ITEMID: 001-93685
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SEYİTHAN DEMIR v. TURKEY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1+6-3-c;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: 4. The applicant was born in 1980 and lives in Antalya.
5. On 24 May 2000 the applicant started his compulsory military service.
6. On 10 July 2000 two conscripts, Mr Karaman and Mr Gezici, informed their superiors and other soldiers that the applicant had made several improper comments to them.
7. Mr Karaman claimed that the applicant had shown him a map of Turkey indicating how they were going to establish Kurdistan and put up its flag and had also said that the Special Forces and soldiers were killing their people and innocent children. According to Mr Karaman, the applicant also stated that “during target practice they can if they want shoot right on target but that they would not”.
8. Mr Gezici alleged that the applicant had kept telling him that they were going to establish Kurdistan and that he had a commando physique and they should take him to the camps.
9. On the same day the head of the military unit heard the applicant, Mr Karaman and Mr Gezici, Mr Dere and Mr Sancı.
10. The applicant maintained that he had never made such remarks and that it was nothing but lies and smears. He stated that he did not have any quarrel with the people who had accused him.
11. Subsequently, on 15 December 2000, the public prosecutor at the Izmir State Security Court filed a bill of indictment with that court charging the applicant with the offence defined in section 8 of the AntiTerrorism Act, namely, disseminating separatist propaganda.
12. On 18 December 2000 the Izmir State Security Court held a preparatory hearing at which it decided on procedural matters, namely issuing rogatory letters to various authorities in order to secure the applicant’s and the witnesses’ statements. The next hearing was fixed for 6 February 2001.
13. On 2 February 2001 the applicant appeared before the Erzurum State Security Court. The indictment was read out to him. The applicant denied the accusations against him and claimed that Mr Karaman, with whom he had had an argument, was lying. He maintained that he had never uttered the words mentioned in the indictment. The record of the hearing noted that the applicant had requested to be exempted from the obligation to appear at the hearing (duruşmadan vareste tutulma). The applicant was not represented by a lawyer.
14. On various dates the rogatory courts heard evidence from Mr Sancı, Mr Gezici, Mr Karaman and Mr Dere. In their statements, Mr Sancı and Mr Dere both affirmed, inter alia, that they had not heard the applicant making the impugned remarks but had been informed of them through Mr Gezici and Mr Karaman.
15. In his statement Mr Gezici claimed, inter alia, that the applicant had told him “we have camps in the east. Let me take you to them. You have a commando physique”. He stated that the applicant was smiling and it looked like a joke. However, he started to take his words seriously when he heard what the applicant had said to Mr Karaman and decided to complain about him to their hierarchical authorities.
16. In his statement Mr Karaman claimed, inter alia, that on various occasions the applicant had told him “Turkish soldiers are traitors, they kill our people. Special Forces have killed our people and blame it on us. Before military service I was receiving instruction at a camp.” He further claimed that the applicant was pointing at the eastern part of Turkey on the map and saying “We are going to divide Turkey and establish Kurdistan”.
17. On 6 February, 27 March, 10 May and 26 June 2001 the first-instance court held hearings, in the absence of the applicant, during which the statements of the applicant and two of the witnesses taken by way of rogatory letters were read out.
18. During the trial the applicant was doing his military service in Erzurum.
19. In the hearing held on 4 September 2001 the statements of the other two witnesses, taken by way of rogatory letters, were read out. The prosecutor did not ask for an additional investigation and read out his observations on the merits of the case. On the same day the court, on the basis of witness testimonies, considered that the applicant had disseminated separatist propaganda and convicted him as charged. He was sentenced to one year’s imprisonment and to a heavy fine. This decision was served on the applicant on 24 September 2001.
20. On 28 September 2001 the applicant appealed.
21. On 8 October 2001 the applicant hired a lawyer.
22. On 31 October 2001 the applicant’s lawyer filed an appeal.
23. On 8 January 2002 the principal public prosecutor at the Court of Cassation submitted his written opinion to that court. The prosecutor asked the court to dismiss the applicant’s legal representative’s appeal, in accordance with Article 317 of the Code on Criminal Procedure, on the ground that it had been submitted out of time. This opinion was not communicated to the applicant.
24. On 28 January 2002 the Court of Cassation dismissed the applicant’s objections and upheld the judgment of the first-instance court. In its judgment the court stated, inter alia, that, having regard to the evidence and the conviction and the assessment of the first-instance court in line with the conclusions of its investigation, the applicant’s conviction had been in accordance with the procedure and the law.
25. On 17 April 2002 the principal public prosecutor at the Court of Cassation dismissed a request by the applicant’s lawyer for rectification of the Court of Cassation’s judgment.
26. On 7 March 2003 the applicant started serving his prison sentence.
27. The applicant paid the fine, in three instalments, on 26 March 2003, 29 April 2003 and on 27 May 2003.
28. By an additional judgment, dated 25 July 2003, the Izmir State Security Court, taking into account that section 8 of Law no. 3713 had been abolished pursuant to Law no. 4928, annulled the applicant’s conviction and ordered his immediate release. On the same day the applicant was released.
29. Article 226 of the Code of Criminal Procedure, in force at the material time, provided as follows:
“1. If the accused or his lawyer, who has a power of attorney in this respect, so requests, the court may exempt the accused from the obligation to be present during the hearing.
2. ... the accused shall be questioned by a judge in another judicial district, acting on rogatory letters, about the principal facts of the case.
4. Even if the accused does not so request, if the accused has been remanded in custody or is serving a sentence for another crime, the trial court can decide that the accused shall be questioned by a judge in another judicial district, acting on rogatory letters.
5. The public prosecutor and the accused’s lawyer shall be notified of the date set for questioning. There is no obligation for them to be present during the questioning.
6. The record of the questioning shall be read out at the hearing.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-60707
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: GRANDCHAMBER
DATE: 2002
DOCNAME: CASE OF MASTROMATTEO v. ITALY
IMPORTANCE: 1
CONCLUSION: No violation of Art. 2 with regard to preventive measures;No violation of Art. 2 with regard to procedural guarantees
JUDGES: Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
TEXT: 10. The applicant was born in 1933 and lives in Cinisello Balsamo (Milan).
11. On 8 November 1989 the applicant's son was murdered by a criminal (M.R.) who had just robbed a bank with two accomplices (G.M. and G.B.). After leaving the bank the three robbers had failed to find the fourth accomplice (A.C.), who was supposed to be waiting for them with the getaway car. They had therefore made off on foot with the police in pursuit. Their path had then crossed a car being driven by A.Mastromatteo, the applicant's son. They had attempted to take control of the car, but it would appear that A.Mastromatteo had tried to get away from his attackers by accelerating, whereupon M.R. had shot him at point-blank range. He died a few hours later.
12. The four criminals were subsequently identified and charged. Three of them (M.R., A.C. and G.M.) were serving prison sentences at the material time, whereas the fourth accomplice, G.B., was free.
13. From the documents in the case file it is possible to reconstruct the case history of the criminals, particularly that of M.R. and G.M., both of whom were responsible for the applicant's son's death.
14. M.R., who fired the fatal shot, was serving a prison sentence of fifteen years and seven months for attempted murder, armed robbery and other offences. He was due to be released on 2 July 1999 and was serving his prison sentence in Alessandria. When it convicted M.R. on 25 March 1987, the Milan Assize Court of Appeal had considered him to be a danger to society.
15. In a decision of 26 October 1989 the Alessandrian judge responsible for the execution of sentences granted M.R. prison leave from 10.45 a.m. on 1 November 1989 to 10.45 a.m. on 3 November 1989 with the condition that he remain at his home in Monza (near Milan).
It was the first time that M.R. had been granted prison leave. The case file shows that the judge responsible for the execution of sentences relied on the reports by the prison authorities concerned stating that they were satisfied with M.R.'s behaviour, rehabilitation and willingness to reintegrate.
16. The decision granting prison leave was communicated to the appropriate police authorities.
The information provided by Monza Police Station shows that M.R. had reported to the police station at 3.15 p.m. on 1 November 1989. In a note drawn up on 6 March 2000 the police station stated that at the time no anomaly had been recorded during M.R.'s prison leave.
17. On the expiry of M.R.'s prison leave on 3 November, he failed to return to Alessandria Prison and could not be found.
On the same day Alessandria Prison informed Monza Police Station that M.R. had not returned and that he should therefore be considered to have absconded.
A “wanted” notice was drawn up and circulated throughout the country by means of the police national computer system. The notice has not been kept in the police files.
18. G.M. was serving a six-year prison sentence imposed on 16 December 1986 for aiding and abetting armed robbery and other offences.
