Section 34 provides as follows:
“Whoever, faced with an imminent danger to life, limb, freedom, honour, property, or another legal interest which cannot otherwise be averted, commits an act to avert the danger from himself or another, does not act unlawfully, if, upon weighing the conflicting interests, in particular the affected legal interests and the degree of danger threatening them, the protected interest substantially outweighs the one interfered with. This shall apply, however, only to the extent that the act is a proportionate means to avert the danger.”
If the Public Prosecutor refuses to prefer criminal charges against an alleged offender, the aggrieved party may, pursuant to section 172 of the Code of Criminal Procedure, lodge a request for a court decision.
NON_VIOLATED_ARTICLES: 2
6
8
NON_VIOLATED_PARAGRAPHS: 2-1
6-1


ITEMID: 001-79312
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF FERIHUMER v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 6. The applicant was born in 1945 and lives in Waizenkirchen.
7. At the time of the events, he was the father of a pupil of a secondary school in Grieskirchen (Bundesoberstufenrealgymnasium) and vice-chairman and recording clerk (Schriftführer) of the parents' association (Elternverein) at this school.
8. In protest against the government's cuts in the education budget, the teachers of this school decided, together with the teaching staff of two other schools, to reduce and shorten school trips for the school year 2001/2002. The pupils and some parents, including the applicant, did not agree with these measures.
9. The applicant called for a vote by the School Committee (Schulgemeinschaftsausschuss) of the Grieskirchen secondary school on the question whether the class his son was attending, should go on a one week trip to Tuscany or Prague. The School Committee which is composed of three representatives of the teachers, three parents and three pupils and the director of the school, represents parents and pupils in certain school matters.
10. The meeting at which the School Committee should have to vote on the question, after having been once postponed because one of the teachers' representatives could not participate, was finally fixed for 22 January 2002.
11. On 22 January 2002, before the meeting of the School Committee, the chair of the parents' association on behalf of the parents, the pupils' spokesperson on behalf of the pupils and two representatives of the teachers signed a compromise which provided for only a one-day school excursion per class during the school year 2001/2002 and for compensatory school trips in the autumn of 2003.
12. On this day the applicant stated before a journalist of the “Oberösterreicher Rundschau”, a local newspaper for Upper Austria, that this conflict (between the teachers, parents and pupils concerning the boycott measures) was carried out to the detriment of the pupils and that the teachers were applying pressure on the pupils and parents to an intolerable extent and that this amounted in fact to an abuse of their authority.
13. On 24 January 2002 the “Oberösterreicher Rundschau” published an article which stated inter alia: “ 'This conflict is carried out to the detriment of the pupils' blusters professor Johannes Ferihumer, representative of the parents and former teacher at the secondary school. 'Not only this: the teachers apply pressure on pupils and parents to an intolerable extent. This amounts in fact to an abuse of their authority. Who is surprised that the school speaker was at the end of her tether.' ”
14. The majority of teachers of the Grieskirchen secondary school brought proceedings against the applicant for insult and damage to their reputation before the Peuersbach District Court.
15. The Peuersbach District Court heard the applicant, the teachers, the spokesperson of the pupils, the chair of the parents' association and several other witnesses.
16. By judgment of 9 October 2002, it ordered the applicant to refrain from repeating the statement that the teachers were applying pressure on the pupils and parents to an intolerable extent and that this amounted in fact to an abuse of their authority. It noted that the statement was an insult and a defamation within the meaning of Article 1330 of the Civil Code. The applicant had to accept the most unfavourable interpretation of this statement which meant that the teachers had used unlawful and unobjective means in order to make parents and pupils agree to the boycott measures. The applicant had, however, failed to submit any evidence to prove this reproach. The court noted that it was true that, in the course of time the atmosphere between the pupils and teachers at the Grieskirchen secondary school had been strained. The spokesperson of the pupils had complained that the teachers did not take her seriously and avoided any discussion about the boycott measures with her. She had, therefore, resigned from her function as spokesperson. The court further observed that the conflicting interests of teachers, parents and pupils in regard to the boycott measures naturally caused tensions. There was, however, no indication that the teachers had used unlawful and unobjective means, such as, for example, the use of their authority to assign marks, in order to make the parents and pupils agree to the compromise. It was, on the contrary, because of the teachers' unbending attitude concerning the boycott measures that pupils and parents had finally resigned and agreed to the compromise.
17. The court dismissed the teachers' further request for an injunction as regards the applicant's statement that the conflict was detrimental to the pupils.
18. The applicant appealed against this decision. He submitted inter alia that he had alluded to the subtle measures the teachers had employed in order to reach a compromise, such as their threat to boycott the meeting of the School Committee and their tactics to undermine the authority of the pupils' spokesperson. This was contrary to their official duties and, therefore, unlawful. He further referred their successful tactics to delay the meeting of the School Committee, the testimony of some pupils who had stated that they had felt under pressure and the fact that, in the context of the discussions concerning the boycott measures, both the pupils' spokesperson and the chair of the parents' association had resigned from their functions. The statement at issue was a value judgment with sufficient factual basis and was protected by his right to freedom of expression under Article 10 of the Convention. From the context of the situation in which the statements had been made, it was clear that he had referred to the pressure which had led to the signing of a compromise. Neither the concerned pupils, nor the parents had understood his criticism to the effect that the teachers had applied psychical or verbal violence or had applied pressure by their authority to assign marks. Furthermore, the teachers had themselves attracted the attention of the public by their boycott measures which had provoked criticism and resistance.
19. On 5 February 2003 the Wels Regional Court dismissed the appeal. It noted that the statement at issue constituted a statement of fact susceptible of proof. The applicant had failed to prove that the statement was true. The injunction at issue did, therefore, not violate the applicant's right to freedom of expression. The court further ordered the applicant to pay the costs of the proceedings. This decision was served on the applicant's counsel on 13 March 2003.
VIOLATED_ARTICLES: 10


ITEMID: 001-57610
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1987
DOCNAME: CASE OF R. v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 8;Violation of Art. 6-1;Just satisfaction reserved
JUDGES: C. Russo;N. Valticos
TEXT: 8. The applicant, a British citizen born in December 1959, lives in England. In about October 1978, she met a Mr. B, with whom she started living. Her son, A, was born on 29 August 1979, shortly after Mr. B’s release from a term of imprisonment. She had a second child, J, on 9 October 1980 and a third - who is not the subject of the present proceedings - in 1985.
