ITEMID: 001-101621
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: C AND D v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: The applicants, daughter and mother, are Croatian nationals and live in Z. They are represented before the Court by Mrs I. Bojić, a lawyer practising in Zagreb. The Croatian Government (“the Government”) are represented by their Agent, Mrs Š. Stažnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 19 March 2005 the first applicant was placed in pre-trial detention in Z. Prison, charged with the murder of her husband, who had been killed on the same day. In a judgment of the Z. County Court (Županijski sud u Z.) of 11 September 2006 the first applicant was convicted of murdering her husband in imperfect self-defence and sentenced to nine years' imprisonment. The sentence was reduced to five years' imprisonment by the Supreme Court (Vrhovni sud Republike Hrvatske) on 25 January 2007. After her conviction the first applicant had, in October 2005, been sent to serve the remainder of her sentence in Požega Penitentiary (Kaznionica u Požegi).
Meanwhile, on 19 March 2005, following the first applicant's arrest, her son, E, born in 1996, was placed in the care of his paternal grandmother by a decision of the Z. Welfare Centre (Centar za socijalnu skrb Z.). This decision was upheld by the same Centre on 4 July 2005.
In 2008 the President of Croatia reduced the first applicant's sentence to three and a half years' imprisonment. The applicant was released on 27 June 2008.
On 13 April 2005 the first applicant asked the Z. Welfare Centre to allow her access rights in respect of E. By a decision of 6 July 2005 the Z. Welfare Centre granted the first applicant visiting rights in respect of E every Wednesday from 9 a.m. to 10 a.m. at the Z. County Court, if necessary in the presence of a psychologist. E's guardian was instructed to bring him to these premises. The relevant parts of the decision read as follows:
“The report drawn up by the psychologist ... on 1 June 2005 recommended that it was in the best interests of the child to continue contact with his mother in order both to treat his trauma and to establish a natural relationship between the mother and the child, which was seen as a precondition for the latter's further proper mental and physical development.
...
In adopting the above decision the Centre's expert team has been guided primarily by the best interests of the child and the [need for the] protection of his rights since he has recently been left without the direct parental care of both of his parents. He has been receiving psychotherapy owing to the consequences he is suffering. He has shown a wish and readiness for contact with his mother and the psychologist considers this [contact] necessary for his treatment in order to avoid ... permanent [negative] consequences for his mental and physical development.”
It appears that the visits took place and that the last one was in September 2005. The child's paternal grandmother, as his guardian, lodged an appeal against the above decision and on 30 December 2005 the Ministry of Health and Social Welfare (Ministarstvo zdravstva i socijalne skrbi) quashed the impugned decision and remitted the case to the Z. Welfare Centre for fresh consideration.
On an unspecified date the case was transferred to the Z. Municipal Court (Općinski sud u Z.). The hearings were held on 30 March, 12 and 29 May and 8 June 2006. On 9 June 2006 the Municipal Court granted the first applicant visiting rights every Thursday from 10 a.m. to 11 a.m. at the Z. Welfare Centre. She was also granted the right to telephone E every Monday and Friday between 5 p.m. and 6 p.m. This decision was quashed by the Z. County Court on 13 September 2006 on appeals lodged by the first applicant and on behalf of E; it remitted the case to the first-instance court for fresh consideration. The hearings before the latter court were held on 30 November and 22 December 2006 and 2 February and 2 March 2007.
On 10 April 2007 the court ordered psychological and psychiatric reports on the first applicant and E. The expert concluded that contact between the first applicant and E would not be possible because the child had categorically refused to see the first applicant. In order to overcome that difficulty, it was recommended that E undergo psychotherapy once a week for six months, after which it would have to be established whether his psychological condition allowed for contact with the first applicant. It was stressed that the therapy was needed to come to terms with the tragic event and prepare E for contact with his mother.
As to the first applicant, the expert opinion recommended psychotherapy in order to come to terms with the tragic event and create conditions in which that issue could be discussed by the first applicant and E.
Further hearings before the Z. Municipal Court were held on 5 and 27 September and 6 November 2007. On 12 November 2007 a decision was adopted refusing the first applicant's request for access rights in respect of E.
Meanwhile, on 4 July 2007, the first applicant complained to the Z. County Court about the length of the proceedings. The complaint was dismissed by the Z. County Court on 19 November 2007.
The first-instance decision of 12 November 2007 was upheld by the Z. County Court on 28 March 2008.
The applicant then lodged a constitutional complaint arguing that her rights under Article 35 of the Constitution and Article 8 of the Convention had been violated.
On 20 May 2009 the Constitutional Court accepted the complaint, quashed the decisions of the Z. Municipal and Z. County Courts and ordered the Z. Welfare Centre to take all necessary steps to ensure effective meetings and contact between the first applicant and E. The relevant part of the Constitutional Court's decision reads:
“7. ...
As regards the present case, the Constitutional Court endorses the principle that the incarceration of a parent does not break the tie of family life between that parent and a child. Moreover, in such circumstances the State has a special obligation to encourage the preservation of family ties between the prisoner and his or her family members.
...
8. ...
Positive obligations include a duty on the part of the State to be proactive in order to ensure that its citizens' family life is respected and efficiently protected, even when that requires regulation of their private relations. These obligations are expressed in the following Articles of the Constitution which refer to social rights:
Article 61(1)
The family is under special State protection.
Article 62
The State protects maternity, children and young persons and creates social, cultural, educational, economic and other conditions in order to promote the right to dignified life.
...
9. ...
In the case at issue, the competent administrative and judicial bodies determined the access rights of the mother (the applicant) in respect of her son, a minor, during her incarceration in Požega Penitentiary.
...
In the opinion of the Constitutional Court the proceedings concerning the appointment of a legal guardian to the child as well as proceedings concerning the access rights of parents ... are both relevant ... These proceedings are both judicial and administrative ...
Therefore, the Constitutional Court finds that possible infringements of the right to respect for one's family life under Article 35 of the Constitution and ... under Article 8 of the Convention require that all proceedings prior to a decision of the Constitutional Court be viewed as a whole, irrespective of the nature of these proceedings (administrative, judicial) or the bodies which conducted them ...
11. ...
The applicant's detention made contact between the mother and her child impossible and it therefore amounts to an interference of the State with the applicant's right to respect for her family life within the meaning of Article 35 of the Constitution and Article 8 of the Convention. ...
...
13. The Constitutional Court finds that the delays in the proceedings concerning the protection of the child's well-being, such as proceedings on appointing his legal guardian, access and visiting rights of parents... might run contrary to the procedural requirements of Article 35 of the Constitution and Article 8 of the Convention. ...
In the case at issue the length of the administrative and judicial proceedings concerning the applicant's visiting and access rights in respect of her child exceeded three years and ended with a judicial decision denying such rights so that the last time the applicant saw her child was on 13 September 2005.
...
's father (19 March 2005); the failure of the judicial authorities to commission the necessary expert report in time; the failure to consider the possibility of appointing a special guardian for the child during his psychotherapy, irrespective of the fact that his paternal grandmother had been appointed his legal guardian, in order to 'work out' the event, which had tragic consequences both for the child and his paternal grandmother; the fact that the additional expert report recommended by court experts was not compiled; and the delays in the proceedings concerning the visiting and access rights, which opened the possibility of influencing and changing the child's attitude towards his mother, resulting in his categorical refusal to see her – indicate that the Constitutional Court cannot but find that the conduct of the competent authorities amounted to a violation of the applicant's right to respect for her family life guaranteed under Article 35 of the Constitution and Article 8 of the Convention ...”