19. Since 21 October 1988 he had been subject to a semi-custodial regime, which is an alternative measure to imprisonment, pursuant to a decision of the Venice court responsible for the execution of sentences. G.M. worked in Milan and returned to the city prison in the evenings.
20. In granting him that alternative regime to imprisonment, the court had relied on the reports by the prison authorities stating that G.M. had been of good behaviour and showed a willingness to reintegrate and that nothing untoward had occurred during his previous periods of prison leave. Furthermore, on 28 June 1988 the Milan Police had given a favourable opinion of the work which G.M. would be undertaking.
21. The following obligations were attached to the semi-custodial regime:
(a) leave the prison after 5 a.m. (subsequently 4 a.m.) and return by 11 p.m. at the latest;
(b) not quit the authorised job without giving notice;
(c) not spend money without permission;
(d) use public transport;
(e) avoid excessive consumption of alcohol; and
(f) spend bank holidays with his family and remain in the Milan area.
22. That decision was sent, inter alia, to the Social Services Department of Milan, which was the authority responsible for implementing supervisory measures. That authority carried out one inspection, at the prisoner's home and his place of work, during the period of approximately twelve months which elapsed between the date on which the semi-custodial measure was granted and the date on which G.M. absconded.
23. No supervisory measure was envisaged by the police authorities.
24. G.M.'s criminal record shows that on 26 October 1989, which was a few days before the applicant's son was murdered, he had committed a handling offence. He was convicted of that offence in 1991 in a judgment which became final on 18 March 1992.
25. A.C. was serving a prison sentence for armed robbery committed jointly with M.R. His criminal record shows that he had a previous conviction for murder. He was in prison in Alessandria.
26. In a decision of 23 August 1989 the Alessandrian judge responsible for the execution of sentences granted him prison leave from 19 to 26 September 1989. The judge responsible for the execution of sentences, relying on the reports by the prison authorities concerned, had been satisfied with A.C.'s behaviour in prison. The report prepared by the prison workers responsible for monitoring A.C. had stressed his good behaviour during his previous periods of prison leave.
27. While on prison leave A.C. was subject to a number of constraints: he had to report to the police station daily; stay at home from 10 p.m. to 8 a.m.; and not leave the district of Sesto San Giovanni (Milan).
The decision granting him prison leave was communicated to the appropriate police authorities. The file shows that A.C. reported to the police station daily to sign the register.
28. On 26 September 1989, when his prison leave expired, A.C. did not return to the prison and was deemed to have absconded. On the same day Alessandria Prison informed Monza Police Station that A.C. had not returned and that he should therefore be considered to have absconded.
A “wanted” notice was drawn up and circulated to the various police forces throughout the country.
29. G.B., the fourth accomplice, was not in prison at the material time. His criminal record shows a number of convictions for armed robbery and other offences.
30. The four offenders were subsequently identified and charged.
31. Of the three prisoners, only M.R. and G.M. were convicted of the murder of the applicant's son, aided and abetted by G.B., and given long sentences.
32. The third prisoner, A.C., who was to have been the driver, was convicted only of armed bank robbery.
33. The applicant lodged an application to join the criminal proceedings against the offenders as a civil party. The defendants were ordered to pay the civil parties damages in an amount to be determined by the civil courts; the criminal courts awarded the applicant 50,000,000 Italian lira (ITL), however, as a down payment to be made immediately.
34. The applicant did not state whether the down payment of ITL 50,000,000 had been paid to him or whether, failing payment, he had taken steps to attempt to obtain the money.
35. In any event the applicant has not sued the criminals for damages in the civil courts. He submitted that they would not in any case have been solvent.
36. On 6 November 1992 the applicant lodged a claim with the Ministry of Justice and the Ministry of the Interior for compensation under Act no. 302 of 1990, which provides for compensation for victims of terrorism and mafia-type criminal organisations.
In support of his claim, the applicant alleged that his son had been murdered by criminals who were serving prison sentences and that they were members of a “gang” whose criminal activities fell into the category of organised crime.
37. The applicant stated that the Minister for Justice had advised him, at a meeting, not to bring legal proceedings against the State.
38. On 6 October 1994 the committee responsible for examining the applicant's claim ordered a further inquiry with a view to establishing whether or not the criminals responsible for the death of the applicant's son could be deemed to be members of a “criminal organisation”, which would have rendered applicable the statutory provisions on which the applicant relied.
The committee attached some weight to a report drawn up by the Prefect (Prefetto) of Milan stating that the bank robbery which had culminated in the murder of the applicant's son was not an isolated episode, but the workings of a criminal organisation operating in the area.
39. However, on 21 April 1995, on the basis of the results of the further inquiry, the above-mentioned committee ruled out the possibility that A. Mastromatteo's murder could be deemed to be the workings of a criminal organisation.
40. Relying on that negative opinion, the Ministry of the Interior rejected the applicant's claim for compensation.
41. On 25 July 1995 the applicant lodged a special appeal with the President of the Republic against the decision of the Ministry of the Interior.
42. On 20 November 1996 the Consiglio di Stato expressed the opinion that the appeal should be dismissed because the instant case did not involve terrorist acts or acts of a mafia-type criminal organisation within the meaning of Article 416bis of the Criminal Code.
43. On 24 February 1997 the President of the Republic dismissed the appeal.
44. Act no. 663 of 10 October 1986 (known as the “Gozzini Act” after its sponsor) modified the Prison Act (Act no. 354 of 26 July 1975) in order to facilitate the return to the community of convicted prisoners.
45. Section 30ter (8) of the Prison Act provides that a prisoner may be granted prison leave on condition that he has behaved well in prison and is not a danger to society. According to the seriousness of the offences, the prisoner must have served an unsuspended period of his sentence before he or she can be deemed eligible for prison leave.
It is left to the judge responsible for the execution of sentences, who must consult the prison authorities, to determine whether or not the prisoner is a danger to society.
46. According to a circular of the Ministry of Justice dated 9 July 1990 on the application of the Gozzini Act, which reproduced two notes of 29 December 1986 and 30 May 1988, a measure facilitating reintegration could not be granted merely because no disciplinary penalties had been imposed; it also had to be established that the prisoner was genuinely willing to participate in the reintegration and rehabilitation programme. Furthermore, the assessment of whether the prisoner was a danger to society had to be based not only on the information provided by the prison workers, but also on the information available from the police where the judge, in his discretion, deemed such clarification necessary.
47. Legislative Decree no. 306 of 8 June 1992, which became Act no. 356 of 7 August 1992, introduced more stringent conditions in respect of offences committed by a criminal organisation.
The statute in question has ruled out, inter alia, the possibility of granting prison leave or other alternative measures to imprisonment where particularly serious offences (for example, mafia-type association) are concerned, unless the prisoner co-operates with the judicial authorities.
Where a prisoner convicted of aggravated armed robbery is concerned (Article 628 § 3 of the Criminal Code), the Act (section 4bis of the Prison Act) provides that no measure facilitating reintegration can be ordered if there is evidence of a link between the prisoner and organised crime.
The judge responsible for the execution of sentences must request information from the police; he shall in any event make a decision within thirty days of requesting the information.
48. A semi-custodial regime is an alternative measure to imprisonment (section 48 of the Prison Act) which allows the prisoner to spend part of the day outside the prison working or undertaking other activities which will facilitate his or her return to the community. The prisoner does not wear the prison uniform.
Under section 50 of the Prison Act a semi-custodial regime can be granted after an unsuspended period of imprisonment has been served, the length of which will vary according to the seriousness of the offence, and if the prisoner's behaviour has improved and the conditions for his or her progressive return to the community are met.
That measure may be granted by the court responsible for the execution of sentences. A programme is then drawn up by the governor of the prison concerned.
49. The statistics provided by the Government for the period 1991 to 2001 show that
(a) the percentage of prisoners on prison leave who have taken advantage of that measure to abscond has never exceeded 1.12%;
(b) the percentage of prisoners subject to the semi-custodial regime who have taken advantage of it to abscond has been below 2%; and
(c) the percentage of prisoners having committed an offence while subject to the semi-custodial regime and, accordingly, having been deprived of the alternative measure was 0.26% in 1999, 0.71% in 2000 and 0.12% in 2001.
50. Act no. 117 of 1988 governs civil proceedings against judges. Section 2(3)(d) of that statute provides that proceedings can be brought against a judge if he or she has – intentionally or by an act of gross negligence – taken an inappropriate measure in the exercise of his or her duties.
51. Article 2043 of the Civil Code sets forth the principle of neminem laedere, which is a general duty not to harm others. Anyone who alleges that he has sustained damage in breach of that principle may bring an action for damages.