9. Two days after her discharge from hospital after the birth of A, the applicant was severely assaulted by Mr. B. He again assaulted her in October 1979, during a visit to A in hospital. Although the applicant was not aware of it at the time, this incident caused the Social Services Department of the local authority ("the Authority") in whose area she lived to put A on the "at-risk register"; such registers, which are maintained on a non-statutory basis by each local authority for reference purposes as an administrative aid for agencies with professional responsibilities for children, record particulars of children identified as being actually or potentially at risk of abuse.
10. In January 1980, after a period of accommodation in hostels, the applicant and Mr. B obtained the tenancy of a flat, but difficulties arose because of his drinking, his constant assaults on the applicant and his failure to pay the rent. The applicant acknowledges that at this time she was managing to look after A but unable to give him enough love and attention. From February 1980, the family was regularly visited by a social worker, who assisted it notably with its financial problems.
In March 1980, the applicant was visited by a social worker who told her of A’s entry on the "at-risk register". On another occasion, the social worker warned Mr. B that, if he did not "buck his ideas up", A would be taken away. In mid-1980, Mr. B sought treatment for his drinking problem, but when on week-end leave relapsed and again assaulted the applicant.
11. During the course of a visit by the applicant, A and Mr. B to the latter’s family in Wales in September 1980, Mr. B was arrested on fraud charges. On returning home with A, the applicant discovered that Mr. B had permitted squatters to enter the flat and had "sold" them the key. The Authority advised the applicant to put A into voluntary care (see paragraphs 40-42 below) for a few days until the flat could be recovered and it placed A with short-term foster parents employed by its Social Services Department. The Authority subsequently evicted the squatters; the applicant, who was again pregnant, followed its advice to leave A in voluntary care until after her confinement.
12. The applicant’s second child, J, was born on 9 October 1980, by which time Mr. B had returned from Wales, having been given a suspended sentence. On 10 October, he arrived at the foster parents’ home, drunk and in an aggressive mood, to collect A to visit the applicant in hospital. On being notified by the foster parents, the Authority sent a social worker to accompany Mr. B and A. It was worried that Mr. B would remove A from care and the night-duty staff were warned to apply for a place of safety order (see paragraph 31 below) should he try to do so. The social workers also warned Mr. B that, unless his behaviour improved, the Authority might assume his parental rights (see paragraph 43 below).
The applicant was discharged from hospital on 19 October and A was returned home in November, but the situation with Mr. B did not improve.
13. In February 1981, the applicant was admitted to hospital urgently. She and Mr. B decided that since he was incapable of looking after the children, they should be put into the voluntary care of the Authority, which placed them with foster parents. Whilst in hospital, the applicant decided to leave Mr. B. With the assistance of a social worker she went to a women’s aid refuge where she stayed for six weeks.
14. The Authority was fearful as to Mr. B’s likely reaction to the applicant’s decision to leave him and the possibility that he might discharge the children from voluntary care. In February 1981, the Chairman of the Authority’s Social Services Committee approved the passing of a resolution assuming Mr. B’s parental rights over the children - although, since they were illegitimate, he did not in fact have, for the purposes of the relevant legislation, any such rights -, on the ground that his "habits or mode of life render[ed] him unfit to have the care of the child[ren]". He was told of this resolution, but made no objection (see paragraph 44 below). He continued to receive support from the social services and was admitted to hospital in March 1981 for alcohol detoxification, but relapsed.
15. Whilst at the women’s refuge, the applicant visited A and J frequently at their foster parents’ home. She told the social worker responsible that she wanted to discharge the children from care when she had recovered from the period in hospital. She also took legal advice with a view to excluding Mr. B from contact with her or the children, as the Authority had made this a condition for offering her accommodation with them.
Following a case conference held in March 1981 - in the absence of the applicant, who had not been informed of the meeting -, the Authority decided to place J, in addition to A, on the "at-risk register" in view of the uncertainty of the family’s position. Nevertheless, the social worker responsible told the meeting that it was hoped that in time the children would be re-united with the applicant; the possibility that she might resume living with Mr. B was also discussed, but no decision was reached as to the consequences which this should have for her and the children.
On 26 March, A and J were discharged from care and went to live with the applicant at the refuge.
16. The applicant had applied to the local County Court for an injunction excluding Mr. B from the flat and on 31 March 1981 she heard from her solicitor that the proceedings were to come on for hearing on the following day. On the basis of the good relations existing between them, the applicant arranged with the short-term foster parents, with whom the children had been placed before, that they would look after the children on the day of the hearing; this was an informal arrangement in which the Authority was not involved.
On 1 April, the applicant met Mr. B outside the court and they agreed to try to resume their relationship despite the proceedings. The facts relating to the subsequent 24 hours are in dispute. According to the applicant, she asked the foster parents to look after the children for a further night so that she could establish the effectiveness of the reconciliation with Mr. B. She also states that she was told to contact a senior social worker, whom she had never met, who informed her that she could not have her children returned to her if she intended to resume her relationship with Mr. B; she understood the position to be that she should leave the children with the foster parents until 3 April, that the Authority would take no action in the meantime and that, on that date, she should discuss the matter with the social worker whom she knew. According to the social worker’s records, the applicant and Mr. B were both warned on 1 April that the Authority would have to obtain some legal authority over the children, although a parental rights resolution was not mentioned.
17. During a discussion on 2 April 1981, the two social workers responsible for the case agreed that an application should be made to assume the applicant’s parental rights. The relevant notes record:
"... In the longer term, consideration should be given to spelling out to [the applicant] what we would expect of her prior to discharging the children to her again, and that if she appears unable to provide long-term satisfactory care for them we would move to considering freeing them for adoption."
The applicant, who had not been contacted by the Authority on 2 April either in respect of this discussion or otherwise, attended the Social Services Department on the following day as, according to her, she had arranged. She states that she was informed on 3 April that the Authority had passed a resolution assuming her parental rights over A and J.
18. The circumstances surrounding the exact date and the manner of the passing of the resolution are confused. In all subsequent proceedings the Authority maintained that it was passed on 3 April 1981, but the Local Ombudsman’s investigation (see paragraph 26 below) reveals that it was dated 7 April, possibly as a result of delay in typing the document. Although at the time the children were de facto placed with the foster parents who had looked after them when they were in voluntary care (see paragraph 13 above), it appears to be very doubtful whether they were then, as a matter of law, in the voluntary care of the Authority and therefore whether the resolution was lawfully made (section 3(1) of the Child Care Act 1980; see paragraph 43 below). According to the Local Ombudsman, the Authority believed the resolution to be lawful and its officers had acted in good faith. The grounds for the purported assumption of the applicant’s parental rights were that she had consistently failed, without reasonable cause, to discharge the obligations of a parent so as to be unfit to have the care of the children.