In a letter of 8 June 2009 the Z. Welfare Centre invited the first applicant to attend a meeting scheduled for 19 June 2009 at 12.30 p.m. in order to “participate in the proceedings on consultation and assistance in overcoming special difficulties”, all according to the above decision of the Constitutional Court. In the case the first applicant was prevented to attend, the Centre invited her to inform it within twenty-four hours following the receipt of the letter.
The letter was served on the first applicant on 11 June 2009. On 19 June 2009 the first applicant wrote a letter to the Centre informing it that she would not attend the meeting scheduled for the same day and invited the Centre to inform her of any steps envisaged by the Centre in order to ensure her contact with her child. However, she did attend the meeting and insisted that the Centre organise a meeting between her and the child. She also said that she would not attend any further meetings unless her child was present.
In June 2009 the Centre also devised an action plan in order to comply with the Constitutional Court's decision. The action plan was to be implemented by a team of experts, composed of a social worker, five psychologists and two lawyers, established for that purpose. The action plan was concentrated on three main purposes: establishing contacts with the first applicant and her son; work with the family members; and mediation between the two families.
In July 2009 the first applicant accepted employment on a cruise ship.
In a telephone conversation on 13 July 2009 E. told a psychologist of the Centre that he did not wish to see the first applicant.
On 16 July 2009 the second applicant informed the Centre that the first applicant was expected to come back to Zadar in October 2009.
On 21 July 2009 the first applicant lodged a request for compensation with the competent State Attorney's Office. This request was denied on 15 October 2009.
On 8 December 2009 the first applicant informed the Centre that she had come back to Zadar and would stay there until 4 January 2010.
In a telephone conversation on 10 December 2009 E. again told a psychologist of the Centre that he did not wish to see the first applicant. The psychologist informed the first applicant about it on 11 December 2009 and advised her to send E. a Christmas card and a present.
On 16 March 2010 the Centre invited the applicants to a hearing on 29 March 2010 at 8 a.m, E.'s paternal grandparents at 10 a.m. and E. for consultations with a psychologist on the same day at noon.
On 24 March 2010 the second applicant informed the Centre that the first applicant could not attend because she was still working on a cruise ship.
The second applicant attended and informed the Centre's psychologist that she had been seeing a counsellor. She also said that the first applicant had sent several text messages to E. and that he had sent short replies, not wishing to establish contact with the first applicant.
E.'s paternal grandmother also attended.
E. came to the Centre on 30 March 2010 and told the psychologist that he did not wish to see the first applicant.
On 31 May 2010 separate consultations between the Centre's psychologist and the second applicant, E.'s paternal grandmother and E. were held at the Centre. The second applicant said that the first applicant was still abroad. E. told the psychologist that he had been seeing a counsellor once a month. He repeated that he did not wish to see the first applicant.
Consultations scheduled for 12 July 2010 were attended by the second applicant only. She informed the Centre that the first applicant would probably come to Zadar in September or October 2010. The Centre's psychologist suggested that she call E. by telephone and send him letters.
On 1 June 2005 the second applicant, E's maternal grandmother, requested the Z. Welfare Centre to grant her visiting rights in respect of E. On 15 June 2005 the Centre heard evidence from E's paternal grandmother and legal guardian, and on 30 June 2005 from the second applicant. On 11 July 2005 both grandmothers met at the Centre's premises and agreed that the second applicant and E should meet on 19 July at the Centre, in the presence of the Centre's psychologist.
On 7 September 2005 the grandmothers met again at the Centre and agreed that the second applicant would meet E. on her own each Saturday for two hours. However, only one such meeting took place, allegedly because E refused to continue with these meetings.
On 1 January 2006 jurisdiction in matters concerning child custody was transferred to the municipal courts. Hearings before the Z. Municipal Court were held on 21 February, 9 March, 14 April and 31 May 2006 and 3 and 17 May and 5 and 14 September 2007. On 24 September 2007 a decision was adopted ordering bi-monthly meetings between the second applicant and E at the Centre's premises.
On 11 July 2007 the second applicant complained to the Z. County Court that the length of the proceedings was excessive. The complaint was dismissed on 3 October 2007.
On 22 April 2008 the Z. County Court upheld the first-instance decision of 24 September 2007.
Article 35 of the Croatian Constitution (Ustav Republike Hrvatske) reads:
“Respect for and legal protection of everyone's private and family life, dignity, reputation and honour is guaranteed.”
The relevant part of section 62 of the Constitutional Court Act (Official Gazette no. 49/2002, of 3 May 2002, Ustavni zakon o Ustavnom sudu Republike Hrvatske) reads as follows:
“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the individual act of a state body, a body of local and regional self-government, or a legal person with public authority, which has determined his or her rights and obligations, or a suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: constitutional right) ...
...”
The relevant provisions of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 35/2005 and 42/2008) read as follows:
“(1) Every legal entity and every natural person has the right to respect for their personal integrity under the conditions prescribed by this Act.
(2) The right to respect for one's personal integrity within the meaning of this Act includes the right to life, physical and mental health, good reputation and honour, the right to be respected, the right to respect for one's name and privacy of personal and family life, freedom et alia.
...”
“Damage is ... infringement of the right to respect for one's personal integrity (non-pecuniary damage).”
The relevant part of section 186(a) of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/91, 91/92, 58/93, 112/99, 88/01 and 117/03 reads as follows:
“A person intending to bring a civil suit against the Republic of Croatia shall first submit a request for a settlement to the competent State Attorney's Office.
...
Where the request has been refused or no decision has been taken within three months of its submission, the person concerned may file an action with the competent court.
...”
In decision no. U-III-1437/2007 of 23 April 2008 the Constitutional Court found that the conditions of detention of a prisoner, P.M., in Lepoglava State Prison amounted to inhuman treatment. It also addressed the question of P.M.'s claim for just satisfaction. The relevant parts of the decision read:
“In particular, the Constitutional Court finds the [lower] courts' opinion that in this case an award for non-pecuniary damage cannot be made under section 200 of the Civil Obligations Act on the ground that such compensation claim is unfounded in law, unacceptable.
...
Section 1046 of the Civil Obligations Act defines non-pecuniary damage as infringement of the right to respect for one's personal integrity. In other words, every infringement of the right to personal integrity amounts to non-pecuniary damage.
Section 19(2) of the Civil Obligations Act defines the right to personal integrity for the purposes of that Act as: right to life, physical and moral health, reputation, honour, dignity, and name, privacy of personal and family life, freedom and other rights.
... it must be concluded that in this case there has been a violation of human, constitutional and personal rights because the applicant was placed in prison in conditions incompatible with the standards prescribed by the Enforcement of the Prison Sentences Act the conditions of which are also incompatible with the legal standards under Article 25(1) of the Constitution. For that reason the courts are obliged to award compensation for the infringement of the applicant's dignity.
...”


ITEMID: 001-91357
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SAYGILI AND FALAKAOGLU v. TURKEY (No. 2)
IMPORTANCE: 4
CONCLUSION: No violation of Article 10 - Freedom of expression -{General}
JUDGES: Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
TEXT: 5. The applicants were born in 1966 and 1974 respectively and live in Istanbul. They are, respectively, the owner and the editor-in-chief of a daily newspaper called Yeni Evrensel.