52. Act no. 302 of 1990 makes provision for state compensation for victims of terrorism and mafia-type criminal associations.
NON_VIOLATED_ARTICLES: 2


ITEMID: 001-61815
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF LE PETIT v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: 9. The applicant was born in 1957 and lives in Bristol. In 1974 he joined the Royal Navy. At the relevant time he held a senior non-commissioned rank and was an experienced administrator. On 20 October 1995 he was informed that he was under investigation on suspicion of travel fraud. Since he was to be interviewed by the naval police, he was offered the opportunity to speak to a naval barrister. He accepted this offer, was given legal advice and confirmed that he understood the advice given.
10. He then attended two interviews with the naval police. At the beginning of both interviews he was cautioned (section 76 of the Police and Criminal Evidence Act 1984). He declined the opportunity accorded to him to obtain legal advice and to have a legal adviser present at those interviews. He made certain admissions at his first interview and gave the investigators access to his bank accounts. On 27 November 1995 he was interviewed for a second time and then charged.
11. The charge sheet, as approved by the convening authority listed six charges (pursuant to section 42 of the Naval Discipline Act 1957) of obtaining property and a service by deception contrary to sections 1 and 15 of the Theft Act 1968. All charges related to the making of false representations about travel allowances.
12. By notice dated 3 July 1996 the convening authority ordered the convening of a court-martial to try the applicant on the charges. He appointed the members of the court-martial by name. All were subordinate to the convening authority but none served within his chain of command. The Judge Advocate was appointed by the Chief Naval Judge Advocate. While the Judge Advocate was subordinate in rank to the President and both served under the Second Sea Lord, there was no command or other substantive institutional link between them.
13. The court-martial took place on 8-10 July 1996. Once the applicant’s preliminary objections were rejected (he contested the admission of evidence from his interviews and he alleges that he challenged the composition of the court-martial), he pleaded guilty as charged. On 10 July 1996 he was sentenced to three months’ imprisonment.
14. By letter dated 14 January 1997, his legal representative was informed of the decision taken by the Admiralty Board to reject his petition against conviction and sentence. It was considered that his admissions in interview were not the result of oppression and that, given the seriousness of the offences, his sentence was neither manifestly excessive nor wrong in principle.
15. The law and procedures of naval courts-martial were contained in the Naval Discipline Act 1957 (“the 1957 Act”) and in certain statutory instruments made under the 1957 Act including the Naval Courts-Martial General Orders (Royal Navy) 1991 (“the 1991 Orders”). These are outlined in the G.W. v. the United Kingdom judgment (no. 34155/96, §§ 15-36), delivered on even date herewith.
16. Following the Commission’s report in the case of Findlay v. the United Kingdom, certain provisions of the 1957 Act were amended by the Armed Forces Act 1996 (“the 1996 Act”) which Act came into force on 1 April 1997 (Findlay v. the United Kingdom, no. 22107/93, Commission’s report of 5 September 1995 and, see also, judgment in that case of 25 February 1997, Reports of Judgments and Decisions 1997-I). The new naval court-martial system for which the 1996 Act provides is described in the Court’s judgment in the case of Grieves v. the United Kingdom ([GC], no. 57067/00, §§ 16-62, ECHR 2003XII).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-99288
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF SCHWIZGEBEL v. SWITZERLAND [Extracts]
IMPORTANCE: 1
CONCLUSION: No violation of Art. 14+8
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant was born on 29 July 1957 and lives in Geneva. She is single and has a Master’s degree in music. Music constitutes her source of income.
5. According to the applicant, when she was about 30, a man with whom she had been in a relationship for some ten years died in an accident. Since then she had not wished to start a family with anyone else. However, driven by the desire to bring up children, she decided, after much thought, to adopt a first child.
6. On 16 April 1996 she sought authorisation from the Child Protection Department for the Canton of Geneva to receive a child with a view to adoption.
7. The applicant explained that, having been informed that she would probably receive a negative response on account of her marital status, she withdrew her application on 4 October 1996.
8. After settling in Delémont (Canton of Jura), in 1998 she submitted a new application for authorisation to receive a child, and it was granted on the basis of the favourable opinion issued by the Welfare Department.
9. On 8 January 2000 she received a little girl, Violaine, born in Vietnam on 30 April 1999.
10. On the basis of a home study report of 12 December 2001, which recommended the child’s adoption, the supervisory authority of Delémont granted the adoption on 26 June 2002.
11. On 9 July 2002 the applicant sought authorisation to receive a second child with a view to adoption.
12. The Social Action Department of the Republic and Canton of Jura rejected that application by a decision of 5 September 2002, which was confirmed on appeal on 7 November 2002.
13. The Administrative Division of the Jura Cantonal Court upheld that refusal on 25 August 2003.
14. On 19 January 2004 the applicant – who had moved back to Geneva in 2003 – again sought authorisation to receive a second child with a view to adoption: a child from South America between one and three years old.
15. In a decision of 19 July 2004, the Child Protection Department rejected her application.
16. The applicant appealed against that decision but her appeal was declared out of time – and therefore inadmissible – on 28 September 2004 by the Court of Justice of the Canton of Geneva.
17. On 20 January 2005 she submitted a fresh application for authorisation to receive a child for purposes of adoption but it was rejected by the Youth Office of the Canton of Geneva in a decision of 12 September 2005.
18. On 7 December 2005, at an individual hearing before the cantonal authority, the applicant stated that she wished to receive a child no older than five and that she would prefer a child from Vietnam, like her first adopted child, whilst remaining open to the possibility of adopting a child from another country.
19. In a decision of 24 April 2006, the Court of Justice for the Canton of Geneva dismissed the applicant’s appeal and upheld the refusal to authorise provisional placement of a child with a view to adoption. It did not call into question the fact that the applicant’s educational qualities, based on love, respect and Christian values, were recognised. Moreover, the court considered that the applicant had sufficient resources as a result of her salaried jobs. It took the view, however, that the adoption of a second child could unfairly affect the situation of Violaine. Moreover, it found that the applicant had underestimated the specific difficulties of adoption, and in particular international adoption. The court further expressed certain reservations about the applicant’s availability and about the prospect of her father and brother being able to assist in caring for a second child. It thus concluded that the circumstances as a whole did not enable it to foresee that the adoption would further the child’s welfare.
20. In a judgment of 5 December 2006, notified to the applicant’s representative on 22 January 2007, the Federal Court dismissed the applicant’s administrative-law appeal, finding as follows:
“...
2.1. Under Article 264 of the Civil Code – in the version in force since 1 January 2003 – a child may be adopted if the future adoptive parents have cared for it and provided for its education for at least one year, and if all the circumstances make it foreseeable that the establishment of a parent-child relationship will further the child’s welfare without unfairly affecting the situation of any other children of the adoptive parents. All adoptions must thus be preceded by a placement and fostering relationship of a certain duration. An imperative condition for adoption, this measure serves to justify the subsequent establishment of a parent-child relationship, to allow a probationary period for those concerned, and to provide the opportunity and means to ensure that the adoption will further the child’s welfare (ATF [Federal Court judgments] 125 III 161 point 3a p. 162 and citations). Under Article 316 of the Civil Code, the placement of children with foster parents is subject to the authorisation and supervision of the supervisory authority or another office for the place of residence of the said parents, as designated by cantonal law (§ 1); where the child is placed with a view to its adoption, a single cantonal authority is competent (§ 1 bis, as in force since 1 January 2003); the Federal Council stipulates the requirements for implementation (§ 2).
In accordance with Article 11b of the Federal Council Order of 19 October 1977 governing the placement of children for the purposes of support and with a view to adoption (‘the OPEE’; RS 211.222.338), as in force since 1 January 2003, placement authorisation is given only where the personal qualities, state of health and educational capacities of the future adoptive parents and other persons living in their household, together with the housing conditions, offer every guarantee that the placed child will benefit from appropriate care, education and training, and that the well-being of the other children living in the family will be safeguarded (§ 1 (a)), that there is no statutory impediment to the future adoption and that all the circumstances put together, in particular the motives of the future adoptive parents, enable it to be foreseen that the adoption will further the child’s welfare (§ 1 (b)). The authority must particularly take the child’s interest into account where the age difference between the child and the adoptive parent is more than forty years (Article 11b § 3 (a) OPEE; see, on this issue, ATF 125 III 161 point 7a p. 167/168).