19. After service by the applicant, on 15 April 1981, of a counter-notice objecting to the parental rights resolution, the question of its appropriateness was referred by the Authority on 30 April to the juvenile court for decision (see paragraph 44 below). Various hearing dates were set, but had to be vacated; in the meantime, A and J, who had been placed with short-term foster parents, remained subject to the resolution and were visited by the applicant, approximately once a week. The social worker responsible informed her that if Mr. B obtained work and if their flat was improved, the social worker would not oppose the children’s return home. On 4 August, the applicant was offered increased access of two visits per week. According to the Local Ombudsman’s report, the applicant told a social worker in July that she was very anxious about the children returning home because of Mr. B’s behaviour and, on 19 August, that she felt "unable to look after the children". In early August, the juvenile court hearing was adjourned because the applicant’s solicitor was ill and to enable her to obtain a medical report on Mr. B.
20. On 10 August 1981, Mr. B got drunk and broke into a safe in a hospital where he and the applicant had started voluntary work. After going to Wales and spending the proceeds there, they were both arrested and charged, the applicant subsequently being released on bail. On 14 September, she was sentenced to six months’ imprisonment but on 9 October, following an appeal to the Crown Court, she was released on two years’ probation. Mr. B was imprisoned until June 1982, and there has been no further contact between him and the applicant.
21. At a case conference on 25 August 1981, the Authority took the contingent decision that if the parental rights resolution did not lapse - because the applicant either withdrew her objection thereto or failed in challenging it before the juvenile court -, her access to A and J would be stopped and they would be placed for adoption with long-term foster parents. The applicant was not notified of the conference or its outcome and the fact that this decision was taken was only revealed subsequently.
22. The adjourned hearing before the juvenile court was held on 29 September 1981, but on that occasion the applicant withdrew her objection to the parental rights resolution: her then solicitors had advised her that, being in prison at the time, she could not realistically contest the resolution, although she should be able to retain contact with the children.
On her release from prison on 9 October, the applicant asked to see her children. She was told that she could not, firstly because she had been in prison and secondly because of her relationship with Mr. B; she also learned, for the first time, that it was proposed to place the children for adoption in the very near future. They were in fact so placed in December, with long-term foster parents to whom they had been introduced on 6 November. The applicant, who had last seen A and J on 13 September 1981, did not see them again until April 1986 (see paragraph 28 below).
23. Having taken further legal advice, the applicant applied on 8 December 1981 to the juvenile court for the discharge of the parental rights resolution (see paragraph 45 below). She was no longer able to maintain that she had opposed the resolution throughout, but submitted that its discharge would be in the children’s best interests. Due to court delays the case was not heard until 5 and 6 April 1982, when the juvenile court decided by a majority that the resolution should stand. It considered that there was a risk that the applicant would resume her relationship with, and hence expose the children to the influence of, Mr. B; further, that it would be disruptive for the children to move them from the long-term foster parents.
24. An appeal by the applicant to the Family Division of the High Court against this decision was heard on 15-17 November 1982 and was dismissed. The judges took the view that it would cause the children unjustifiable disruption to remove them from their foster parents and concluded that, on balance, the children’s interests were best served by their remaining in care. The applicant had argued that if her appeal were not allowed, the question of her access to the children would be decided by the Authority in its sole discretion and unfavourably to her, given its commitment to their adoption. Whilst it considered this argument, the High Court was not able to examine the question of access as a separate issue (see paragraph 53 below). Both judges referred to the effects of the passage of time between the placing of the children with prospective adopters in December 1981 and the hearing of the appeal, the President of the Family Division stating:
"I do not suggest anyone is to blame for this. It may merely be the result of circumstances ... It cannot be sufficiently stressed that in a case such as the present, where continuity is seen by all concerned to be highly relevant, and indeed was the very basis of the decision of the court below, expedition is all in relation to the possible success of an appeal. There is no reason why an interlocutory application should not be made in this court to expedite the hearing of an appeal."
The applicant was given leave to appeal to the Court of Appeal against the High Court’s decision, but did not pursue the matter.
25. After taking further advice, the applicant applied to the High Court in January 1983 to make the children wards of court (see paragraphs 47-49 and 54 below), in order to raise the issue of her access to them. On 25 February, the High Court, following the principles set out by the House of Lords in A v. Liverpool City Council, declined to exercise its jurisdiction to continue the wardship: it found it impossible to say that there had been some clear abuse by the Authority in the exercise of its discretion (see paragraphs 53-54 below). It considered, inter alia, that it would have been "premature" for the Authority to have informed the applicant in August 1981 of its contingent decision of that date (see paragraph 21 above).
The applicant was granted leave to appeal against this decision but was advised that there were no grounds for doing so; she was also told at that time that there were no further remedies available to her for the resumption of access to the children.
26. The applicant referred the matter to the Local Ombudsman, who has the task of investigating complaints made by a member of the public claiming to have sustained injustice in consequence of maladministration in connection with action taken by a local authority in the exercise of its administrative functions.
The applicant alleged maladministration in that (a) there were shortcomings in the way in which the Authority assumed her parental rights in April 1981 and (b) the Authority failed subsequently to keep her informed of its intentions for her children. In his report of 9 May 1984, the Local Ombudsman found maladministration on the first but not on the second of these grounds, although he added that ideally the applicant should have been told of the decision taken at the case conference of 25 August 1981 (see paragraph 21 above). In considering the injustice suffered as a result of the maladministration found, he stated:
"I cannot now speculate what would have happened had the errors not occurred. Events may quite well have turned out no differently, but it is impossible to say. The clock cannot be put back and, as I have made clear, the future of the children is in the hands of the courts. Accordingly there is little that the [Authority] can now do to remedy the possible injustice, except to apologise to [the applicant] and reimburse her for any costs she has incurred in making her complaint to me, and to review [its] procedures. I am pleased to note that [it is] already carrying out such a review."
27. On 27 May 1983, the foster parents applied to adopt A and J. In April 1984, whilst adoption proceedings were pending before the High Court, the applicant applied to it for the children to be made wards of court, notably because the prospective adopters had separated and in order to seek access to and care and control of the children. In October 1984, the Authority, by its own decision, rescinded the parental rights resolution. On 12 November 1984, the High Court confirmed the wardship and also dismissed the foster parents’ application to dispense with the applicant’s consent to the adoption (see paragraph 57 below); the question of access was adjourned.