6. On 23 October 2000, on payment of a certain amount of money, Yeni Evrensel newspaper published three declarations by detainees who were being kept in several prisons in Turkey and who were either convicted or being tried on charges of having been involved in the activities of leftwing illegal armed organisations. By these declarations the detainees protested mainly against the F-type prison system put in place by the Government. They stated, in particular, that they would go on hunger strike until the Government abolished the F-type prison system. They also made a number of other requests to the Government, such as the abrogation of Law no. 3717 (Anti-Terrorism Law), the state security courts and anti-democratic laws as well as prosecution of those who tortured detainees.
7. The first declaration on page 9 of the newspaper was entitled “We warn the Government which tries to put in place a cell system, we will not enter the cells”, and in its relevant parts stated as follows:
“As we fought off the 12 September Junta’s policies of controlling the prisons,
As the circulars of 1 August were torn off,
As the Eskişehir coffin house (prison) was forced to close down in 1991,
As we forced the authorities to close down the Eskişehir coffin house once again in 1996 by our hunger strikes and we set up a barricade against the attacks on the people, today we the revolutionary prisoners who have come across the same duties will fight off this attack as well. We will pay off whatever it costs. But we will not enter the cells. From now on the strong voice of the resistance will resonate in the prisons of our country. As detainees of the DHKP-C and TKP (ML) cases kept in various prisons, we start an indefinite hunger strike from 20 October 2000 until the F-type cell assault ends and our demands are met...
We will die but we will not enter the cells,
Long live our general resistance,
We will win...”
8. The second declaration on page 10 of the newspaper was entitled “We are on indefinite hunger strike, we will die but we will not enter the cells”, and stated in its relevant parts:
“...With these beliefs and determination, and together with the prisoners of DHKP-C and TKP (ML) cases, we started our hunger strike resistance for an indefinite period. We call on all revolutionary prisoners, including the prisoners of PKK cases, to unite under the resistance flag and to set up a stronger and indestructible barricade of revolutionist mind.
The fundamental requests of our resistance are as follows:
* Abolish F-type prisons immediately,
* Reinstate all rights seized in prisons,
* Abolish the Anti-Terrorism Law,
* Abolish the tripartite protocol,
* Abolish the state security courts and invalidate the outcome of all judgments delivered by these courts, and
* Try the torturers and perpetrators of massacres.
...
We call on the working class, labourers, all oppressed people and revolutionary people and ask them to support us in this resistance, for which we are ready to sacrifice our lives for human honour. We call on you to fight off the cell system which is the most critical chain of assault aiming at turning our lives into cells.
We will die but we will not enter the cells!
Long live resistance, long live victory!
In the name of TKIP detainees in all prisons.”
9. Finally, the third declaration, which appeared on page 10 of the newspaper, was entitled “To the public” and made calls similar to the first two declarations above. In particular, it called on all forces struggling to gain political freedom and class independence to take a stand against the fascist establishment and to spread the existing movement and actions and not to content themselves with mere declarations. It also called on these “forces” to use the request “F-type prisons should be closed” as leverage for their own political requests.
10. On 2 November 2000 the Chief Public Prosecutor at the State Security Court filed an indictment charging the applicants with publishing the declarations of terrorist organisations. The charges were brought under section 6/2 of Law no. 3713, section 2/1 of Law no. 5680 (Press Law) and Article 36 of the former Criminal Code.
11. On 17 April 2001 the applicants made their defence submissions to the Istanbul State Security Court. They argued that they had merely published declarations on payment of a certain amount of money and that they had had no intention of publishing the view of any terrorist organisation. They maintained that their trial by a state security court for exercising their right to impart ideas would amount to a breach of Articles 6 and 10 of the European Convention on Human Rights.
12. Following the hearing of 17 April 2001, the Istanbul State Security Court convicted the applicants as charged and sentenced them to heavy fines, of 10,995,840,000 Turkish liras (TRL) (6,380 euros (EUR)) and TRL 183,240,000 (EUR 105) respectively, which sums corresponded to 90% of the newspaper’s average sales in the previous month. The court further decided to ban the publication of Yeni Evrensel for three days.
13. On 20 April 2001 the applicants appealed, arguing that they were innocent of the crime and that the sanction imposed on them was disproportionate.
14. On 17 September 2001 the Court of Cassation quashed the Istanbul State Security Court’s judgment, holding that the fine imposed on the applicants was miscalculated.
15. On 11 December 2001 the Istanbul State Security Court delivered its reasoned judgment. Relying on Article 10 § 2 of the Convention and the Zana v. Turkey judgment (25 November 1997, Reports of Judgments and Decisions 1997VII), the court held that publication of terrorist organisations’ declarations was not protected by the right to freedom of expression. It also noted that freedom of expression was not absolute and that Article 10 § 2 of the Convention did not permit the publication of views expressed by armed terrorist organisations.
16. On 12 December 2001 the applicants appealed again and asked the Court of Cassation to hold a hearing and to quash the State Security Court’s judgment of 11 December 2001. They claimed that the incriminated declarations did not incite violence or harm national security. They only exercised their duty to impart political opinions. The applicants also challenged the constitution of the state security courts.
17. On 15 April 2002 the Court of Cassation dismissed the applicants’ request for a hearing and upheld the judgment of the Istanbul State Security Court.
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-87779
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: PAREKH v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Ayub Mohamed Parekh, is a British national who was born in 1950 and lives in Bombay, India. He was unrepresented before the Court. 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 18 July 2000 leaving one child born in 1982. On 17 April 2001 the applicant applied for widows’ benefits. On 1 May 2001 the applicant was informed that his claim had been disallowed. The applicant asked for reconsideration. On 14 February 2002 the matter was reconsidered and the decision remained unchanged.
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 in receipt of child benefit at the time of his claim. He ceased to be eligible for such benefit on 25 December 2001. The applicant has been in receipt of income support since his wife’s death which exceeded the rate of Widowed Mother’s Allowance. Moreover, the applicant’s wife had not paid the required national insurance contributions.
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: 001-68772
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: EUROFINACOM v. FRANCE
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Eurofinacom, is a company formed under French law whose registered office is in Paris. It was represented before the Court by Mr P. de Fontbressin, a member of the Paris Bar. The Government were represented by their Agent, Mr R. Abraham, Director of Legal Affairs at the Ministry of Justice.
The applicant company provided a data-communications service that was accessible by a dedicated terminal (Minitel), under an agreement with France Télécom. The service could be accessed by typing in the code “36-15 ALINE”. It provided messaging and a mailbox system enabling online users to communicate with one another; users would choose a pseudonym (referred to as a “pseudo”) and could also supply a brief description of themselves (“CV”) for consultation by others.
The public prosecutor's office suspected that the service was being used by prostitutes to contact potential clients and ordered a preliminary investigation. The police reported on 30 December 1996 that in the course of their inquiries officers had accessed 36-15 ALINE using the pseudo “AAA”. After consulting the CVs of “Lola massage”, “Claire 37 years old”, “Katy”, “Spanker”, “Bunny rabbit” , “Helena 38 years old”, “YW black s[eeks]”, “Almond eyes”, “Student”, “Katy the First”, “Elodye” and “Male slave” (the report did not state whether the CVs related to prostitution) they sent the following message to some of the correspondents: “terms”. “Lola massage” replied: “My rate is 1,000 francs for a RDV with sublime massage of the entire body Paris 16 Foch for further info your tel? thank you or write to me at Mbx Lola massage”. “Spanker” replied: “1,000”. “Helena 38 years old” replied: “1,200”. In response to a second message enquiring “How much?” “YW black s[eeks]”, replied: “tel dst 1,500”.