This primary condition of adoption – the welfare of the child (Article 264 of the Civil Code) – is not easy to verify. The authority must ascertain whether the adoption is really capable of ensuring the best possible development of the child’s personality and of improving his or her situation; that question must be examined in all respects (emotional, intellectual, physical), without attributing excessive weight to the material factor (ATF 125 III 161 point 3a in fine p. 163 and citations).
2.2. Under Article 264b § 1 of the Civil Code, an unmarried person – whether single, widowed or divorced – may adopt alone if he or she is at least 35 years old. In this form of adoption, the parent-child relationship is established with a single parent. As a result of that situation, the adoptive parent must, on his or her own, assume the duties that meet the child’s needs and remain available to care for the child to a degree that exceeds that required of each parent in a couple adopting jointly. Accordingly, the authority must particularly take into account the child’s interest where the applicant is not married, or where he or she is unable to adopt jointly with his or her spouse (Article 11b § 3 (b) OPEE). The legislature’s intention was that joint adoption should be the rule and adoption by a single parent the exception (ATF 111 II 233 point 2cc p. 234/235). It may indeed be considered that the child’s interest, which is paramount, consists in principle of living in a complete family. Nevertheless, the law does expressly permit adoption by a single person, without subjecting him or her – unlike those wishing to adopt an adult or a person deprived of legal capacity (Article 266 § 1 Chapter 3 of the Civil Code) – to the existence of ‘valid reasons’. In any event, where the requisite conditions for the child’s welfare are satisfied, and the adoption by a single person meets all the requirements for the child’s fulfilment and personality development, the adoption will be granted; in such cases, at the preliminary placement stage, the conditions laid down in Article 11b of the OPEE will be satisfied, and the placement authorisation must be granted (ATF 125 III 161 point 4b p. 165 and citations).
3.1. The court below found that the appellant had appropriate educational qualities. She can count on a wide network of persons who support her in her project and have promised to help her take care of the children when she is busy. Since the refusal of the authorities of the Canton of Jura (see B.a above), she has changed the organisation of her life by moving to Geneva, where she carries on her professional activities; since November 2004 she has been renting accommodation in an area close to the parish church of which she is maître de chapelle and in a building that also houses the offices and secretariat of the music festival of which she is the artistic director. Lastly, her financial resources are sufficient (7,000 [Swiss francs] per month). Those points being established, it is not necessary to examine them again.
3.2. In her application of 19 January 2004 the appellant had sought authorisation to receive ‘a second child, from South America, aged between 1 and 3’; it does not appear from the application lodged the following year that those criteria had changed. However, when she appeared personally before the cantonal authority on 7 December 2005 she declared that she wished to receive a child ‘up to the age of five’; pointing out that A. [the first child adopted by the applicant] was from Vietnam, she expressed a desire to be entrusted with a child who was ‘born in that country’, whilst ‘of course remaining open to other countries’.
As this Court found in a recent case, such an approach cannot be admitted (see judgment of 5A.11/2005 of 3 August 2005, point 3.1, published in FamPra.ch 2006 p. 177). The home study report (Article 268a Civil Code and Article 11d OPEE) is drawn up according to the age and origin of the child, factors that the applicant must indicate (Article 11g § 2 (a) and (c) OPEE). The Youth Office thus quite rightly, in its findings on the cantonal appeal, found that this document had been ‘drawn up on the basis of an application for the adoption of a child aged between 1 and 3 at the time of its arrival’. Any finding to the contrary would suggest that an application could be changed as and when the case so required, for a reduction of the age difference in this instance. It follows that the criticism of the cantonal court for not having granted an ‘authorisation for an older child, in order to reduce the age difference’ appears ill-founded. The fact that the Convention between Switzerland and Vietnam on cooperation in matters of child adoption came into force while the case was pending on appeal, that is to say on 9 April 2006 (RO 2006 p. 1767), is immaterial; moreover, the appellant does not show that she would satisfy the conditions laid down in that agreement, or even – notwithstanding the opinion of the Youth Office’s representative (see record of individual hearing on 5 April 2006) – that her project would in fact be feasible.
3.3. The appellant was born in 1957 and is thus 49 years old; in relation to a child of between one and three years old – leaving aside the waiting times in international adoption – the age difference would be between forty-six and forty-eight years. In the light of the Federal Court’s case-law such a difference appears excessive (see judgment 5A.6/2004 of 7 June 2004, point 3.2, published in FamPra.ch 2004 p. 710: single person ‘of almost 50 years’ wishing to adopt a ‘girl under 5 years old’; see also the references cited in ATF 125 III 161 point 7a, p. 167/168). As the cantonal authority rightly pointed out, even an age difference of forty-five years is too great. In that case the appellant would, at over 60, find herself the single parent of two teenagers, who, in addition to the problems arising in that period of life, may well face particular difficulties as adopted children (see, for example, judgment 5A.21/1999 of 21 December 1999, point 3d, published in FamPra.ch 2000 p. 546), especially as the future child might have specific needs. The appellant is thus wrong to rely on Federal Court judgment 125 III 161 (age difference between forty-four and forty-six years), where, moreover, the adoption of a single child was at stake (see point 3.4 below).
3.4. The opinion of the court below, according to which the appellant underestimated the burden represented by a second child, cannot be disputed. Whilst it may be admitted, from a theoretical standpoint, that the presence of a sister or brother may have beneficial effects in emotional and social terms (see judgment 5A.25/1996 of 1 May 1997, point 6b, unpublished, in SJ 1997 pp. 597 et seq.), that assessment should be nuanced as far as adopted children are concerned. The home study report noted that A., after enjoying exclusive maternal attention, faced the risk of ‘reactivating a feeling of abandonment’; the positive effects of a new adoption on her situation (Article 264 in fine of the Civil Code, section 9(b) LF-ClaH [Federal Law on the Hague Convention], and Article 11b § 1 (a), in fine, OPEE) are not therefore certain (see, in general, Lücker-Babel, Adoption internationale et droits de l’enfant, Fribourg 1991, p. 44; this author observes that ‘it is in families that have a number of adopted children or a number of biological children [and only one adoptive child] that the failure rate is the highest’). In addition, it cannot be ruled out that the second child might have difficulties related to the deprivations suffered by children who have been abandoned (judgment 5A.9/1997 of 4 September 1997, point 4b, published in RDT 1998 p. 118), and this might complicate the arrangements made by the appellant. These findings are consistent with those of the Jura Social Action Department in its additional report of 11 June 2003.
The appellant disputes that assessment; she asserts, relying on statements from third parties, that the second adoption would be ‘beneficial for A.’ and criticises the cantonal judges for straying into ‘theoretical conjectures’. Those criticisms appear unjustified. Given that the placement authorisation precedes the adoption decision, the authority must inevitably make a prognosis. In view of the characteristics of an adoption by a single person and the dramatic consequences that a failed adoption would have for the child (see, on this subject, Lücker-Babel in RDT 1994 pp. 86 et seq.), the court below cannot be reproached for its rigour (see Breitschmid, op. cit., n. 19 ad Article 264 of the Civil Code and the literature cited), as was in fact required of it by Article 11b § 3 of the OPEE (‘most particularly’). It is not for this Court to substitute its own conception of the child’s welfare for that of the cantonal authority and of the investigators (see FamPra.ch 2006 p. 178, point 3.2 in fine and citations), but solely to ascertain whether relevant circumstances have not been taken into consideration or, indeed, whether crucial factors have been overlooked. Notwithstanding the appellant’s categorical denials, that is not the case here.
3.5. The cantonal authority found that the assistance that the appellant’s father could provide was not a solution for the care of A. and a second child; the presence at home of an 85-year-old father would represent, on the contrary, a handicap in the future, because his daughter would herself be required to provide him with help and support at some point. The appellant’s brother, who has no children – and it is not known whether his wife has a professional activity – could admittedly help her with the future child, as he has already done with A.; however, the brother lives in Lausanne. Similarly, the person intended to become the adopted child’s godfather lives in Lyons. Lastly, the support of neighbours in her building and of her very close friend, together with the presence of A.’s godfather and godmother, does not change anything, as the important criterion is the availability of the appellant herself; moreover, the education of children always rests with the parents, and it is easier to express an intention of assistance in the abstract context of a procedure than in everyday life and for some twenty years.