28. On 16 December 1985, an order was made in the High Court authorising the guardian ad litem (see paragraph 49 below) to arrange and supervise up to three visits per year between the applicant and A and J; the latter are still wards of court and are living with the foster mother. Such visits took place in April and September 1986 and, at the time of the hearings before the European Court, another was in prospect for January 1987.
29. In the law of England and Wales, there are a number of different and partially co-ordinated procedures for dealing with the welfare of children. Whilst the oldest of these is the wardship jurisdiction of the High Court, it has for many years co-existed with, but not been ousted by, various statutory provisions whereby a child who is at risk may be put into the care of a local authority.
Although the terms are not wholly accurate, the legislation is commonly divided into two categories: the first provides for "compulsory care", by establishing machinery whereby a local authority can obtain a court order committing a child to its care; the second concerns "voluntary care", the machinery here being originally designed to meet an emergency situation without the need of recourse to the courts. At any given time, there are approximately 86,000 children in public care in England and Wales, of whom 70,000 are not living with their parents or a relative.
The statutory provisions have been amended on several occasions and many of them were repealed and replaced by the Child Care Act 1980 ("the 1980 Act"), a consolidating measure the greater part of which came into force on 1 April 1981. In the following summary of the law in force at the time of the present case, the original enactments are cited first and any corresponding provision of the 1980 Act in force at the relevant time is indicated in square brackets.
By way of general background information, the summary covers all three of the procedures referred to above (namely those relating to compulsory care, voluntary care and wardship), but in the present case it was the machinery for voluntary care and the wardship jurisdiction of the High Court which were directly relevant.
30. The principal statute concerning compulsory care is the Children and Young Persons Act 1969 ("the 1969 Act"), as amended by the Children Act 1975 and then partly replaced by the 1980 Act; it enables a local authority to obtain, as a temporary measure, a "place of safety order" and, as longer-term measures, a variety of other orders.
31. Under section 28(1) of the 1969 Act, any person, including a local authority, may apply to a justice of the peace for authority to detain a child and take him to a place of safety; the justice may grant the application if he is satisfied that the applicant has reasonable cause to believe, inter alia, that the child’s proper development is being avoidably prevented or neglected or his health is being avoidably impaired or neglected or he is being ill-treated, or that he is exposed to moral danger.
A "place of safety order" so granted lasts for a maximum of 28 days and cannot be extended. The person detaining the child must as soon as possible take such steps as are practicable for informing his parent of the detention and the reason for it.
If the local authority wishes to retain the child in protective surroundings after the 28-day period, it has either to make the child a ward of court (see paragraphs 47-49 below), or to institute care proceedings under section 1 of the 1969 Act (see paragraphs 32-34 below), or to apply to a justice or a magistrates’ court for an interim order under section 28(6) (see paragraph 37 below); if an application of the last kind is refused, the child’s immediate release "may be ordered".
32. Under sections 1 and 2(2) of the 1969 Act, a local authority which reasonably believes that there are grounds for making an order as to the care and control or supervision of a child is, subject to certain exceptions, under a duty to institute care proceedings by bringing the child before a juvenile court.
33. In care proceedings instituted by a local authority, the parties are the local authority and the child, but not the latter’s parents. The child is entitled, subject to his means, to legal aid and it is open to him to have his parents conduct the case on his behalf either directly or through a lawyer. If the child is of sufficient competence, he may decide that he wishes to be separately represented.
A natural parent who is not acting on behalf of the child is entitled to be notified of and to attend the hearing and to give and call evidence challenging the allegations made by the local authority. As a matter of practice, the court will also allow such parent to cross-examine witnesses on behalf of the local authority and to have separate legal representation.
34. If the court before which the child is brought is satisfied that one of the grounds specified in section 1 of the 1969 Act exists and that the child is in need of care or control which he is unlikely to receive unless an order is made, it may make, inter alia, a supervision order, a care order or an interim order. The specified grounds include those on which a place of safety order may be made (see paragraph 31 above).
35. A supervision order is an order placing the child under the structured supervision of the local authority; subject thereto, he may continue to live with his parents.
36. A care order is an order committing the child to the care of the local authority. The latter will have the same powers and duties with respect to the child as his parent or guardian would have apart from the care order (section 24 of the 1969 Act [10(2) of the 1980 Act]), except that it cannot cause the child to be brought up in any religious creed other than that in which he would otherwise have been brought up and it cannot agree to the child’s adoption.
37. An interim order is a care order limited to a specified period not exceeding 28 days; it may be renewed on application (section 22 of the 1969 Act). It may be made if the juvenile court hearing the care proceedings is not in a position to decide which of the other specified orders ought to be made (section 2(10)) or, alternatively, during the currency of a place of safety order (see paragraph 31 above). The powers and duties of the local authority under an interim order are the same as under a full care order (see paragraph 36 above).
38. A full care order normally terminates when the child in question attains the age of 18 (section 20(3)(b) of the 1969 Act).
In addition, under sections 21(2) and 70(2), the juvenile court may, on application by the child or his parent on the child’s (but not his own) behalf and if it considers it appropriate, discharge the care order and may, on discharging it, make a supervision order in respect of the child. Such applications may be made every three months or, with the juvenile court’s permission, more frequently (section 21(3)). The paramount consideration in deciding whether to discharge the order is the interests of the child.
39. Under sections 2(12) and 21(4) of the 1969 Act, the child in respect of whom the care order was made, or his parent on the child’s (but not his own) behalf, may appeal to the Crown Court against the making of a care order, against the refusal of an application to discharge a care order or against the making of a supervision order on its discharge. The Crown Court will review the decision by way of re-hearing the case. From the Crown Court a further appeal may, with leave, be made to the High Court by way of case stated; thereafter an appeal lies to the Court of Appeal and, in rare cases, to the House of Lords.
The local authority has no general right to appeal against a juvenile court’s refusal to make a care order, except on a point of law to the High Court.
40. The principal statute concerning voluntary care is the Children Act 1948 ("the 1948 Act"), as amended by the Children Act 1975 and then replaced by the 1980 Act. This legislation in effect enables a parent to place his child into the care of a local authority; at the initial stage the authority acquires no special status in relation to the child but a different situation may arise subsequently.