On 17 April 1997 the Principal Public Prosecutor's Office lodged an application with the President of the Paris tribunal de grande instance for the appointment of a representative ad litem (mandataire de justice) to represent the company in criminal proceedings (Article 706-43 of the Code of Criminal Procedure). The application was worded as follows:
“The Principal Public Prosecutor ... informs the court of the following:
Eurofinacom S.A.R.L. ... operates a data-communications service called '36-15 ALINE'.
Inquiries into this data-communications service have revealed that it acts as an intermediary between persons engaged in prostitution and their potential clients.
This constitutes the offence of living on immoral earnings with the aggravating circumstance that it was committed against several people, contrary to Articles 225-5, 225-6 (1o) and 225-7 (3o) of the Criminal Code.
Mr Valéry Sourieau, the manager of Eurofinacom S.A.R.L. has therefore been summoned by the public prosecutor's office under the direct committal procedure.
Eurofinacom ... has for the past eighteen months achieved a monthly turnover of approximately 1,720,000 francs from '36-15 ALINE' alone.
It would therefore appear that the offence of living on immoral earnings of which Mr Valéry Sourieau stands accused in his capacity as the de jure representative was committed on behalf of Eurofinacom.
Criminal proceedings may therefore be brought against the company Eurofinacom in accordance with Article 121-2 of the Criminal Code.
However, since the company's de jure representative is himself charged with the same offence, a representative ad litem will need to be appointed to represent Eurofinacom.
For this reason, the President of the Paris tribunal de grande instance is asked to make an order under Articles 121-2 and 225-12 of the Criminal Code and Article 706-43 of the Code of Criminal Procedure appointing a representative ad litem to represent the Eurofinacom company in criminal proceedings in which it will be charged with:
Having in Paris and on the national territory in 1995, 1996 and 1997, in particular on 30 December 1996, and 2, 3 and 7 January 1997, acted as an intermediary between two people, one of whom provided services as a prostitute used or paid for by the other, by making available to those concerned a data-communications service called '36-15 ALINE' which it provided, with the [aggravating] circumstance that it was committed against several people,
contrary to Articles 225-5, 225-6 (1o), 225-7 (3o) and 225-12 of the Criminal Code.”
By an order of 17 April 1997, the President of the Paris tribunal de grande instance appointed Ms “Hélène Da Camara, judicial administrator, to represent Eurofinacom S.A.R.L. in criminal proceedings instituted on a summons by the public prosecutor's office under the direct committal procedure.”
On 28 April and 12 May 1997 the public prosecutor's office summoned the applicant company and its manager, Mr Sourieau, to appear under the direct committal procedure at a hearing before the Criminal Division of the Paris tribunal de grande instance (“the Paris Criminal Court”) on 26 June 1997. They were accused of having, from 1995 to 7 January 1997, acted as an intermediary between two people, one of whom provided services as a prostitute used or paid for by the other, by making available to those concerned a data-communications service 36-15 ALINE which it provided with the [aggravating] circumstance that it was committed against several people.
On 20 May 1997 the applicant company's shareholders resolved at an ordinary general meeting convened on special notice to appoint Mr Jean-Claude Rossignol to represent it in the proceedings and to instruct a lawyer. Mr Rossignol informed the Principal Public Prosecutor of this in a letter of 12 June 1997.
At the hearing on 26 June 1997 counsel for the applicant company informed the Paris Criminal Court that, pursuant to Article 706-43 of the Code of Criminal Procedure, the company had appointed Mr Rossignol to represent it and had duly informed the court. He submitted that the appointment of a representative ad litem to represent the company was “superfluous” and invited the court to accept Mr Rossignol as the sole representative. Noting that the representative ad litem's appointment under Article 706-43 of the Code of Criminal Procedure was “prior in time and valid”, the Paris Criminal Court found that the company was lawfully represented by Ms Da Camara and that it was Mr Rossignol's appointment that was superfluous.
The applicant company was represented in court by a lawyer chosen by Ms Da Camara.
In a judgment of 9 October 1997 the Paris Criminal Court found Mr Sourieau and the applicant company guilty of the following offences: “living on immoral earnings: acting as an intermediary between a person engaged in prostitution and the person employing him or her” and “living on immoral earnings aggravated by the fact that the offence was committed against several people”. It imposed a fine of 300,000 French francs (FRF) on Mr Sourieau and FRF 5,000,000 on the applicant company and ordered them jointly to pay damages of FRF 200,000 to an association that had joined the proceedings as a civil party. It stated in its judgment:
“...
The investigation and in particular the photographs of the connection to the Minitel server 36-15 ALINE and the pages that followed show that, although it is stated that 'pseudos and CVs that are accessible to all users are constantly monitored and those containing a telephone number or messages relating to pornography, prostitution or the incitement of minors to immorality or illegal practices will be immediately disconnected', prostitutes are nevertheless put directly in touch with anyone wishing to reply to the messages.
The subscribers with the telephone numbers which appeared on the 36-15 ALINE server were traced and interviewed by police officers.
[E.S.] stated that she had been engaged in prostitution for more than two years under the pseudonym 'EVA 93' through the intermediary of 36-15 ALINE and posted the message: 'Pretty blonde 38 years old, naughty underwear, 1m 65 – 57 kg – 95 bust'. She said that she had never been disconnected from the server and had noticed that pseudos such as 'WHORE' were not disconnected either.
[C.L.], whose pseudonym is COCO, stated that she posted the same type of message with a view to prostitution and that while she was not permitted to say in her CV that she received customers, 'this was nevertheless understood, as people are not stupid'.
[N.B.], whose pseudonym is LINDA, was working as a prostitute in avenue Victor Hugo when she was told of the Minitel by prostitute friends who said that it could help her to find clients from the comfort of her home. She stated that she had then learnt how to go online, to engage in conversation on 36-15 ALINE and to provide a description of herself: 'brunette, 1m 70, long hair, bust 95 B, 38 waist and 55 kg'. She said that it was 'more comfortable than being on the game in the street'.
[M.B.] (alias CHRISTINA or LYDIA), [N.K.] (alias MATHILDE or ORNELLA), [L.G.], [J.D.] (alias VANESSA, CELIA or JOY) referred to their financial difficulties and their desire to earn money by meeting men through the server. They said that they engaged in occasional prostitution.
Police officers from the Vice Squad discovered a number of wholly unambiguous messages on 36-15 ALINE:
'CV of Lola massage': rate 1,000 francs;
'CV of Bunny rabbit': brunette – long hair, 170 cm, 55 kg, 85 bust, 30 years old, cuddly, mischievous, for moments of togetherness;
'CV of Spanker': exquisite and arousing, spanking for Mr Motivated, 115E bust, tall, brunette, 40 years old, Parisian;
'CV of HELENA' very pretty Italian redhead 38 years old, shaven, sensual and refined, very sexy;
'CV of male slave': 40 year old genuine male slave trained by mistresses and CPL very good practice of submission either alone or with other male or female submissives for an evening or for sessions; genuine, not fantasist PARIS or Paris area.
All these connections indicate that the CVs and messages are manifestly prostitution-related.
Persons wishing to offer their services as prostitutes use a pseudonym, post a CV on the 36-15 ALINE network, open a data-communications mail account in which they receive messages to which they respond with a rate and telephone number and arrange meetings with interested clients.
Evidence of this modus operandi exists in the form of photographs taken by police officers.