This opinion is consistent with the case-law of this Court and with legal opinion (FamPra.ch 2006 p. 178 point 3.2; Meier/Stettler, Droit de la filiation, vol. I, 3rd ed., no. 263, with other citations). Whatever the appellant may claim, the cantonal authority did not minimise the involvement of her family and friends by preferring ‘theoretical assertions’. The Court had occasion to observe this in a recent case, where, in spite of her ‘extended family’, a mother applying for a second adoption had had to entrust her adopted daughter to a neighbour when she went into hospital (FamPra.ch 2006 ibid.). As to the possibility of having to care for her father, she merely asserts that her brother ‘would be present’, but the latter has not corroborated this claim and in addition is supposed to make up for any deficiencies of the appellant. Moreover, the child’s interest cannot be measured solely in terms of the availability of the parent who is seeking to adopt alone (Meier/Stettler, ibid.). The grounds set out above are, in any event, sufficient for the decision appealed against to be upheld.
4. In conclusion, having regard to the discretionary powers enjoyed by the placement authorities (RDT 1998 p. 118 point 4b), the decision of the court below does not lay itself open to criticism. Accordingly, the appeal must be dismissed, with costs awarded against the appellant (section 156(1) of the Judicial Organisation Act).”
21. The relevant provisions of the Swiss Civil Code are as follows:
“A child may be adopted if the future adoptive parents have provided it with care and education for at least one year and if, in the light of all the circumstances, it may be foreseen that the establishment of a parent-child relationship will further the child’s welfare without unfairly affecting the situation of other children of the adoptive parents.”
“1. An unmarried person may adopt a child alone if he or she is at least 35 years old.
...”
“1. An adoption shall not be granted until enquiries have been made, covering all essential circumstances, where necessary with the assistance of experts.
2. The enquiries shall concern, in particular, the personality and health of the adoptive parents and the child, their mutual suitability, the parents’ ability to bring up the child, their financial situation, their motives, their family circumstances and the development of the fostering relationship.
3. Where the adoptive parents have descendants, the opinion of the latter shall be taken into account.”
“1. The placement of children with foster parents shall be subject to the authorisation and supervision of the supervisory authority or another office for the foster parents’ place of residence, as designated by the law of the canton.
1 bis. Where a child is placed with a view to adoption, a single cantonal authority shall be responsible.
2. The Federal Council shall issue implementing regulations.”
22. The relevant provisions of the Federal Council’s Order governing the placement of children for support and with a view to adoption (“the OPEE”) of 19 October 1977 read as follows:
“Authorisation may only be granted where:
(a) the personal qualities, state of health and educational capacities of the future adoptive parents and other persons living in their household, together with the housing conditions, offer every guarantee that the fostered child will benefit from appropriate care, education and training and that the well-being of other children in the family will be safeguarded; and where
(b) there is no legal impediment preventing the future adoption and provided it can be foreseen, in the light of all the circumstances, in particular the motives of the future adoptive parents, that the adoption will further the child’s welfare.
The capacities of the future adoptive parents will require special attention if there are circumstances that may render their task difficult, in particular:
(a) where it may be feared, in view of the child’s age, especially if it is over six years of age, or in view of its development, that it may have difficulties settling into its new environment;
(b) where the child is physically or mentally handicapped;
(c) where more than one child will be placed in the same family;
(d) where the family already has more than one child.
The authority will take particular account of the child’s interest where:
(a) the age difference between the child and future adoptive father or mother is more than forty years;
(b) the applicant is not married or he or she cannot adopt jointly with his or her spouse.”
“Where the future adoptive parents meet the conditions laid down in Articles 11b and 11c, § 1, provisional authorisation to receive a child who has previously been living abroad, with a view to his or her adoption, may be delivered, even if the child has not yet been determined.
In their application, the future adoptive parents shall indicate:
(a) the child’s country of origin;
(b) the service or person in Switzerland or abroad whose assistance will be required in finding the child;
(c) their stipulated conditions regarding the child’s age;
(d) where appropriate, their stipulated conditions regarding the child’s gender or state of health.
The provisional authorisation may be limited in time and may be subject to obligations and conditions.
The child may be received in Switzerland by its future adoptive parents only once the visa has been issued or leave to remain has been secured.
After the child has entered Swiss territory, the authority shall decide on the granting of permanent authorisation.”
23. Most European legislations authorise adoption by a single person. However, a number of different situations can be found. The legislative provisions of certain States permit any person, man or woman, with or without a precise indication of marital status, to apply for adoption. This is the case, in particular, for the following countries: Belgium, the Czech Republic, Estonia, Finland, “the former Yugoslav Republic of Macedonia”, France, Hungary, Ireland, Malta, the Netherlands, Portugal, Russia, Spain, Sweden, Turkey and the United Kingdom. Certain States, such as Germany or Latvia, allow adoption by a single person subject to certain conditions. In German legislation, adoption is regarded as legitimate where it contributes to the child’s physical and moral well-being and where the establishment of an effective parent-child relationship can be expected.
24. Other States impose restrictions on the adoption of a child by a single person. For example, in Slovakia and Croatia, adoption by a single parent remains an exception. The possibility may be envisaged only if it can be shown that the adoption is in the child’s interest (in Slovakia and Croatia). In the same vein, Serbian and Montenegrin legislations allow adoption by a single person only where there are sufficient reasons to justify it. Luxembourg law draws a distinction between simple adoption (which does not terminate the connection with the family of origin) and full adoption (which terminates all legal connection with the family of origin), stipulating that simple adoption alone, not full adoption, is possible for a single person. Unlike France and Belgium, which also have such a distinction, but which nevertheless allow single persons to adopt in both cases, it is not possible in Luxembourg or Montenegro for single persons to apply for full adoption.
25. The Italian legislation is similar to that of Luxembourg and Montenegro, as single persons are authorised to adopt minors only in the context of “adoption in special circumstances”. The definition of “adoption in special circumstances” corresponds to that of simple adoption, as it enables the adopted child to retain legal connections with his or her family of origin.
26. Most of the legislations of the Council of Europe’s member States require a minimum age for prospective adopters. That age continually decreased throughout the twentieth century. The majority of European legal systems now fix a minimum age of between 18 and 30 years. The Czech Republic, “the former Yugoslav Republic of Macedonia”, Hungary and Romania are among the rare member States that do not stipulate a minimum age for persons wishing to adopt.
27. Some legislations, albeit few in number, expressly provide for a maximum age for prospective adopters. For example, Croatia, “the former Yugoslav Republic of Macedonia”, Greece, Montenegro, the Netherlands and Portugal impose a maximum age of between 35 and 60 years (for the latter limit, Greece and Portugal in particular). Specific reasons may exceptionally justify non-observance of the maximum age rule. This is the case, for example, in Montenegro and the Netherlands, where an exemption from the maximum age requirement may be granted where there are sufficient reasons to justify such an exception or specific circumstances. In Montenegro and the “the former Yugoslav Republic of Macedonia”, when exemption from the maximum age is possible, an additional condition, relating to the difference in age between adopter and adoptee, is imposed.
28. In another group of States, where no maximum age is stipulated, the competent national authorities in the area of adoption nevertheless take into consideration the age of the person wishing to adopt when they examine his or her personal situation. This is apparent from the material available on the legal systems of Belgium, France, Ireland, Romania, Slovakia, Spain, Sweden and the United Kingdom.
29. It appears that the legislations of most member States also contain provisions concerning the age difference between adopter and adoptee.
30. A number of legal systems – Austria, Belgium, Bulgaria, Croatia, “the former Yugoslav Republic of Macedonia”, France, Greece, Hungary, Italy, Luxembourg, Malta, Montenegro, the Netherlands, Russia, Serbia, Spain and Turkey – impose a minimum age difference between adopter and adoptee. That difference, where required, varies between fourteen and twenty-one years. It should be noted, however, that the legislations of these States do allow derogations from the principle of the minimum age difference in certain situations.
31. In another group of legal systems, including in particular the Czech Republic, Denmark, Estonia, Finland, Germany, Ireland, Portugal, Romania, Slovakia, Sweden, Ukraine and the United Kingdom, no minimum age difference is provided for by law. In those cases the legislation may expressly provide that the age difference must be “appropriate”, “neither too wide nor too narrow” or “reasonable”.
32. Some legislations set a maximum age difference between adopter and adoptee, namely forty years in Denmark, Finland and the Netherlands (in the latter, only for the adoption of foreign children), forty-five years in Croatia, “the former Yugoslav Republic of Macedonia”, Hungary, Italy, Malta, Serbia and Ukraine, and fifty years in Greece; also, in exceptional circumstances, in Montenegro and Portugal. However, derogations from the provisions concerning the maximum age difference are possible in specific circumstances, which are largely the same as those that are considered in respect of the minimum age difference.
33. A significant number of instruments governing adoption, particularly in order to protect the child’s interest, lay down various conditions. However, few texts expressly lay down requirements related to the possibility of adoption by single persons or conditions concerning the adopter’s age or the age difference between adopter and adoptee. Certain international instruments concerning adoption refer to the application of the domestic law rules of the States Parties to the conventions in question.