41. Section 1 of the 1948 Act [2 of the 1980 Act] imposes on the local authority a duty to receive into its care a child under 17 where it appears, inter alia, that his parents or guardian are for the time being or permanently prevented by illness, incapacity or other circumstances from providing for his proper accommodation, maintenance and upbringing and that the intervention of the authority is necessary in the interests of the child’s welfare. Whilst the authority must, save as otherwise provided in the Act, keep the child in its care so long as his welfare requires it and he has not attained the age of 18, it is also under a duty to endeavour to secure the resumption of parental care where this appears consistent with the child’s welfare.
42. Section 1 of the 1948 Act [2 of the 1980 Act] specifies that it does not entitle the local authority to keep the child in care if any parent or guardian desires to take over that care. However, if the child has been in care throughout the preceding six months, no person may take him away unless he has given at least 28 days’ notice of his intention to do so or has the authority’s consent (section 1(3A) [13(2)]).
Moreover, if a parent requests the return of the child, the authority is not compelled to comply regardless of his welfare (Lewisham London Borough Council v. Lewisham Juvenile Court Justices [1979] 2 All England Law Reports 297). If it then considers the transfer of care to the parent to be inconsistent with that welfare, it may either pass a parental rights resolution (see paragraph 43 below) or apply to make the child a ward of court (see paragraphs 47-49 below).
43. If it appears to a local authority in relation to any child who is in its care under section 1 of the 1948 Act [2 of the 1980 Act] that, inter alia, a parent of his is unfit to have the care of the child on account, notably, of his habits or mode of life or of having consistently failed without reasonable cause to discharge the obligations of a parent, the local authority may resolve that there vest in it the parental rights and duties with respect to that child (section 2(1) [3(1)]). The rights and duties which so vest are all rights and duties which by law the mother and father have in relation to a legitimate child and his property, including "a right of access" but excluding the right to agree or refuse to agree to the making of an adoption or certain related orders (section 2(11) of the 1948 Act [3(10) of the 1980 Act] and section 85(1) of the Children Act 1975).
Before passing a parental rights resolution, the local authority must consider a report from its Social Services Department on the desirability of assuming parental rights, which report should contain all the material necessary for the proper exercise of the authority’s discretion. In deciding the matter, the authority is to regard the interests of the child as of paramount importance and the views of the parents on the proposal are to be taken into account.
44. If the parent has not already consented in writing to the parental rights resolution and his whereabouts are known, he must be served with notice of it, indicating his right to object by counter-notice within one month (section 2(2) and (3) of the 1948 Act) [3(2) and (3) of the 1980 Act]). If such objection is made, the resolution lapses on the expiry of 14 days from service of the counter-notice (section 2(4) [3(4)]). However, within that period, the local authority may "complain" to a juvenile court, in which event the resolution will not lapse until the complaint is determined; on hearing the complaint, the court may order that the resolution is not to lapse, provided that it is satisfied that the grounds for the resolution were made out when it was passed and subsist at the time of the hearing and that the continuation of the resolution is in the child’s interest (section 2(5) [3(5) and (6)]).
45. A parental rights resolution continues in force until the child attains the age of 18, unless it is previously rescinded by the local authority or terminated by a juvenile court (section 4 of the 1948 Act [5 of the 1980 Act]).
The parent concerned, even if he did not originally object to the parental rights resolution, may apply to a juvenile court for its discharge. The court may grant the application if it is satisfied that there were no grounds for the making of the resolution or that it should be terminated in the child’s interests (section 4(3)(b) [5(4)(b)]). An application based on the original foundation for the resolution can, however, be entertained only if lodged within six months of its adoption (section 127 of the Magistrates’ Court Act 1980).
46. Under section 4A of the 1948 Act [6 of the 1980 Act], an appeal (by the parent or the local authority) lies to the Family Division of the High Court from the making by a juvenile court of an order confirming (under section 2(5) [3(6)]) or discharging (under section 4(3)(b) [5(4)(b)]) a parental rights resolution, or from a juvenile court’s refusal to make such an order. A further appeal lies to the Court of Appeal and, with leave, to the House of Lords.
47. The Family Division of the High Court has an inherent jurisdiction, independent of statutory provisions and deriving from the prerogative power of the Crown acting in its capacity as parens patriae, to make a child a ward of court.
48. The effect of wardship is that custody, in a broad sense, of the child is vested in the court itself; it assumes responsibility for all aspects of his welfare and may make orders on any relevant matter whatsoever, notably as regards the care and control of and access to the child and his education, religion or property. In making such orders, the court is required to treat the child’s welfare as the "first and paramount consideration" (Guardianship of Minors Act 1971, section 1). Unless terminated earlier by order of the court, the wardship continues until the child attains his majority.
Where there are exceptional circumstances making it impracticable or undesirable for the ward to be, or continue to be, under the care of his parents, the court may make an order committing him to the care of the local authority (Family Law Reform Act 1969, section 7(2)), subject to the power of the court to give directions (Matrimonial Causes Act 1973, section 43(5)(a)). In such circumstances, custody of the child remains with the court and it is for the court, and not the local authority, to take major decisions regarding the ward’s future; it retains, inter alia, jurisdiction to make orders for access to the child.
49. Wardship proceedings may be instituted by anyone who can show an appropriate interest in the child’s welfare. An application for a wardship order has to be made by originating summons. The child becomes a ward immediately the summons is issued but the wardship automatically lapses after 21 days unless within that time an appointment is made for the hearing of the summons. This appointment is normally held before a registrar who, subject to an appeal to a judge, may give interim directions on such matters as access to the child and may decide that other interested parties be joined in the proceedings.
A judge will hear contested wardship proceedings and also applications - which can be made at any time by any party - for the variation or discharge of an existing wardship order or for directions on such matters as access to or the education of the child. From the judge’s order, an appeal lies to the Court of Appeal and thence, with leave, to the House of Lords.
The child may be represented in wardship proceedings by a guardian ad litem appointed by the court; this is usually the Official Solicitor, who is a full-time public employee entirely independent of the executive.
Under the Rules of the Supreme Court, it is possible to seek an order expediting the proceedings, notably if a party thereto is dilatory.
50. The functions of a local authority in child-care matters are exercised and decisions are taken either by its Social Services Committee or by a sub-committee or an officer to whom powers have been delegated. At the time relevant to the present case, the practice varied from authority to authority, there being no precise requirements or guidance even of a non-statutory kind, and much depended on the nature or gravity of the decision to be taken. Whether the child is in its care by virtue of the 1948 [1980] or the 1969 Act, the local authority must give first consideration to the need to safeguard and promote the child’s welfare throughout his childhood, and must so far as practicable ascertain his wishes and feelings regarding the decision and give due consideration to them, having regard to his age and understanding (section 59 of the Children Act 1975 [18(1) of the 1980 Act]).