Further, a review of previous cases handled by the Vice Squad has revealed that both male and female prostitutes have said that they used the 36-15 ALINE server to offer their services as prostitutes.
In sum, there is ample proof that the 36-15 ALINE server was used in connection with prostitution.
At the hearing Valéry Sourieau did not dispute that he was responsible for monitoring the messaging service to ensure the proper functioning of the service; he said that he supervised the teams of monitors and the pseudos registered on the server and had no hesitation in disconnecting non-compliant CVs. He said in the course of the investigation that he was no fool and was aware that many of the exchanges that took place on 36-15 ALINE involved men and women offering services as prostitutes.
The defendants point to precautionary measures that had been taken, essentially monitoring, as evidence of their good faith and of the lack of mens rea to commit the offence charged.
However, that argument does not stand up to examination when the facts uncovered by the investigation are considered. No warning was issued or account disconnected in response to the simultaneous posting of numerous and, for the most part, wholly unambiguous pseudos, to the detailed CVs indicating measurements and the services on offer, or to the replies to messages setting out rates and telephone numbers.
On the contrary, these facilities enabled clients to find and speak to prostitutes, who in this instance were women.
The second argument advanced by the defendants is that it was impossible for them to intervene directly in the private sphere, the online discussions, without infringing the right to freedom to communicate in private.
... Eurofinacom S.A.R.L., the service provider, undertook to ensure constant monitoring of the service in accordance with Article 5-2 and Appendices 1 and 2 [of its] agreement. Appendix 1 contains a reminder of the main legislative provisions applicable to data communications including those concerning living on immoral earnings.
The interactive data-communications service 36-15 ALINE is governed by Law no. 861067 of 30 September 1986, section 43 of which requires prior notice to be given to the Principal Public Prosecutor's Office of an intention to provide audiovisual-communication services.
The circular issued on 17 February 1988 pursuant to the said section 43 adopts the definition of the notion of audiovisual-communication service.
Thus, audiovisual communication means a message intended for either the public generally or sections of the public, that is to say a group of undifferentiated people whose membership does not depend on considerations based on personal attributes.
Private correspondence means a message solely intended for one or more specific, identifiable individuals or legal entities.
The court notes that in the present case prostitutes use the 36-15 ALINE service to make non-exclusive offers open to anyone wishing to respond who is then given a rate which is uniform at this stage of the exchange.
The exchange or discussion on the server does not acquire the character of private correspondence, owing to the fact that the advertisements and rates are available to all users of the service.
On the other hand, the finalisation of the agreement leads to a private telephone conversation between specific individuals which is covered by the rules of confidentiality.
In these circumstances, it is established that Valéry Sourieau and Eurofinacom S.A.R.L. allowed advertisements to be published without any proper supervision.
A prostitution service involving a number of people developed through the intermediary of the 36-15 ALINE service.
It follows that all the constituent elements of the offence of living on immoral earnings with aggravating circumstances are present and that the charges against the defendants have been made out.
...”
Following a request dated 2 June 1998 by the person the applicant company had named as its representative, the President of the Paris Criminal Court directed on 9 June 1998 that Ms Da Camara's appointment under the order of 17 April 1997 would cease, as “Eurofinacom is now duly represented in the criminal proceedings by Mr Jean-Claude Rossignol”.
The judgment of 9 October 1997 was upheld in its entirety by the Paris Court of Appeal in a judgment of 24 September 1998. The applicant company was represented in the Court of Appeal by a lawyer instructed by Mr Rossignol.
The Court of Appeal dismissed an initial objection by the applicant company that the proceedings were a nullity owing to Mr Rossignol's exclusion from the proceedings in the Criminal Court. The Court of Appeal found that, since the Criminal Court had duly heard the submissions and arguments of counsel chosen by the judicial administrator, the applicant company had been properly represented and had had a fair trial at first instance. An objection by Mr Sourieau that the interception of private communications by the investigators was null and void was dismissed on the grounds that it had not been raised at first instance and could not be raised for the first time on appeal. On the merits, the Court of Appeal held, inter alia:
“...
Mr Sourieau's and Eurofinacom's guilt ... is established by the fact that the relevant messages related to prostitution ... and by the evidence of several female prostitutes who confirmed that they frequently used the '36-15 ALINE' server, as it was a well-known and habitual part of the prostitution network. They even said that it enabled them to avoid soliciting on the street and to select clients more easily.
Mr Sourieau's affirmation that a team working twenty-four hours a day and seven days a week was assigned to monitor messages in order to eliminate those which were contra bonos mores is not accepted. Such affirmations are in total contradiction with the results of the investigation.
Inquiries made by the police services who accessed the server on 12 December 1996, and 2, 3 and 7 January 1997 confirmed that none of the large number of prostitution-related messages were removed. Similarly, none of the prostitutes who used the server said in evidence that they had been 'disconnected' after posting their advertisements and some ... even categorically stated that they had not been. Accordingly, Mr Sourieau has not established good faith on this point.
Likewise, it is not possible to accept Mr Sourieau's argument that he was prevented from directly intervening in online discussions because they were private communications. Referring to the impugned judgment, the Court of Appeal finds, like the court below, that the '36-15 ALINE' server did not constitute a messaging service intended for one or more specific, identifiable persons but a means of audiovisual communication offered to a non-specific and unidentifiable public. The server was accordingly governed by the Law of 30 September 1986, and in particular the provisions relating to the dignity of the human being and the preservation of law and order.
In particular, it was established that the police accessed the server by following the standard procedure available to the public at large and that the connection ended when the two correspondents decided to transform the non-specific audiovisual communication into a personalised exchange on a private telephone line. Accordingly, despite the defendant's denials, it is established that Mr Sourieau knowingly supported an extensive prostitution network from which he made considerable profit.
There is also no doubt that there was a community of interest between Mr Sourieau, Eurofinacom's manager, and the company he ran, as the investigation revealed that Eurofinacom's activity was in fact the alleged criminal activity and that it achieved an estimated turnover between July 1995 and December 1996 of 30,941,878 francs.
...”
The applicant company and Mr Sourieau appealed to the Court of Cassation. They submitted, firstly, that there had been a violation of Article 6 of the Convention in that the trial court had ruled that the applicant company was represented in the proceedings by the representative ad litem appointed by the President of the Paris Criminal Court instead of the person it had appointed to that end. Relying, inter alia, on the same provision, they argued, secondly, that the alleged offence had been “the result of provocation and subterfuge”. Thirdly, they submitted that the offence of living on immoral earnings with aggravating circumstances had not, in the absence of a positive act, been made out in law, as a failure to act or acquiescence did not suffice.
The Court of Cassation (Criminal Division) dismissed the appeal in a judgment of 12 January 2000. With regard to the first ground of appeal, it held:
“...
In dismissing Eurofinacom's application to set aside the proceedings at first instance on the grounds that it should not have been represented by Hélène Da Camara, the Court of Appeal noted that Article 706-43 of the Code of Criminal Procedure had been complied with and that the lawyer chosen by the company's representative had been able to present his observations and arguments at the hearing.
In so doing, the Court of Appeal, which found that the company had been properly represented and assisted in the Criminal Court, applied the law correctly, notwithstanding the superfluous reasoning criticised in the second limb of the ground of appeal.
The first subparagraph of Article 706-43 of the Code of Criminal Procedure provides that when criminal proceedings are brought against a legal entity and its de jure representative is also prosecuted for the same or a related offence, a representative ad litem must be appointed to represent the legal entity in the criminal proceedings in accordance with the final subparagraph of that Article.