34. The European Convention on the Adoption of Children, 24 April 1967, remains the main instrument of the Council of Europe in the area of adoption. It came into force on 26 April 1968. To date, eighteen member States, including Switzerland, have ratified it and three have just signed it.
35. Under the first Article of this instrument, the member States of the Council of Europe, Contracting Parties to the Convention, undertake to ensure the conformity of their law with the provisions of Part II of the Convention. This Part sets out a minimum number of essential principles to which the Contracting Parties undertake to give effect, seeking to harmonise such principles and European practice in matters of adoption.
36. As regards persons who are allowed to adopt a child, Article 6 stipulates that the law of the Contracting Party may permit a child to be adopted by one person. However, States that only allow adoption by a couple are not required to enact provisions to allow adoption by a single person.
37. As to the age-limit for adoptive parents and the age difference between them and the children, Article 7 provides that “a child may be adopted only if the adopter has attained the minimum age prescribed for the purpose, this age being neither less than 21 nor more than 35 years”. However, “the law may ... permit the requirement as to the minimum age to be waived when (a) the adopter is the child’s father or mother, or (b) by reason of exceptional circumstances”.
38. Article 8 provides as follows:
“1. The competent authority shall not grant an adoption unless it is satisfied that the adoption will be in the interest of the child.
2. In each case the competent authority shall pay particular attention to the importance of the adoption providing the child with a stable and harmonious home.
3. As a general rule, the competent authority shall not be satisfied as aforesaid if the difference in age between the adopter and the child is less than the normal difference in age between parents and their children.”
39. The legal and social changes that have occurred in Europe since the first Council of Europe Convention on the Adoption of Children have led a large number of States Parties to amend their adoption laws. As a result, certain provisions of the 1967 Convention have gradually become outdated. With that in mind, a revised Convention was drawn up in line with the social and legal developments whilst taking the child’s best interests into account.
40. The Council of Europe’s European Convention on the Adoption of Children (Revised) (“the Revised Convention”), which was opened for signature on 27 November 2008, has not yet come into force; fourteen member States have signed it to date. It will replace, as regards the States Parties thereto, the European Convention on the Adoption of Children.
41. Under Article 7 of the Revised Convention (conditions for adoption), domestic law will “permit a child to be adopted ... by one person”. Article 9 (minimum age of the adopter) provides as follows:
“1. A child may be adopted only if the adopter has attained the minimum age prescribed by law for this purpose, this minimum age being neither less than 18 nor more than 30 years. There shall be an appropriate age difference between the adopter and the child, having regard to the best interests of the child, preferably a difference of at least sixteen years.
2. The law may, however, permit the requirement as to the minimum age or the age difference to be waived in the best interests of the child:
a. when the adopter is the spouse or registered partner of the child’s father or mother; or
b. by reason of exceptional circumstances.”
42. This Article does not prevent the national law from imposing a minimum age of more than 18 years on the adopter. Any higher level of minimum age must nevertheless respect the principle of adoption as enshrined in the Convention and, accordingly, that age cannot exceed 30. The upper limit of the minimum age that was set by the 1967 Convention, namely 35 years, now appears excessive; it has thus been set at 30. Moreover, the Convention does not prescribe a maximum age for the adopter (see Explanatory Report on the Revised Convention, §§ 50-52).
NON_VIOLATED_ARTICLES: 14
8


ITEMID: 001-57474
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 1984
DOCNAME: CASE OF DUINHOF AND DUIJF v. THE NETHERLANDS
IMPORTANCE: 2
CONCLUSION: Questions of procedure rejected;Violation of Art. 5-3;Non-pecuniary damage - financial award
TEXT: 10. Mr. Duinhof and Mr. Duijf, who were born in 1962 and 1958 respectively, reside in the Netherlands. In 1981 and 1982, after being forcibly drafted as conscript soldiers in the Netherlands Armed Forces, they each refused, on account of their beliefs as conscientious objectors, to obey specific orders deriving from their obligation to perform military service. They were placed in detention by the competent military officers for suspected offences against the Military Penal Code (Wetboek van Militair Strafrecht). They were kept in custody and referred for trial before a military court.
11. Exemption may be obtained from compulsory military service on the ground of conscientious objection, both before and after active military service has begun. The procedure for requesting such exemption from the Minister of Defence is laid down in the Conscientious Objection to Military Service Act (Wet Gewetensbezwaren Militaire Dienst) and a Ministerial Decree of 31 July 1970.
In the present case, neither applicant ever submitted a request to the Minister of Defence to be granted the status of conscientious objector (see paragraphs 21-28 below).
12. Criminal procedure for the military land and air forces, including in particular the matter of arrest and detention on remand, is governed by the Army and Air Force Code of Procedure (Rechtspleging bij de Land-en Luchtmacht - "the Military Code"), as last amended on 24 November 1978. Offences under military criminal law, which applies equally to conscript servicemen such as the applicants and to volunteers, are tried at first instance before a Military Court (Krijgsraad). There may be an appeal to the Supreme Military Court (Hoog Militair Gerechtshof) and ultimately a (cassation) appeal on points of law to the Supreme Court (Hoge Raad) of the Netherlands.
13. Every officer and non-commissioned officer is empowered to arrest military personnel of lower rank suspected of a serious offence provided the circumstances require immediate deprivation of liberty (Article 4 of the Military Code). The resultant detention is not to exceed twenty-four hours (Article 5).
The commanding officer may order a suspected serviceman to be placed or kept in custody on remand if (a) there is a serious risk of absconding or (b) there are important reasons of public safety requiring immediate deprivation of liberty or (c) this is necessary in connection with the maintenance of military discipline among other servicemen (Article 7, second paragraph). Such a detention order may be made against a serviceman suspected of any offence set out in the Military Penal Code or any offence in respect of which detention on remand is permitted under the civilian Code of Criminal Procedure, with the exception of those offences of which the Military Court takes no cognisance (Article 7, fourth paragraph). An order may not be issued if the suspect is unlikely to be penalised by unconditional imprisonment or by any other measure restricting his freedom, or is likely to be given a sentence of shorter duration than that of the detention on remand (ibid.). Detention must be terminated once the grounds for it cease to exist (Article 7, fifth paragraph). All cases of detention exceeding four days shall be reported by the commanding officer to the commanding general (Article 7, sixth paragraph).
Where detention has lasted fourteen days, the suspected serviceman may petition the competent Military Court to fix a term (liable to extension) within which the commanding general must either decide whether the case is to be referred to a Military Court or else terminate the detention. The Military Court has to rule on the petition without delay, after hearing the authority empowered to refer the case, the auditeur-militair (see paragraph 18 below) and the suspected serviceman, who may have the assistance of an adviser (Article 13).
14. If, after receiving the advice of the auditeur-militair and, "if possible" ("zo mogelijk"), after the suspected serviceman has been heard, the commanding general or a senior officer (hoofd officier) designated by him to act on his behalf considers that the case should be tried by the Military Court, the serviceman shall be referred for trial before that Court (Article 11). On the other hand, the commanding general or the designated officer may in appropriate circumstances leave the case to be dealt with as a disciplinary matter (Article 12). Regulation No. 27/7 of the Ministry of Defence explained the effect of these provisions in the following terms (translation from Dutch):
"In military penal procedure, as distinct from civilian procedure, the decision to prosecute in a case is not taken separately by the prosecuting authority, the auditeur-militair, but by a military authority. That authority is the commanding general or the senior officer he has appointed to act on his behalf, i.e. the referring officer ... Thus, the auditeur-militair is merely an advisory body at this stage, although the obtaining of his advice and the giving of that advice by him are mandatory."
Any decision to refer for trial must be in writing and state whether the suspected serviceman is to be released or kept in custody; the grounds for detention set out in the second and fourth paragraphs of Article 7 (see paragraph 13 above) apply pari passu (Article 14). If, against the advice of the auditeur-militair, the commanding general or designated senior officer chooses not to refer a suspected serviceman for trial, the auditeur-militair may take the matter to the Supreme Military Court (Article 15). No appeal is provided for in the contrary case.
According to the Government, it has now become standard procedure to apply the above provisions of the Military Code in the following manner. Where detention on remand has been ordered, the suspected serviceman is always heard by the auditeur-militair and any referral to the Military Court takes place shortly thereafter, on average four to five days after the arrest. In view of the requirements of Article 14 of the Military Code the auditeur-militair’s assessment of the circumstances and his advice to the commanding general or designated senior officer cover not only referral for trial but also the question whether the conditions for detention on remand set out in Article 7 are fulfilled. Thus, the standard written form used by the auditeur-militair for the purposes of transmitting his advice to the referring officer contains, inter alia, a paragraph as to whether the suspect should "be released or be placed or kept in custody". Practice has evolved to the point where the advice of the auditeur-militair is invariably followed and generally regarded as binding.