Authorities’ decisions in this area are, in fact, often based on the outcome of case reviews or case conferences. The authority is under a statutory duty to review the case of each child in its care at six-monthly intervals (section 27(4) of the 1969 Act) and, as a matter of practice, the child’s position will in addition be regularly examined at case conferences. Reviews and conferences will be attended notably by the social workers responsible and senior officials of the authority’s Social Services Department, as well as by such other persons as health visitors, doctors and police officers.
51. A parent may on occasion be allowed or invited to attend a case review or case conference or part thereof, although he has no legal right to do so. His contacts with the social workers constitute the most usual channel for the communication of his views on matters to be decided by the authority.
In the absence of legal proceedings, the parent cannot compel the local authority to produce or permit inspection of the minutes of its relevant meetings or reports produced thereat, although the authority has a discretion to allow such inspection. In proceedings for judicial review (but not in juvenile court proceedings), the court may order the pre-trial disclosure of such documents, but only after leave to institute the proceedings has been obtained (see paragraph 53 below); however, this would be a rare occurrence, the general rule being that the documents are privileged and not open to inspection.
52. A parent whose child is in the care of a local authority is not automatically deprived of access to him. The continuation of access is, however, a matter within the discretionary power of the authority (per Lord Wilberforce in A v. Liverpool City Council [1981] 2 All England Law Reports 385). Thus, under English law, the question whether and to what extent a parent is to have access to his child who is in public care was, at the relevant time, within the competence of the local authority to decide, without any application to a court.
Both the 1948 [1980] Act and the 1969 Act reflect the general idea that continuation of parental access to children in public care is in many cases normal and desirable: the former allows the local authority to contribute to the costs of parental visits and the latter makes special provision for certain cases where the parents have not visited the child during a certain period of time.
53. The statutory remedies described in paragraphs 38-39 and 44-46 above, whereby a parent may challenge or seek the discharge of a care order or a parental rights resolution, are directed to the order or resolution as such, there being, at the relevant time, no specific statutory remedy whereby he could contest the isolated issue of a decision to restrict or terminate his access to his child.
A decision of a local authority concerning access can, however, be challenged by way of an application for judicial review. Anyone who wishes to make such an application must first seek, normally within three months of the decision, the leave of the court. The circumstances where judicial review will lie may be briefly summarised as follows:
(a) the authority acted illegally, ultra vires or in bad faith;
(b) the authority failed to take into account relevant considerations, took account of irrelevant considerations or came to a decision to which no reasonable authority could have come (Associated Provincial Picture Houses, Ltd. v. Wednesbury Corporation [1948] 1 King’s Bench Reports 223);
(c) the authority failed to observe statutory procedural rules or to act fairly (see notably R v. The Bedfordshire County Council, ex parte C and R v. The Hertfordshire County Council, ex parte B, Times Law Reports, 19 August 1986).
The remedy of judicial review is concerned with reviewing not the merits of the decision in question but rather the decision-making process itself, and the court will not act as a "court of appeal" from the body involved. Thus, where on a successful application for judicial review the court quashes an authority’s decision, it will normally remit the matter to the authority for reconsideration; it may, however, also direct the authority to reach a conclusion in accordance with the court’s findings (Rules of the Supreme Court, Order 53, rule 9(4)).
54. In certain circumstances, the wardship jurisdiction may also be invoked to question the decisions of a local authority or a juvenile court relating to a child in the former’s care. The general rule is that the prerogative power of the Crown is not for all purposes ousted or abrogated by the exercise of the duties and powers conferred on local authorities by legislation. In the leading case of A v. Liverpool City Council, the House of Lords examined the relationship between the wardship jurisdiction and the authorities’ statutory powers. Their Lordships were unanimously of the view that the courts had no reviewing powers as to the merits of local authority decisions, notably on such matters as access to the child: the general inherent power of the court in its wardship jurisdiction was available to fill gaps or supplement the powers of local authorities but not to supervise (except on judicial review principles; see paragraph 53 above) the exercise of discretion within the field committed to them by statute. Sometimes, however, the local authority itself may invite the supplementary assistance of the court and the wardship may then be continued with a view to action by the court.
The foregoing limits on the High Court’s powers apply only where the wardship proceedings concern a child who is already in public care. If he is not, the High Court can examine fully such questions as access and make such order as it considers to be in his best interests.
55. The inability of parents to approach the courts, save as explained above, where decisions are made by a local authority affecting access to their children led Parliament, in the Health and Social Services and Social Security Adjudications Act 1983, to modify the law on this point.
Under the new provisions - which came into force on 30 January 1984, that is after the events giving rise to the present case -, a local authority may not refuse to make arrangements for access to a child in care and may not terminate such arrangements unless it has first given notice to the parent. The latter then has a right to apply to a juvenile court for an access order, requiring the local authority to allow access subject to such conditions as the court may specify. Where an access order has been made, there is a right to apply for variation. An appeal against the juvenile court’s decision lies to the High Court. Any court dealing with the matter must regard the welfare of the child as the first and paramount consideration.
This new remedy applies only to decisions refusing or terminating access; in all other cases, the nature and extent of access remain within the local authority’s discretion.
56. In December 1983, the Government published a Code of Practice on Access to Children in Care. This document stresses the importance of involving the child’s natural parents in the local authority’s decision-making process in this area and of informing them fully and promptly as to the substance of decisions concerning access.
57. A court cannot make an adoption order in respect of a child unless, inter alia, it is satisfied that each parent freely and unconditionally agrees (Children Act 1975, section 12). However, such agreement may be dispensed with upon a number of grounds specified in that section, notably that the parent is withholding consent unreasonably or has persistently failed without reasonable cause to discharge his parental duties. In reaching any decision relating to the adoption of a child, a court must have regard to all the circumstances, first consideration being given to the need to safeguard and promote his welfare throughout his childhood (Children Act 1975, section 3).
58. Adoption proceedings in respect of a child who is a ward of court may not be instituted without the leave of the High Court. On an application for leave, the court’s function is to consider whether the proposed adoption application is one that might reasonably succeed, the merits of the matter being examined subsequently, once leave has been granted and after compliance with the requirements concerning notices and reports.
VIOLATED_ARTICLES: 6
8
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23802
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: Y. v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Y, born in 1965 and resident in Helsinki, is a Syrian citizen of Kurdish origin. He is represented before the Court by Mrs Nytte Ekman, resident in Kauniainen.