...”
The second ground of appeal was dismissed for the following reasons:
“According to the judgment of the Court of Appeal and the judgment of the court below which it upheld, the investigation essentially took the form of questions to persons engaged in prostitution who used the Eurofinacom Minitel server to find clients and the retrieval by the police officers themselves of information from the data communications network.
The Court of Appeal declared Valéry Sourieau's objection that evidence obtained by the police through the interception of data communications should be excluded under Articles 100 et seq. of the Code of Criminal Procedure on the grounds that that provision had not been pleaded in the Criminal Court.
In so doing, the Court of Appeal correctly applied the final subparagraph of Article 385 of the Code of Criminal Procedure.
...”
Lastly, the Criminal Division dismissed the third ground of appeal, holding that that it merely contestedthat had been the subject of adversarial argument, all of which were within the unfettered discretion of the courts below.
Article 121-2 of the Criminal Code lays down that legal entities may be held criminally liable for offences committed on their behalf by their organs or representatives. Such a finding will not preclude criminal liability on the part of individuals who commit the offence or act as accomplices.
As regards the representation of a legal entity that is a defendant in criminal proceedings, Article 706-43 of the Code of Criminal Procedure provides:
“The criminal proceedings shall be instituted against the legal entity acting through its de jure representative at the time the prosecution was brought. The de jure representative shall represent the legal entity at all stages of the proceedings. However, when criminal proceedings are brought against the de jure representative for the same or related offences, he or she may make an application to the president of the tribunal de grande instance for the appointment of a representative ad litem to represent the legal entity.
The legal entity may also be represented by any person who, in accordance with law or the memorandum and articles of association, holds a delegated power to that end.
A person who has been assigned the task of representing the legal entity under the second subparagraph shall inform the court before which the proceedings are pending of his or her identity by registered letter with recorded delivery.
The same rule shall also apply if there is a change of de jure representative while the proceedings are pending.
If there is no one qualified to represent the legal entity in accordance with the conditions set out in this Article, the president of the tribunal de grande instance shall, on an application by the public prosecutor's office, the investigating judge or the civil party, appoint a representative ad litem to represent it.”
In a judgment of 9 December 1997 (Bulletin criminel no. 420), the Criminal Division of the Court of Cassation held: “By virtue of the first subparagraph of Article 706-43 of the Code of Criminal Procedure, if criminal proceedings have been instituted against a legal entity and its de jure representative or the person to whom power has been delegated under subparagraph 2 of the aforementioned provision has also been prosecuted for the same or related offences, a representative ad litem must be appointed to represent the legal entity in the criminal proceedings, in accordance with the procedure set out in the final subparagraph”.
Article 225-5 of the Criminal Code provides:
“Living on immoral earnings shall mean using any means whatsoever:
1º To aid or assist another to engage in prostitution or to protect a person so engaged;
2º To profit from or share the proceeds of another's engagement in prostitution, or to receive an allowance from a person who habitually engages in prostitution;
3º To recruit or procure a person for prostitution, to lead a person into prostitution or to exert pressure to make a person engage in prostitution or continue to do so.
Anyone living on immoral earnings shall be liable to seven years' imprisonment and a fine of 150,000 euros.”
Article 225-6, subparagraph 1o, of the Criminal Code lays down that “anyone who by any means whatsoever ... acts as an intermediary between two persons, one of whom engages in prostitution and the other of whom uses or pays for his or her services” shall be assimilated to a person living on immoral earnings and liable to the penalties laid down by Article 225-5.
Article 225-7, subparagraph 3o, of the Criminal Code adds that the maximum sentence shall be ten years' imprisonment and a fine of 1,500,000 euros for anyone living on the immoral earnings where the offence is committed against several people. Law no. 98-468 of 17 June 1998 (published in the Official Gazette of 18 June 1998) inserted a tenth subparagraph which provides that the same maximum sentence shall apply when the offence of living on immoral earnings has been committed “with the help of a telecommunications network to disseminate messages to a non-specific public”.


ITEMID: 001-88526
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: LAITE v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr Ian Laite, is a British national who was born in 1941 and lives in Wirral. 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 17 December 1992. His claim for widows’ benefits was made on 19 September 2000 and was rejected on 1 November 2000 on the ground that he was not entitled to widows’ benefits because he was not a woman. 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 benefits were 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: 001-100899
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF SZIGETIOVA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 4. The applicant was born in 1964 and lives in Košice.
5. On 4 September 2002 the applicant sought an increase of the maintenance payments from her ex-husband before the Košice I District Court. On 21 July 2005 she complained to the President of the Košice I District Court about undue delays in the proceedings.
6. On 1 August 2005 she was informed that her complaint had been transmitted to the Košice II District Court where the case file had been transferred by a decision of 5 February 2003.
7. On 5 September 2005 the President of the Košice II District Court informed the applicant that her complaint would be dealt with after an expert had returned the case file.
8. On 16 September 2005 the President of the Košice II District Court informed the applicant that the case file concerning the maintenance dispute had been erroneously attached to the file in separate proceedings concerning her ex-husband's contact with their son. The latter proceedings had also been initiated before the Košice I District Court and the case file had been transferred to the Košice II District Court, for reasons of local jurisdiction, by a decision of 2 October 2002. The President of the Košice II District Court noted that the maintenance dispute had not been duly transferred to his court and instructed the judge dealing with the case “to take immediate measures”.
9. In view of the statements of the Presidents of the Košice I and II District Court, on 2 November 2005 the applicant complained of undue delays before the Constitutional Court. The applicant directed her constitutional complaint against the Košice II District Court where, according to the information from the President of the Košice I District Court, the case file had been transferred in 2003. The applicant did not indicate the file number under which the proceedings had been pending before the Košice II District Court as no number had been assigned to the case at that time.
10. On 10 November 2005 the Constitutional Court invited the applicant to indicate the file number of the proceedings before the Košice II District Court. On 11 January 2006 the applicant's representative obtained the requested information and forwarded it by telephone to the Constitutional Court.
11. On 18 January 2006 the Constitutional Court declared the applicant's complaint concerning delays in the proceedings before the Košice II District Court admissible.
12. On 17 February 2006 the President of the Košice II District Court informed the Constitutional Court in writing that the case file concerning the proceedings complained of had been returned (as erroneously attached to another file) to the Košice I District Court on 22 November 2005. The letter further stated that on 30 November 2005 the Košice I District Court had formally re-transferred the case file to the Košice II District Court.
13. At the same time, the applicant unsuccessfully attempted to amend her constitutional complaint as formally directed also against the Košice I District Court.
14. On 15 March 2006 the Constitutional Court found that the applicant's right to a hearing without undue delays had not been violated by the Košice II District Court. The Constitutional Court stated that it was bound by the formulation of the complaint and by its decision on admissibility and could examine the length of proceedings complaint only in respect of the proceedings before the Košice II District Court where the case file had been duly transferred on 30 November 2005. Although the conduct of the Košice I District Court fell outside the scope of the complaint examined by the Constitutional Court, the latter noted that the maintenance proceedings had lasted an unreasonably long time and that undue delay had occurred before the Košice I District Court.
15. On 5 May 2006 the Košice II District Court delivered a judgment which became final on 1 June 2006.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22131
LANGUAGEISOCODE: ENG
RESPONDENT: FRA;DEU
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: TIEMANN v. FRANCE and GERMANY
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Armin Tiemann, is a German national who was born in 1941 and lives in Kirchdorf (Germany). He was represented before the Court by Mr Christofer Lenz, a lawyer practising in Stuttgart (Germany).