15. Detention maintained or ordered in the decision referring the serviceman for trial may not exceed fourteen days unless extended, by terms of thirty days, by the Military Court at the request of the auditeur-militair (Article 31). Every accused detained by virtue of the referral decision must be heard by the officier-commissaris (see paragraph 19 below) as speedily as possible and in any event within four days of referral; in this connection, the accused may be assisted by an adviser (Article 33, first paragraph). Before extending detention, the Military Court must give the accused or his adviser the opportunity to submit argument (Article 33, second paragraph).
As soon as the grounds for the detention cease to exist, release must be ordered (Article 34, first paragraph). In the period between referral and commencement of the trial, power to order release is exercisable by the auditeur-militair, or by the Military Court at the request of either the officier-commissaris or the detained serviceman himself (Article 34, second paragraph). The Military Court, in deciding on such requests, will hear the auditeur-militair and also the detained serviceman or his adviser where the serviceman is requesting release for the first time (Article 34, third paragraph).
16. If the accused is in custody at the first hearing, the Military Court will decide, after being addressed by the auditeur-militair, whether or not the nature and circumstances of the case require his continued detention during the trial (Article 151). The Court may direct the accused’s release from detention on remand at any later stage in the proceedings, either of its own motion or at the request of the auditeur-militair or the accused himself (Article 156).
17. A serviceman in custody may request release or suspension of his detention under Article 219 of the Military Code in proceedings before the Supreme Military Court pending the decision on his appeal.
18. The auditeur-militair has the function of prosecuting authority before the Military Court (Article 126, first paragraph). No serving member of the Armed Forces may appear as auditeur-militair or substitute auditeur-militair (Article 126, third paragraph). The auditeur-militair and his substitute may be replaced by an acting auditeur-militair (plaatsvervanger - Article 126, second paragraph) who may be a military officer, but such replacement was said by the Government to occur only in exceptional circumstances. Auditeurs-militair (including substitutes and acting ones) are appointed, and dismissed, by the Crown on a joint proposal from the Ministers of Justice and Defence; they must possess a law degree (Article 126, fourth and sixth paragraphs). Under the terms of Article 276, second paragraph, of the Military Code, they are obliged to comply with instructions given to them in their official capacity by the Minister of Justice. However, according to the Government, this latter provision serves as no more than the legal authority for issuing general guidelines on prosecution policy and, at least in recent years, no Minister of Justice has acted or interfered in a concrete case on the basis of Article 276.
The auditeur-militair is bound by his oath to act honestly and impartially (Articles 368 and 370). He must attend the hearings of the Military Court (Article 290) but he does not take part in the Court’s deliberations. He is under a general duty to assist the Military Court, as well as the commanding general, with reports, observations and advice in relation to military justice when required to do so (Article 278). He is not under the supervision of the Military Court or the Supreme Military Court in the discharge of his duties, save that the Supreme Military Court has the power to reprimand him should he fail strictly to observe statutory time-limits (Article 297).
19. Attached to each Military Court is at least one officier-commissaris who is in charge of the preliminary investigation of cases (Article 29). An officier-commissaris is an officer or former officer of the Armed Forces with the rank of captain or higher and is appointed for a fixed term of at least one year by the commanding general (ibid.). While he may at the same time be a member of the Military Court, this is not usually the case. His task of preliminary investigation involves gathering the facts and hearing witnesses and the accused when necessary (Articles 29, 48 and 78). A hearing by the officier-commissaris has the same force as a hearing by the Military Court (Article 161). During his enquiries, he is under a duty to apply himself equally to discovering the accused’s innocence and to obtaining proof or admission of guilt (Article 62). Like the auditeur-militair, he is bound by his oath to act honestly and impartially (Articles 368 and 370).
20. The Military Court sits with a president and two military members (Article 120).
The latter are military officers appointed by the commanding general; during their term of office, which is for one year at least, they may not be dismissed; they must be at least twenty-five years of age and be commissioned officers (Article 120). In practice, the rank most commonly possessed is that of captain or major. There is no requirement that the military members be legally qualified. According to the Government, although they retain the status of military officers, they are independent in their capacity as judges and no order can be given to them by anyone. Like the president, the military members are bound by oath to act honestly and impartially (Articles 368 and 369).
The president is a civilian who must be the holder of a university law degree; he is appointed for life by the Crown on the joint recommendation of the Ministers of Justice and Defence (Article 121).
The deliberations of the Military Court are secret and its members are not allowed to make public their personal opinions or those of their colleagues (Article 135).
21. Mr. Duinhof was arrested on 18 November 1981 on a charge of having failed to register in due time as a conscript serviceman (Article 150 of the Military Penal Code). He was transferred to military barracks where he refused to submit to a medical examination. He was then further accused of persistent insubordination (Article 114 of the Military Penal Code). On 19 November, the commanding officer confirmed the detention, the ground relied on being the need to maintain discipline amongst other servicemen (Article 7 of the Military Code - see paragraph 13 above).
On 20 November, he was brought before the auditeur-militair. On 23 November, in accordance with the advice of the auditeur-militair, the designated senior officer referred the applicant for trial before the Military Court, while deciding that he should be kept in custody on the same ground as before (Articles 11, 14 and 7, second paragraph, of the Military Code - see paragraph 14 above).
22. On 24 November, the applicant was heard by the officier-commissaris (Article 33, first paragraph, of the Military Code - see paragraph 15 above).
On 26 November, the Military Court examined a request made by the applicant on 24 November for release from custody (Article 34 of the Military Code - see paragraph 15 above). At this hearing, the applicant submitted, inter alia, that the requirements of Article 5 § 3 (art. 5-3) of the Convention had not been complied with. The Court held that the lapse of time between the applicant’s arrest and his appearance before the officier-commissaris, a judicial officer, was "considerable" but nonetheless "acceptable", having regard both to the fact that this period comprised a week-end and to the geographical distance between the various intervening authorities. Accordingly, considering that the grounds for detention were still prevailing, the Court dismissed his request.
Subsequently, his detention was regularly prolonged by the Military Court.
23. On 28 January 1982, Mr. Duinhof was convicted of insubordination and sentenced by the Military Court to eighteen months’ imprisonment, the time spent in custody on remand to be deducted therefrom.
24. He then appealed to the Supreme Military Court.
On 29 January, pending the examination of his appeal, the applicant lodged with the Supreme Military Court a request for the detention to be terminated having particular regard to Article 5 § 3 (art. 5-3) of the Convention or, alternatively, for the detention to be suspended (Article 219 of the Military Code - see paragraph 17 above).
On 17 March, the Supreme Military Court rejected the first part of his request. However, on the same day, it acceded with immediate effect to the second part subject to a number of conditions, inter alia, that he accepted - which he did - to perform substitute civilian service over a minimum period of fifteen months and to submit to a medical examination. Criminal proceedings were likewise suspended by the Court under the same conditions.
The Supreme Military Court subsequently sentenced Mr. Duinhof to 101 days’ imprisonment, the time spent in custody on remand, which likewise totalled 101 days, to be deducted therefrom.
25. Mr. Duijf was arrested on 15 January 1982 on a charge of having failed to register in due time as a conscript serviceman (Article 150 of the Military Penal Code). He was transferred to a military house of detention where he refused to take receipt of a military uniform and weapon. He was then further accused of persistent insubordination (Article 114 of the Military Penal Code). The commanding officer confirmed the detention, the grounds relied on being a serious risk of his absconding and the need to maintain discipline amongst other servicemen (Article 7 of the Military Code - see paragraph 13 above).
On 18 January, in accordance with the verbal advice of the auditeur-militair, the designated senior officer referred the applicant for trial before the Military Court, while deciding that he should be kept in custody on the same grounds as before (Articles 11, 14 and 7, second paragraph, of the Military Code - see paragraph 14 above).
26. On 19 January, the applicant was heard both by the officier-commissaris (Article 33, first paragraph, of the Military Code - see paragraph 15 above) and by the auditeur-militair.
On 27 January, the Military Court examined a request made by the auditeur-militair on 22 January for the detention to be maintained (Article 31 of the Military Code - see paragraph 15 above). At this hearing, the applicant submitted, inter alia, that Article 5 § 3 (art. 5-3) of the Convention had not been complied with. The Court rejected his various arguments and, considering that the grounds for keeping him in custody were still prevailing, prolonged the detention by a thirty-day term.