The facts of the case, as submitted by the applicant and as they appear from the documents, may be summarised as follows.
The applicant claims that he has been persecuted in his country of origin as follows:
The applicant is a well-known writer and a poet in his home town Malikija, Syria. He has been subjected to persecution on grounds of his political opinion and ethnic background. He is a member of the Kurdish Democratic Party of Unity in Syria, Yekiti, which aims at guaranteeing human rights to the Kurdish people and at having their land returned to them. The applicant has produced anti-government material, such as posters and poems.
In 1987 he was questioned by the Security Service for the first time, having recited his poems at a party. He was issued with a warning.
On 5 October 1992 he was arrested as a suspect for anti-governmental activities. The arrest lasted 20 days during which the applicant was tortured; he was blindfolded, forced to sit in a car wheel and beaten with a weapon. He was set free in the absence of evidence on the alleged activities, but his friend is still detained.
In April 1993 he was arrested again, having attended a secret conference arranged by the Union Party. The arrest lasted 29 days during which time he was denied sleep and got only a minimum amount of food. The above mentioned torture was repeated. The applicant’s brother was arrested at the same time. The applicant was told that his brother became ill while in detention and died, but he suspects that the brother, who was a district leader of the party, was killed. Since 1993 the applicant has been questioned many times and the Security Service has threatened that he will be killed or imprisoned, if he does not change his views and inform on his friends. The applicant claims that there is a warrant for his arrest in Syria and he fears that he will face at least five years’ imprisonment, if he returns to Syria. He argues that also the mere fact that he has sought asylum abroad will get him arrested.
The applicant left Syria in 1993 and lived in Russia in 1993-1999. While pursuing studies in the Russian language in 1993-1994, he was politically active providing Radio Yerevan with his texts on the conditions in Syria. He is convinced that the Syrian Security Service is aware of his activities in Russia.
The applicant returned to Syria in 1994 and faced similar problems as described above. The same year he returned to Russia.
The applicant was able to enter Syria in 1999 and leave Damascus again in October 1999 since he paid the airport police 400 US dollars (USD). He travelled via Moscow to St. Petersburg and arrived in Finland on 25 April 2000. He applied for asylum the same day. He did not present any travel documents and he had only a copy of his Syrian passport on him. The applicant claims that he bought a false Russian passport in Russia for USD 2,000. He claims that he gave his Syrian passport to a fellow passenger on the bus to Finland, a Russian woman, who promised to send the passport to his girlfriend in St. Petersburg. The applicant kept only a copy of the passport. He promised to bring the original passport to the Finnish authorities as soon as his girlfriend returned it to him.
The applicant’s application for asylum and a resident permit was refused by the Directorate of Immigration (ulkomaalaisvirasto, utlänningsverket) on 8 March 2002 and an order was issued for his removal to Syria. The Directorate of Immigration found, inter alia, that the applicant’s identity had not been established, that he had not presented any travel documents and that he had not submitted any medical certificates concerning the alleged assaults. During the questioning on arrival in Finland, the applicant did not allege that he was forced to flee to Russia in 1993. The applicant had not given account for his reasons for returning to Syria in 1999, although he claimed that there was a warrant for his arrest. The Directorate of Immigration found that it is not credible that a persecuted person, who had been issued an arrest warrant, would be allowed to leave the country. According to the applicant, he had not been arrested since 1993. Moreover, it was not credible that the Syrian authorities would take such an interest in someone who read his poems on the radio in Russia that there would be a warrant for his arrest. The mere fact that the applicant belonged to the Kurdish minority did not constitute a ground for granting him asylum.
On 18 June 2003 the Administrative Court of Helsinki (hallinto-oikeus, förvaltningsdomstolen), having held an oral hearing, rejected the applicant’s appeal, finding that the story about his reasons for leaving Syria in 1999 was vague and superficial. It noted that he was able to visit Syria in 1994 and in 1999 and that he managed to leave the country in 1999 using his own passport. His activities in Russia and Finland, i.e. writing poems and texts about the Kurdish people’s situation, cannot be considered to be such that he would be in need of international protection. The Administrative Court found no evidence that the applicant would be considered an anti-government activist by the Syrian authorities. There were about 1.5 million Kurds in Syria and the mere fact that the applicant was a Kurd did not mean that he was in need of international protection. The court concluded that the applicant would not, on his return to Syria, face any individual risk of inhuman treatment.
A request for application of Rule 39 was refused by this Court on 24 July 2003.
According to written medical statements submitted by the applicant to the Supreme Administrative Court, the arches of his feet are low, his ankle joints are “loose”, his big toes are in a faulty position and his left calf does not strain normally. Moreover, his feet do not “roll” normally when walking. The physiotherapist considered that there was no contradiction between the applicant’s symptoms – pain in his feet and legs etc. – and the finding. Moreover, the applicant has undergone a discussion therapy but is still suffering from depression and anxiety.
The applicant has also submitted a certificate issued on 27 May 2002 in Bad Salzuflen, Germany, by the Kurdish Democratic Party of Unity in Syria, Yekiti, according to which he is a member of the above-mentioned Party and that his life will be in danger if returned to Syria. The applicant has also submitted letters, apparently written by people who know him, according to which his life will be in danger if he returns to Syria, as he is a Kurd and as he has applied for asylum abroad.
On 17 December 2003 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) refused the applicant leave to appeal against the Administrative Court’s decision. It is not known whether a date has been set for the applicant’s removal to Syria.


ITEMID: 001-68153
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF BORDOVSKIY v. RUSSIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 5-1;No violation of Art. 5-2;No violation of Art. 5-4
TEXT: 8. The applicant was born in 1967 and lives in Gomel, Belarus.
9. In 1995 the applicant worked in a private asset management company.
10. In 1996 the General Prosecutor’s Office of Belarus (“the Belarusian GPO”) carried out a criminal investigation into the company’s business. The applicant was twice questioned in the course of the investigation.
11. In February 1997 the applicant quit his job and in July 1997 moved to St. Petersburg.
12. The Belarusian GPO considered the applicant’s departure as an attempt to abscond. For this reason, on 22 September 1997 the Belarusian GPO charged the applicant in his absence with large-scale fraud and embezzlement, and issued in his respect a detention order and an international search and arrest warrant.
13. On 9 July 1998 the Russian police arrested the applicant in St. Petersburg. According to the applicant, the policemen did not inform him of the reasons for his arrest and failed to produce any documents justifying it.