On 26 August 1989 the applicant married a French national. The marriage produced a son and a daughter, born in 1990 and 1994 respectively. The applicant and his wife have been living apart since 9 January 1997.
On 13 January 1997 proceedings for the award of parental responsibility were instituted in the Sulingen District Court (Amtsgericht).
On 14 January 1997 the District Court provisionally granted the applicant the right to determine the children’s place of residence while their parents lived apart.
At a hearing in the District Court on 17 February 1997 the children’s mother stated that she had no intention of unlawfully leaving the Federal Republic of Germany with the children.
On 18 February 1997 the District Court consequently revoked its decision of 14 January 1997 and restored the joint exercise of parental responsibility.
On 7 July 1997, without the applicant’s knowledge and against his wishes, the children’s mother removed them from the family home in order to settle with them at her parents’ home in Montoire-sur-le-Loir (France).
On 25 July 1997 the District Court again granted the applicant the right to determine the children’s place of residence and ordered their mother to return them.
On 6 August 1997 the District Court ruled that the mother’s removal of the children to a different country had been wrongful within the meaning of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.
On 28 March 1998 the applicant had the children abducted in Montoire and brought back to him in Germany.
On 27 April 1998 the District Court decided to stay the custody proceedings pending the final decision on an application by the mother for the children’s return.
On 13 May 1998 the District Court dismissed an application by the mother for recognition of an order made on 10 November 1997 by a French court (the Blois tribunal de grande instance) and for the return of the children. The mother appealed against that decision.
On 9 July 1998 the Celle Court of Appeal (Oberlandesgericht) ordered the return of the children to their mother on the basis of the Hague Convention of 25 October 1980.
On 15 July 1998 the applicant lodged a constitutional appeal (Verfassungsbeschwerde) and applied for a stay of execution of the decision of 9 July 1998.
On 16 and 31 July 1998 the Federal Constitutional Court (Bundesverfassungsgericht), sitting as a panel of three judges, allowed the application for a stay of execution, thereby provisionally maintaining the applicant’s home as the children’s place of residence.
On 29 October 1998 the Federal Constitutional Court quashed the decision of 9 July 1998 and remitted the case to the Celle Court of Appeal. It held that the children should have been represented by a guardian in the appeal proceedings. Furthermore, the Court of Appeal had failed to consider the interests of the children in the light of paragraph 1 (b), and of paragraphs 2 and 3 taken together, of Article 13 of the Hague Convention of 25 October 1980. In the Federal Constitutional Court’s view, ordering successive removals of children when first one and then the other parent applied for their return ran counter to the aims of that Convention if the children’s return placed them in an intolerable situation, unless the court concerned found that there were particular facts justifying their return in spite of the risks entailed by a further removal.
On 30 November 1998 the Celle Court of Appeal appointed an expert to assess the state of both parents’ relations with the children, with a view in particular to determining which parent should be awarded custody. The Court of Appeal also appointed a lawyer of the Celle Bar to protect the children’s interests.
On 20 January 1999 the expert submitted his report. In it he concluded that both parents were capable of bringing up the children, although he stressed the good relationship between the applicant and his children. As regards the children’s place of residence, the expert considered that the desire expressed by the applicant’s son to stay with his father could be explained by the fact that the applicant had influenced his son and undermined his image of his mother, thereby provoking a conflict of loyalties. It had emerged from exploratory discussions, however, that the son had pleasant memories of his stay in France, had made friends through leisure activities such as judo, and had got on well with his maternal grandparents. His grandfather had apparently once kicked him, but it had transpired that he had only been teasing him and had not caused any harm. The expert observed that there were significant differences between the parents’ respective approaches to bringing up their children. The mother took great care to set limits for the children, while the applicant adopted a more liberal attitude towards them, especially towards his son, who was used to having his every whim satisfied. The expert considered that such an approach could have a negative effect in the long term, as the son might become intolerant of frustration and might experience problems. In the expert’s opinion, the children’s mother was in a better position to ensure their well-being because she did not work, and if she was ever temporarily unable to look after them, they could be looked after, supervised and supported by the members of her family, whom they had known for a long time. Where young children were concerned, an arrangement of that kind was more beneficial than employing someone to look after them. Having regard, on the one hand, to the applicant’s age and approach to child-raising, and, on the other hand, to the fact that the children’s mother, who did not have a job, was able to devote herself entirely and exclusively to them, the expert expressed the view that the children should be returned to their mother. He considered that the nine months they had previously spent with her – a subjectively long period for them – had enabled them to settle into those new surroundings.
On 5 February 1999 the Court of Appeal decided to confer on the Diepholz Youth Office (Kreisjugendamt) the right to determine the children’s place of residence pending its ruling on the merits. The Youth Office subsequently recommended that the children should live with their father.
On 19 February 1999 the expert followed up his report with comments on objections submitted by the applicant.
On 8 and 22 February 1999 the applicant challenged the president of the relevant division of the Celle Court of Appeal, another judge of that court and a judge of the Sulingen District Court for bias. He accused the Court of Appeal judges of failing to take sufficient account of the Federal Constitutional Court’s decision by failing to draw a distinction between the application for transfer of residence under the Hague Convention of 25 October 1980 and the assessment of the children’s interests, the latter task being the responsibility of the judges who had to determine the interim measures to be taken in respect of the children after the separation of their parents. He further argued that the judges in question had contravened the principle of impartiality to his disadvantage by describing his attitude as uncooperative. Their bias was also evident, in his submission, from the questions they had put to the expert, from their refusal to allow his requests for an adjournment and for a say in the choice of expert, from the delay in serving judicial decisions and from the fact that a “wanted” notice had been issued on account of his failure to attend a hearing.
On 10 March 1999 the Celle Court of Appeal dismissed the challenges as unfounded.
On the same day the applicant applied to the Federal Constitutional Court for a stay of execution of the Celle Court of Appeal’s decision if it ruled in favour of returning the children to their mother in France, pending the Federal Constitutional Court’s decision on the matter.
On 11 March 1999 the Federal Constitutional Court, sitting as a panel of three judges, allowed the application.
On 12 March 1999, having heard evidence from the parents, the children and the expert, the Celle Court of Appeal ordered the return of the children to their mother at her home in France, the State of their habitual residence for the purposes of the Hague Convention of 25 October 1980. It held that the children’s return to their mother was justified under Article 12 of the Convention of 25 October 1980 as their removal to Germany by their father had been wrongful within the meaning of Article 3 of that Convention. Under that provision, the removal of a child was to be considered wrongful where it was in breach of rights of custody attributed to a person, either jointly or alone, under the law of the State in which the child had been habitually resident immediately before the removal, and where at the time of removal those rights were actually being exercised. The Court of Appeal observed that the two children had been habitually resident in France before being removed to Germany on 28 March 1998. At the time of the removal they had been resident in France for almost nine months. They had been living with their mother in a flat in their grandparents’ house in Montoire. They had adapted well to their new surroundings. As a rule, a stay of six months was sufficient for a place of residence to be considered habitual. The fact that the mother had taken the children to France against their father’s wishes did not preclude her home in Montoire being established as their habitual residence. In general, it was important for children to adapt to living conditions in their new place of residence, and that had occurred in the instant case. The Court of Appeal added that contact between the parents remained desirable, and they would have to abate their mutual distrust.