Subsequently, his detention was regularly prolonged by the Military Court.
27. On 15 April, the applicant was convicted of insubordination and sentenced by the Military Court to eighteen months’ imprisonment, the time spent in custody on remand to be deducted therefrom.
28. The applicant then appealed to the Supreme Military Court.
On 16 April and 2 June, the applicant lodged with the Supreme Military Court requests to have his detention terminated, alleging, inter alia, breach of Article 5 §§ 3 and 4 (art. 5-3, art. 5-4) of the Convention (Article 219 of the Military Code - see paragraph 17 above).
The Supreme Military Court rejected these requests on 23 June.
On 7 September, the Supreme Military Court, substituting its own judgment for that of the trial court, upheld both the conviction and the sentence imposed.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-5186
LANGUAGEISOCODE: ENG
RESPONDENT: IRL
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: DEMPSEY v. IRELAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicant is an Irish national, born in 1963 and living in Dublin. She is represented before the Court by Collins Crowley and Company, a firm of solicitors practising in Dublin.
A.
The applicant is the natural mother of three children born on 18 June 1984, 25 May 1988 and on 14 June 1991. At the time of the birth of her third child (“D”), the applicant had a history of substance abuse and of depression. Her relationship (often violent) with the father of D had ended, he having commenced a long prison sentence. D was placed in an incubator when he was born until his discharge from hospital on 2 July 1991. On that date, the applicant signed the Admission to Care form to have D placed in pre-adoptive foster care under the supervision of the Eastern Health Board and D was immediately handed over to foster parents. On 25 July 1991 D was placed with the prospective adoptive parents. On 20 December 1991 the applicant signed the final consent form for the adoption.
Having recovered from her drug addiction, the applicant wished to obtain the return of D and to challenge the consent to adoption she had signed. Having received notification dated 3 July 1992 that the final adoption order would be made, on 7 July 1992 she requested An Bord Uchtála (the Adoption Board) not to proceed with the adoption and on 17 September 1992 notified the Adoption Board orally that she wanted her child back. By letter dated 30 September 1992 the Registrar of the Adoption Board confirmed to the applicant that her consent for the adoption would be regarded as withdrawn.
In September 1992 the applicant went to the Legal Aid Board where she was informed that she would have to wait over two months for an appointment to discuss a legal aid application and that there was a three year delay before the Legal Aid Board could act. She did not, therefore, fill out the necessary legal aid application forms. She returned twice to that office and failed to obtain legal aid or advice. Given that time was of the essence for the applicant, as D was living still with the prospective adoptive parents, she consulted a voluntary agency and a social worker who put her in touch with a firm of solicitors (her current legal representatives). She contacted that firm of solicitors in January 1993. The latter took instructions, instructed Counsel and on 25 February 1993 issued proceedings on behalf of the applicant seeking sole guardianship of the child pursuant to section 11 of the Guardianship of Infants Act 1964. Since it was clear to her representatives that the applicant, a single impecunious mother, could not discharge their fees, they contacted the Legal Aid Board by telephone in August 1993. The latter confirmed that, while the applicant would qualify for legal aid in relation to her means, there remained the issue relating to that Board’s view of the merits of her case. No legal aid application forms were filled out at that stage.
On 20 May 1993 the prospective adoptive parents also issued proceedings to dispense with the applicant’s consent to adoption and seeking sole custody of D for the period required to make the adoption order. The prospective adoptive parents were legally aided. The High Court hearing in both proceedings took place over 13 days in July and November 1993. The High Court heard substantial evidence from social workers, a medical doctor, a psychiatrist, a psychologist, the applicant and from the prospective adoptive parents. It took three days to deliver the judgment orally (25, 26 and 30 November 1993). The High Court found, on the facts, that the applicant’s consent for adoption had been freely and properly given. As to the best interests of D, it was noted that D had been with the prospective adoptive parents for almost two and a half years and that it was considered that the evidence was that a move at that stage would be traumatic for D and could damage his future capacity to make sound and trusting relationships. It was considered that D had been placed in a household where he would receive great love, care and attention. The High Court ordered that the applicant’s consent to adoption be dispensed with pursuant to section 3(2) of the Adoption Act 1974, that the Adoption Board be authorised to make an adoption order and that the prospective adoptive parents have custody of D for a further six months, a period calculated to allow the adoption to be completed. The High Court made a “strong recommendation that the Legal Aid Board look favourably” on the applicant’s representatives’ request that her costs of the two proceedings be discharged by that Board.
The applicant’s representatives and the Legal Aid Board subsequently failed to resolve the matter, the Legal Aid Board taking the view that since no application forms had been filled out, no legal aid certificate had issued and that it did not therefore have the power to make the payment, even under section 8(3) of the Legal Aid Scheme. On 19 December 1994 the applicant’s representatives brought the issue of legal costs before the High Court.
On 1 February 1996 the High Court gave judgment on the costs issue. It commented that the hallmark of the applicant’s case was “meticulous preparation and careful presentation”. It referred to the “modest” sums claimed by the applicant’s representatives and, in that context, noted that the applicant herself had made it clear that she regarded her case as having been fully put before the Court. It also took note of the applicant’s inability to obtain legal aid or assistance urgently in 1992 and that, accordingly, the required forms for applying for legal aid were not filled out at the time. In that court’s view it would have been a grave injustice if the natural mother’s costs were not met because her legal representatives, who presented her case “diligently and ably”, would in practical terms not be remunerated. The High Court considered that the applicant would have qualified for legal aid had she applied on time, given the nature of the case and her financial circumstances. It was found that, if an order for costs was made against the prospective adoptive parents, the applicant’s case would fall within the terms of section 8(3) of the Legal Aid Scheme. The court therefore made an order for costs against the prospective adoptive parents but put a permanent stay on the order and obtained an undertaking from the applicant not to enforce those costs.
On 17 May 1996 the Supreme Court gave judgment on the prospective adoptive parents’ appeal from this costs order against them. The Supreme Court accepted that neither the applicant nor the prospective adoptive parents were in a position to discharge the former’s legal costs. The Supreme Court considered that, while the High Court’s order was intended to allow payment to the applicant under section 8(3) of the Legal Aid Scheme, the High Court had acted without jurisdiction. The Supreme Court allowed the prospective adoptive parents’ appeal and set aside the order of the High Court. The Chief Justice (with whom two of the other judges concurred) stated, inter alia, as follows:
“I <allow the appeal> with regret because I fully appreciate the efforts made by the solicitor who undertook the case on behalf of the natural mother in accordance with the highest traditions of both branches of the profession, that they were not going to let a person who had the constitutional right of access to the courts be deprived of that by reason of the apparent and alleged delays in the administration of the civil legal aid scheme. It is unfortunate that there should have been such delays if they existed which deprived the natural mother of the possibility of getting a certificate of legal aid in time in order to deal with a matter which was of extreme urgency. The Court has from time to time been faced with problems caused by delay in the bringing and prosecution of appeals against decisions of the High Court in respect of these proceedings and to a very considerable extent, these delays have been substantially contributed to by the costs of the proceedings, the difficulty which existed in obtaining a certificate for the civil legal aid in time in order to bring these proceedings to a fairly rapid conclusion. In many cases because of the delays, the Court has often found it obliged not to alter the status quo with regard to children involved because they had grown up and were six and seven years old and irrespective of the rights and wrongs, obviously the paramount interest of the child required that they be left where they were irrespective of the merits of the application of the natural mother.
I have, as I said, felt obliged to allow the appeal … but do so with regret because it would be much more desirable if access to the courts were made easier for people in the position of the natural mother. She would not have been entitled to or able to avail of that access were it not for the action of her solicitor in undertaking the case and it is in my opinion regrettable that there is not in existence or was not at the time a system whereby a solicitor in the position of the solicitor in this case could obtain reasonable remuneration for his efforts. The problem about making a recommendation to the Legal Aid Board even at this stage is compounded by the fact that they say that they had no power to accede to the recommendation, so no useful purpose would appear to be served in making any further recommendations in this regard.”
B. Relevant domestic law
Section 4(8)(2) of the Legal Aid Scheme provides that a certificate which is granted after the commencement of the proceedings in respect of which it is sought will not be extended to cover any action taken or costs incurred prior to the issue of the certificate.
Section 8(3) of that scheme provides that the Legal Aid Board may make ex gratia payments towards the costs of an unaided person but only in cases where the costs have been awarded against a legally aided person and provided that, inter alia, the proceedings in the court of first instance were instituted by the unsuccessful legally aided person.