14. On 9 July 1998 the Russian National Bureau of Interpol sent an urgent wire to its Belarusian counterpart. The Russian Bureau requested conﬁrmation that the applicant was still wanted by the Belarusian authorities and inquired whether the Belarusian authorities planned to request his extradition.
15. On 11 July 1998 the Russian authorities interviewed the applicant. In the course of the interview, the applicant wrote explanations in which he provided certain details about the investigation in Belarus, his questionings and departure to Russia. The applicant noted that, until his arrest, he had not known that the Belarusian authorities had been searching for him.
16. On 13 July 1998 the applicant was placed in a temporary detention unit of the St. Petersburg Police Department.
17. On 16 July 1998 the Belarusian GPO sent to the General Prosecutor’s Ofﬁce of Russia (“the Russian GPO”) a formal request for the applicant’s extradition, pursuant to Article 56 of the CIS Convention on Legal Assistance in Civil, Family and Criminal Cases. On 4 August 1998 the Russian GPO received this request.
18. On 27 July 1998 the Belarusian National Bureau of Interpol replied to its Russian partner’s wire of 9 July 1998 and requested the applicant’s detention pending the extradition proceedings.
19. On 13 August 1998 a senior investigator of the Belarusian GPO interrogated the applicant for the ﬁrst time, having come for this purpose from Minsk. The investigator informed the applicant about the nature of the accusation against him but did not serve formal charges.
According to the applicant, it was not until then that he was for the ﬁrst time informed – albeit only orally – about the charges.
20. On 20 August (19 August, according to the Government) 1998, the applicant was transferred to Remand Centre IZ–47/4 in St. Petersburg.
21. According to the applicant, in August–November 1998 his lawyer lodged three applications for his release: on 18 August 1998 with the Dzerzhinskiy District Court of St. Petersburg, on 27 August 1998 with the Kalininskiy District Court of St. Petersburg, and on 2 November 1998 with the St. Petersburg City Court. These applications were made pursuant to Article 220-1 of the Code of Criminal Procedure which provided for the judicial review of detention on remand.
According to the Government, the applicant’s lawyer did not lodge these applications.
22. On 25 September 1998 the Russian GPO agreed to extradite the applicant.
23. On 5 October 1998 the St. Petersburg Prosecutor’s Office informed the applicant’s lawyer that, on 11 August 1998, the Russian GPO had ordered the applicant’s continued detention pending the extradition proceedings, pursuant to the request of the Belarusian authorities and because the applicant was not a Russian citizen.
24. On 25 October 1998 the applicant was re-located to Remand Centre no. 1 in Smolensk.
25. On 17 November (12 November, according to the Government) 1998 he was handed over to the Belarusian authorities.
26. On 24 November 2000 the Zheleznodorozhnyi District Court of Gomel convicted the applicant and sentenced him to three years’ suspended imprisonment with compulsory community work.
27. Russia and Belarus are members of the CIS. On 24 April 1992 the Ministries of Internal Affairs of the CIS signed an Agreement on Co-operation in the Sphere of Crime Control (“the Agreement on Crime Control”). Section 6 of that Agreement provides as follows:
“A Party shall, with regard to its internal legislation, assist another Party who requests:
(a) the arrest of a person who evades investigating authorities, trial or serving a sentence, or the detention of such a person if necessary;
(b) the extradition of a person for criminal prosecution or for serving a sentence.”
28. On 22 January 1993 the Independent States signed a Convention on Legal Assistance in Civil, Family and Criminal Cases (“the Convention on Legal Assistance”), which provided as follows:
“1. The Contracting Parties shall ... on each other’s requests extradite persons, who ﬁnd themselves in their territory, for criminal prosecution or serving a sentence.
2. Extradition for criminal prosecution shall extend to offences which are criminally punishable under the laws of the requesting and requested Contracting Parties, and which entail at least one year’s imprisonment or a heavier sentence.”
“1. A request for extradition (требование о выдаче) shall include the following information:
(a) the title of the requesting and requested authorities;
(b) the description of the factual circumstances of the offence, the text of the law of the requesting Contracting Party which criminalises the offence, and the punishment sanctioned by that law;
(c) the [name] of the person to be extradited, the year of his birth, citizenship, place of residence, and, if possible, the description of his appearance, his photograph, ﬁngerprints and other personal information;
(d) information concerning the damage caused by the offence.
2. A request for extradition for the purpose of criminal persecution shall be accompanied by a certiﬁed copy of a detention order....”
“1. The person whose extradition is sought may also be arrested before receipt of a request for extradition, if there is a related petition (ходатайство). The petition shall contain a reference to a detention order ... and shall indicate that a request for extradition will follow. A petition for arrest ... may be sent by post, wire, telex or fax.
2. The person may also be detained without the petition referred to in point 1 above if there are legal grounds to suspect that he has committed, in the territory of the other Contracting Party, an offence entailing extradition.
3. In case of [the person’s] arrest or detention before receipt of the request for extradition, the other Contracting Party shall be informed immediately.”
“1. The Contracting Parties shall ... search for the person before receipt of the request for extradition if there are reasons to believe that this person may be in the territory of the requested Contracting Party....
2. A request for the search ... shall contain ... a request for the person’s arrest and a promise to submit a request for his extradition.
3. A request for the search shall be accompanied by a certiﬁed copy of ... the detention order....
4. The requesting Contracting Party shall be immediately informed about the person’s arrest or about other results of the search.”
“1. A person arrested pursuant to Article 61 § 1 and Article 61-1 shall be released ... if no request for extradition is received by the requested Contracting Party within 40 days of the arrest.
2. A person arrested pursuant to Article 61 § 2 shall be released if no petition issued pursuant to Article 61 § 1 arrives within the time established by the law concerning arrest.”
“The requested Contracting Party shall inform the requesting Contracting Party about the place and time of the hand-over. If the requesting Contracting Party does not take the person to be extradited within 15 days after the ﬁxed date for handing over, the person shall be released.”
29. Pursuant to Article 220-1 of the Code of Criminal Procedure of 1960 (“the CCrP”), in force at the material time, a remand prisoner could apply for a judicial review of his pre-trial detention.
30. Article 91 § 4 of the Criminal Code of Belarus 1960, in force at the material time, provided that appropriation or embezzlement of third parties’ property of which the defendant had custody, or appropriation of the property by abuse of office, committed on several occasions, in concert with others and on a large scale, was punishable by 8 to 15 years’ imprisonment, the conﬁscation of property and a prohibition on holding certain offices or on taking up certain activities for a period of 3 to 5 years.
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1
5-2
5-4