In accordance with Article 14 of the Convention of 25 October 1980, the Court of Appeal took account of the order issued by the Blois tribunal de grande instance on 10 November 1997 in determining whether there had been a wrongful removal, although it did not avail itself of the specific procedures for recognition of that decision, which had ordered the joint exercise of parental responsibility by both parents. The Court of Appeal further held that the conditions laid down in Article 13 § 1 (b) of the Convention of 25 October 1980 were not satisfied in the instant case. By virtue of that provision, the judicial authority of the requested State was not bound to order the return of children if the person opposing that measure established that there was a grave risk that the child’s return would expose him or her to physical or psychological harm or otherwise place him or her in an intolerable situation.
On the basis of the report drawn up by the expert it had appointed and the statements made by the expert at the hearing, the Court of Appeal, in accordance with the wishes of the children’s lawyer, concluded that the return of the children to their mother would be in their interests. It considered that there was no need to order a second expert opinion, since the applicant’s criticisms had merely referred to scientific theories without casting doubt on the expert’s findings, which, in its view, were clear, consistent and well-founded.
On 31 March 1999 the Federal Constitutional Court, sitting as a panel of three judges, decided not to entertain a constitutional appeal lodged by the applicant against that decision.
On 1 April 1999 the mother brought the two children back to France.
On 24 July 1997 the children’s mother instituted divorce proceedings in the Blois tribunal de grande instance.
On 5 August 1997 the family-affairs judge of that court authorised her to live apart from her husband, together with her children, at her home in France.
On 3 September 1997 Blois State Counsel and the applicant applied to the Blois tribunal de grande instance, requesting it to order the immediate return of the children to their home in Germany, pursuant to Article 12 of the Hague Convention of 25 October 1980. The applicant further requested that the Sulingen District Court’s decision of 25 July 1997, provisionally granting the applicant the right to determine where the children should live, be declared enforceable or, at the least, recognised in France.
On 25 September 1997 the family-affairs judge of the Blois tribunal de grande instance refused to order the return of the children to Germany. Although he considered the mother’s removal of the children to have been wrongful, he stated that returning the children to Germany would entail a grave risk for them and would in any case place them in an intolerable situation within the meaning of Article 13 § 1 (b) of the Hague Convention. Referring to the case-law of the Court of Cassation, to the effect that a grave risk or an intolerable situation could also result from a further change in the children’s living conditions, the judge concluded that both the separation of the children from their mother and the separation of the brother and sister from each other would cause an immediate risk of psychological harm, and that the sudden return of the children to Germany would place them in an intolerable situation, regard being had to their tender age (one being three years old and the other six and a half). That situation would be aggravated by the crisis which the couple were undergoing and by the total lack of certainty as to the length of the mother’s separation from her children.
The applicant appealed against that decision.
On 10 November 1997 the family-affairs judge of the Blois tribunal de grande instance issued an order pronouncing the failure of the conciliation process in the divorce proceedings. He decided that parental responsibility should be exercised jointly by the two parents and that the children should be habitually resident with their mother, and granted the father access and staying access, specifying that those rights would not become enforceable until the date on which the order pronouncing the failure of the conciliation process was declared enforceable in Germany.
In a judgment of 10 March 1998 the Orléans Court of Appeal upheld the order of 25 September 1997. Noting that a grave risk of harm or of an intolerable situation within the meaning of Article 13 § 1 (b) of the Hague Convention of 25 October 1980 – cited as justification for retaining children who had been removed – might be entailed by a further change in the children’s living conditions, the Court of Appeal confirmed that separating a three-and-a-half-year-old child from her mother and a brother and sister from each other would cause an immediate risk of psychological harm, and that the sudden return of the children to Germany would place them in an intolerable situation in view of their tender age. It further noted that the mother, who did not work, had always looked after the two children’s everyday needs since their birth and that their return to Germany would entail the end of that state of affairs, especially as the mother’s highly precarious financial situation gave reason to fear that she would be unable to make regular use of the access and staying access to which she would be entitled. The Court of Appeal declared inadmissible the applicant’s application to have the German court’s decision of 25 July 1997 (provisionally granting him the right to determine where the two children should live) recognised or declared enforceable. It also held that that application was ill-founded.
The applicant appealed on points of law against that judgment within the statutory period of two months. He argued in particular that, on the basis of the Hague Convention of 25 October 1980, the judge should have acted swiftly to end the patently illegal situation resulting from the children’s wrongful removal and could only have refused their immediate return if they faced a grave risk, the assessment of which was quite distinct from the assessment of the children’s best interests with regard to a custody measure. In basing its decision on the children’s interest in staying with their mother, the Court of Appeal had, in the applicant’s submission, acted as a court of first instance and exceeded its jurisdiction, in breach of Articles 12, 13 and 19 of the Hague Convention of 25 October 1980.
The applicant further submitted that the immediate return of a wrongfully removed child, even one of tender age, to live with his lawful father in the same conditions as had existed before the wrongful removal could not in any circumstances be regarded as constituting an intolerable situation within the meaning of Article 3 of the Hague Convention.
On 28 March 1998 the applicant had the children abducted in Montoire and brought back to him in Germany. The Blois investigating judge subsequently began a criminal investigation in respect of the applicant for abduction of a minor by a gang and criminal conspiracy.
On 22 June 1999 the Court of Cassation dismissed the applicant’s appeal on points of law.
On 17 June 1999 the children’s mother applied to have the father’s access and staying access revoked as a result of the children’s abduction.
In an order of 30 June 1999 the Blois tribunal de grande instance suspended the applicant’s access and staying access in respect of his daughter during the summer of 1999 and granted him access and staying access in respect of his son.
It appears from the file that, notwithstanding the order of 30 June 1999, the two children spent three weeks of their summer holidays at their father’s home.
On 3 October 1999 the applicant learned from his son that the children’s mother was planning to move to Paris, where she had found a job.
On an unspecified date the applicant applied to the Blois tribunal de grande instance to have the children’s place of residence transferred to his home in Germany. He argued that their mother did not have sufficient time available to ensure the children’s day-to-day upbringing and to give them the care and attention they needed.
On 13 January 2000 the Blois tribunal de grande instance dismissed that application. It pointed out that the children’s return to France had been ordered by the Celle Court of Appeal in the light of the various findings set out in the expert’s psychological report. It observed that the mother’s physical availability, which had been taken into account at the time, had not been the sole factor determining where the children should live. After the applicant had abducted the children, their mother had been unable to see them for a year as a result of his unreasonable attitude. In that context, the children had suffered severe psychological trauma. Since they had returned to their mother, she had found a job, a fact for which she could not be reproached. Although she was now in employment, she had managed, like any other working woman, to organise her children’s everyday lives satisfactorily; the children appeared to be thriving in her company. They attended schools not far from their home and their mother worked in the same area. There was nothing in the file to indicate that the mother’s new circumstances were detrimental to the children or were responsible for the son’s difficulties at school or the daughter’s psychological problems. Those problems had existed before and were the consequence not of the mother’s personal situation but of the conflict between the parents, which was still extremely intense. Noting, however, that since the summer holidays the family situation had calmed down considerably, the court granted the applicant access and staying access in respect of both children, subject to the conditions laid down in the order of 10 November 1997 pronouncing the failure of the conciliation process. It also set the amount of maintenance and the applicant’s contribution to his children’s upkeep and education.
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 12
“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.”
Article 13
“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:
(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.”
Article 19
“A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.”